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Section 1(1) of the Civil Partnership Act (CPA) 2004 defines a civil partnership as a relationship between two people of the same sex (a) which is formed when they register as civil partners of each other - (i) in England or Wales Under section 2(1) of CPA two people are to be regarded as having registered as civil partners when they have signed the civil partnership register in the presence of each other, a civil partnership registrar and two witnesses. By section 3(1) of CPA, two people are not eligible to register as civil partners if they are not of the same sex. CPA was therefore explicitly and emphatically designed for same sex couples only. The obvious reason for this was that, at the time of the enactment of CPA, the government and Parliament did not consider it appropriate to extend the institution of marriage to same sex couples but recognised that access to responsibilities and rights akin to those which arise on marriage should be available to same sex couples who wished to commit to each other in the way married couples do. All of that changed with the enactment of the Marriage (Same Sex Couples) Act 2013 (MSSCA). This made the marriage of same sex couples lawful from the date of coming into force of the legislation - 13 March 2014. From that date onwards, same sex couples who marry enjoy the same rights, benefits and entitlements as do married heterosexual couples. They also share the responsibilities that marriage brings. CPA was not repealed when MSSCA was enacted. Consequently, same sex couples have a choice. They can decide to have a civil partnership or to marry. That choice was not - and is not - available to heterosexual couples. Under the law as it currently stands, they can only gain access to the rights, responsibilities, benefits and entitlements that marriage brings by getting married. This circumstance, it is now agreed, brought about an inequality of treatment between same sex and heterosexual couples. It is also now accepted by the respondent that this manifest inequality of treatment engages article 14 - prohibition of discrimination - read in conjunction with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention or ECHR) - the right to respect for private life. It is also accepted by the respondent Secretary of State that the inequality of treatment of heterosexual couples requires to be justified from the date of its inception, ie the coming into force of MSSCA. The principal issue in this appeal, therefore, is whether justification of that inequality includes consideration of the period of time during which, the government claims, it is necessary to investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination. The respondent claims that justification does include an evaluation of the time needed to decide how the inequality of treatment can best be removed. The appellants argue that this relates solely to remedy, and is not relevant to the question of justification. Alternatively, they submit that, on the facts of this case, it is not proportionate to continue to deny civil partnerships to them in order to achieve the aim proffered by the government viz affording time thoroughly to investigate whether to abolish civil partnerships altogether; to extend them to different sex couples; or to phase them out. The appellants therefore seek a declaration that sections 1 and 3 of CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) infringe their rights under article 14 taken with article 8 of the Convention. They also seek a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA). Factual background The appellants are a different sex couple who wish to enter into a legally recognised relationship. They have a conscientious objection to marriage. They want to have a civil partnership with one another. They have been in a long-term relationship and have had two children together. It is not disputed that their unwillingness to marry is based on genuine conviction. Nor is it disputed that their wish to have their relationship legally recognised is other than entirely authentic. When Parliament enacted MSSCA it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though, we were told, it was recognised at that time that this would bring about an inequality of treatment between same sex partners and those of different sexes and that this inequality was based on the difference of sexual orientation of the two groups. Rather, it was decided that further investigations were required. Some investigations had been carried out in 2012 and further inquiries were made in 2014. In the governments estimation the investigations did not indicate that significant numbers of different sex couples wished to enter civil partnerships. It was judged, however, that the review and consultation which comprised the investigations in 2014 were inconclusive as to how to proceed. The government therefore concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same sex marriages had taken root. On 21 October 2015 Tim Loughton MP introduced a Private Members Bill which proposed extension of civil partnerships to different sex couples. That Bill did not receive the requisite support and did not progress. A second Bill met the same fate in 2016. Mr Loughton introduced another Bill, entitled Civil Partnership, Marriages and Deaths Registration etc Bill in the 2017-2019 session. The Bill received its First Reading on 19 July 2017 and its Second Reading on 2 February 2018. It proposed that different sex couples should be permitted to enter civil partnerships. The government felt unable to support that proposal but in advance of the Second Reading it agreed the terms of an amendment with Mr Loughton and a joint amendment was submitted to Parliamentary authorities immediately after the Second Reading. The amendment is in these terms: (1) The Secretary of State must make arrangements for a report to be prepared - (a) assessing how the law ought to be changed to bring about equality between same sex couples and other couples in terms of their future ability or otherwise to form civil partnerships, and (b) aim. setting out the Government's plans for achieving that (2) The arrangements must provide for public consultation. (3) The Secretary of State must lay the report before Parliament. In May 2018, the government published a command paper in which it recorded that the consultations in 2012 and 2014 had failed to produce a consensus as to how, or indeed if, the legal position as to civil partnerships should change. Those consultations had posited three possibilities: that civil partnerships should be abolished; that they should be closed to new entrants; or that they should be extended to allow different sex couples to register a civil partnership. The command paper stated that, because of the lack of consensus, the government decided not to make any changes to civil partnerships at the time. This is significant. The government knew that it was perpetrating unequal treatment by the introduction of MSSCA but it decided to take no action because of what it perceived to be equivocal results from its consultations. In the 2018 command paper the government announced that it was looking at available data on the take-up of civil partnerships and marriage amongst same sex couples. It suggested that if demand for civil partnerships was low, the government might consider abolishing or phasing them out. If, on the other hand, there remained a significant demand for civil partnerships, this might indicate that the institution still has relevance. It concluded, therefore, that it was proportionate to obtain more data in order to decide that there was a need to preserve civil partnerships. It considered that by September 2019 it should have sufficient evidence to make a judgment about the demand for the institution. Thereafter, consultation on the future implementation of proposals for civil partnerships would take place. This would happen at the earliest in 2020. No indication was given as to how long the consultation period would last nor as to the likely date of any legislation that might be considered necessary. The proceedings The appellants sought judicial review of the governments failure to extend civil partnerships to different sex couples, arguing that the introduction of MSSCA rendered the provisions of CPA which confined the availability of civil partnerships to same sex couples (sections 1 and 3) incompatible with article 8 of ECHR, when read in conjunction with article 14. That application was dismissed by Andrews J in a judgment delivered on 29 January 2016 ([2016] EWHC 128 (Admin)). The respondent had argued that article 8 was not engaged and that argument was accepted by the judge. At para 84 of her judgment she said that, The difference in treatment complained of does not infringe a personal interest close to the core of the right to family life, still less the right to private life protected by article 8.The judge held, however, that even if article 8 was engaged, there was sufficient objective justification for maintaining the disparity [between same sex and different sex couples] in the short term whilst the Government takes stock of the impact of the 2013 Act on civil partnerships - para 71 of the judgment. Before the Court of Appeal (Arden LJ, Beatson LJ and Briggs LJ - [2017] EWCA Civ 81; [2018] QB 519) the argument that the appellants case did not come within the ambit of article 8 was again advanced by the respondent. It was unanimously rejected (and has not been renewed before this court). By a majority (Beatson and Briggs LJJ), the Court of Appeal held that the interference with the appellants rights under article 8, read together with article 14 was, at least for the time being, justified. At para 158, Beatson LJ said: In my view, at present, the Secretary of States position is objectively justified. The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. At the hearing the Secretary of States approach was described as a wait and see approach, although it would be more accurate to describe it as a wait and evaluate approach. Whatever term is used to describe the approach, it would not have been available to the Secretary of State prior to the enactment and coming into force of the 2013 Act. This is because it would not have been possible at that time to determine how many people would continue to enter into civil partnerships or want to do so because they share the appellants sincere objections to marriage. The relevant start date for consideration is thus 13 March 2014 when the provisions extending marriage to same sex couples came into force. At para 173, Briggs LJ said: I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Governments slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of States current policy of wait and evaluate as a disproportionate response. Although she found that the interference with the appellants article 8 and article 14 rights was not justified (because it was not proportionate), Arden LJ considered that it pursued a legitimate aim - para 105, where she said that the state had the option to eliminate the discrimination in any way it sees fit and therefore must be entitled to some time to make its choice. The question whether the legislation pursued a legitimate aim occupied centre field on the hearing of the appeal before this court. In particular, the argument focused on the question whether the legitimate aim required to be intrinsically connected to the unequal treatment or whether it was enough that the governments aim was to take the time necessary to decide which form of removal of the discrimination was most appropriate. The Convention rights Article 14 of ECHR provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any of a number of specified grounds (including sex, race or colour) and other status. It is accepted that sexual orientation qualifies as a ground on which discrimination under article 14 is forbidden - Salgueiro Da Silva Mouta v Portugal (1999) 31 EHRR 47 at para 28. Article 14 does not enshrine a freestanding right to freedom from discrimination - see Petrovic v Austria (1998) 33 EHRR 14. It prohibits discrimination in the enjoyment of the Convention rights. It is now well settled, therefore, that, to have recourse to article 14, the complained of discrimination must come within the ambit of another Convention right. The ECHR right within whose ambit the appellants claim to come is article 8 which provides: Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Before Andrews J and the Court of Appeal it had been submitted that an adverse effect in relation to article 8 had to be demonstrated in order for an avowed infringement to come within its scope or ambit. Counsel for the respondent did not seek so to argue before this court. They were right not to do so. Recent case law from the European Court of Human Rights (ECtHR) makes it clear that no detrimental effect need be established - see, for instance, Schalk and Kopf v Austria (2010) 53 EHRR 20; Vallianatos v Greece (2013) 59 EHRR 12; and Oliari v Italy (2015) 65 EHRR 26. In particular, in Vallianatos ECtHR found that the introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention (paras 80-92). It is therefore now accepted that access to civil partnerships falls within the ambit of article 8; that there is a difference in treatment between same sex couples and different sex couples in relation to the availability of civil partnerships; that this difference in treatment is on the ground of sexual orientation, a ground falling within article 14; and that the appellants are in an analogous position to a same sex couple who wish to enter into a civil partnership. In these circumstances, the only basis on which the respondent can escape a finding that there has been an infringement of the appellants article 14 rights is by showing that the unequal treatment is justified - Ghaidan v Godin-Mendoza [2004] 2 AC 557, per Baroness Hale at para 130. Justification - the arguments On the question of justification, Ms Monaghan QC for the appellants advanced five propositions: 1. The burden of proving justification is on the respondent: R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, per Lord Wilson at para 44 and Lady Hale at para 61; 2. It is not the scheme as a whole which must be justified but its discriminatory effect: A v Secretary of State for the Home Department [2005] 2 AC 68 per Lord Bingham at para 68 and AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 per Baroness Hale at para 38; 3. Where the difference in treatment is based on sexual orientation, a court must apply strict scrutiny to the assessment of any asserted justification: particularly convincing and weighty reasons to justify it are required - EB v France (2008) 47 EHRR 21, at para 91 and Karner v Austria (2003) 38 EHRR 24 at para 37; 4. The conventional four-stage test of proportionality (as outlined in cases such as Bank Mellat v HM Treasury (No 2) [2014] AC 700 and R (Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening) [2015] 1 WLR 3820, at para 33) should be applied; and 5. In cases involving discrimination on the grounds of sexual orientation, to be proportionate, the measure must not only be suitable in principle to achieve the avowed aim, it must also be shown that it was necessary to exclude those of the specific sexual orientation from the scope of the application of the provision (Vallianatos at para 85). For the respondent, Mr Eadie QC did not take particular issue with any of these propositions. He submitted, however, that the government wanted to have a better sense of how civil partnerships would come to be regarded after same sex marriage became possible, before taking a final decision on their future. This was, he claimed, a legitimate aim. Moreover, it required to be considered in its historical context. Between 2005 (on the coming into force of CPA) and 2014 (when MSSCA came into force) there was no question of discrimination between same sex and different sex couples. Both had access to all the rights, entitlements and responsibilities that marriage entailed. The only difference was that the gateways to those entitlements etc were differently labelled (although that is not quite how Mr Eadie put it). Counsel emphasised that the various items of legislation were the product of evolution in societal values and standards; the executives and Parliaments consideration of those changes; and the measured response of the legislature to the conclusions that they had reached about them. (Again, I acknowledge that this is a paraphrase, rather than a verbatim rendition, of Mr Eadies formulation of the argument). The respondents defence of the appeal therefore proceeded principally on two related but distinct strands. The first was that changes in the law in this sensitive area of social policy had been incremental. CPA had been introduced as a reaction to perceived changes in social attitudes and to address the increasingly recognised anomaly that same sex couples did not have the opportunity which different sex couples had of legal recognition of their commitment to each other, with all the benefits that flowed from such commitment. At the time CPA was enacted, it was judged by the government and Parliament that society as a whole in the United Kingdom was not ready to contemplate extending the institution of marriage to same sex couples. It is not disputed that this was a judgment that they were entitled to make. The second strand of the respondents argument can be described in the following way: when in 2013 it was decided that same sex couples should be allowed to marry, the government and Parliament were presented with a choice. Should they do away with civil partnerships for same sex couples or should they be retained? On one view, they should be abolished. After all, same sex couples were being placed in precisely the equivalent position as different sex couples. And, incidentally, in none of the countries of the Council of Europe where civil partnerships for same sex couples were transformed to marriage entitlement, had the civil partnership institution been maintained. Rather than take that step, so says the respondent, the government and Parliament chose a sensible course of investigating whether there was a case for preserving the institution of civil partnership. After all, some same sex couples might not wish to marry but to remain, or become, civil partners. And, incidentally, a period of reflection and inquiry would allow a decision to be made on whether different sex couples should be allowed to avail of civil partnerships. Momentous decisions of this type need, the respondent says, time for proper inquiry and consideration. Requiring that time to be available while assessment of the options was taking place is a legitimate aim, it is claimed. It is legitimate, therefore, to perpetuate the acknowledged inequality of treatment between the two groups, since that inequality is going to be eliminated one way or another in due course. That course also fulfils, the respondent argues, the other requirements of proportionality. Discussion of justification generally In Schalk and Kopf the applicants were a same sex couple. They complained that Austrian law, which prescribed that the institution of marriage was available only to different sex couples, discriminated against them. ECtHR held (by four votes to three) that there had been no violation of article 14, taken together with article 8. The court held, however, that same sex couples were in a relevantly similar situation to a different sex couple as regards their need for legal recognition and protection of their relationship - para 99. At the time that they lodged their application, there was no possibility of recognition of their relationship under Austrian law. That changed with the coming into force of the Registered Partnership Act on 1 January 2010. The court had to examine whether Austria should have provided a means of legal recognition of their partnership before that Act came into force. In para 105 of its judgment the court noted that there was a growing European consensus about the recognition of same sex couples but that there was not yet a majority of states providing for legal recognition of same sex partnerships. It concluded, therefore, that the area in question must be regarded as one of the evolving rights with no established consensus, where states must enjoy a margin of appreciation in the timing of the introduction of legislative changes. The respondent relied on this decision as being an example of the many occasions on which the ECtHR has held that, in terms of timing of legislative change to recognise different forms of relationship, a wide margin of appreciation is appropriate. That was so, Mr Eadie argued, even where there had been differential treatment on grounds of sexual orientation for some time. He sought to draw an analogy between the Schalk and Kopf case and that of the appellants, by suggesting that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur. I do not accept that argument. In the first place, the approach of the ECtHR to the question of what margin of appreciation member states should be accorded is not mirrored by the exercise which a national court is required to carry out in deciding whether an interference with a Convention right is justified. As Lady Hale said In re G (Adoption: Unmarried Couple) [2009] 1 AC 173, para 118: it is clear that the doctrine of the margin of appreciation as applied in Strasbourg has no application in domestic law. The Strasbourg court will allow a certain freedom of action to member states, which may mean that the same case will be answered differently in different states (or even in different legal systems within the same state). This is particularly so when dealing with questions of justification, whether for interference in one of the qualified rights, or for a difference in treatment under article 14. National authorities are better able than Strasbourg to assess what restrictions are necessary in the democratic societies they serve. So to that extent the judgment must be one for the national authorities. It follows that a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out. It cannot avoid that obligation by reference to a margin of appreciation to be allowed the government or Parliament, (at least not in the sense that the expression has been used by ECtHR). The court may, of course, decide that a measure of latitude should be permitted in appropriate cases. Before Andrews J the respondent had relied on the well-known statement of Lord Hope in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 at 381B where he said: difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. It was therefore suggested to Andrews J that since the decision on the timing of legislation to extend or abolish civil partnerships lay firmly in the field of social policy, the court should show an appropriate degree of reticence in deciding whether the unequal treatment between same- and different sex couples was justified. That argument was repeated in this court. Mr Eadie relied on the decision of the House of Lords in M v Secretary of State for Work and Pensions [2006] 2 AC 91. In that case M was the divorced mother of two children who spent most of the week with their father, Ms former husband. She contributed to their maintenance under the Child Support Act 1991. She lived with a partner of the same sex. In calculating the amount of her child support contribution according to regulations made under the 1991 Act, Ms partners contribution to their joint housing costs was treated as reducing Ms deductible housing costs whereas if she had been living with a man his contribution to the mortgage would have been treated as part of hers so that her weekly child support payment would have been smaller. She argued that the assessment of her child support contributions engaged her rights under article 8 and Article 1 of the First Protocol to ECHR, and that she had suffered discrimination in her enjoyment of those rights contrary to article 14. By a majority, the House of Lords rejected Ms arguments. Mr Eadie placed particular emphasis on the statement of Lord Mance at para 153, where he said: Because of the front-line importance of a home, the Strasbourg and United Kingdom courts have been active at a relatively early stage to eliminate differences in treatment which were evidently unfair. The area of law with which the House is concerned is not so front-line. It is one where there are swings and roundabouts, advantages and disadvantages, for same sex couples in achieving complete equality of treatment. There are many allied areas of legislation that used similar terminology and required close attention, to achieve coherent, comprehensive reform. It is an area in relation to which Parliament and the democratically elected government should be recognised as enjoying a limited margin of discretion, regarding the stage of development of social attitudes, when and how fast to act, how far consultation was required and what form any appropriate legislative changes should take. In as much as it can be suggested that what Lord Mance described as a margin of discretion is analogous to the margin of appreciation applied by the Strasbourg court, it must be noted that, even on the supranational plane, the margin in cases where distinctions are made on the ground of sexual orientation is narrow - Vallianatos at paras 84 and 85; and Paji v Croatia (2016) (Application no 68453/13) para 59. The margin of discretion available to the government and Parliament in this instance, if it exists at all, must be commensurately narrow. Moreover, as Ms Monaghan has submitted (see para 20.3 above), where the difference in treatment is based on sexual orientation, a court must apply strict scrutiny to the assessment of any asserted justification and particularly convincing and weighty reasons to justify it are required. In this context, it is significant that the government consciously decided that it would not extend civil partnerships to different sex couples, at the time that it introduced MSSCA. And, as Andrews J observed in para 65 of her judgment, quoting Mr Squires (who then appeared on behalf of the respondent), the government had not only reached that definite conclusion, it elected to carry out a review before deciding what, if anything, it should do. Indeed, when, in its estimation, that review proved inconclusive, the government decided to wait for a time until further hard evidence was available to enable it to take a considered view as to what to do. In light of what we were told was the governments awareness that the effect of introducing MSSCA was inequality between same- and different sex couples, this displayed, at best, an attitude of some insouciance. Andrews J rejected the suggestion that the present case was analogous to Vallianatos, stating, at para 71 of her judgment that it is far closer to Schalk, in which there was recognition by the ECtHR that a member state should be afforded a relatively generous leeway as to the timing of introducing legislative changes in areas of social policy where there is no clear consensus among member states. I do not agree that the situation of the appellants is close to that of Schalk and Kopf or that some analogies with Vallianatos cannot be drawn. Indeed, in my view, the case of Schalk and Kopf provides an obvious contrast to the circumstances of the present appeal. In that case the enactment of the Registered Partnership Act was the product of evolving societal acceptance of the need to provide some legal recognition of same sex partnerships. Here the inequality between same sex and different sex couples is the creature of Parliament. In one instance (the Registered Partnership Act in the Schalk and Kopf case), one can understand that the timing by the legislature of a measure to reflect the developing changes in attitude should be considered to fall within the governments margin of appreciation. In the case of MSSCA, however, it was Parliament itself that brought about an inequality immediately on the coming into force of the Act, where none had previously existed. The redressing by the legislature of an imbalance which it has come to recognise is one thing; the creation of inequality quite another. To be allowed time to reflect on what should be done when one is considering how to deal with an evolving societal attitude is reasonable and understandable. But to create a situation of inequality and then ask for the indulgence of time - in this case several years - as to how that inequality is to be cured is, to say the least, less obviously deserving of a margin of discretion. In Vallianatos, most of the applicants were in established same sex relationships. In November 2008 the Civil Unions Law came into force in Greece. It created civil unions as an official form of partnership other than marriage. Such unions could only be entered by two adults of different sex. The applicants claimed that the failure to make civil unions available to same sex couples breached their rights under article 14, taken in conjunction with article 8. The government claimed that the restriction of civil unions to different sex couples was to enhance the legal protection of children born outside marriage and indirectly to strengthen the institution of marriage. At para 85 of its judgment the court said: In cases in which the margin of appreciation afforded to states is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require the measure chosen to be suitable in principle for achievement of the aim sought. It must also be shown that it was necessary, in order to achieve that aim, to exclude certain categories of people - in this instance persons living in a homosexual relationship Applying that approach to the present case, it is for the government and Parliament to show that it was necessary, in order to achieve the aim of having time to consider what to do about the difference in treatment between same sex and different sex couples brought about by MSSCA, to exclude different sex couples from CPA. One can understand why the government might have wished to maintain the status quo while considering various options. But that is a far cry from saying that it was necessary to exclude different sex couples from the institution of civil partnership. It appears to me, therefore, that some, albeit not perfect, analogy can be drawn between Vallianatos and the present case. In Vallianatos same sex couples were excluded from civil unions. In this instance, different sex couples are being denied the range of choice available to same sex couples. In the present case, of course, as the respondent has been at pains to point out, the inequality of treatment arose because of the enlarging of options for same sex couples. It is also observed that the appellants do not suggest that before the coming into force of MSSCA, there was an interference with their article 8 rights, when read together with article 14. But this is nothing to the point. The government and Parliament must be taken to have realised that, when MSSCA came into force, an inequality of treatment would inevitably arise. For the reasons given earlier, one must assume that they did not recognise that that inequality would engage article 8. But, again, that is not relevant. What must now be shown is that it was necessary to exclude different sex couples from civil partnerships for an indefinite period, while inquiries, consultations and surveys were conducted and a decision based on these could be made. I consider that that necessity has not been established. Legitimate aim The four-stage test designed to establish whether an interference with a qualified Convention right can be justified is now well-established. The test and its four stages were conveniently summarised by Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45. They are (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? (See also Lord Reed at para 75 of Bank Mellat v HM Treasury (No 2) [2014] AC 700 and Lord Sumption in the same case at para 20). The legitimate aim articulated by the respondent in the present appeal is the need to have time to assemble sufficient information to allow a confident decision to be made about the future of civil partnerships. But, as Lord Bingham stated in para 68 of A v Secretary of State for the Home Department (para 20.2 above), [w]hat has to be justified is not the measure in issue but the difference in treatment between one person or group and another. To be legitimate, therefore, the aim must address the perpetration of the unequal treatment, or, as Ms Monaghan put it, the aim must be intrinsically linked to the discriminatory treatment. In this case it does not and is not. The respondent does not seek to justify the difference in treatment between same sex and different sex couples. To the contrary, it accepts that that difference cannot be justified. What it seeks is tolerance of the discrimination while it sorts out how to deal with it. That cannot be characterised as a legitimate aim. In reaching its conclusion that a wait and see (or, as Beatson LJ called it, a wait and evaluate) policy amounted to a legitimate aim, the Court of Appeal relied on the decision of ECtHR in Walden v Liechtenstein (Application No 33916/96) (unreported, 16 March 2000). In that case the applicant was a pensioner who complained that calculation of the joint pension due to himself and his wife by reference only to his own contribution record discriminated unfairly against couples where the wife had a better contribution record than the husband. A new law, correcting this imbalance was introduced on 1 January 1997. (In May 1996 the State (Constitutional) Court had found the law to be unconstitutional but refused to set it aside as it would have been disruptive and contrary to good administration.) The applicant complained that, until the new law had come into force, his Convention rights had been violated. The Strasbourg court agreed with the domestic court that the previous law had infringed the applicants rights under article 14 taken with Article 1 of Protocol 1, but that the refusal to quash the discriminatory law was equivalent to a stay. The temporary preservation of the offending law served the legitimate aim of maintaining legal certainty, and the period of just over six months to rectify the position was proportionate. This decision was described by Lord Hoffmann in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681 as puzzling - para 62. Hooper concerned benefits under the Social Security Contributions and Benefits Act 1992 which were payable to widows, but not to widowers. The Welfare Reform and Pensions Act 1999 amended the 1992 Act so as to provide survivors benefits payable to both sexes on the death of their spouses with effect from 9 April 2001, whilst preserving existing rights. The widower claimants alleged a breach of article 14 taken with article 8 for the period between the coming into force of the Human Rights Act 1998 in October 2000 and the coming into effect of the 1999 Act during which period they did not receive survivors benefits. Although the claimants appeal was dismissed on other grounds, the House of Lords rejected the argument based on the Walden decision, Lord Hoffmann observing at para 62: I can quite understand that if one has a form of discrimination which was historically justified but, with changes in society, has gradually lost its justification, a period of consultation, drafting and debate must be included in the time which the legislature may reasonably consider appropriate for making a change. Up to the point at which that time is exceeded, there is no violation of a Convention right. But there is no suggestion in the report of Walden v Liechtenstein that the discrimination between married couples was ever justified and I find it hard to see why there was no violation of Convention rights as long as the old law remained in place. It is clear from this passage that Lord Hoffmann rejected the notion that an otherwise unjustified discriminatory measure can be justified by a need for a period to change the law. The present case does not involve a form of discrimination that was historically justified but has gradually lost its justification. The exact reverse is the case here. A new form of discrimination was introduced by the coming into force of MSSCA. There was, therefore, in the words of Lord Hoffmann, no reason to conclude that this discrimination was ever justified. Rational connection If the aim of the government and Parliament could properly be described as legitimate, I accept that there would be a rational connection between the aim and the delay in addressing the discrimination. Less intrusive means It is accepted by all that, before MSSCA came into force, there was no discrimination against same sex or different sex groups. Since Parliament and the government are to be taken as having realised that discrimination would begin with the Act taking effect, it seems to me that at least two options were available. First, its introduction could have been deferred until the researches which are now deemed necessary had been conducted. Secondly, the government could have extended the institution of civil partnerships to different sex couples until those researches had been completed. (A third, but admittedly less palatable, option would have been to suspend the availability of civil partnerships to same sex couples, while the inquiries were carried out.) Each of these options would have allowed the aim to be pursued with less, indeed no, discriminatory impact. In the Court of Appeal, Briggs LJ suggested that the second of the options outlined above was a practicable impossibility but it is not clear on what material this conclusion was based. One can certainly recognise that it would not be a particularly attractive proposition to introduce civil partnerships for different sex couples as an interim measure, if ultimately, they were to be abolished altogether but that does not make that course impossible as a matter of practicability. I should make it unequivocally clear that the government had to eliminate the inequality of treatment immediately. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different sex couples. If the government had chosen one of these options, it might have been theoretically possible to then assemble information which could have influenced its longer term decision as to what to do with the institution of civil partnerships. But this does not derogate from the central finding that taking time to evaluate whether to abolish or extend could never amount to a legitimate aim for the continuance of the discrimination. The legitimate aim must be connected to the justification for discrimination and, plainly, time for evaluation does not sound on that. It cannot be a legitimate aim for continuing to discriminate. Since the less intrusive means stage of the proportionality exercise did not feature to any significant extent in oral argument and as it is unnecessary for me to reach a final view in order to dispose of the appeal, I say nothing more on the subject. A fair balance If the interference with the appellants rights could be regarded as being in pursuit of a legitimate aim, I would have no hesitation in concluding that a fair balance between their rights and the interests of the community has not been struck. The point at which the now admitted discrimination will come to an end is still not in sight. The interests of the community in denying those different sex couples who have a genuine objection to being married the opportunity to enter a civil partnership are unspecified and not easy to envisage. In contrast, the denial of those rights for an indefinite period may have far-reaching consequences for those who wish to avail of them - and who are entitled to assert them - now. As Briggs LJ observed in the Court of Appeal, some couples in the appellants position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. Moreover, undertaking research with people who are current civil partners to understand their views on civil partnership and marriage, and their future intentions and preferences - (command paper para 20) is, at best, of dubious relevance to the question of whether the continuing discrimination against different sex couples can be defended. Given that further inquiries are said to be necessary in order to decide how to eliminate the unequal treatment suffered by different sex couples, the governments investigations should surely have been geared to determining the extent of demand for civil partnerships among those of different genders who had a settled and authentic objection to being married. Institutional competence This court was encouraged to refrain from making a declaration of incompatibility because, it was said, the decision not to take action about extending or abolishing civil partnerships was one which fell squarely within the field of sensitive social policy which the democratically-elected legislature was pre- eminently suited to make. That argument has significantly less force if the decision not to take action at present does not pursue a legitimate aim but it must nevertheless be considered for what principled basis it may have. The starting point is that the court is not obliged to make a declaration of incompatibility when it finds that a particular provision is not compatible with a Convention right. Section 4(2) of HRA provides that if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. The provision clearly contemplates that there will be circumstances in which the court considers that an item of primary legislation is not compatible with a Convention right but that it is not appropriate to have recourse to the section 4(2) power. The circumstances in which such self-restraint should be exercised have not been comprehensively catalogued. This is understandable. Different considerations may favour reticence. Others may call for a declaration to be made. An obvious example where reticence was considered appropriate was the case of R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657 where what was at stake was the compatibility of section 2 of the Suicide Act 1961 (which makes encouraging or assisting a suicide a criminal offence) with article 8 of the Convention. At the time of this courts decision, Parliament was due to debate the issues arising in the appeal in the context of the Assisted Dying Bill introduced by Lord Falconer into the House of Lords on 5 June 2014. It was argued that the court should defer expressing any final view of its own regarding the compatibility of section 2 with article 8 until Parliament had first considered that Bill. A clear majority of the nine-member panel concluded that the issue was one that lay within the institutional competence of the Court, but, of that majority, only two considered that a declaration of incompatibility should be made. The others decided that, as Parliament was on the point of considering Lord Falconers Bill it would be premature for the court to consider making a declaration of incompatibility. Parliament should first have the opportunity to consider the issues for itself. I do not consider that Nicklinson sets a precedent for reticence in this case. The amendment to Mr Loughtons Bill which the government has agreed does no more than formalise the consultation process to which it was already committed. It does not herald any imminent change in the law to remove the admitted inequality of treatment. Even if it did, this would not constitute an inevitable contraindication to a declaration of incompatibility. In Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467 it was said that where the court finds an incompatibility, it should formally record that the present state of statute law is incompatible with the Convention - para 55. Observations by Lord Hobhouse at para 79 are especially pertinent: The Government cannot yet give any assurance about the introduction of compliant legislation. There will be political costs in both the drafting and enactment of new legislation and the legislative time it will occupy. The incompatibility having been established, the declaration under section 4 should be made. In this context, it is salutary to recall that a declaration of incompatibility does not oblige the government or Parliament to do anything. This point was made in para 343 of Nicklinson: An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the courts conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, This particular piece of legislation is incompatible, now it is for you to decide what to do about it. And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing. In my view, there is no reason that this court should feel in any way reticent about the making of a declaration of incompatibility. To the contrary, I consider that we have been given the power under section 4 of HRA to do so and that, in the circumstances of this case, it would be wrong not to have recourse to that power. Conclusion I would allow the appeal and make a declaration that sections 1 and 3 of CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention. |
I have had the advantage of reading in draft the opinion which has been prepared by Lord Mance, and I agree with it. For the reasons he gives, I would dismiss the appeal. LORD RODGER I too have had the advantage of considering in draft the opinion prepared by Lord Mance. I agree with it and, for the reasons which he gives, I would dismiss the appeal. LORD MANCE The appellant, Mr Louca, is a Cypriot national whose arrest in England and surrender to the Federal Republic of Germany for trial of six alleged offences of tax evasion is sought by the Office of the Public Prosecutor of Bielefeld pursuant to a European Arrest Warrant dated 14 July 2008. The warrant was on that date certified by the Serious Organised Crime Agency (SOCA) pursuant to s.2(7) of the Extradition Act 2003. Mr Louca challenges its validity on the ground that it contains no reference to two previous European arrest warrants (likewise certified by SOCA), but refers only to a domestic German arrest warrant. A reference to any previous European arrest warrants, was, he submits, essential under s.2(2)(a) and (4)(b) of the 2003 Act, which, read together, require a warrant to contain particulars of any other warrant issued in the category 1 territory for the persons arrest in respect of the offence. Senior District Judge Workman rejected Mr Loucas challenge on 11 September 2008, and the Divisional Court, in a judgment given by Dyson LJ, dismissed his appeal on 27 November 2008. The two previous European arrest warrants were issued and in turn superseded in a manner that appears not uncommon in relation to requests by overseas authorities for the arrest of suspects in England. The first warrant was dated 14 September 2006 and led to Mr Loucas arrest on 9 April 2008. Shortly thereafter it was withdrawn, Mr Louca was discharged from further proceedings on it, and a second warrant dated 23 April 2008 was issued on which Mr Louca was again arrested on 25 April 2008. That warrant amplified the description of Mr Loucas alleged involvement in the offences and contained other minor changes. It was in turn withdrawn, Mr Louca was again discharged from any proceedings on it, and it was replaced by the subsisting warrant dated 14 July 2008, upon which Mr Louca was again arrested and which is now before the Supreme Court. The wording of the subsisting warrant differs from that of the second warrant only in the insertion of the words which I have italicised in the time frame and places of commission given for the alleged offences: From a few days before the 23rd April 2003, till the 8th of April 2004 and Minden, Seckenhausen and other places in the Federal Republic of Germany, including the borders of Germany. Part I of the 2003 Act, in which s.2 appears, falls to be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states of the European Union (2002/584/JHA; OJ 2002 L190, pl). This is a ground breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crime committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states: Dabas v High Court of Justice of Madrid, Spain [2007] UKHL 6; [2007] 2 AC 31, para. 4, per Lord Bingham of Cornhill. Although article 34(2)(b) of the Treaty on European Union makes framework decisions binding upon member states as to the result to be achieved but [leaves] to national authorities the choice of form and methods, a national court must interpret a national law as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b): para. 5, per Lord Bingham citing Criminal Proceedings against Pupino (Case C 105/03); [2006] QB 83, paras. 43 and 47. The Framework Decision provides inter alia: Article 1(1): The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. Article 2(1): A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. Article 8(1): The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; the name, address, telephone and fax numbers and e mail address (b) of the issuing judicial authority; evidence of an enforceable judgment, an arrest warrant or any other (c) enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; the nature and legal classification of the offence, particularly in (d) respect of Article 2; a description of the circumstances in which the offence was (e) committed, including the time, place and degree of participation in the offence by the requested person; the penalty imposed, if there is a final judgment, or the prescribed (f) scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence. The annexed form contains boxes for completion, including: (b) Decision on which warrant is based: 1. Arrest warrant or judicial decision having the same effect: . Type: . 2. Enforceable judgement: . Reference: . and (f) Other circumstances relevant to the case (optional information): (NB This could cover remarks on extraterritoriality, interruption of periods of time limitation and other consequences of the offence) In the present case, box (b) of the form was completed in the European arrest warrant (as in the two withdrawn warrants) with a reference to a domestic warrant issued by the Bielefeld County Court reference 9Gs 2740/06 dated 27 July 2006 for Mr Loucas imprisonment on remand. In Ruiz v Central Criminal Court of Criminal Proceedings No 5 of the National Court, Madrid [2007] EWHC 2983 (Admin); [2008] 1 WLR 2798, Dyson LJ in an obiter dictum rejected a prosecution submission that the enforceable judgment, etc. [referred to in article 8(1)(c) of the Framework Decision] is the domestic warrant on which the index EAW is based (para. 26). The words in article 8(1)(c) coming within the scope of Articles 1 and 2 in his view precluded that submission, on the basis that Articles 1 and 2 were only concerned with European arrest warrants. The actual decision was that article 8(1)(c) and s.2(4)(b) were only concerned with currently enforceable warrants. However, Dyson LJs view that they were also only concerned with European arrest warrants was adopted in Zakowski v Regional Court in Szczecin Poland [2008] EWHC 1389 (Admin). That was a case on s.2(6)(c) of the 2003 Act, which mirrors the language of s.2(4) in relation to the situation of a person unlawfully at large after conviction. Maurice Kay LJ, with whom Penry Davey J agreed, held that s.6(2)(c) should be construed as referring only to other EAWs issued in respect of the offence (paras. 25 26). In his judgment in the present case, Dyson LJ reconsidered the position and concluded that the interpretation of ss.2(4)(b) and 2(6)(c) proposed in Ruiz and adopted in Zakowski was wrong. His reasoning covered five points: (i) the Framework Decision does not in article 8(1)(c) use the phrase European arrest warrant, as it does consistently elsewhere when referring to such a warrant; (ii) the concepts of an enforceable judgment, an arrest warrant or any other enforceable judicial decision cannot easily be understood as limited to an European arrest warrant; (iii) the phrase coming within the scope of Articles 1 and 2 can and should simply be understood as meaning that the enforceable judgment, arrest warrant or other enforceable judicial decision must be for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order and be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months; (iv) one European arrest warrant is most unlikely to be based on another, and (v) there is no point in requiring such a warrant to contain information about an earlier European arrest warrant on which it is not based, and on which reliance is no longer placed. On this basis, the present Divisional Court held that article 8(1)(c) and ss.2(4)(b) and 2(6)(c) are concerned with domestic judgments, arrest warrants or other decisions, and not with any other European arrest warrant issued in respect of the alleged offending, still less one which has been withdrawn. Before the House in July 2009, Mr Conor Quigley QC had to accept the first part of this conclusion inevitably so, in my view, in the light of the first four reasons given by Dyson LJ and also having regard to article 8(1)(c) of and box (b) in the form annexed to the Framework Decision. It is entirely understandable that the Framework Decision should require a European arrest warrant to set out its jurisdictional basis in the domestic law of the issuing state. Mr Quigley submitted, nonetheless, that the latter part of the Divisional Courts decision does not follow, and challenged Dyson LJs fifth reason. There is a purpose, he argued, in also requiring evidence of any other European arrest warrant, even if withdrawn, because this could constitute the basis of, or be relevant to, a decision by the executing court to set aside or consider whether to set aside the subsisting European arrest warrant as an abuse of process. He relied upon the statement by Bingham LJ, as he was, in R vs Liverpool Stipendiary Magistrates ex p. Ellison [1990] RTR 220, 227 that: If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being so abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint. In support of these submissions, Mr Quigley pointed to various recitals in the Framework Decision. Under recital (8), the execution of the European arrest warrant must be subject to sufficient controls; under recital (10), its mechanism is based on a high level of confidence between Member States. and under recital (12), the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union and does not prevent a Member State from applying its constitutional rules relating to due process. Mr Quigley noted that, under Article 8(1), The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: . (g) if possible, other consequences of the offence. He suggested that, in order to give effect to all these provisions, ss.2(4)(b) and 2(6)(c) must be understood as embracing not only domestic judgments, warrants or decisions, but also prior European arrest warrants, even if withdrawn. Otherwise, mutual confidence would not be promoted and the executing court would not be able to inquire into whether there had been any abuse of process. In my opinion, this is to seek to make bricks without straw. The words if possible, other consequences of the offence and box (f) in the annexed form Other circumstances relevant to the case (optional information) do not carry the obligatory connotation for which Mr Quigley argues; the note to box (f) lends no support to Mr Quigleys case; and there is no reason to read ss.2(4)(b) and 2(6)(c) in the 2003 Act as intended to require the executing court to be informed by the European arrest warrant of one (and only one) point the existence of another European arrest warrant which might, in some conceivable case, be of some conceivable relevance to an argument of abuse of process. The duty which a criminal court may have, if prosecution authorities appear to be committing an abuse of process, is no basis for reading either the Framework Decision or the 2003 Act as requiring the inclusion in a European arrest warrant of that or any other information on which a defendant wishing to raise an argument of abuse of process might conceivably wish to rely. Ss.2(4)(b) and 2(6)(c) are designed on their face simply to give effect to article 8(1)(c) and box (b) in the annexed form. Other due process factors are comprehensively covered by ss.11 to 20, dealing with double jeopardy, extraneous considerations, passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom and trial in absentia, as well as by the general safeguard in s.21 that the judge must decide whether surrender would be compatible with the European Human Rights Convention rights. The unreal consequences of the appellants argument in this particular case also need no stressing. Mr Louca was arrested under the previous European arrest warrants, and he and his advisers were fully aware at every stage of their issue and withdrawal. Their withdrawal and the changes made in successive warrants lend no support to any suggestion of abuse of process. (Arguments based on oppression due to passage of time and interference with the right to family life were mounted, unavailingly, in the courts below.) Mr Quigley was nevertheless compelled by his argument to submit that, however obvious it might be that the reason for the withdrawal of a previous European arrest warrant was technical or irrelevant to any question of abuse of process, a new European arrest warrant would be invalid unless it gave particulars of the previous warrant. The question certified by the Divisional Court is: Whether the reference to any other warrant in ss.2(4)(b) and 2(6)(c) of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European arrest warrant is based. For the reasons given above and those given by the Divisional Court, the answer is that the reference is to any domestic warrant on which the European arrest warrant is based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant. Mr Loucas appeal falls to be dismissed accordingly. LORD COLLINS appeal. LORD KERR I too agree with the opinion prepared by Lord Mance, and I would dismiss the I also agree with the opinion prepared by Lord Mance, and I would dismiss the appeal. |
Chevron North Sea Ltd operates an offshore installation in the North Sea (the installation). In April 2013, the installation was inspected by Mr Conner in his capacity as one of Her Majestys Inspectors of Health and Safety. Mr Conner was accompanied by three colleagues with specialist expertise of particular relevance to the inspection. A vital part of the installation is the helideck, the principal means of reaching the installation being by helicopter. The inspectors examined the condition of the stairways and stagings providing access to the helideck and formed the view that corrosion had rendered them unsafe so that there was a risk of serious personal injury from falling through them. Mr Conner therefore served a prohibition notice on Chevron under section 22 of the Health and Safety at Work etc Act 1974 (the 1974 Act). Chevron appealed against the prohibition notice to an employment tribunal under section 24 of the 1974 Act. The question for us to determine is what approach a tribunal hearing such an appeal should take. In particular, in reaching its decision whether to affirm, modify or cancel the notice, is the tribunal confined, as the appellant contends, to the material which was, or could reasonably have been, known to the inspector at the time the notice was served, or can it, as the respondent contends and the First Division of the Inner House of the Court of Session held, take into account additional evidence which has since become available? The relevant provisions of the 1974 Act Section 22 of the 1974 Act provides: 22. Prohibition notices (1) This section applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply. (2) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as a prohibition notice). (3) A prohibition notice shall state that the inspector is of the said opinion; specify the matters which in his opinion give or, (a) (b) as the case may be, will give rise to the said risk; (c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and (d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied. (4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect at the end of the period specified in the notice; or if the notice so declares, immediately. (a) (b) Section 24 provides: 24. Appeal against improvement or prohibition notice In this section a notice means an improvement notice (1) or a prohibition notice. (2) A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit. (3) Where an appeal under this section is brought against a notice within the period allowed under the preceding subsection, then (a) in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal; (b) in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction). (4) One or more assessors may be appointed for the purposes of any proceedings brought before an employment tribunal under this section. Also material to a consideration of the question at issue in this appeal is section 33 which provides: 33. Offences (1) It is an offence for a person (g) to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice (including any such notice as modified on appeal) . The central facts The prohibition notice served on Chevron stated that the inspector was of the opinion that there was a risk of serious personal injury because: The steel grating of the stagings and the stairway treads are in a weakened condition because of corrosion which compromises safe evacuation. Having launched an appeal in May 2013, Chevron arranged in July 2013 for the metalwork which had been of concern to the inspector to be removed from the installation and tested. The results of the testing were set out in an expert report dated March 2014. In short, with the exception of a panel which had been damaged during the inspection by an inspector striking it with a fire fighting axe in order to test the extent to which it was corroded, all the metalwork passed the British Standard strength test, and there was no risk of personnel being injured by falling through it. Without the damage, the damaged panel may well also have passed the test, but the damage made it impossible to determine its safety. Chevron sought to rely upon the expert report as part of their appeal to the tribunal. The inspector opposed that on the basis that the tribunal must focus on the information that was available, or ought reasonably to have been available, to an inspector at the time of the service of the notice. The results of the expert testing could not have been available to the inspector when he decided to serve the notice and so, in his submission, no regard could be had to them by the tribunal. The tribunal prudently approached the matter in two alternative ways. First, it looked at the position on the basis of the information that was or ought to have been available to the inspector, without having regard to the subsequent testing and analysis. On that basis, it would have affirmed the prohibition notice, albeit in a modified form. It then looked at the matter again, taking into account the expert evidence that came into existence later. Approaching things in that way, it concluded that at the time of the service of the notice, there was not, in fact, a risk of serious personal injury. As it decided that it was entitled to look at the later material, it cancelled the notice. The inspector appealed unsuccessfully to the First Division of the Inner House against both of the alternative conclusions of the tribunal. I can confine my attention to the second of the two alternatives, in relation to which the Inner House held that the tribunal had been correct to have regard to the subsequent testing and analysis, and entitled to accept that evidence. In the light of the fact that the Court of Appeal in England and Wales had taken a different view on the proper approach to an appeal under section 24 of the 1974 Act, in the case of Hague (One of Her Majestys Inspectors of Health and Safety) v Rotary Yorkshire Ltd [2015] EWCA Civ 696, the Inner House gave the inspector leave to appeal to this court on the point. The framework of the relevant provisions of the 1974 Act A prohibition notice directs that the activities to which it relates shall not be carried on unless the matters that, in the opinion of the inspector, gave rise to the risk of serious personal injury have been remedied (section 22(3)(d)). The notice can be drawn up to take effect immediately or at the end of a specified period (section 22(4)). Where the notice is not one with immediate effect, section 23(5) enables an inspector to withdraw it at any time before the date on which it is to take effect. There is no provision for an immediate notice to be withdrawn; it appears that the only way, under the statutory scheme, in which such a notice can be dislodged is by an appeal. A prohibition notice is not automatically suspended by an appeal. However, the appellant may apply to the tribunal for a direction suspending it from the date of the direction until the appeal is finally disposed of or withdrawn (section 24(3)). A public database of notices is kept by the Health and Safety Executive. Notices are entered on the database by virtue of statutory requirements in some cases, and otherwise as a matter of policy. However, registration is deferred to allow for the appeal process and, in the event of a successful appeal, does not take place. It is an offence to contravene a prohibition imposed by a prohibition notice (section 33 of the 1974 Act). This applies in full force to activity during the appeal period except in relation to a period during which the tribunal has directed that the notice is suspended. The practical effect of a prohibition notice Understandably, the appellant is at pains to emphasise, as an important part of his argument in support of his appeal to this court, that it is vital for inspectors to be able to take prompt and effective action to ensure compliance with the provisions of the 1974 Act. A prohibition notice is a powerful tool in the inspectors hands. It not only enables him to step in when he is of the opinion that a particular activity will involve a risk of serious personal injury, it also improves public safety by encouraging employers to have good systems in place so that they can demonstrate to the inspector that there is no material risk and thereby avoid the disruption of a prohibition notice. The service of a prohibition notice on a business has the potential to do considerable harm to it. Having to cease the activity in question will inevitably result in disruption and is likely also to have a financial cost, but there may be other serious consequences as well, including significant damage to the businesss reputation and its ability to tender for contracts. This is reflected in the fact that, according to the appellant, a very common motivation for an appeal against a notice is to avoid registration of the notice on the Health and Safety Executives public database. The issue It is common ground between the parties that a section 24 appeal is not limited to a review of the genuineness and/or reasonableness of the inspectors opinion, but requires the tribunal to form its own view of the facts, paying due regard to the inspectors expertise. It is also common ground that the tribunal should be focussing on the risk existing at the time when the notice was served. These agreed propositions still leave room, however, for the debate about what material the tribunal is entitled to take into account when forming its view of the facts as they were at the material time. The appellant invites us to adopt the reasoning of the Court of Appeal in the Rotary Yorkshire case (supra). Rotary Yorkshire were arguing for the broad interpretation of section 24 supported by Chevron in the present case and the inspector for the more limited interpretation for which the appellant contends. Laws LJ (with whom the other members of the court agreed) said: 31. the question for the inspector is whether there is a risk of serious personal injury. In reason such a question must surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision. He or she is concerned with the prevention of injury at that time, that is the focus of the provision, which, it should be remembered, contemplates action in a possible emergency. The employment tribunal on appeal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspectors action. 34. To accede to [Rotary Yorkshires] argument would, I think, risk distorting the section 22 function. The primary question for the employment tribunal is whether the issue of the notice was justified when it was done. An inspector may rightly apprehend a risk and be justified in acting on his or her apprehension even though later necessarily unknown events may demonstrate that, in fact, there was no danger. Section 24 is not, in my judgment, to be construed so that it may appear to call in question the propriety of a notice which it may well have been the inspector's duty to issue at the time. This reasoning did not commend itself to the Inner House in the present case. Lord Carloway said, with the agreement of the other two members of the court who also added helpful reasoning of their own: 28. The fundamental problem with the approach of Laws LJ is that it prohibits an appeal on the facts in a situation where it can be demonstrated that the facts or information upon which the inspector proceeded were wrong. That is the essence or purpose of many appeals on the facts. In short, there is no sound basis for restricting appeals under section 24 to what would in essence be a form of judicial review of the inspectors opinion. An appeal on the facts is a much wider concept and it enables an appellant to prove, using whatever competent information is available at the time of the tribunals hearing on the appeal, that the factual content of the notice was wrong and that, accordingly, however reasonable the inspectors opinion was at the time, had the true facts been known, he would not have reached it. The answer to the issue which has divided the Court of Appeal and the Inner House does not jump out from the wording of section 24, and the matter must therefore be considered in the light of the statutory scheme as a whole. This leads me to conclude that the Inner House was correct in its interpretation of the section. When the inspector serves the notice, section 22 makes clear that what matters is that he is of the opinion that the activities in question involve a risk of serious personal injury. If he is of that opinion, the notice comes into existence. However, as it seems to me, when it comes to an appeal, the focus shifts. The appeal is not against the inspectors opinion but against the notice itself, as the heading of section 24 indicates. Everyone agrees that it involves the tribunal looking at the facts on which the notice was based. Here, as the inspector spelled out in the notice, the risk that he perceived arose by virtue of corrosion of stairways and gratings giving access to the helideck, and the focus was therefore on the state of that metalwork at the time when the notice was served. The tribunal had to decide whether, at that time, it was so weakened by corrosion as to give rise to a risk of serious personal injury. The inspectors opinion about the risk, and the reasons why he formed it and served the notice, could be relevant as part of the evidence shedding light on whether the risk existed, but I can see no good reason for confining the tribunals consideration to the material that was, or should have been, available to the inspector. It must, in my view, be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was. If, as in this case, the evidence shows that there was no risk at the material time, then, notwithstanding that the inspector was fully justified in serving the notice, it will be modified or cancelled as the situation requires. It is important to recognise that it is no criticism of the inspector when new material leads to a different conclusion about risk from the one he reached. His decision often has to be taken as a matter of urgency and without the luxury of comprehensive information. There is no reason for him to be deterred from serving the notice by the possibility that, should more information become available at a later stage, his concerns may turn out to be groundless. Indeed, he might just as well feel less inhibited about serving it, confident that if it turns out that there is in fact no material risk, the position can be corrected on appeal. The effectiveness of a prohibition notice is in no way reduced by an appeal process which enables the realities of the situation to be examined by a tribunal with the benefit of additional information. Once served, the notice provides immediate protection, reinforced by the existence of criminal sanctions. It is common ground between the parties that, even if ultimately cancelled by a tribunal, any contravention of the notice prior to cancellation would still be a criminal offence. Furthermore, there does not seem to me to be any reason to suppose that the wider interpretation of section 24 would undermine the role that prohibition and improvement notices play in encouraging employers to have robust systems in place with a view to demonstrating easily, when an inspection takes place, that no risk exists. A prohibition notice remains in force during the appeal process, unless suspended by the tribunal, and such is the disruption and financial loss that this may cause that employers have plenty of encouragement to do what they can to avoid getting into such a situation in the first place. The appellant argues that permitting the tribunal to look beyond the material available to the inspector will introduce into the appeal process undesirable delay and cost, both financial and in terms of the Health and Safety Executives human resources, when the aim should be that any appeal is concluded speedily. This does not deflect me from my view as to the correct interpretation of section 24. The appeal must be launched within 21 days and its progress thereafter will be under the control of the tribunal. In any event, the continuing impact of the prohibition notice may well be an incentive for the employer to marshal his case speedily so as to free himself from the notice as quickly as possible. Turning to the situation of an employer in receipt of a prohibition notice, it is clear that there are potent considerations in favour of the wider interpretation of section 24. As the inspector cannot withdraw an immediate prohibition notice, even if he is completely convinced by material produced subsequently by the employer, the only means by which the notice can be cancelled under the statutory scheme is an appeal. Yet if the appellants interpretation is right, in such a case the appeal process would not dislodge the notice, which would remain in force, with all the attendant disadvantages for the business, even though the perceived risk never in fact existed. Indeed, it is even possible that in some cases, in order to be able to restart the activity named in the notice, an employer might have to carry out works which have been demonstrated to be unnecessary. The appellant argues that, in practice, confining the tribunals role narrowly would not cause any problems because, provided with convincing evidence that there was in fact no risk, the inspector would recognise that and not seek to enforce the notice, although the notice would still be registered on the public database because, the appellant argues, that is appropriate to reflect the fact that it was correctly served on the basis of the information then available to the inspector. This suggested solution does not, in my view, address the problem. The notice would still have the capacity to damage the reputation of the employer and his ability to do business. Furthermore, it cannot be right, in circumstances such as these, that the employer continues, after his appeal is concluded, to be exposed to the possibility of criminal proceedings, however improbable it is that proceedings would actually be taken. In addition, the appellants proposal proceeds upon the basis that the inspector is able to accept the evidence put forward subsequently by the employer, but he may not be able to do so. In those circumstances, a forum is required in which to determine the continuing dispute between the inspector and the employer or, putting it more constructively and in the spirit of the health and safety legislation, to determine whether the circumstances that concerned the inspector did in fact give rise to a relevant risk. The appeal process provides that necessary forum. I would therefore interpret section 24 of the 1974 Act as the Inner House did. In my view, on an appeal under section 24, the tribunal is not limited to considering the matter on the basis of the material which was or should have been available to the inspector. It is entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served. I would accordingly dismiss the appeal. |
The appellant, Kevin Maguire, was a defendant in criminal proceedings in the Crown Court in Belfast. By the issue of a legal aid certificate dated 7 June 2012, he became entitled to public funding to instruct a solicitor and two counsel to appear on his behalf in those proceedings. The certificate was issued under article 29(2) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (the 1981 Order). The appellants first trial, before a judge sitting with a jury, began on 28 November 2012 at Belfast Crown Court. He was represented by Mark Barlow of counsel (described in these proceedings as leading junior counsel) and Clive Neville, a solicitor advocate who is a member of the firm of Trevor Smyth & Co, solicitors. They received instructions to appear for Mr Maguire from Chris Mitchell who is a solicitor in the same firm as Mr Neville, Trevor Smyth & Co The jury in the first trial were unable to reach a verdict and they were discharged. The appellant was tried again. That re trial was originally scheduled to begin on 13 November 2013. Mr Maguire again wished to have Mr Barlow as his leading counsel. In the meantime, however, Mr Barlow had appeared before a summary panel of the Bar Council, convened by the professional conduct committee of the council in relation to two other cases in which he had appeared as leading counsel. In both cases a solicitor advocate had acted as Mr Barlows junior. Mr Barlow is not Queens Counsel. He was called to the Bar of England and Wales in 1992 and to the Bar of Northern Ireland in 2006. He is junior counsel in both jurisdictions. His appearance before the committee, therefore, was to answer charges that he had been in breach of rule 20.11 of the code of conduct for the Bar of Northern Ireland. At the material time this rule stated that: In criminal cases where legal aid has been granted for two barristers one should be a senior counsel. Where, exceptionally, a senior counsel is unavailable, it is permissible for a junior to lead. This junior should be experienced and be of not less than 15 years standing. After some discussion before the summary panel as to the extent of the exceptionality provided for by this rule, Mr Barlow admitted that he had been in breach of it. In neither of the two cases had it been established that senior counsel was not available. Following this, Mr Barlow informed the appellant that he could not act as his leading counsel. The appellant, and subsequently his current solicitors, engaged in correspondence with the Bar of Northern Ireland about this. The solicitors asserted that if Mr Barlow was not permitted to appear as the appellants leading counsel, this would constitute a violation of Mr Maguires rights under article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The respondent rejected this claim. Mr Maguires retrial duly proceeded in January 2015. He was acquitted of seven of the 11 counts on which he had been charged. The jury failed to reach a verdict on the remaining four counts. The prosecution has indicated that it is not intended that the appellant be required to stand trial again on those counts. The judicial review application The appellant applied for leave to issue judicial review proceedings on 9 June 2014. He claimed that the Bar Councils decision to impede his choice of lead advocate violated his rights under article 6.3(c) of ECHR. He asserted that his right to choose counsel was limited only by the interests of justice test articulated in that provision. Leave to apply for judicial review was granted on 6 October 2014. Following a hearing before a Divisional Court (Sir Declan Morgan LCJ, Coghlin and Gillen LJJ), judgment was delivered on 19 January 2015, dismissing the appeal (Neutral Citation No [2015] NIQB 4). All three members of the Divisional Court gave judgments. Morgan LCJ considered that the right to choose ones counsel; was a qualified right para 36; the defendants wish to have particular legal assistance may be overridden where there are sufficient grounds for concluding that this is necessary in the interests of justice. Coghlin LJ considered that rule 20.11 of the code of conduct was fair and proportionate, designed as it was to provide a basic generic safeguard for a defendant, victims and the general public. That safeguard ensured that in cases involving a charge of murder or where there were exceptional difficulties, legal representation should comprise senior and junior counsel. The overall purpose of the code of conduct was to guarantee that the lay client was represented by the most able and experienced counsel available para 5. No breach of article 6.3 had occurred para 12. Gillen LJ held that the code of conduct accorded with the triangulation of interests those of the accused, those of the victim and his or her family and the interests of the public identified by Lord Steyn in Attorney Generals reference (No 3 of 1999) [2001] 2 AC 91, 118. There was therefore no violation of article 6.3(c) para 23. The statutory regime Article 29(1) of the 1981 Order provides that any person returned for trial on certain indictable offences, as specified in the sub article, is entitled to free legal aid in the preparation and conduct of his defence at the trial. For that purpose, he has solicitor and counsel assigned to him according to rules made under article 36, if a criminal aid certificate is granted in accordance with the succeeding provisions of article 29. The relevant rules are the Criminal Aid Certificates Rules (Northern Ireland) 2012 (the 2012 Rules). Rule 4(1) of these provides for the assigning of a solicitor and rule 4(5) makes provision about counsel as follows: A criminal aid certificate granted under article 29 of the Order (a) includes representation by one counsel; and (b) may include representation by two counsel only in the cases specified and in the manner provided for by the following provisions of this rule. Rule 4(6) provides that where the charge is one of murder, or the case presents exceptional difficulties, the certifying authority may certify that in its opinion the interests of justice require that the assisted person shall have the assistance of two counsel. (The certifying authority in this context is a court article 29(2) of the 1981 Order. In this case, the certificate for two counsel was issued by a district judge.) Exceptionality for the purposes of rule 4(6) is defined in rule 4(7) as where the case for or against the assisted person involves substantial novel or complex issues of law or fact, such that it could not be adequately presented by one counsel. Rule 4(11) provides: Without prejudice to paragraphs (6) and (7), where a judge of the court before which the assisted person is to be tried is of the opinion that in the interests of justice a criminal aid certificate in respect of two counsel must be granted in order to protect the assisted persons rights under the Human Rights Act 1998, the judge shall grant such a certificate. The grant of a certificate is therefore mandatory where required for the protection of an accused persons Convention rights and discretionary where the offence is murder or one which comes within the exceptional category. Where, on either account, a certificate under rule 4(5)(b) for two counsel is granted, rule 4(3) becomes relevant: Any member of the Bar who is practising in Northern Ireland and is willing to appear as counsel for legally aided persons in criminal cases may be instructed, on behalf of the assisted person, by the solicitor assigned under paragraph (1), and, in any case in which the certifying authority has granted a certificate as provided for under paragraph (5)(b), one such member of the Bar and a member of the Bar, being one of Her Majestys Counsel who is practising in Northern Ireland or a senior counsel practising outside of Northern Ireland, may be so instructed. The Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 (the 2005 Rules) made provision for the payment of costs in legally aided proceedings in the Crown Court. The 2005 Rules were amended by the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2011 (the 2011 Rules). Rule 2 of the 2005 Rules, as amended by rule 6 of the 2011 Rules, provides that counsel means counsel assigned under a criminal aid certificate granted under article 29 of the [1981] Order, or counsel who undertook the defence of a person at the request of the judge under article 36(2) of the Order. Rule 4A of the 2005 Rules deals with the payment of enhanced costs where a solicitor conducts a trial or hearing in the Crown Court. Paragraphs 1 and 4 are the relevant provisions. They provide: (1) Where a solicitor exercising his right of audience under section 50 of the Judicature (Northern Ireland) Act 1978 conducts a trial or hearing without counsel he shall be entitled to an enhancement of his costs in accordance with this rule. (4) This rule also applies where a criminal aid certificate was granted for two counsel and a solicitor conducts the trial or hearing with or without a second counsel. In the course of the appeal before this court, a question arose concerning the use of the term solicitor advocate in the relevant legislation and rules. In written submissions made by the respondent after the hearing, the following information and explanations were provided. There is no reference to the term in the 1981 Order. Rule 2 of the 2005 Rules (as made) provided that the term advocate included a solicitor exercising a right of audience under section 50 of the Judicature (Northern Ireland) Act 1978 (the 1978 Act) (which gave a general right of audience to solicitors to conduct proceedings in the Crown Court, whether or not he has been certified by the Law Society as an advanced advocate). The term solicitor advocate appeared several times in the 2005 Rules, as they were originally made. The term also appeared in the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2009 (the 2009 Rules), within a rates for payment table inserted in the 2005 Rules by rule 17 of the 2009 Rules. The 2011 Rules amended the 2005 Rules by substituting counsel for advocate where that term had appeared in the latter rules. It also provided for the omission of the definition of advocate which had been contained in rule 2 of the 2005 Rules. The 2011 Rules also provided that Schedule 1 to the 2005 Rules be amended and that Schedule 2 should be removed. The upshot of all this is that no reference to solicitor advocate remains within the 2005 Rules. The relevant terms are simply counsel or solicitor. As regards the present appeal, therefore, this means that Mr Neville, when appearing for the appellant in the Crown Court, fell to be paid by the legal aid authorities as a solicitor and in no other capacity. A solicitor has rights of audience under section 50 of the 1978 Act but is not included in the expression counsel for the purpose of calculating payment of legal aid, nor for the purpose of the two counsel provision in rule 4(3) of the 2012 Rules. Article 6 of ECHR Article 6.1 of ECHR provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law The context for the more explicit rights contained in the succeeding paragraphs of article 6 is set by this overarching provision. The emphasis is on the need for fairness. Trial by an independent and impartial tribunal is obviously vital to the achievement of the goal of fairness. Likewise, the presumption of innocence provided for in para 6.2 and the requirements stipulated in article 6.3(a) that everyone charged with a criminal offence must be informed promptly and in detail of the nature and cause of the accusation against him. So too, the obligation in article 6.3(b) that a person charged with a criminal offence must have adequate time and facilities for the preparation of his defence and the requirement in article 6.3(d) that an accused person be permitted to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. These requirements, together with that contained in article 6.3(e) to the effect that, if necessary, the accused person should have the free assistance of an interpreter, were obviously conceived as what is described in the prefatory words of article 6.3 as minimum rights to be essential safeguards for a fair trial. It is against that background that the provision which is critical in this appeal, article 6.3(c) of ECHR, falls to be considered. It provides that every person charged with a criminal offence shall have the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. Sensibly, Mr ONeill QC for the appellant accepts that this does not confer an absolute right on an accused person to insist upon public funding of the services of a lawyer of his choice to defend him. He argues, however, that the right is one which, in common with other qualified rights under the Convention, should only be interfered with in circumstances which can be shown to be justified. Thus, argues Mr ONeill, the appellant is entitled to demand that he be defended by Mr Barlow and Mr Neville, unless it can be shown by the public authority that would seek to refuse that demand, that their refusal was justified. The appellants case is therefore cast as entitlement to a right to choose not only his lawyers but also that they be paid at public expense unless there is a proportionate justification for denying him that entitlement. Moreover, his claim extends to being entitled to allocate the role to be played by Mr Barlow as soi disant leading counsel in his trial. For respondent, Mr Scoffield QC contends the justification/proportionality analysis is inapt. This is not a case, he argues, where an admitted interference with a qualified Convention right calls for justification. Rather, he says, it is one where the rules governing representation of the appellant at his criminal trial (specifically that which requires that, in other than exceptional circumstances, he be represented by senior and junior counsel) be examined in order to ascertain whether they infringe his right to a fair trial. Thus, it is not a case of the appellant having entitlement to the full panoply of the particular type of representation that he wishes to have and that this entitlement can only be denied where justification for interference with it can be shown. The appellants claim fails, Mr Scoffield argues, at the anterior stage of the inquiry, viz whether there is anything that the about the rule embodied in rule 20.11 of the code of conduct which impinges on Mr Maguires right to a fair trial. In order to decide which of these fundamentally different approaches to the application of article 6.3(c) should prevail, it is necessary to examine the jurisprudence of the European Court of Human Rights (ECtHR). The case law of ECtHR In Correia de Matos v Portugal (Application No 48188/99) the applicant had been committed for trial in Portugal for insulting a judge. The judge investigating that charge assigned a lawyer to represent him. Mr de Matos objected. He wanted to represent himself. He relied on article 6.3(c) of the Convention. He appealed against the order of committal. His appeal was declared inadmissible because it had not been lodged by a lawyer and because he was forbidden to defend himself in person. An appeal to the Constitutional Court was dismissed for the same reason. The Strasbourg court observed that the European Commission on Human Rights (ECmHR) had ruled on a number of occasions that article 6.3(c) did not invest an accused person with the right to decide how the fair trial of the charge against him should be secured. In particular, in X v Norway (decision of 30 May 1975, DR 3, p 43) ECmHR had held that although this provision guarantees that proceedings against the accused will not take place without adequate representation for the defence, it does not give the accused the right to decide himself in what manner his defence should be assured. The decision as to whether the applicant will defend himself in person or be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, depends upon the applicable legislation or rules of court. The court in Correia de Matos saw no reason to depart from previous case law. It said: in this area it is essential for applicants to be in a position to present their defence appropriately in accordance with the requirements of a fair trial. However, the decision to allow an accused to defend himself or herself in person or to assign him or her a lawyer does still fall within the margin of appreciation of the Contracting States, which are better placed than the Court to choose the appropriate means by which to enable their judicial system to guarantee the rights of the defence. It should be stressed that the reasons relied on for requiring compulsory representation by a lawyer for certain stages of the proceedings are, in the Courts view, sufficient and relevant. It is, in particular, a measure in the interests of the accused designed to ensure the proper defence of his interests. The domestic courts are therefore entitled to consider that the interests of justice require the compulsory appointment of a lawyer. (emphasis supplied) The importance of this decision and the jurisprudence of ECmHR on which it draws lies in the recognition that the test is what the interests of justice require to ensure that an accused person is properly defended, rather than simply what his own particular wishes may be as to the manner of his defence. This points to the need for a wider consideration of the need for fairness of the trial procedure rather than on an emphasis on the predilections of the accused person as to the choice of counsel. This theme can be detected in the case of K v Denmark (Application No 19524/92, 5 May 1993), again a decision of ECmHR. In that case a lawyer, Mr Reindel, was appointed by the High Court to act as defence counsel for the applicant. It was then discovered that Mr Reindel was to be called as a witness and his appointment was rescinded and another lawyer was appointed in his stead. At para 2 ECmHR said this in relation to article 6.3(c): The Commission recalls that the right to legal representation of ones own choosing ensured by this provision is not of an absolute nature (cf for example No 5923/72, Dec 30.5.75, DR 3, p 43) and it does not guarantee the right to choose an official defence counsel who is appointed by the court (cf No 6946/75, Dec 6.7.76, DR 6, p 114). In examining this question under article 6 para 3(c) (article 6 3 c) of the Convention the Commission must take account of the situation of the defence as a whole rather than the position of the accused taken in isolation, having regard in particular to the principle of equality of arms as included in the concept of a fair hearing. Thus article 6 para 3(c) (article 6 3 c) of the Convention guarantees that the proceedings against the accused shall not take place without adequate representation for the defence, but does not give the accused the right to decide himself in what manner his defence should be assured (cf for example No 8295/78, Dec 9.10.78, DR 15 p 242). (emphasis supplied) Here again the emphasis was on the adequacy of the representation rather than on the freedom of choice of the accused person as to the identity of counsel by whom he should be represented. This is because the gravamen of the right guaranteed by article 6.3(c) lies in its conducing to a fair trial, rather than its championing of the freedom of the individual defendant to choose the lawyer by whom he should be represented. The article 6.3(c) right can thus be contrasted with, for instance, the rights under article 8 of ECHR which can be characterised as intensely personal and intimately connected to the wishes of the individual on whose behalf they are asserted. In Mayzit v Russia (2006) 43 EHRR 38 the applicant wished to be represented by his mother and sister. His request that they be permitted to appear for him was refused on the basis that the case required special legal knowledge and professional experience. At paras 65 and 66 the court said: 65. Article 6(3)(c) guarantees that proceedings against the accused will not take place without an adequate representation for the defence, but does not give the accused the right to decide himself in what manner his defence should be assured. The decision as to which of the two alternatives mentioned in the provision should be chosen, namely the applicants right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, depends upon the applicable legislation or rules of court. 66. Notwithstanding the importance of a relationship of confidence between lawyer and client, the right to choose ones own Counsel cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned, and also where it is for the courts to decide whether the interests of justice require that the accused be defended by Counsel appointed by them. When appointing defence Counsel, the national courts must certainly have regard to the defendants wishes. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice. The most significant observation in these passages is that the accused person does not have the right to decide in what manner his defence should be assured. The right is to be represented by sufficiently experienced counsel of ones choice but the role to be played by that counsel cannot be dictated by the defendant. Thus, in the present case, Mr Maguire was entitled to ask that Mr Barlow represent him but he was not entitled to insist upon the status that should be conferred on Mr Barlow in his conduct of the defence. Dzankovic v Germany (Application No 6190/09, 8 December 2009) was an admissibility decision. The applicant complained that his request for his chosen representative to be designated official defence counsel had been refused. The court held that the interests of justice did not require that the applicants chosen counsel be appointed official defence counsel. The application was declared inadmissible. The applicant was still represented by the same counsel whom he wished to have designated as official defence counsel. The reason behind the request related to the payment of counsels fees from public resources. But that made no difference. What was important was, in the words of the judgment, that he had not put forward any grounds making a different procedural approach necessary to ensure [that his] rights of defence were secured. Likewise, in the present case, the appellant has not advanced any grounds that Mr Barlow should be designated leading counsel so as to ensure that his rights of defence would be assured. As the respondent has pointed out, Mr Barlow could continue to act for Mr Maguire but as junior counsel, either with senior counsel, or, if senior counsel was not available, alone. Mr Maguire was not deprived of the services of Mr Barlow by operation of rule 20.11 of the code of conduct. The deprivation, if there was one, was the denial of an enhanced payment to Mr Barlow acting as leading counsel. There are four applicable designations of counsel for the purposes of determining rates of payment in accordance with the 2005 Rules. These rates of payment relate to the categories of Queens Counsel; leading junior counsel; sole junior counsel; and led junior counsel. All permutations of cases where two counsel have been assigned and permissible under the code of conduct are provided for in terms of legal aid payment. The provision of potential rates of payment for a leading junior counsel is, the respondent accepts, appropriate, since junior counsel may lead in the exceptional circumstances described in rule 20.11 of the code of conduct. It is notable, however, that the designation of leading junior counsel appears in the relevant statutory framework only for the purposes of identifying an appropriate rate of payment in costs rules. If Mr Barlow had been able to act as leading junior counsel, therefore, he would have been entitled to an enhanced fee. But this has nothing whatever to do with the issue of a guarantee of a fair trial for Mr Maguire. The wishes of a defendant as to his choice of counsel must be taken into account but these are properly subordinate to the overall aim of achieving a fair trial. Thus, it is not a question of the defendant enjoying a right to choose his own counsel which is freestanding of the fair trial goal. Rather it is as an element of the objective of a fair trial that the right to have counsel of ones choice arises. For this reason, it is not appropriate to apply the same analysis to the question of infringement of the right as obtains in an examination of an admitted interference with a right such as arises under article 8. This is clear from such seminal cases as Croissant v Germany (1992) 16 EHRR 135, 151, para 29 where ECtHR said: [I]t is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendants wishes; indeed, German law contemplates such a course. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice. The exercise involved here is one of the courts deciding what the interests of justice require, not whether an interference with an individuals Convention right has been justified. Of course, the wishes of a defendant may be pertinent to the question of where the interests of justice lie but that is not because they have an intrinsic value. It is because the desire of an accused person to be represented by someone in whom he reposes trust may be directly relevant to the promotion of the interests of justice aim. Essentially the same message is conveyed in Dvorski v Croatia (2016) 63 EHRR 7 where the Grand Chamber said at para 76: As the Court has already held in its previous judgments, the right set out in article 6.3(c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in article 6.1 (see Imbrioscia v Switzerland (1994) 17 EHRR 441, 24 November 1993, paras 36 and 37, Series A no 275, and Salduz v Turkey [GC], no 36391/02, para 50, ECHR 2008) (emphasis supplied) It is clear from this review of the relevant authorities that the essence of the right to choose ones counsel lies in the contribution that the exercise of that right makes to the achievement of the ultimate goal of a fair trial. It is not an autonomous right which falls to be considered outside that context. On that account, the circumstances in which and the reasons that Mr Maguire expressed the wish to have Mr Barlow as his leading counsel are of obvious importance and require close examination. Informed choice The reasons that Mr Maguire wished to have Mr Barlow as his leading counsel were expressed pithily in his affidavit. At para 6, he said: Due to the level (sic) of consultations that took place between myself, counsel and solicitors and the work that was undertaken by counsel and solicitor my wish was to instruct Mr Barlow BL as my lead counsel in the retrial. This was due to the fact that I had confidence in Mr Barlow to appear as my lead counsel due to his knowledge of my case. The question of advice to an accused person about his representation at a criminal trial was considered by the High Court of Justiciary in Addison v HM Advocate 2015 JC 105. At paras 25 and 26, the Lord Justice General said: 25. The Law Society of Scotland Practice Rules 2011 provide that if a case requires appearance in a superior court, the solicitor must advise his client that it is for the client to decide whether a solicitor advocate or counsel is instructed (rule B8.4.l(b)). That is a sound rule as far as it goes; but the decision of the client on [whether a solicitor advocate or counsel is instructed] must be an informed decision. To make such a decision the client must be advised of his options for representation. A mere recital of those options is no more than a formality if it is not supplemented by advice, a point on which the Practice Rules are silent. In my view, it is the duty of the accuseds solicitor to take all reasonable steps to ascertain which members of the Bar and solicitor advocates experienced in this area are, or may be, available to conduct the defence. Only then can a worthwhile decision on representation be made. 26. The observance of these duties may present the accuseds solicitor with a conflict of interest, especially if he is a solicitor advocate or if a senior member of his firm is a solicitor advocate. This court has already adverted to the latter problem in Woodside v HM Advocate 2009 SCCR 350 (at paras 71 74). It is a matter for concern that it continues. Even where there is no such obvious conflict of interest, the solicitor may nonetheless find it difficult to give wholly objective advice as to the choice of defender from those who are available. In the event, any advice that he gives may be thought to lack the appearance of objectivity. Although this admonition was based on a rule which has no equivalent in Northern Ireland, it seems to me to contain sound guidance on how solicitors should ensure that accused persons have sufficient information to make a proper choice as to how they should be represented, particularly when a certificate for two counsel has been issued. There is nothing in the evidence as to the circumstances in which Mr Maguire made his choice to indicate that he received advice of the nature outlined by the Lord Justice General. He should have received such advice. Of course, in the particular circumstances of this case, even if Mr Maguire had received that advice, it does not follow that he would have been entitled to insist that Mr Barlow act as his leading counsel. For the reasons given, he was in any event not entitled to insist on that course. The observations in these paragraphs are made to reinforce the message given by the High Court of Justiciary in Addison that it is the professional obligation of solicitors to give clear advice to accused persons of the options available to them when a certificate for two counsel has been granted. Conclusions Rule 20.11 of the code of conduct is obviously designed to ensure that proper representation of accused persons should be guaranteed when a certificate for two counsel has been issued. Imposing a requirement that senior counsel be engaged, unless none is available, is entirely consonant with that aim. There is no question of interference with the appellants right under article 6. To the contrary, the rule is designed to promote and vindicate that right. In light of that conclusion, it is unnecessary to embark on an examination of the interesting issues raised by the respondent about whether the Bar Council is a hybrid public authority and its entitlement to regulate representation of accused persons in the conduct of criminal trials. Article 6 does not invest an accused person with the right to demand that he have counsel of his choice at public expense, independently of the requirements of the interests of justice. If it can be shown that the interests of justice will best be served by having a requirement that, where a certificate for two counsel is issued, it will, in general, be better for an accused to be represented by both senior and junior counsel, a requirement that this be so cannot give rise to any violation of article 6. That the interests of justice will be best served in this way is beyond serious dispute, in my opinion. Senior counsel obtain that rank on the basis of an objective assessment of their professional expertise and experience. Rule 20.11 does no more than give effect to the desirability that defendants be represented at the highest possible standard, just as rule 4(3) of the 2012 Rules does. The circumstance that that aspiration finds expression in a rule contained in the code of conduct of the Bar does not sound on the question of the appellants article 6 rights. So far from impinging on those rights, the rule is plainly designed to uphold and vindicate them. The source of the rule is therefore irrelevant to any possible violation of article 6.3(c). That simply does not arise. |
It is now well established that an employment contract is subject to an implied term that the employer and employee may not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them: Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. In Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518, the claimant sought to rely on an alleged breach of this implied term, not as a foundation for a statutory claim for unfair dismissal or as a foundation for a claim for damages unrelated to dismissal, but as a foundation for a claim at common law for damages for the manner of his dismissal. But the House of Lords refused to extend the implied term to allow an employee to recover damages for loss arising from the manner of his dismissal because (per all members of the House except Lord Steyn) such a development of the law would be contrary to the intention of Parliament that there should be such a remedy, but that it should be limited by the statutory code regarding unfair dismissal now to be found in the Employment Rights Act 1996 (the 1996 Act). Some regarded the decision in Johnson as contentious: see, for example, Deakin and Morris Labour Law, 5th ed (2009), at para 5 45. At para 36 of Mr Bothams written case, Mr Reynold QC invited the court to depart from Johnson, but this suggestion was not developed in the written case or in oral argument. Indeed, it was reaffirmed by the majority of the House of Lords in Eastwood and another v Magnox Electric plc and McCabe v Cornwall County Council and another [2004] UKHL 35; [2005] 1 AC 503 (Eastwoods case). Loss arising from the unfair manner of a dismissal is not therefore recoverable as damages for breach of the implied term of trust and confidence: it falls within what has been called the Johnson exclusion area. The principal questions that arise in these two appeals are (i) whether the reasoning in Johnson applies so as to preclude recovery of damages for loss arising from the unfair manner of a dismissal in breach of an express term of an employment contract; and if so (ii) whether the claims made by Mr Edwards or Mr Botham fall within the Johnson exclusion area. It is submitted on behalf of Mr Edwards and Mr Botham that the first question should be answered in the negative and that their claims for damages should be assessed in accordance with orthodox common law principles. In Mr Edwards case, the Court of Appeal (Ward, Lloyd and Moore Bick LJJ) accepted this submission and in Mr Bothams case, Slade J did not. By a consent order dated 31 August 2010, the Court of Appeal (Pill LJ) reversed the decision of Slade J. The case of Mr Edwards The Chesterfield Royal Hospital NHS Foundation Trust (the Trust) was established on 1 January 2005 as an NHS Foundation Trust and acquired the rights and liabilities of its predecessor, the Chesterfield and North Derbyshire Royal Hospital NHS Trust. Mr Edwards had been employed by the Trusts predecessor as a consultant trauma and orthopaedic surgeon pursuant to a contract which incorporated the terms of its letter to Mr Edwards dated 2 June 1998. Para 2 of the letter referred to the Trust terms and conditions of employment copies of which could be seen at the Medical Personnel Office. Para 8 stated that the employment was subject to three months notice on either side. Para 13 stated that in matters of professional misconduct, Mr Edwards would be subject to a separate procedure which had been negotiated and agreed by the Local Negotiating Committee. By letter dated 22 December 2005, disciplinary proceedings were instituted against Mr Edwards arising from allegations that he had undertaken an inappropriate internal examination of a female patient and had then denied that the examination had taken place. It is his case that the applicable procedure at that time was that set out in Disciplinary procedures for Hospital and Community Medical and Dental Staff (HC(90)9). Annex B to HC(90)9 sets out in detail the procedures which authorities should use when handling serious disciplinary charges, for example, where the outcome of disciplinary action could be the dismissal of the medical or dental practitioner concerned (para 1). A disciplinary hearing was held on 9 February 2006. On 10 February, the disciplinary panel decided that Mr Edwards should be summarily dismissed from his employment on grounds of gross personal and professional misconduct. This decision was confirmed by a letter dated 16 February which set out in detail the panels findings and the reasons for its decision. Mr Edwards appeal against this decision was dismissed on 24 April 2006. On 12 May 2006, Mr Edwards started unfair dismissal proceedings before the Sheffield Employment Tribunal. The matters on which he relied as giving rise to the alleged unfairness of his dismissal included that the disciplinary panel had been inappropriately constituted. His case was that his contract of employment entitled him to have a panel including a clinician of the same medical discipline as himself and a legally qualified chairman. The disciplinary hearing of 9 February was chaired by the Trusts medical director who was not legally qualified and the panel did not include an orthopaedic or trauma surgeon. Mr Edwards had always maintained that, if the panel had been properly constituted, it would not have made incorrect findings and he would not have been dismissed. Prior to the pre hearing review before the tribunal, Mr Edwards withdrew his claim for unfair dismissal and it was dismissed by order of the tribunal on 17 August 2006. The Trust referred the complaints against Mr Edwards to the General Medical Council (GMC). The GMCs Investigation Committee decided not to refer the matter to a Fitness to Practise Panel and the complaint was closed. In the result, Mr Edwards was not subjected to any practising restrictions by the GMC arising out of the subject matter of the Trusts disciplinary investigation. By a claim issued on 15 August 2008, Mr Edwards issued proceedings in the High Court against the Trust in which he claimed damages for breach of his employment contract and its wrongful termination. By his particulars of claim, he alleges that the termination of his contract was wrongful and in breach of contract in a number of procedural respects. It is not necessary to refer to them all. They include the plea that the panel had not been properly constituted. Other allegations are that he was denied a fair hearing with legal representation before a properly constituted and unbiased panel; the Trust caused or permitted the Investigator of the allegations to become a witness and the effective prosecutor to become an adjudicator; and he was denied the right to cross examine the key witnesses who were called to give evidence against him. His case is that, if the panel had included a clinician of the same discipline as himself, it would not have reached the erroneous conclusions it did and the Claimants contract would not have been wrongfully terminated. The preliminary schedule of loss alleged that, but for his dismissal, Mr Edwards would have continued to work in his role as a consultant orthopaedic surgeon with the Trust until his retirement in 2022 and that he had suffered loss of earnings (including future earnings) in excess of 3.8 million. By an application notice issued on 17 February 2009, the Trust applied to the court for an order that Mr Edwards claim for damages for loss in respect of a period in excess of his three months contractual notice period be struck out under CPR 24.4. District Judge Jones acceded to the application. Mr Edwards appealed. Nicol J [2009] EWHC 2011 (QB) allowed the appeal, but only to the extent of holding that, subject to liability for breach of contract being established, in addition to compensation for the three months period of his contractual notice, Mr Edwards was also entitled to compensation for the additional period that it would have taken to conduct the disciplinary procedure if it were conducted and completed with reasonable expedition (the so called Gunton extension). In allowing this additional compensation, the judge was applying the Court of Appeal decision in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. Mr Edwards appealed to the Court of Appeal. The lead judgment was given by Moore Bick LJ. It was recorded at para 44 of his judgment that Mr Edwards was now advancing two discrete claims of breach of contract, namely (i) a claim of wrongful dismissal (termination of the contract without notice) and (ii) a claim that the Trust had failed to carry out the proper disciplinary procedure. The failure to carry out the proper disciplinary procedure was alleged to have resulted in the findings of misconduct which damaged his reputation. It was said that, even if Mr Edwards had continued in his employment with the Trust after the disciplinary process had concluded, he would still have suffered difficulty in obtaining (a) private work (b) expert witness work and (c) employment in a different NHS hospital in the event that he chose to leave Chesterfield Hospital. The focus of the hearings before the Court of Appeal and the Supreme Court was on the claim for damages for loss of reputation resulting from the panels findings. The Court of Appeal held that this second claim did not fall within the Johnson exclusion area and that Mr Edwards was in principle entitled to recover whatever damages he could prove he had suffered as a result of the Trusts failure to carry out the proper disciplinary procedure and that he was not limited in respect of that cause of action to compensation for the three months period or the three months period plus the Gunton extension. Mr Sutton QC submitted to us that Mr Edwards should not be permitted to advance the second claim because it had not been pleaded in the particulars of claim. There is some force in the submission that it had not been pleaded. But the pleading point was not taken before the Court of Appeal. The validity of the second claim was the subject of detailed submissions in the Court of Appeal. It is too late for objection to be taken now. At each stage of these proceedings, it has been accepted by the Trust that the court should proceed on the assumption that Mr Edwards will succeed in establishing all the allegations he makes in the particulars of claim. The case of Mr Botham Mr Botham was employed by the Ministry of Defence (MOD) as a youth community worker from 1988 until 30 September 2003. His employment was terminable on three months notice. He was suspended from work on 10 December 2002 and on 4 June 2003 charged with gross misconduct: it was alleged that he had behaved inappropriately in relation to two teenage girls. Following disciplinary proceedings, on 30 September 2003 he was summarily dismissed for gross misconduct. Because his dismissal was for gross misconduct in relation to young people, he was placed on the list of persons deemed unsuitable to work with children kept by the Department of Education and Skills pursuant to the Protection of Children Act 1999 (POCA). Mr Botham brought a claim for unfair dismissal and wrongful dismissal in the Southampton Employment Tribunal. By its liability judgment dated 17 May 2007, the tribunal found that he had been unfairly dismissed and that his summary dismissal was in breach of contract. The conclusion of unfair dismissal was based on a number of findings including that the MOD had committed breaches of the express and implied terms of the contract of employment. The express terms were set out in the Discipline Code contained in the MODs Personnel Manual and contained various requirements in relation to the disciplinary procedures that were to be followed. After a remedies hearing on 19 October 2007, in its judgment dated 7 November 2007 the tribunal awarded Mr Botham damages for wrongful dismissal in the sum of approximately 7,000 based on loss of salary and benefits for the three months notice period; a basic award for unfair dismissal of 1,989 (after a 55% reduction for contributory fault); and a compensatory award for unfair dismissal of 53,500 (after a 55% reduction for contributory fault and the operation of the statutory cap). Mr Bothams name had been removed from the unsuitable person POCA register on 27 July 2007. The MODs appeal against liability was dismissed by the Employment Appeal Tribunal on 6 October 2008. On 21 April 2009, Mr Botham issued proceedings in the High Court seeking damages for breach of the express terms of his contract of employment. In his particulars of claim he relies on a number of findings that were made by the tribunal in its liability judgment that, in conducting the disciplinary process, the MOD failed to comply with several provisions of the Discipline Code. The alleged breaches are (i) failing to establish the relevant facts before proceeding with the disciplinary action; (ii) failing sufficiently or at all to define the charge, set out the facts to support the charge and to provide and list any documentary evidence; (iii) recommending dismissal without a proper investigation of the facts; and (iv) causing or permitting the Deciding Officer to make reference to other unsubstantiated allegations or suspicions of other offences. His case is that by reason of these breaches of contract, he was dismissed from his employment, suffered a loss of reputation, was placed on the POCA register and was precluded from further employment in his chosen field. His claim for damages includes a claim for loss of future earnings. His claim was dismissed by Slade J [2010] EWHC 646 (QB). She noted at para 57 of her judgment that all the breaches of contract relied on by Mr Botham were alleged to have resulted in Mr Bothams dismissal and the damages claimed were consequential on the dismissal. Accordingly, the claim fell within the Johnson exclusion area and the damages were not recoverable. Mr Botham appealed to the Court of Appeal. In view of the decision of the Court of Appeal in the case of Mr Edwards, on 1 September 2010 and by consent, Pill LJ allowed Mr Bothams appeal and granted the MOD permission to appeal to the Supreme Court. Does the reasoning in Johnson preclude recovery of damages for loss arising from the unfair manner of a dismissal in breach of an express term of an employment contract? It is necessary to start with some background. The statutory right to claim compensation for unfair dismissal was first introduced by the Industrial Relations Act 1971 (the 1971 Act). It is clear from the report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (Cmnd 3623) (the Donovan report) that the 1971 Act was intended to enhance the protection of employees. The Donovan report stated at para 522: An employee has protection at common law against wrongful dismissal, but this protection is strictly limited; it means that if an employee is dismissed without due notice he can claim the payment of wages he would have earned for the period of notice. Beyond this, the employee has no legal claim at common law, whatever hardship he suffers as a result of his dismissal. Even if the way in which he is dismissed constitutes an imputation on his honesty and his ability to get another job is correspondingly reduced he cannotexcept through an action for defamationobtain any redress (see the decision of the House of Lords in [Addis v Gramophone Co Ltd [1909] AC 488]). As the Donovan report stated, the relevant common law position was that stated in Addis. There has been much debate as to whether the headnote to the law report of the decision in Addis accurately reflects the decision of the majority of the House of Lords: see, for example, per Lord Steyn in Mahmud at pp 50 51 and again in Johnson at paras 1 to 5 and 15 and 16. The headnote is in these terms: Where a servant is wrongfully dismissed from his employment the damages for dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment But as Lord Nicholls said at para 2 in Eastwoods case, by the time of the Donovan report, it was settled law that an employee was not entitled to recover damages in respect of the manner of his dismissal. The protection at common law was strictly limited. The employer was entitled to bring the contract of employment to an end without cause. The Donovan report recommended that the law should be changed and that statute should establish machinery to safeguard employees against unfair dismissal. Parliament gave effect to this recommendation in the 1971 Act. The relevant provisions are now contained in Part X of the 1996 Act. An employee has the right not to be unfairly dismissed. The remedies for unfair dismissal are set out in Chapter II of Part X. A complaint may be made to an employment tribunal. If the tribunal upholds the complaint, it may make an order for reinstatement or re engagement or an award of compensation for unfair dismissal. But Parliament placed significant limitations on the ability of an employee to complain of unfair dismissal and on the remedies available where unfair dismissal is proved. The most striking of these are: (i) complaints of unfair dismissal must be brought within a period of three months and time will only be extended where timely presentation of the claim is not reasonably practicable (section 111); (ii) subject to exceptions for automatically unfair dismissals, the normal rule is that, in order to qualify to bring an unfair dismissal claim, an employee must have been continuously employed for not less than one year ending with the effective date of termination; (iii) there is a statutory cap on the level of the compensatory award which can be made by an employment tribunal (for dismissals on or after 1 February 2011 the cap is 68,400); and (iv) the employment tribunal has the power to reduce an employees compensation for unfair dismissal if it is satisfied that he has contributed to his dismissal by conduct which can be characterised as culpable or blameworthy (Nelson v British Broadcasting Corporation (No 2) [1980] ICR 110, 121 per Brandon LJ). It can be seen, therefore, that Parliament decided to give a remedy that was strikingly less generous than that which the common law would give for a breach of contract in the ordinary way. As Lord Nicholls said in Eastwoods case at paras 12 and 13, Parliament has addressed the highly sensitive and controversial issue of what compensation should be paid to employees who are dismissed unfairly. In fixing the limits on the amount of compensatory awards, Parliament has expressed its view on how the interests of employers and employees, and the social and economic interests of the country as a whole, are best balanced in cases of unfair dismissal. In Johnson, the employee claimed common law damages for breach of the implied term of trust and confidence. He alleged that, because of the manner in which he had been dismissed, he had suffered a mental breakdown and was unable work. His claim was struck out as disclosing no reasonable cause of action. The ratio of Johnson is that the implied term of trust and confidence cannot be extended to allow an employee to recover damages for loss arising from the manner of his dismissal. Lord Nicholls (para 2) was unwilling to create a new common law right covering the same ground as the statutory right not to be unfairly dismissed since it would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limits for making claims. He added that it would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals, not the ordinary courts of law. Lord Hoffmann also regarded the statutory background as determinative of the question whether the new common law right should be created. He concluded (para 58) that for the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be to go contrary to the evident intention of Parliament that there should be such a remedy but that it should be limited in application and extent. Lord Millett was of the same opinion. At para 80, he said that the creation of the statutory right made the development of the common law for which the employee contended both unnecessary and undesirable. He made the same points as those made by Lord Nicholls and Lord Hoffmann and added: even more importantly, the coexistence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost. Lord Bingham agreed with Lord Hoffmann and Lord Millett and dismissed the appeal for the reasons they gave. Only Lord Hoffmann in Johnson considered the question of what the position would be if the manner of the dismissal was in breach of express terms of the contract of employment. He said: 60. There is one further point. During the argument there was some discussion of whether the provisions for disciplinary hearings were express terms of Mr Johnson's contract and what the consequences would be if they were. No such express terms were pleaded and Mr Faulks, who appeared for Mr Johnson, was not enthusiastic about doing so. Nevertheless, it may be useful to examine the matter in a little more detail. 61. Section 1(1) of the 1996 Act provides that upon commencing employment, an employee shall be provided with a written statement of particulars of employment. This includes, but is not limited to, the terms and conditions of employment concerning various matters, including the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment (section 1(4)(e)). Section 3(1) then provides that a statement under section 1 shall include a note. specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee. 62. Consistently with these provisions, Mr Johnson was written a letter of engagement which stated his salary and summarised the terms and conditions of his employment, including the notice period. Apart from the statement that in the event of gross misconduct, the company could terminate his employment without notice, it made no reference to disciplinary matters. It was however accompanied by the employee handbook, which the letter of engagement said outlines all the terms and conditions of employment. This was divided into various sections, the first being headed Employment terms and conditions. These made no reference to the disciplinary procedure, which appeared in a subsequent section under the heading Other procedures. There one could find the various stages of the disciplinary procedure: formal verbal warning, written warning, final written warning, culminating in dismissal, as well as the separate procedure for summary dismissal in cases of serious misconduct. 63. So did the disciplinary procedures constitute express terms of the contract of employment? Perhaps for some purposes they did. But the employee handbook has to be construed against the relevant background and the background which fairly looms over the disciplinary procedure is Part X of the 1996 Act. The whole disciplinary procedure is designed to ensure that an employee is not unfairly dismissed. So the question is whether the provisions about disciplinary procedure which (to use a neutral phrase) applied to Mr Johnson's employment were intended to operate within the scope of the law of unfair dismissal or whether they were intended also to be actionable at common law, giving rise to claims for damages in the ordinary courts. 64. Section 199(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 gives Acas power to issue Codes of Practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations. By section 207, a failure to comply with any provision of a Code is not in itself actionable but in any proceedings before an industrial tribunal any provision of the Code which appearsrelevant to any question arising in the proceedings shall be taken into account in determining that question. In 1977 Acas issued a Code of Practice entitled Disciplinary Practice and Procedures in Employment. It explained why it was important to have disciplinary rules and procedures which were in writing and readily available to management and employees. It said in paragraph 4: The importance of disciplinary rules and procedures has also been recognised by the law relating to dismissals, since the grounds for dismissal and the way in which the dismissal has been handled can be challenged before an industrial tribunal. 65. In paragraph 10 it listed what disciplinary procedures should include. The Unisys procedures have clearly been framed with regard to the Code of Practice. 66. My Lords, given this background to the disciplinary procedures, I find it impossible to believe that Parliament, when it provided in section 3(1) of the 1996 Act that the statement of particulars of employment was to contain a note of any applicable disciplinary rules, or the parties themselves, intended that the inclusion of those rules should give rise to a common law action in damages which would create the means of circumventing the restrictions and limits which Parliament had imposed on compensation for unfair dismissal. The whole of the reasoning which led me to the conclusion that the courts should not imply a term which has this result also in my opinion supports the view that the disciplinary procedures do not do so either. It is I suppose possible that they may have contractual effect in determining whether the employer can dismiss summarily in the sense of not having to give four weeks' notice or payment in lieu. But I do not think that they can have been intended to qualify the employer's common law power to dismiss without cause on giving such notice, or to create contractual duties which are independently actionable. Parliament has legislated on the subject of the disciplinary procedures applicable to contracts of employment on a number of occasions and in different ways. I shall start with sections 1 and 3(1) of the 1996 Act. Section 1 obliges an employer to provide the employee with a written statement of particulars of employment. Section 3(1) provides: (1) A statement under section 1 shall include a note (a) specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee, (aa) specifying any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure which is reasonably accessible to the employee. Section 3(1)(aa) was introduced on 1 October 2004 by section 35(2) of the Employment Act 2002 (the 2002 Act). As is stated in Deakin and Morris (loc cit) at para 4.24: even if, in principle, contract and [the] statement [required by section 1] are conceptually discrete, in practice one or both of the parties may regard the statement as being equivalent to a contract in both form and effect. Where the statement favours the employee, it represents strong prima facie evidence of the contract terms and the written particulars place a heavy burden on the employer to show that the actual terms of contract are different from those which he has set out in the statutory statement: per Browne Wilkinson J in System Floors (UK) Ltd v Daniel [1982] ICR 54, 58. In so far as the statement specifies the disciplinary rules, it favours the employee because these rules are designed to ensure that the employee is not unfairly dismissed. The effect of sections 1 and 3(1), therefore, is that Parliament has decided, at least in most cases, that contractual force should be given to applicable rules and procedures. But Parliament has gone further than merely providing that if an employer has applicable disciplinary rules and procedures, they will normally have contractual effect. It has recognised that a breach of disciplinary rules and procedures in the course of a dismissal process is relevant to the question whether the dismissal is unfair. It has from time to time adopted different statutory mechanisms to encourage or enforce compliance with appropriate disciplinary procedures in order to protect employees from dismissals which are procedurally unfair. Thus, in 1977, ACAS issued a Code of Practice entitled Disciplinary Practice and Procedures in Employment. Para 4 explained the importance of disciplinary rules and procedures which were in writing and readily available to management and employees: see para 64 of Lord Hoffmanns speech in Johnson. The 1977 Code was revised in 1997. Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) provides that any provision of a Code of Practice which appears to be relevant to any question arising in unfair dismissal proceedings shall be taken into account in determining that question. This is the point that was discussed by Lord Hoffmann at paras 64 and 65 of his speech. The 2002 Act introduced statutory dispute resolution procedures: see section 29 and Schedule 2. The dismissal and disciplinary procedures prescribed by Schedule 2 were similar to the ACAS procedures. Section 30 provided: (1) Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure. (2) Subsection (1) shall have effect notwithstanding any agreement to the contrary, but does not affect so much of an agreement to follow a particular procedure as requires the employer or employee to comply with a requirement which is additional to, and not inconsistent with, the requirements of the statutory procedure. Section 31 provided that if, in the case inter alia of unfair dismissal proceedings, it appeared to the employment tribunal that a claim to which the proceedings related concerned a matter to which one of the statutory procedures applied, and the statutory procedure was not completed before the proceedings began by reason of a failure of the employer or employee to comply with the requirements of the procedure, then the tribunal was required to increase or reduce any award in accordance with the provisions of section 31(2) or (3) (as the case may be). Section 34 introduced a new section 98A into the 1996 Act. It provided: (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if (a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal, (b) the procedure has not been completed, and (c) the non completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. Pursuant to the powers conferred by section 31(6), the Secretary of State made the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752). These were detailed regulations inter alia about the application of the statutory procedures and what constituted compliance with a requirement of a statutory procedure. These procedures proved to be unduly complicated. It was concluded by the Government that they carried an unnecessarily high administrative burden for both employers and employees and have had unintended negative consequences which outweigh their benefits: Better Dispute Resolution: A Review of Employment Dispute Resolution in Great Britain (the Gibbons Review) DTI, March 2007, p 8. The Government therefore decided to return to reliance on an ACAS Code of Practice, but provided for tribunals to have a discretion to adjust awards by up to 25% in the event of non compliance with the Code. Accordingly, sections 29 33 and 34(2) and Schedule 2 of the 2002 Act were repealed by the Employment Act 2008 (the 2008 Act) and the 2004 Regulations lapsed upon the repeal. Section 3 of the 2008 Act introduced a new section 207A into the 1992 Act. It provides that, if in the case inter alia of unfair dismissal proceedings it appears to an employment tribunal that the claim concerns a matter to which a relevant Code of Practice applies and the employer or employee has unreasonably failed to comply with the Code in relation to that matter, then the tribunal may, if it considers it just and equitable to do so, increase or reduce any award it makes to the employee by no more than 25%. A relevant Code of Practice means a Code of Practice which relates exclusively or primarily to procedure for the resolution of disputes. Relevant Codes of Practice have been issued by ACAS from time to time. Thus, for example, the 2003 Code states that it: provides practical guidance to employers, workers and their representatives on The statutory requirements relating to disciplinary and grievance issues; What constitutes reasonable behaviour when dealing with disciplinary and grievance issues; Producing and using disciplinary and grievance procedures. The April 2009 Code states that it sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most instances. To summarise, under section 207 of the 1992 Act, any non compliance with the ACAS Code of Practice relevant to a question arising in unfair dismissal proceedings was to be taken into account in determining that question. Under the 2002 Act, Parliament adopted the direct approach of introducing mandatory dispute resolution procedures and, if a statutory procedure had not been completed for reasons attributable to the employer, providing for the employee to be regarded as unfairly dismissed and for an adjustment of awards in unfair dismissal proceedings. Under the 2008 Act, Parliament reverted to the earlier model (but with modifications) of providing that an unreasonable failure to comply with a relevant Code of Practice may be reflected in the amount of an award of compensation for unfair dismissal. The important point is that in each case, Parliament linked a failure to comply with disciplinary or dismissal procedures with the outcome of unfair dismissal proceedings. To adopt the language of Lord Hoffmann at para 63 of Johnson, the provisions about disciplinary procedure were intended to operate within the scope of the law of unfair dismissal. It follows that, if provisions about disciplinary procedure are incorporated as express terms into an employment contract, they are not ordinary contractual terms agreed by parties to a contract in the usual way. At para 38 of his judgment, Moore Bick LJ said whether the parties intend the provisions relating to disciplinary procedures to sound in damages depends on the true construction of the contract. As a general proposition, this is obviously true. But in the present context, it ignores the statutory link between the provisions about disciplinary procedures and the law of unfair dismissal. The question remains whether, if provisions about disciplinary procedure are incorporated into a contract of employment, they are intended to be actionable at common law giving rise to claims for damages in the ordinary courts. Parliament intended such provisions to apply to contracts of employment inter alia in order to protect employees from unfair dismissal and to enhance their right not to be unfairly dismissed. It has specified the consequences of a failure to comply with such provisions in unfair dismissal proceedings. It could not have intended that the inclusion of these provisions in a contract would also give rise to a common law claim for damages for all the reasons given by the House of Lords in Johnson for not extending the implied term of trust and confidence to a claim for damages for unfair manner of dismissal. It is necessarily to be inferred from this statutory background that, unless they otherwise expressly agree, the parties to an employment contract do not intend that a failure to comply with contractually binding disciplinary procedures will give rise to a common law claim for damages. In these circumstances, I agree entirely with para 66 of Lord Hoffmanns speech. The unfair dismissal legislation precludes a claim for damages for breach of contract in relation to the manner of a dismissal, whether the claim is formulated as a claim for breach of an implied term or as a claim for breach of an express term which regulates disciplinary procedures leading to a dismissal. Parliament has made certain policy choices as to the circumstances in which and the conditions subject to which an employee may be compensated for unfair dismissal. A dismissal may be unfair because it is substantively unfair to dismiss the employee in the circumstances of the case and/or because the manner in which the dismissal was effected was unfair. The manner may be unfair because it was done in a humiliating manner or because the procedure adopted was unfair inter alia because the agreed disciplinary procedure which led to the dismissal was not followed. It may be unfair because defamatory findings were made which damage the employees reputation and which, following a dismissal, make it difficult for the employee to find further employment. Any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal subject to the various constraints to which I have referred. Parliament did not intend that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament for the exercise of this statutory jurisdiction. Lord Phillips agrees that (at any rate in the absence of express agreement) damages are not recoverable for breach of an express term of an employment contract as to the manner of dismissal. He reaches this conclusion by applying and extending the Addis principle (ie as a matter of common law), presumably, for reasons of principle or policy. But the statutory dimension and the link between contractual disciplinary procedures and the statutory law of unfair dismissal cannot be ignored. I think that Lord Phillips implicitly recognises this. This is because he concludes that to permit a claim for damages for failure to comply with a disciplinary code leading to dismissal would undermine the decisions in Johnson and Eastwood. I agree. But those decisions are based on the intention of Parliament derived from the unfair dismissal legislation. I need to deal with the suggestion that was made during the argument (accepted by Lady Hale and Lords Kerr and Wilson) that claims such as those made by Mr Edwards and Mr Botham would have been available as common law claims for breach of contract before the enactment of the 1971 Act and that neither that statute nor its successors should be interpreted as having taken away existing rights enjoyed by employees. The answer to this argument is that the right to claim damages in respect of the manner of a dismissal did not exist before the 1971 Act: see paras 20 and 21 above. I accept that there has been debate as to what Addis decided. It is not necessary to enter into this debate. It is, however, clear that the Donovan report which inspired the 1971 Act stated that the law was as summarised in the headnote to the law report to Addis and Lord Nicholls expressed the same view at para 2 in Eastwoods case. In any event, at the very least it was not clear whether an employee could claim damages for the unfair manner in which he was dismissed. No example was cited to us of any case decided before the 1971 Act in which an employee was awarded damages for breach of contract for the unfair manner in which he had been dismissed. In these circumstances, I cannot accept that an application of the reasoning in Johnson should be rejected because it involves saying that the 1971 Act took away an employees existing rights and that this could not have been intended by Parliament. That is not to say that an employer who starts a disciplinary process in breach of the express terms of the contract of employment is not acting in breach of contract. He plainly is. If that happens, it is open to the employee to seek an injunction to stop the process and/or to seek an appropriate declaration. Miss ORourke QC submitted that, if in such a situation there is a breach of contract sufficient to support the grant of an injunction but (for whatever reason) the employee does not obtain an injunction, it is anomalous if the normal common law remedy of damages is in principle not available to him. The short answer to this submission is that an injunction to prevent a threatened unfair dismissal does not cut across the statutory scheme for compensation for unfair dismissal. None of the objections based on the co existence of inconsistent parallel common law and statutory rights applies. The grant of injunctive or declaratory relief for an actual or threatened breach of contract would not jeopardise the coherence of our employment laws and would not be a recipe for chaos in the way that, as presaged by Lord Millett in Johnson, the recognition of parallel and inconsistent rights to seek compensation for unfair dismissal in the tribunal and damages in the courts would be. Miss ORourke relies on the Court of Appeal decision in Saeed v Royal Wolverhampton Hospitals NHS Trust [2001] ICR 903 and in particular the House of Lords decision in Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27; [2003] ICR 721 and on the Court of Appeal decision in Gunton [1981] Ch 448 in support of the conclusion reached by the Court of Appeal in the present case. In Saeed at para 12, Hale LJ said that if an employee thinks that the employer has chosen the wrong disciplinary procedure, then he can try to have it changed in advance or seek damages after the event. This was not a dismissal case and in any event it pre dates Johnson. Understandably, it does not engage with the reasoning in Johnson and therefore it does not shed light on the issue that arises on these appeals. Skidmore is an unfair dismissal case. It was held that the employer had adopted the wrong disciplinary procedures and the employees unfair dismissal claim was remitted to an employment tribunal. At para 15, Lord Steyn said that it was for the employer to decide which disciplinary route should be followed, but that the decision should be in accordance with the contract. If a non conforming decision was taken and acted upon, there is a breach of contract resulting in the usual remedies. Lord Steyn expressed his agreement with what Hale LJ had said in Saeed. But these observations were obiter dicta. The question of what remedy would be available to the employee if a non conforming decision was taken was not in issue in that case. No doubt that is why Johnson was not cited to the House and not mentioned by Lord Steyn and why he did not grapple with the relationship between the statutory code which regulates unfair dismissal claims and common law claims for damages for breach of contract. Although great respect should always be paid to any observations of Lord Steyn, I do not think that it would be right to place weight on these dicta. Gunton was a wrongful dismissal case. The claimant was employed under a contract of service terminable on one months notice. Regulations prescribing a procedure for the dismissal of an employee on disciplinary grounds were incorporated into his contract. The employer gave one months notice of termination, but without first having followed the prescribed disciplinary procedure in all respects. It was held by the Court of Appeal by a majority that the employee could not lawfully be dismissed on a disciplinary ground until the procedure had been properly carried out and that his dismissal was accordingly wrongful. The measure of damages for wrongful dismissal was loss of wages up to the date on which the contract could properly have been determined by the employer (on an application of the least onerous principle: see McGregor on Damages, 18th ed (2010), at para 8 094.) It was held that the period by reference to which damages were to be assessed was a reasonable period for carrying out the disciplinary process plus one month: see per Buckley LJ at p 470 and per Brightman LJ at p 474. Miss ORourke submits that the case of Gunton is an example of damages being awarded for breach of a disciplinary process leading to a dismissal. In my view, this submission is based on a misreading of the case. It was a conventional wrongful dismissal case involving the breach of a term relating to a notice of termination. It was held that it was not open to the employer to give one months notice without first undertaking the disciplinary process properly. As Brightman LJ put it at p 474, the failure to undertake the process properly meant that the notice was invalid and a nullity. It was not a claim for damages for breach of the disciplinary process. It was a claim for wrongful dismissal for purporting to terminate the contract on the basis of an invalid notice. In my view, there is nothing in this case which is inconsistent with the Johnson principle. I would, therefore, hold that the reasoning in Johnson is a bar to a claim for damages for breach of an express term of an employment contract as to the manner of a dismissal. The demarcation boundary But that is not an end to the enquiry because the question remains in any given case whether the claim falls within the Johnson exclusion area or not. The issue of where the boundary is to be found was considered in Eastwood [2005] 1 AC 503. Lord Nicholls gave valuable guidance at paras 27 to 33: 27. Identifying the boundary of the Johnson exclusion area, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee's remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal. 28. In the ordinary course, suspension apart, an employer's failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area. 29. Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employer's failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre dismissal unfair treatment. In such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over. 30. If identifying the boundary between the common law rights and remedies and the statutory rights and remedies is comparatively straightforward, the same cannot be said of the practical consequences of this unusual boundary. Particularly in cases concerning financial loss flowing from psychiatric illnesses, some of the practical consequences are far from straightforward or desirable. The first and most obvious drawback is that in such cases the division of remedial jurisdiction between the court and an employment tribunal will lead to duplication of proceedings. In practice there will be cases where the employment tribunal and the court each traverse much of the same ground in deciding the factual issues before them, with attendant waste of resources and costs. 31. Second, the existence of this boundary line means that in some cases a continuing course of conduct, typically a disciplinary process followed by dismissal, may have to be chopped artificially into separate pieces. In cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches of the trust and confidence term and loss flowing from the employee's acceptance of these breaches as a repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area. In some cases this legalistic distinction may give rise to difficult questions of causation in cases such as those now before the House, where financial loss is claimed as the consequence of psychiatric illness said to have been brought on by the employer's conduct before the employee was dismissed. Judges and tribunals, faced perhaps with conflicting medical evidence, may have to decide whether the fact of dismissal was really the last straw which proved too much for the employee, or whether the onset of the illness occurred even before he was dismissed. 32. The existence of this boundary line produces other strange results. An employer may be better off dismissing an employee than suspending him. A statutory claim for unfair dismissal would be subject to the statutory cap, a common law claim for unfair suspension would not. The decision of the Court of Appeal in Gogay v Hertfordshire County Council [2000] IRLR 703 is an example of the latter. Likewise, the decision in Johnson v Unisys Ltd [2003] 1 AC 518 means that an employee who is psychologically vulnerable is owed no duty of care in respect of his dismissal although, depending on the circumstances, he may be owed a duty of care in respect of his suspension. 33. It goes without saying that an interrelation between the common law and statute having these awkward and unfortunate consequences is not satisfactory. The difficulties arise principally because of the cap on the amount of compensatory awards for unfair dismissal. Although the cap was raised substantially in 1998, at times tribunals are still precluded from awarding full compensation for a dismissed employee's financial loss. So, understandably, employees and their legal advisers are seeking to side step the statutory limit by identifying elements in the events preceding dismissal, but leading up to dismissal, which can be used as pegs on which to hang a common law claim for breach of an employer's implied contractual obligation to act fairly. This situation merits urgent attention by the Government and the legislature. The question in each case is, therefore, whether or not the loss founding the cause of action flows directly from the employers failure to act fairly when taking steps leading to dismissal and precedes and is independent of the dismissal process (Lord Nicholls at para 29). In other words, the court must decide whether earlier events do or do not form part of the dismissal process (Lord Steyn at para 39). This is a fact specific question. As Lord Nicholls observed at paras 15 and 30 to 33, drawing the boundary line in this way leads to unsatisfactory and anomalous results. One of these is that an employer may be better off dismissing an employee than suspending him. But this is the inevitable consequence of the interrelation between the common law and statute. The unfair dismissal legislation occupies the unfair dismissal territory to the exclusion of the common law, but it does not impinge on any cause of action which is independent of a dismissal (such as a common law claim for damages for suspension in breach of contract). It is instructive to see how the House of Lords approached this question in the Eastwood case itself. The case of Eastwood v Magnox concerned two employees (Mr Eastwood and Mr Williams) both of whom pursued claims for unfair dismissal before the tribunal which were compromised. They both then started proceedings in the county court claiming that they had suffered personal injuries in the form of psychiatric illnesses caused by a deliberate course of conduct by certain individuals using the machinery of the dismissal process. On the assumed facts, the House of Lords held that these claims were independent of the dismissal process and did not fall within the Johnson exclusion area. The claimants had acquired a cause of action for breach of contract before their dismissal. On the other hand, as we have seen (para 24 above) in Johnson itself, the claim was for damages for the mental breakdown that the claimant alleged that he had suffered as a result of the manner and the fact of his dismissal: that claim did fall within the Johnson exclusion area. The third case considered by the House of Lords in the Eastwood case was that of Mr McCabe. Mr McCabe lodged a complaint of unfair dismissal with a tribunal on the grounds that his dismissal was in breach of the relevant disciplinary procedures. He was awarded compensation and then started proceedings in the High Court against the employer claiming damages inter alia for breach of contract. The primary complaint in his statement of claim as originally served was that by reason of the councils failure to investigate the allegations properly and to conduct the disciplinary hearings properly and his dismissal he had sustained psychiatric illness. But later (and in response to the decision in Johnson), he sought to amend his statement of claim by limiting the focus of his complaint to the period before his dismissal, that is to the period of his suspension and to the employers failure to carry out a proper investigation of the allegations against him. On the assumed facts on which the amended claim was based, the House of Lords held that Mr McCabes cause of action had accrued before his dismissal and was independent of it. Do the present cases fall outside the Johnson exclusion area? Mr Edwards It is accepted by Miss ORourke that Mr Edwards claim for unfair dismissal falls within the Johnson exclusion area. But she submits that his claim for damages for loss of reputation consequent on the findings of misconduct made by the disciplinary panel does not. She contends that these findings resulted from the fact that (in breach of the contractual disciplinary procedures) the disciplinary panel was not properly constituted and acted in a manner which was procedurally unfair. This breach, she submits, occurred independently of the dismissal. The undisputed facts are that Mr Edwards disciplinary hearing was held on 9 February 2006. He was notified of his summary dismissal on the following day. The decision was confirmed in a long letter from the chairman of the disciplinary panel dated 16 February which set out in detail the allegations and the panels findings. The complaint is that the panels erroneous conclusions flowed from these findings. The findings and conclusions were first published in the letter which was sent six days after the decision to dismiss had been communicated to Mr Edwards and were contained in the letter which confirmed his dismissal. In my view, it is impossible to divorce the findings on which Mr Edwards seeks to found his claim for damages for loss of reputation from the dismissal when they were the very reasons for the dismissal itself. In these circumstances, Mr Edwards claim for damages for loss of reputation is not one of those exceptional cases to which Lord Nicholls referred in Eastwood where an employers failure to act fairly in the steps leading to a dismissal causes the employee financial loss. This claim does not arise from anything that was said or done before the dismissal. It is not independent of the dismissal. It arises from what was said by the Trust as part of the dismissal process. It follows that I cannot accept the distinction made by Lord Kerr and Lord Wilson between the findings or reasons for the dismissal and the dismissal itself. I agree with what Lord Mance says about that. Mr Botham The case pleaded at para 20 of the particulars of claim is that as a result of the MODs breaches of contract, Mr Botham foreseeably, was dismissed from employment, and was caused (wrongly) to suffer loss and damage to his reputation and to be precluded from further employment in his chosen field and to be placed on the register of persons deemed unsuitable to work with children. The damages claimed include loss of earnings and other benefits from the date of dismissal. The statement of facts and issues agreed for the purposes of the appeal state that Mr Botham was placed on the register as a consequence of the dismissal for gross misconduct (para 5) and the relief sought by him includes damages on the grounds that his dismissal and his inclusion on the POCA precluded him from further employment as a youth community worker (para 15(3)). In my view, this case is a fortiori that of Mr Edwards. In Mr Edwards case, it is alleged that the damages for loss of reputation were caused by the erroneous findings made by the panel, rather than the dismissal. Mr Botham goes further and says that the damages he claims for loss of reputation were caused by the dismissal itself. For the reasons already given, it falls within the Johnson exclusion area. That was the view of Slade J and I agree with it. The consent order made by the Court of Appeal on 31 August 2010 should therefore be set aside. Conclusion on the main issue in relation to Mr Edwards and Mr Botham It follows that I would allow the appeals by the Trust and the MoD. In both cases, the employment was terminated by dismissal. Had they both been suspended, the position would have been completely different. As it is, their claims are for damages arising from what was said in the course of the dismissal process and must be rejected for the reasons that I have given. As I have said (para 10 above), Nicol J held that, subject to liability for breach of contract being established, the maximum amount of damages recoverable by Mr Edwards for wrongful dismissal was compensation for the three months notice period and the Gunton extension period. There was some discussion before us as to whether Gunton was correctly decided. The point was described as difficult by Staughton LJ in Boyo v Lambeth London Borough Council [1994] ICR 727 at 747H 748A. But in view of my conclusion on the main issue, this point does not arise and I do not find it necessary to express a view on whether Gunton was correctly decided. Claims by Mr Botham for costs as damages Cost of legal representation in the disciplinary proceedings Mr Botham had the benefit of legal assistance in the disciplinary proceedings. It is common ground that, in view of the nature of the charge against him, it was reasonable and foreseeable that he would obtain such assistance. Mr Reynold QC submits that, since the charge was preferred in circumstances which constituted a breach of the express terms of the contract of employment, Mr Botham is entitled to his legal costs on ordinary principles as loss flowing from the breach. I reject this submission largely for the reasons given by Ms Outhwaite QC and the judge. At para 6 of its remedies judgment, the Employment Tribunal made a finding that Mr Bothams culpable conduct was the sole reason for the disciplinary procedure. It follows that the cost of legal assistance during the disciplinary process was caused by Mr Bothams culpable conduct in triggering the disciplinary process and did not arise out of a breach of contract by the MOD. Furthermore, Parliament designed the Tribunal system so that there was no need for legal representation and, therefore, litigation costs are not normally recoverable. It would be odd if an employee was entitled to recover costs for legal representation for the disciplinary proceedings before his employer, but could not recover costs for legal representation before the Employment Tribunal itself. Litigation costs before the Employment Tribunal and the Employment Appeal Tribunal Mr Reynold submits that, but for the breaches of contract, the costs of legal representation before the Employment Tribunal and the Employment Appeal Tribunal would not have been incurred. Mr Botham is, therefore, entitled to recover these costs as damages for breach of contract on normal common law principles. I would also reject this submission again largely for the reasons given by Ms Outhwaite and the judge. The unfair dismissal claim arose necessarily out of the dismissal and, for the reasons given earlier, fell within the Johnson exclusion area. Legal costs were incurred because Mr Botham had been dismissed. A claim in respect of these costs falls within the Johnson exclusion area and is not recoverable as damages for breach of contract for the same reasons as damages are not recoverable for loss of earnings and benefit. Every unfair dismissal claim involves at the very least an alleged breach of the implied term of trust and confidence, and probably involves an alleged breach of express contractual terms as well. If the court were to award damages for legal representation in dismissal proceedings, such claims would arise following all unfair dismissal claims. This would defeat Parliaments statutory regime which was intended to provide a fast, cost free resolution to dismissals which are alleged to be unfair by a specialist tribunal. All such claims would result in satellite litigation to recover litigation costs. Nor would there be any reason to confine such satellite litigation to successful claims for unfair dismissal. Mr Botham chose to bring a claim for unfair dismissal before the Employment Tribunal. Having elected to bring a claim in a forum where no costs are usually awarded, he should bear the cost consequences of having done so. There are strong policy reasons for awarding costs only in exceptional circumstances. The statutory regime should not be circumvented so as to allow a damages action for costs. Conversely, the MOD had no choice of forum. It responded to the claim after the forum had been chosen by Mr Botham. If the MOD had successfully defended the unfair dismissal claim, it too would not have been able to recover its costs. Overall conclusion For the reasons that I have given, I would allow the appeal of the Trust in the case of Mr Edwards and of the MOD in the case of Mr Botham. LORD PHILLIPS When initially I saw in draft the judgment of Lord Dyson, my reaction was that it was so plainly right in the result that my inclination was simply to add my agreement to it. The judgments of Lady Hale and Lord Kerr have, however, caused me to give further consideration to this difficult area of the law. While I have not changed my mind as to the result, the route by which I have reached it is not on all fours with that of Lord Dyson. For that reason I am adding my judgment to those of Lord Dyson and Lord Mance. Each of the claimants was dismissed from his employment after a disciplinary hearing. Each disciplinary hearing should have complied with a disciplinary code that had contractual force. Each hearing failed to comply with the code. Each claimant alleges that as a consequence of this the relevant tribunal wrongly made findings of misconduct that have inhibited him from obtaining alternative employment and thus caused him financial loss. Each claimant has sought to recover this loss in an action in the High Court for breach of contract. I shall describe each of these claims as a stigma claim. Mr Edwards has combined his stigma claim with what is now a separate claim for wrongful dismissal. He has brought no proceedings other than these two claims. Mr Botham initially commenced proceedings in the Southampton Employment Tribunal, pursuant to legislation that I shall describe compendiously as unfair dismissal legislation. He successfully claimed compensation for both wrongful dismissal and unfair dismissal. His damages for the former were limited to three months salary and benefits, in respect of the period of notice of which he was deprived. His compensation for the latter was reduced to reflect a finding of 55% contributory fault and the effect of the statutory cap. Mr Botham then commenced his stigma claim in the High Court. Neither claim succeeded at first instance. Each was held to be precluded because it fell within the so called Johnson exclusion area. Mr Edwards appealed successfully to the Court of Appeal, after which Mr Botham made a similar appeal, which was allowed by consent. Two questions arise. (1) Are the stigma claims outside the Johnson exclusion area because they are discrete from and independent of the claims for wrongful dismissal? (2) Are the stigma claims outside the Johnson exclusion area because they are claims for breaches of express, and not implied, contractual terms? The majority answers both questions in the negative. Lady Hale answers the second question in the affirmative, and holds that the judgments of the Court of Appeal were correct for this reason. Lord Kerr and Lord Wilson consider that the first question is critical. So far as Mr Edwards is concerned, his stigma claim is sound because it is discrete and independent of the claim for wrongful dismissal. Mr Bothams claim is, however, for loss consequential on his dismissal. In these circumstances his claim is invalid. Lord Dyson holds that each stigma claim arises out of the manner of the claimants wrongful dismissal. I agree with him. If that conclusion is correct it is, I believe, common ground that each claim must fail if Lord Hoffmanns obiter dicta in Johnson were correct. Lord Dyson has set out at para 1 of his judgment the implied term upon which the claim in Johnson was founded (the trust and confidence implied term). The majority in Johnson, Lord Steyn dissenting on the point, held that this implied term had no application to the manner of dismissal of an employee by his employer. This was because Parliament had made alternative provision for this situation by the unfair dismissal legislation. Lord Hoffmann alone expressed the view that, even if the manner of dismissal involved the failure to comply with a disciplinary code that had contractual effect, no claim at common law could be based upon that failure. The vital question in the present case is whether Lord Hoffmann was correct. That question might well have been raised in Eastwood. There also the trust and confidence implied term was invoked to found common law claims by employees who had been dismissed after disciplinary hearings that had been improperly conducted. Each of the employees claimed that the hearings had caused them psychiatric damage prior to dismissal. The employers sought to rely on the Johnson exclusion. No one suggested that the claims could be founded on breaches of express contractual obligations in relation to the disciplinary hearings. Instead, the claims were held to be viable on the basis that they fell outside the Johnson exclusion area in as much as their causes of action preceded and were independent of their subsequent dismissals. Lord Steyn devoted a lengthy concurring speech to the suggestion that there might be good reason to reconsider Johnson. He did not suggest that it could simply be finessed by bringing a claim for failure to comply with the relevant disciplinary codes. In Johnson at para 66, when dealing with the intention of Parliament when passing section 3(1) of the 1996 Act, Lord Hoffmann observed that the disciplinary procedures could not have been intended to qualify the employers common law power to dismiss without cause on giving such notice, or to create contractual duties which are independently actionable. The intention of which he spoke was both that of Parliament and that of the parties themselves. This is echoed by a passage in the judgment of Lord Dyson, when applying Lord Hoffmanns reasoning in the present case. Lord Dyson sets out at para 26 of his judgment the critical passage from the speech of Lord Hoffmann in Johnson. He then expands on the Parliamentary history of the requirement that disciplinary procedures should be incorporated in contracts of employment. He demonstrates that Parliament also provided that failure to comply with those procedures should have specific consequences in unfair dismissal proceedings. Lord Dyson at para 38 observes that disciplinary procedures incorporated into an employment contract are not ordinary contractual terms. At para 39 he concludes that it is necessarily to be inferred from the statutory background that, unless the parties otherwise expressly agree, the parties to an employment contract do not intend that a failure to comply with contractually binding disciplinary procedures will give rise to a common law claim for damages. Thus, on Lord Dysons analysis, no claim to damages can be founded on breach of a disciplinary code that is incorporated into the contract because it is to be inferred that the parties have so agreed. This echoes Lord Hoffmanns reference to the intention of the parties themselves. Courts often refer to the intention of Parliament. When they do so the intention is usually implied or imputed. The courts ascribe to Parliament an intention that the relevant legislation will bear a meaning that is rational and coherent. The intention is thus somewhat artificial. It is even more artificial in the present context to impute to every party to a contract of employment the same intention that Lord Hoffmann and Lord Dyson have ascribed to Parliament in relation to the effect of disciplinary codes. While this may be a legitimate approach to making sense of this area of the law, I believe that there is a more satisfactory route that leads to the conclusion that Lord Dyson has reached in this case. This case is about remoteness of damage. That is what Addis was about. In Addis the plaintiff was employed to manage a business in Calcutta on terms that entitled him to 6 months notice. He was given 6 months notice, but immediately replaced, with the result that he returned to England. His claim for breach of contract succeeded before judge and jury. The jury awarded him 600 for wrongful dismissal. In the House of Lords the principal issue was as to the measure of damage to which he was entitled. There were a number of problems. First it was not clear whether the breach of contract lay in constructively dismissing the plaintiff without notice, or in refusing to let him act as manager during the notice period. Significantly, Lord Loreburn LC held at p 490 that it made no difference. The damages were the same on either footing. The second problem was that it was not clear on what bases the jury had awarded 600 damages. Lord Atkinson at pp 494 and 496 and Lord Collins at pp 497, 498 and 501 considered the case on the footing that the jury might have purported to award exemplary damages. The majority of their Lordships considered, however, that the case raised the issue of principle of whether it was open to the jury to award damages for the consequences of the dismissal in so far as these extended beyond direct financial loss. They considered whether damages could be awarded in respect of injury to feelings or the fact that the dismissal of itself made it more difficult to obtain fresh employment see Lord Loreburn at p 491, Lord Atkinson at p 493, Lord Collins at p 497 and Lord Shaw of Dumferline at p 504. It is particularly material in the present context that they considered whether wrongful dismissal could give rise to a claim for stigma damages. The majority held that it could not. The reason for this was that such a head of loss, together with any claim for distress or injury to feelings, was properly the subject of a claim in tort rather than in contract see Lord James of Hereford at p 492, Lord Atkinson at p 496, Lord Gorell at p 502 and Lord Shaw at pp 503 and 504. Thus Addis was not a case about the scope of the contractual duty of an employer, but a case about the measure of damage recoverable for breach of the employers contractual duty. As Lord Dyson points out at para 19, the 1971 Act was passed on the basis that the law had not changed since Addis. That was the first of a series of statutes, set out by Lord Dyson, that put in place a complex scheme that provided a specifically limited remedy for employees for unfair dismissal that took account of the circumstances of the dismissal, including procedural unfairness and, in particular, any failure to comply with the procedural code that the legislation required to be incorporated in the contract. In the meantime the common law relating to contracts of employment developed in a manner favourable to employees, both by the development of implied obligations on the part of the employer and by recognising heads of damage that could be recovered both in tort and in contract that had not been recognised at the time of Addis. One such obligation arose under the trust and confidence implied term. In Mahmud the House of Lords held that this implied term could give rise to stigma damages. Stigma damage constituted a novel head of damage for breach of a contract of employment. The stigma damages recognised in Mahmud were not caused by wrongful dismissal. Stigma damages cannot be awarded for wrongful dismissal without reversing Addis. In Addis at p 500 Lord Collins summarised, with approval, an observation of Lord Coleridge CJ in Maw v Jones (1890) 25 QBD 107 as follows: dismissal with an imputation might well be thought by a jury to hurt the plaintiffs prospects of finding another situation, and on that ground alone might give a legal claim to consequential damages within the ordinary rule. The majority held, however, that stigma damages could not be recovered as a head of damage flowing from wrongful dismissal. Johnson was decided on the premise that Addis remained good law see Lord Millett at para 68 although he did go on at para 70 to raise the question of whether Mahmud might have changed the position. Addis was not challenged in Eastwood. Addis has not been challenged in the present case. Until Addis is reversed it remains the law that stigma damages cannot be recovered for wrongful dismissal. The stigma effect can, however, be taken into account in a claim under statute for unfair dismissal. If the courts in developing the common law principles of measure of damage can exclude a claim for stigma damages for breach of contract that consists of wrongful dismissal, it is equally open to them to exclude such a head of claim for breach of contract that consists of a failure to comply with a disciplinary code. The question in this case is whether this Court should do so. If this Court follows the reasoning of the House of Lords in Johnson and in Eastwood this question must be answered in the affirmative. The chain of causation linking a failure to follow a disciplinary procedure with stigma is more tenuous than the chain of causation linking wrongful dismissal with stigma. If the law does not permit recovery of stigma damages in the latter case, it makes no sense to permit it in the former. More generally, to permit such a claim based on a failure to comply with a disciplinary code leading to dismissal undermines the decisions of the House of Lords in Johnson and Eastwood. The same is not true of Gunton, if that case was rightly decided, for that case applied the same restrictive approach to measure of damage as Addis. On my reading of Lady Hales judgment, I am inclined to suspect that her quarrel is not simply with Lord Hoffmanns obiter dicta, it is with Addis, with Johnson and with Eastwood. If so, she stands shoulder to shoulder with Lord Steyn. They may both be right. It may be that this area of the law merits fundamental review. That is not, however, the battleground on which this Court was invited to tread. The issue before this Court is narrower. It is whether the reasoning in the latter two cases can be subverted by applying to a claim for breach of a disciplinary code a head of damage that the law does not presently permit to be advanced in a claim for wrongful dismissal. I agree with Lord Dyson and Lord Mance that the answer to that question is no. Accordingly, I would allow each of these appeals. LORD MANCE I agree with Lord Dysons reasoning and conclusions. Mr Bothams case, as pleaded in paragraph 20 of his particulars of claim and as Slade J said in paragraphs 17 18, 25, 29 and 66 of her judgment, is that the Armys breach of contractual terms relating to the implementation of the disciplinary procedure laid down in the Army Discipline Code led to his wrongful dismissal, which in turn led to his alleged loss (save the costs of disciplinary proceedings). Lord Dyson concludes, and I agree, that such a claim is unsustainable in the light of the decision in Johnson v Unisys Ltd [2003] 1 AC 518, the dicta of Lord Hoffmann in that case at para 66, and the further considerations relating to the common law and statutory position mentioned by Lord Dyson at paras 19 to 48. The law would be incoherent otherwise. Lord Phillips prefers an analysis according to which the present case is governed by a principle of remoteness which he derives from Addis v Gramaphone Co Ltd [1909] AC 488. That case establishes that an employee cannot recover damages for injured feelings, mental distress or damage to his reputation, arising out of the manner of his dismissal: Johnson v Unisys Ltd, para 44, per Lord Hoffmann. But it is questionable whether this is a principle of remoteness, as opposed to causation: see eg Mahmud v Bank of Credit and Commerce International SA [1998] AC 20, 51D E, per Lord Steyn and Johnson v Unisys Ltd, paras 39 and 44, citing McLachlin J s dictum in Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, 39 that A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination in support of a conclusion that the only loss caused by a wrongful dismissal flows from a failure to give proper notice or make payment in lieu. Put another way, a dismissal is wrongful where there is such a failure (and, of course, no basis for summary dismissal). Other circumstances (such as the reasons for the failure, the employers state of mind or the impact on the employee) are simply irrelevant to the breach or the loss recoverable for it. The respondent employees case on the present appeals is that the disciplinary procedures which they say were prescribed were, in contrast, by their nature intended to give then contractual protection against unfair dismissal, meaning dismissal for unfair reasons or in an unfair manner. On this basis, they submit, there is no reason to treat as irrecoverable any financial loss caused to them by stigma resulting from improper disciplinary procedures leading to unfair findings. I see the argument, but its acceptance would, as Lord Phillips points out, undermine the decisions of the House of Lords in both Johnson and Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503. These decisions were in turn based upon a consideration of the legal position resulting from Parliaments introduction of a statutory scheme relating to and providing carefully delimited remedies for unfair dismissal. Just as the employees argument depends upon the rationale for the prescribed disciplinary procedures, namely to avoid unfair dismissal, so the answer to it depends upon the existence of a statutory scheme providing remedies for unfair dismissal. Employers and employees when contracting, in particular when introducing prescribed disciplinary procedures, must be taken to have in mind the statutory scheme relating to unfair dismissal, and to contemplate that scheme as providing the relevant remedies in the event of unfair dismissal. It does not seem to me artificial to ascribe such an intention to them, any more than it did to Lord Hoffmann in Johnson, paras 63 and 66. They cannot have intended that procedures put in place to avoid the need to invoke the statutory scheme should in fact circumvent and make irrelevant the careful limitations of that scheme. Parties could by express agreement attach a different significance to the prescribed disciplinary procedures. But, in the absence of express contrary agreement, the Johnson exclusion area must be taken to cover both loss arising from dismissal and financial loss arising from failures in the steps leading to such dismissal, unless the loss claimed can be regarded as occurring quite independently of the dismissal, as the psychiatric loss claimed by the claimants in Eastwood could be. There are further potential objections to Mr Bothams proposed case. It depends upon the propositions (a) that one alleged breach of contract or duty can be said to have caused the commission of another breach of contract or duty by the same person or entity, and (b) that where recovery for the latter breach is limited, a claim may, by relying on the former breach as causing the latter breach, avoid the limit. Both propositions are in my view open to question. First, so far as the failure to take proper disciplinary steps can be separated from the dismissal, then it constituted not a reason for dismissing, but a reason for not dismissing. The dismissal was a fresh decision, which the employer ought not to have taken and without which there would have been no loss. But, second, assuming the first point in Mr Bothams favour, any loss that he suffered flowed from the wrongful or unfair dismissal, and was recoverable either as compensation for breach of contract or for unfair dismissal, subject in either case to the relevant limits. If the wrongful or unfair dismissal is to be attributed causatively to the prior failure to take proper disciplinary steps, I find it difficult to see why or how the damages recoverable for the prior failure should or could exceed the compensation recoverable for the later dismissal. However, these points were not fully developed in argument, and I express no further view on them. Reference was made in argument to the decision in King v University Court of the University of St Andrews [2002] IRLR 252, where the University had employed the claimant on terms that it was entitled . for good cause shown to terminate the appointment of the employee by giving three months notice in writing. The claimant claimed on two bases, first, a breach of the alleged express term not to terminate his employment except on good cause shown, and, secondly, a breach of an alleged implied term of trust and confidence consisting in an alleged failure to act fairly and reasonably in investigating whether good cause was shown. The issue before Lady Smith concerned the second basis of claim. She distinguished Johnson on the basis that the University was only entitled to terminate the claimants appointment by three months notice for good cause shown, and she held that this involved the implication that there should, before any dismissal, be a prior hearing and investigation, fairly conducted in accordance with a mutual duty of trust and confidence. Whether any and if so what damages could be recovered on that basis, in circumstances where the claimant had been dismissed (and the only damages pleaded were alleged to follow from the dismissal) was not discussed. In any event, the decision, at first instance on a preliminary issue, concerned a contract very different to the present, in particular a contract containing express term which was treated as involving an obligation not to dismiss save for good cause shown. The decision does not assist on the issues now before the Supreme Court. Mr Edwardss written case identifies the issue as being whether a person who suffers damage as a result of findings of personal or professional misconduct leading to dismissal and loss of professional status that were made against him in disciplinary proceedings conducted in breach of contract, but which would not otherwise have been made, can recover damages at large (para 30); and the question for the Supreme Court as being whether damages flowing from a breach of an express term of an employment contract, anterior to and separate from dismissal, are in any way restricted; and, if so, on what basis (para 31). In para 67 it accepts that there will be a burden on Mr Edwards to prove that if the procedure had been followed, no dismissal would have resulted, but suggests that, even if this could not be shown, he might still recover limited damages of an unspecified nature. In para 95 it also asserts that the disciplinary findings would still have caused him recoverable damages, by way of restricted future working opportunities, even if they had not been followed by his dismissal by the Trust. These ways of putting the case depart from or expand upon the pleaded particulars of claim, as I read them. While I agree that that should not itself be an absolute bar to their pursuit, I would myself have wished to have a draft amended pleading, before any decision to permit their pursuit. As, however, I have come to the conclusion that they cannot succeed, this is unnecessary. The fact is that Mr Edwards was dismissed on the basis of and contemporaneously with the disciplinary findings about which he seeks to complain. In so far as his claim consists of loss allegedly suffered by dismissal, it falls directly within the exclusion area which was recognised in Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518 and which I have referred to in paragraphs 90 to 94 above. But, in my opinion, it is quite unrealistic in this context to seek to differentiate any of the loss he has allegedly suffered from his dismissal. Any breach of disciplinary procedure did not cause of itself identifiably separate loss or illness, as was alleged in Eastwood v Magnox Electric Ltd. [2004] UKHC 35, [2005] 1 AC 503, where (a) Mr Williams claimed that he had suffered stress related illness caused by a long campaign of deliberate harassment independently of his subsequent dismissal, and (b) Mr McCabes claim was for psychiatric injury caused by events occurring before any dismissal. Where the findings reached in the disciplinary proceedings and the dismissal are, as in the present case, a part of a single process, the remedy for any unjustified stigma lies, short of circumstances establishing a claim for defamation, in the restoration of reputation which may in the ordinary course be expected to result from a successful claim for wrongful or unfair dismissal. Since writing this judgment, I have read Lord Kerrs judgment, with which Lord Wilson agrees, by which they would allow the Ministry of Defences appeal in the case of Mr Botham, but dismiss the Trusts appeal in the case of Mr Edwards, as well as Lady Hales judgment, by which she would dismiss both appeals. Essentially, Lord Kerr would permit Mr Edwards to recover damages for any reputational damage from the adverse findings accompanying his dismissal that he can show would have flowed from such findings even if they had not been accompanied by dismissal. On this approach, although the alleged breach in failing to follow the correct investigatory process could not give rise to damages for dismissal (other than damages in lieu of notice), it could give rise to damages in respect of financial loss caused by the reasons given for the dismissal. I am unable to agree with this suggested distinction. The reasons given were part and parcel of the dismissal. The reasons would be very relevant to a claim for unfair dismissal, as Lord Dyson explains in para 40. But they fall to be dealt with in that context, rather than by a claim for damages (at least in the absence of actionable defamation). The contrary approach advocated by Lord Kerr would outflank both the rule in Addis set out by Lord Dyson in para 20 and the Johnson exclusion as explained in Johnson itself and in Eastwood, as well in paras 90 to 94 above. Bearing in mind the modern prevalence of disciplinary procedures (required under section 3(1) of the Employment Rights Act 1996 to be noted in any employees written statement of particulars of employment), it could also make commonplace what Lord Nicholls identified in para 29 in Eastwood as exceptional. Further, on Lord Kerrs approach, damages could not and would not be awarded by reference to what actually happened. The dismissal would have to be discounted. Damages would be awarded on a hypothesis of adverse findings issued independently of any dismissal that is, either without any disciplinary measure at all or in conjunction with some different measure such as suspension. This would involve an enquiry which was both speculative and unreal. Quite apart from the difficulty of an assumption that the same findings would have been made without dismissal, how would one sensibly assess whether any and what loss would have been suffered from the findings if there had been no dismissal? The exercise would also involve, to an even greater degree, distinctions regarding causation and consequences of the sort that Lord Hoffmann found problematic in Johnson at paras 48 and 54. As Lord Nicholls made clear in Eastwood at para 32, the applicability of the Johnson exclusion and so the recoverability of loss may depend upon whether an employer dismisses the employee, as opposed (for example) to simply suspending him. The fact of dismissal can make all the difference. Here, whatever the correct disciplinary process may or should have been, it required the employer to explain the reasons if dismissal was the outcome. When applying the Johnson exclusion, the dismissal and the reasons accompanying it cannot be distinguished in the manner proposed. If there was a failure in the disciplinary process, it led to both, and, if the law is to be coherent, both must fall within the Johnson exclusion. Lady Hales approach would treat damages as recoverable at large for any breach of any contractually provided disciplinary procedure, irrespective of whether dismissal followed or led to the loss claimed. For reasons indicated in paras 90 to 94 above, I do not agree with that approach. The case of an employee with an express contractual right not to be dismissed save for cause is not before us, and gives rise to different issues to those which are. Damages for wrongful dismissal in breach of such a contract would on the face of it be measured on the basis that the contract would have continued unless and until the employee left, retired or gave cause for dismissal (in relation to the prospects of all of which an assessment would have to be made), but questions would no doubt also arise as to whether the employee had accepted or had to accept the dismissal and/or had to mitigate or had mitigated his or her loss. In view of my conclusion on the main issues, it is unnecessary to express any view about the decision of the Court of Appeal in Gunton v Richmond on Thames London Borough Council [1981] Ch 448, or in particular the so called Gunton extension, whereby the damages awarded for wrongful dismissal in that case were calculated by adding the one months contractual notice period to a notional period which a proper disciplinary process would have taken. The Trust did not appeal against Nicol Js decision to award Mr Edwards damages in accordance with the Gunton extension. Before the Supreme Court the Trust simply put a question mark in principle against the correctness of the extension. Mr Edwards and Mr Bothams Cases sought to distinguish Gunton on its facts as well as to draw some support, for a proposition that damages can be recoverable at large, from the recovery under the Gunton extension of damages calculated by reference to the notional period of a proper disciplinary process. I do not think that Gunton lends any real weight to that contention. Indeed, the claimant in Gunton was by amendment seeking damages continuing until his normal retirement age (subject only to the contingencies of redundancy or dismissal under a proper disciplinary process). These he was not awarded. The reasoning upon which the Gunton extension was based appears to operate independently of what would or might have been the outcome of a proper disciplinary process. It is not binding upon us. The extension may be difficult to reconcile with Lord Hoffmanns view in Johnson, para 66, that any contractual disciplinary procedures cannot have been intended to qualify the employers common law power to dismiss without cause on giving such [ie due contractual] notice. But, assuming it to be correct, it neither compels nor leads to any different conclusion to that which I have reached on the central issues whether Mr Edwards and Mr Botham can recover damages at large for the breaches of disciplinary procedures which they allege. I therefore agree with Lord Dyson that both the appeal of the Trust in the case of Mr Edwards and the appeal of the Ministry of Defence in the case of Mr Botham be allowed. LADY HALE In my view the Court of Appeal reached the right conclusions for the right reasons and both appeals should be dismissed. As the majority take a different view, I shall be brief. But I should perhaps declare an interest, as the only member of this court to have spent a substantial proportion of her working life as an employee rather than as a self employed barrister or tenured office holder. There is no reason at all to suppose that, in enacting the Industrial Relations Act 1971, Parliament intended to cut down upon or reduce the remedies available to employees whose employers acted in breach of their contracts of employment. Quite the reverse. Parliament intended to create a new statutory remedy for unfair dismissal which would supplement whatever rights the employee already had under his contract of employment. Parliament did that because most employees had very few rights under their contracts of employment. In particular, although many employees had a reasonable expectation that they would stay in their jobs unless and until there was a good reason to dispense with their services, most of them had no legal right to do so. The 1971 Act gave them the right not to be dismissed without what appeared at the time to be a good reason, determined after a fair process. They were to be compensated, within modest limits, not principally for their hurt feelings but for the loss of their job. That the main target of the new jurisdiction is the loss of the job is borne out by the later inclusion of the remedy of reinstatement. The common law would not normally give damages for the loss of a job. Then, as now, the great majority of contracts of employment gave both the employer and the employee the right to terminate their relationship on giving the prescribed period of notice. So if the employer terminated the relationship summarily, without giving the required period of notice, he would be liable to compensate the employee for that which he would have received had his contract been kept and no more: Addis v Gramophone Company Ltd [1909] AC 488, per Lord Atkinson at p 496. In other words, he would get his pay during the period of notice which he should have had and any contractual commission or bonus which he would have earned during that period. The majority of the House of Lords in Addis decided that the wrongfully dismissed employee was not entitled to any extra damages, either for the injury to his feelings caused by the way in which he had been dismissed or for the fact that his dismissal might make it more difficult for him to get another job. Lord Collins disagreed: he thought that damages for wrongful dismissal might include compensation for the difficulty caused in getting another job. But he was in a minority of one. The majority view was that the employee was entitled to the normal measure of damages in contract, to be placed in the position in which he would have been had his contract been properly performed, and any consequential loss within the contemplation of the parties, but no more. In short, there was no right to be compensated for the longer term consequences of the loss of a job. But let us suppose a contract of employment where the employer is only entitled to dismiss the employee for good cause. Rightly or wrongly, most University teachers employed under the contracts of employment which were current in the 1960s believed that they could only be dismissed for cause. If judges, instead of being office holders, were employed under contracts of employment, they could only be dismissed for cause. Under such a contract, if the employer dismisses the employee without good cause, the employee is entitled to be compensated for the consequences of the loss of the job. Obviously, the calculation of damages will have to take account of contingencies such as the possibility of good cause arising in the future. This is the application of the ordinary principles of the law of contract. However, a great many contracts of employment, perhaps now the vast majority, fall between these two extremes. They couple the right of either party to terminate it on giving a certain period of notice with a provision that, if the employer wishes to terminate it on disciplinary grounds, he must follow a prescribed procedure. Such contracts could be analysed in a number of ways. First, the contract could mean that the employee can be dismissed on notice for non disciplinary grounds, such as incapacity or redundancy or indeed for any other reason the employer might have for wanting to dismiss him; but that, if the employer wants to dismiss him on disciplinary grounds, he can only do so by following the required procedure. Failure to follow this procedure correctly would lead to damages for loss of the job. That was the result reached by the trial judge in Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. Second, the contract could mean that if the employer wants to dismiss the employee on disciplinary grounds, he can only do so after following the prescribed procedure, but that having followed the prescribed procedure and irrespective of the result, he remains entitled to dismiss the employee by giving the usual period of notice. Thus the employee is entitled only to damages for the period during which the correct disciplinary process would have been taking place, plus the contractual notice period on top of that (presumably on the assumption that whatever findings the disciplinary process might have reached would not have justified a summary dismissal). That is the result reached by the Court of Appeal in Gunton (the difference of opinion in the Court of Appeal was as to the effect of a repudiatory breach of contract by the employer whether it automatically brought the contract to an end or whether it only did so if accepted by the employee, an important point which does not arise in this case but does arise in another which may shortly come before this Court). A third analysis is that the contract could mean that the employer always remains free to dismiss on giving the required period of notice, with or without following the contractual disciplinary process, so the employee is only ever entitled to the Addis measure of damages. The two cases before us both fall into that ambiguous category. There is a contractual notice period but also a contractual disciplinary process which (we must assume in Mr Edwards case) was not complied with. But in neither case are we concerned with damages for loss of the job as such. Mr Botham made a successful claim for unfair dismissal to the employment tribunal. Mr Edwards withdrew his. Both are concerned with the adverse consequences of the factual findings of a disciplinary process conducted in breach of contract. In Mr Edwards case, those findings are said to have made it impossible for him to obtain another post as an NHS consultant and to have adversely affected his earnings in private practice. In Mr Bothams case, those findings meant that the resulting dismissal had to be reported to the Department of Education and Skills, so that for a while he was placed on the register of people deemed unsuitable to work with children (the POCA list). These are losses which flow from the breach of contractually agreed disciplinary processes. Why should they not be recoverable in the ordinary way? Lord Phillips says that it is a matter of remoteness. These are not losses which fall within the reasonable contemplation of the parties when they make the contract. I have difficulty with that. Why include disciplinary processes within the employment contract if you do not expect that they will influence the employers decision? The losses flowing from the breach of a contractually agreed disciplinary process are much more directly related to the breach of contract than are the losses flowing from the dismissal as such, especially where the employer was entitled to dismiss whenever he wanted provided that he gave the contractual notice. There were no such contractually agreed processes in Addis, so the cases are readily distinguishable. But for the others in the majority, it is said that such damages would fall within the so called exclusion area created by the House of Lords decision in Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518, as further examined and explained in the House of Lords decision in Eastwood v Magnox Electric plc [2004] UKHL 35, [2005] 1 AC 503. Both of those cases concerned alleged breaches of the term, now implied into all contracts of employment, that neither party will, without good cause, conduct themselves in a manner calculated to destroy or seriously damage their relationship of mutual trust and confidence. Arnold J is generally credited as the first to recognise the existence of this implied term in Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84. If the employer acted in breach of the term, the employee was entitled to treat himself as constructively dismissed and thus to take advantage of the remedies for unfair dismissal which Parliament had now provided. Lord Nicholls explained in Eastwood v Magnox, at p 325, that this development of the common law was prompted by the 1971 Act, to enable employees to regard themselves as dismissed if their employers had conducted themselves in a way which no employee could be expected to tolerate. In Johnson v Unisys Ltd, the majority of the House of Lords decided that the implied term of trust and confidence did not give the employee a right of action for damages at common law resulting from the manner in which he had been dismissed. The House was persuaded that Parliament had provided the limited remedy of unfair dismissal to cover that ground and it would be wrong to develop the common law to circumvent the limits which Parliament had laid down. In Eastwood v Magnox Electric, on the other hand, the House recognised that if the employee could establish a cause of action for breach of the implied term independently of the dismissal, then that was not excluded by the statutory regime. However, as Lord Nicholls explained, at para 30, If identifying the boundary between the common law rights and remedies and the statutory rights and remedies is comparatively straightforward, the same cannot be said of the practical consequences of this unusual boundary. He went on to illustrate the difficulties and anomalies, not least that an employer might have to pay full compensation to an employee who was suspended in breach of the implied term but only the statutorily limited compensation to an employee who was dismissed: see Gogay v Hertfordshire County Council [2000] IRLR 703. This case is ample demonstration of the wisdom of Lord Nicholls words. The majority have held that the Johnson exclusion area covers the breach of express as well as implied terms in an employment contract and that the particular losses claimed here fall within the exclusion area. Lord Kerr and Lord Wilson also hold that the exclusion area extends to breach of express terms as well as the implied term; but they hold that it only extends to damage resulting from the dismissal itself, and not to damage resulting from the findings of the wrongful disciplinary process rather than the dismissal. This enables them to distinguish between Mr Edwards and Mr Botham. Mr Edwards is claiming for the adverse consequences of the findings made against him rather than for his dismissal as such. Mr Botham is claiming for the adverse consequences of being placed on the POCA list, which could only happen because of his dismissal. It is understandable to wish to distinguish between the two, as Mr Bothams claim is designed to circumvent the tribunals finding of contributory fault. It seems to me, however, that it has long been recognised that the law of contract is defective in not recognising the concept of contributory fault in certain circumstances: see, for example, the Law Commissions Report on Contributory Negligence as a Defence in Contract (1993, Law Com No 219). The solution to problems like that is principled and comprehensive law reform. We have seen how the Johnson exclusion area has been productive of anomalies and difficulties. There is no reason at all to extend it any further than the ratio of that case. As the Court of Appeal held in this case, it should be limited to the consequences of dismissal in breach of the implied term of trust and confidence. The House of Lords was persuaded that the common law implied term, developed for a different purpose, should not be extended to cover the territory which Parliament had occupied. In fact, the territory which Parliament had occupied was the lack of a remedy for loss of a job to which the employee had no contractual right beyond the contractual notice period. Parliament occupied that territory by requiring employers to act fairly when they dismissed their employees. But there was and is nothing in the legislation to take away the existing contractual rights of employees. There was and is nothing to suggest that Parliament intended to limit the entitlement of those few employees who did and do have a contractual right to the job, the right not to be dismissed without cause. It is for that reason that I am afraid that I cannot agree that the key distinction is between the consequences of dismissal and the consequences of other breaches. The key distinction must be between cases which must rely on the implied term to complain about the dismissal and cases which can rely on an express term. I am uncertain as to how the majority would regard the case of an employee with the contractual right only to be dismissed for cause. Like Lord Kerr, I am puzzled as to how it can be possible for an employee with a contractual right to a particular disciplinary process to enforce that right in advance by injunction but not possible for him to claim damages for its breach after the event. And I am also puzzled why it should make a difference if the right to claim damages is expressly spelled out in the contract. I would have dismissed both appeals. LORD KERR (WITH WHOM LORD WILSON AGREES) The Report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (the Donovan Report) was commissioned because of the perceived inadequacy of the law relating to dismissal of employees. This much, at least, is uncontroversial in this case. But how did it set about making recommendations to deal with those inadequacies? Did it recommend, and more particularly, did its offspring, the Industrial Relations Act 1971, provide, a comprehensive and exclusive scheme for the compensation of those who had been improperly dismissed from employment? Or was the 1971 Act a statute simply designed to provide wrongly dismissed employees with greater rights than the then only available claim in respect of their dismissal viz for wages that they would have earned during the notice period, while leaving intact any other contractual rights that might have been available to them? An insight into the essential purpose of the Donovan report can be obtained from a number of its passages, albeit that they do not speak directly to the issue that has been starkly expressed above. Paragraph 522 of the report (quoted by Lord Dyson at para 19 of his judgment) sets the scene. Beyond a claim for wrongful dismissal (with the limited redress that afforded) an employee had no rights whatever in relation to the circumstances in which he was dismissed. The only action that he could take about the manner of his dismissal, where that involved an imputation on his honesty, was for defamation. This was a situation which the Donovan report considered could no longer be tolerated. Those who were unfairly dismissed, because of the potentially massive impact that such an event had on their lives, needed to have something more to compensate them beyond the few weeks or even months wages that they would have earned during a notice period. The scene thus set is emphatically in the realm of dismissal from employment and the impact that dismissal has on the future fate of the dismissed employee. That theme emerges strongly from para 526 of the report: In practice there is usually no comparison between the consequences for an employer if an employee terminates the contract of employment and those which will ensue for an employee if he is dismissed. In reality people build much of their lives around their jobs. Their incomes and prospects for the future are inevitably founded in the expectation that their jobs will continue. For workers in many situations dismissal is a disaster. For some workers it may make inevitable the breaking up of a community and the uprooting of homes and families. Of course, at the time that this was written, contractual provisions in relation to disciplinary procedures, if not unheard of, were certainly not the staple of most contracts of employment. It is not surprising, therefore, that there was no reference to the consequences of a failure on the part of employers to adhere to such provisions, whether in relation to the termination of employment or as regards the disadvantages that an employee might suffer in terms of future employability, even if he was not dismissed. Significantly, there is no suggestion in the report that its authors contemplated a complete charter for all claims arising from dismissal from employment. On the contrary, the statement in para 529 that it [is] urgently necessary for workers to be given better protection against unfair dismissal strongly suggests that the primary purpose of the proposals for a change in the law was to enlarge the remedies available to employees rather than to confine the remedies to a single unitary system. Indeed, at para 551 the report states ideally, the remedy available to an employee who is found to have been unfairly dismissed is reinstatement in his old job. The committee actually considered whether the remedy for unfair dismissal should be confined to reinstatement. That stance would sit oddly with the notion that the legislation was designed to be a charter that would bring the curtain down on all manner of claims by employees following their dismissal. Now it is true that at para 553 it is stated: The labour tribunal should normally be concerned to compensate the employee for the damage he has suffered in the loss of his employment and legitimate expectations for the future in that employment, in injured feelings and reputation and in the prejudicing of further employment opportunities. (emphasis supplied). But, although at first sight this might be thought to indicate that actions for reputational damage should be subsumed into the unfair dismissal claim, I do not consider that this was the reports intention. Obviously, the fact that one has been dismissed from employment, whatever the circumstances of the dismissal, can carry a disadvantage in terms of future employability. It is right that this should be reflected in the recoverable compensation where the dismissal is unfair. But that circumstance does not alone warrant the conclusion that breach of a term of the contract which leads to a finding that there has been misconduct on the part of the employee and which leads in turn to dismissal cannot have contractual consequences beyond the enhancement of a claim for unfair dismissal. As a matter of elementary contract law, a term which binds an employer to a particular form of disciplinary hearing, if breached, will give rise to a claim on the part of the employee for the consequences of the breach. Indeed, the employers in these cases concede that such a term would found an application for an injunction to restrain its breach. But it is argued that when one comes to a remedy following the breach (as opposed to in anticipation of it) a claim for damages is not viable because of the effect of the 1971 Act and succeeding statutory provisions. It is conceivable that legislation can have the effect of removing or nullifying a contractual right and it will be necessary to examine the basis on which it is said that this has occurred in the present context. It is important, however, to start with the clear understanding, that, absent any such legislative intervention, there can be no question of terms in an agreement in relation to the conduct of disciplinary hearings being different from other contractual terms. This is so, in my view, whether they have become incorporated into the contract as a result of statutory requirement or are the product of independent agreement between the parties to the contract. Nothing in the 1971 Act suggests that Parliament intended to restrict an employees rights under his contract of employment. If, at the time of the enactment of that legislation, an employees contract of employment included a term that his employer would conduct disciplinary proceedings against him according to a particular set of rules and if, in breach of that term, the employer failed to adhere to those rules, any loss suffered by the employee in consequence would surely be compensatable on a breach of contract claim. As Hale LJ said in Saeed v Royal Wolverhampton Hospitals NHS Trust [2001] ICR 903 at para 12: The employer who is contemplating disciplinary action against an employee has to decide which procedure should be followed. If the employee thinks that the employer has made the wrong choice, he can try to have it changed in advance or seek damages after the event. The court will have to perform its usual task of construing the contract and applying it to the facts of the case. I did not understand either of the employers in these appeals to challenge the correctness of that statement of the law although it is, of course, right, as Lord Dyson has pointed out in para 44, that Saeed was decided before Johnson (Johnson v Unisys Ltd [2003] 1 AC 518). It will be necessary to say something presently about the effect that the later decision may have had on the reasoning in the earlier case but, for present purposes, Saeed is important authority for the proposition that breach of a contractual term in relation to the conduct of a disciplinary hearing could be relied on by an employee in a claim for damages. Lord Dyson has observed that Saeed was not a dismissal case but that does not affect the essential point. There is nothing unusual about breach of such a term giving rise to a claim for damages. The importance of Saeed to the present appeals lies in its recognition that the contractual right to a particular form of disciplinary proceeding is no different from other contractual rights. Ms Outhwaite QC suggested that a claim based on such a contractual right, if pursued after dismissal, would involve the creation of a new cause of action. I do not accept that. It is a perfectly conventional claim in contract involving the breach of an agreed term giving rise to loss on the part of the employee. If one accepts that there is a claim in contract if there is no termination of employment, an impossibly anomalous situation arises if the claim cannot be pursued when the employment is terminated. Suppose that someone who was the subject of disciplinary proceedings had an offer of extremely remunerative employment and that this was withdrawn as the result of adverse findings in the disciplinary proceedings but those findings did not result in his dismissal, would he be entitled to seek damages for the loss of his prospective new employment? Why not? If he has a contractual right to a properly constituted tribunal and can show that such a tribunal would not have made the findings that were instrumental in the offer of employment being withdrawn, can he not say that the failure to constitute a proper tribunal was a breach of a duty owed to him under contract? And if he can show that, as a direct consequence of that breach, he suffered a loss, can he not maintain an action for compensation for breach of contract? This does not represent a novel action or a novel development of the common law. It is merely the application of settled principles of contract law to a particular set of circumstances. Moreover, if an employee can maintain such an action if he is not dismissed, why should he not be able to maintain it if he is dismissed? The loss of the chance of more remunerative employment does not, in the mooted example, flow from the dismissal; it is the direct consequence of the adverse findings. There is no logical reason to draw a distinction between the situation where he has not been dismissed and that where he has been. The employers in these appeals attempt to confront this anomaly by saying that an injunction can be obtained and the employees legal rights should be confined to that. But what is the legal or juridical basis for that assertion? As a matter of first principle, an injunction is available on the basis that a legal wrong is anticipated. If that legal wrong materialises, why should it not be actionable at the suit of the person who could have obtained the injunction? This point, albeit in a somewhat different context, was expressed by Lord Nicholls in Eastwood and another v Magnox Electric plc and McCabe v Cornwall County Council and another [2005] 1 AC 503. In that case one of the claimants, having obtained the statutory maximum compensation for unfair dismissal, sought damages for psychiatric injury caused by the defendant employers suspension of him and its failure to inform him of allegations made against him or to carry out a proper investigation of those allegations. This was said to represent a breach of the necessary relationship between employer and employee of trust and confidence and breach of the employers duty to provide a safe system of work. At para 27 Lord Nicholls said: If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. In the present appeals, on Mr Edwards case, he had a contractual right to have his disciplinary hearing conducted by a tribunal constituted as stipulated in Disciplinary procedures for Hospital and Community Medical and Dental Staff (HC(90)9). At what point did this right (which for the purposes of the appeal, we must assume existed) give rise to a cause of action? Mr Edwards claims that there was a breach of the contractual right as soon as the wrongly constituted panel was convened. Did the cause of action arise then? Or did it first materialise when the decision to dismiss him was taken? It might be argued that Mr Edwards suffered no loss until he was summarily dismissed but this seems to me to take too narrow a view of the position. The Trust accepts that, if the facts as he asserts them are established, Mr Edwards could have applied for an injunction to prevent the tribunal from considering his case. That (rightly made) concession must proceed on the premise that, on those facts, he already had a cause of action at that stage. On Lord Nicholls analysis in Eastwood, therefore, if Mr Edwards can establish his case on the pleaded factual assertions, he had a cause of action at law before his dismissal which should remain unimpaired by his subsequent dismissal. Mr Bothams case is somewhat different. In the agreed Statement of Facts and Issues in his case it is stated that [a]s a consequence of the dismissal for gross misconduct, Mr Botham was reported to the Department of Education and Skills and was placed on the register of persons deemed unsuitable to work with children (emphasis supplied). The reputational damage suffered by Mr Botham is therefore directly linked to his dismissal rather than any defect in the procedures which led to it. The employers in both cases argue, however, that both involve claims for damages arising from the unfair manner of their dismissal and that the reasoning in the Johnson and Eastwood cases preclude such claims. It is therefore necessary to look more closely at both decisions. As Lord Dyson has pointed out (in paras 19 21), the background to the 1971 Act and the Donovan report was that at common law an employee was not entitled to recover damages in respect of the manner of his dismissal. Moreover, an employee could only recover damages if he was actually dismissed. If he had chosen to leave employment because of mistreatment by his employer, he could not maintain an action for wrongful dismissal. In mitigation of the harshness of this rule, the courts developed the concept of the implied term of mutual trust and confidence which, shortly stated, stipulates that an employment contract is subject to the implied term that the parties to it may not conduct themselves in a manner likely to destroy the confidence and trust that is essential to the relationship of employer and employee: Mahmud v Bank of Credit and Commerce International SA [1998] AC 20. It was the concept of the implied term of mutual trust and confidence which predominated in Johnson. The claimant sought to rely on such a term to promote a claim at common law relating to the manner of his dismissal. He alleged that because of the way in which he had been dismissed, he had suffered a mental breakdown and was unable to work. His claim was therefore inextricably, indeed uniquely, linked to the manner of his dismissal. And the manner of his dismissal was in turn said to be unlawful because it was in breach of the implied term of mutual trust and confidence. The issues which the House of Lords had to squarely face, therefore, were (i) whether the implied term of mutual trust and confidence could be used as a foundation for a claim that focused exclusively on the manner in which the employee was dismissed; and (ii) whether a common law action claiming damages could be maintained on that basis, notwithstanding that Parliament had legislated to provide a comprehensive code for compensation of unfair dismissal claims. In dismissing the employees appeal, Lord Nicholls said in para 2 that a common law right embracing the manner in which an employee is dismissed cannot satisfactorily coexist with the statutory right not to be unfairly dismissed. At para 47 Lord Hoffmann suggested that it would be jurisprudentially possible to imply a term which would give a remedy in Mr Johnsons case but he doubted the wisdom of doing so. This was not the basis on which he dismissed the appeal, however. His reasons for doing so are contained in para 54: The remedy adopted by Parliament was not to build upon the common law by creating a statutory implied term that the power of dismissal should be exercised fairly or in good faith, leaving the courts to give a remedy on general principles of contractual damages. Instead, it set up an entirely new system outside the ordinary courts, with tribunals staffed by a majority of lay members, applying new statutory concepts and offering statutory remedies. Many of the new rules, such as the exclusion of certain classes of employees and the limit on the amount of the compensatory award, were not based upon any principle which it would have been open to the courts to apply. They were based upon policy and represented an attempt to balance fairness to employees against the general economic interests of the community. At para 79 Lord Millett suggested that, if the 1971 Act and subsequent legislation in this field had not been enacted, the courts might well have developed the law by imposing a more general obligation upon an employer to treat his employee fairly even in the manner of his dismissal. He explained why this had not been necessary in para 80: the creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the coexistence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost. Lord Dyson has suggested that the ratio of Johnson is that the implied term of trust and confidence cannot be extended to allow an employee to recover damages for loss arising from the manner of his dismissal (para 24). Moore Bick LJ in the Court of Appeal in Edwards case cast it in slightly different terms. At para 23 of his judgment he said: the ratio is that the common law does not imply into a contract of employment a term that the employer will not act unfairly towards the employee in relation to his dismissal and that the courts are not at liberty to develop the common law implied term of trust and confidence in order to give rise to such an obligation. I would prefer to express the ratio in terms that more clearly recognise the two separate aspects of the decision. In the first place, the House of Lords rejected the notion that the implied term of mutual trust and confidence had any role in determining the nature of the employers obligations at the time of the dismissal of the employee. Secondly, it concluded that compensation for loss flowing from the manner in which an employee is dismissed must be sought within the statutory scheme devised by Parliament in the 1971 Act and continued in successor enactments. It seems to me that it is the latter of these two which is the more relevant to the issues that arise on this appeal. Importantly, I do not construe anything in the opinions in Johnson as casting doubt on the correctness of Hale LJs statement in Saeed that choice of the wrong form of disciplinary action can give rise to a claim for damages. Indeed, para 44 of Lord Hoffmanns speech would appear to contemplate precisely that type of action. He was there discussing the effect of Addis v Gramophone Co Ltd [1909] AC 488 (in which it had been held that if the way in which an employee was dismissed constituted an imputation on his honesty he could not except through an action in defamation obtain any redress). On that subject, Lord Hoffmann said this: if wrongful dismissal is the only cause of action, nothing can be recovered for mental distress or damage to reputation. On the other hand, if such damage is loss flowing from a breach of another implied term of the contract, Addiss case does not stand in the way. (emphasis supplied) A claim for breach of contract arising from the employers selection of the wrong form of disciplinary proceeding need not be a claim for unfair or wrongful dismissal. The choice of the wrong procedure might lead to dismissal but if the employer is contractually bound to follow a particular route, his failure to do so will give rise to a cause of action which can be entirely independent of any claim in respect of termination of employment. The two aspects of the Johnson decision are reflected in the opinions of the House of Lords in the later cases of Eastwood and McCabe. Perhaps significantly, at para 8 of his opinion, Lord Nicholls characterised the claim in Johnson as one which relied on breach of the trust and confidence implied term, not as a foundation for a statutory claim for unfair dismissal or as a foundation for a claim for damages unrelated to dismissal, but as a foundation for a claim at common law for unfair dismissal. It is clear from this and other statements made by Lord Nicholls that reliance on the implied term in a claim for damages unrelated to dismissal would be viable. It was because Mr Johnson's claim was founded on the fact that he had been dismissed, and the trust and confidence implied term could not be applied to dismissal itself that it was bound to fail see para 10 of Eastwood. In the most important part of his speech in Eastwood (at least, so far as the present appeals are concerned) in paras 27 29, Lord Nicholls discussed what he described as the boundary line drawn by the Johnson decision. I have already quoted from para 27 (at para 135 above). It is now necessary to set this passage out in full: The boundary line 27 Identifying the boundary of the Johnson exclusion area, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employees remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal. 28 In the ordinary course, suspension apart, an employers failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area. 29 Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employers failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre dismissal unfair treatment. In such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over. A number of important principles can be distilled from these paragraphs: i) If a cause of action is in existence before dismissal, it is not extinguished by subsequent dismissal. As I understand Lord Nicholls opinion, that statement holds true even if the dismissal is consequent on the state of affairs that gave rise to the cause of action; ii) If financial loss occurs (as it normally will in a dismissal situation) from the dismissal itself, such loss is not recoverable other than by a claim for unfair dismissal. Although Lord Nicholls does not address the question directly (since he did not need to do so), it seems to me to be consistent with his opinion that, to be thus excluded, the financial loss must flow solely from dismissal; iii) Where financial loss flows directly from an employers failure to act fairly (or by his failure to abide by the terms of the contract of employment) even though that failure relates to steps taken which lead to dismissal, it is recoverable at the suit of the employee other than by an unfair dismissal claim. Of course, Lord Nicholls was careful to point out that if an employee brings proceedings in court and before the tribunal, he cannot recover overlapping heads of loss twice over but he did not suggest that separate claims arising from the same set of circumstances could not be brought. The same set of circumstances can give rise to an unfair dismissal claim and a claim for breach of contract. Mr Edwards experience perfectly exemplifies this. On his case, the adverse findings made by the wrongly constituted tribunal led to his dismissal but they also caused the reputational damage which, he says, causes his ongoing financial loss. It is a fundamental error, his counsel argues, to conclude that, because the findings led to the dismissal, the financial loss caused by the findings must be subsumed in his unfair dismissal claim. On that argument I believe that Miss ORourke is entirely right. Lord Dyson has said in para 39 of his judgment that Parliament could not have intended that the incorporation of provisions in relation to disciplinary procedures into contracts of employment would give rise to a common law claim for damages. It is not clear why this should be so. Contractual terms, whether they are the product of incorporation or independent agreement, should have contractual force. And if it is the case that breach of a contractual term, whether or not it has been incorporated by statute, can give rise to a cause of action which is quite separate and distinct from an unfair dismissal claim, why should it be assumed that Parliament intended to take away the right to such a cause of action? Lord Dyson says that this is to be necessarily inferred from the statutory background but this, with respect, is a circular argument, depending as it does on the proposition that Parliament intended that the legislation relating to unfair dismissal should provide a comprehensive charter for all claims made by an employee following dismissal. In a further passage in para 39 Lord Dyson states that unless the contracting parties expressly agree they are to be taken as not having intended that a failure to comply with contractually binding disciplinary procedures will give rise to a common law claim for damages. Thus, if they do agree that terms of the contract should have normal contractual force and record that agreement, a common law claim for damages is feasible but if they fail to expressly state that they intend that a contractually binding term should have conventional contractual force, then it is to be treated as unenforceable by the normal route of a claim for damages. This seems a curious result and I am unable to understand on what basis it can be reached unless for some unstated public policy reason. And if it is the case that the proposition is underpinned by a public policy consideration, it seems highly curious that it can be displaced by the express agreement of the parties. In Mr Edwards case Lord Dyson has said that it is impossible to divorce the findings on which he seeks to found his claim for reputational damage from the dismissal when the findings which allegedly caused the reputational damage also constituted the reasons for the dismissal (para 55). In my respectful view, this conflates two quite distinct and readily separable sets of consequences. The findings, on Mr Edwards case, were the reasons that he was dismissed. But, quite independently of the dismissal, those findings, according to Mr Edwards, also did enormous damage to his reputation. Lord Dyson appears to accept (in para 59) that if Mr Edwards had not been dismissed but had merely been suspended, and had been able to establish the facts needed to sustain his claim for reputational damage, he would have had a perfectly viable claim for breach of contract. In such a scenario, the reputational damage claim would not have depended on the fact of suspension; it would have had a quite separate existence. I cannot accept that it does not have an equally separate existence from the fact of dismissal. As I have said, however, (at para 137 above) Mr Bothams case is different. It is accepted that the reputational damage which he is alleged to have suffered was inextricably linked to the fact of his dismissal. His cause of action in respect of that reputational damage did not exist before he was dismissed, therefore. Such financial loss as he may have suffered as a consequence is the result of his dismissal. I consider, therefore, that compensation for damage to his reputation could only have been sought as part of his unfair dismissal claim. For these reasons, I would dismiss the appeal in Mr Edwards case but allow the appeal in the case of Mr Botham. |
This appeal arises from a tragic incident on 5 July 2000 at Gloucester Park swimming pool in Basildon, Essex. The Appellant, then aged ten, was a pupil at Whitmore Junior School, for which the Respondent education authority was responsible. The national curriculum, in its then form, included physical training of a number of alternative kinds, one of which was swimming, and pupils at the school had swimming lessons in normal school hours. What appears to have happened was that the Appellant and other members of her class went to the pool, accompanied by a class teacher, Mrs Holt. At the pool, the children were divided into groups. The group to which the Appellant was assigned was taught by a swimming teacher, Ms. Burlinson, with a lifeguard, Ms Maxwell, in attendance. At some point, the Appellant got into difficulties, and was found (in the judges words) hanging vertically in the water. She was resuscitated, but suffered a serious hypoxic brain injury. The Appellant alleges (among other things) that her injuries were due to the negligence of Ms Burlinson and Ms Maxwell. Neither of them was employed by the education authority. Their services had been provided to the authority by Mrs Beryl Stopford. She was an independent contractor who carried on an unincorporated business under the name of Direct Swimming Services, and had contracted with the education authority to provide swimming lessons to its pupils. The issue on the present appeal arises out of an allegation in the Appellants pleadings that the Council owed her a non-delegable duty of care, with the result that it is liable at law for any negligence on the part of Ms Burlinson or Ms Maxwell. Langstaff J struck it out on the ground that on the pleaded facts the education authority could not be said to have owed a non-delegable duty of care. The Court of Appeal affirmed his decision by a majority (Tomlinson and Kitchin LJJ, Laws LJ dissenting). The appeal provides a useful occasion for reviewing the law on what have been called non-delegable duties of care. But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. The pleadings are unsatisfactory. There are no findings of fact and almost everything is disputed. A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts. Non-delegable duties In principle, liability in tort depends upon proof of a personal breach of duty. To that principle, there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other: Majrowski v Guys and St Thomass NHS Hospital Trust [2007] 1 AC 224. The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none. On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authoritys duty to pupils in its care. Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them? On either view, any liability of the education authority for breach of it is personal, not vicarious. The law of negligence is generally fault-based. Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. This is because, as Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in Lewis v British Columbia [1997] 3 SCR 1145 at para 17, a common law duty of care does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care. The expression non-delegable duty has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others. English law has long recognised that non-delegable duties exist, but it does not have a single theory to explain when or why. There are, however, two broad categories of case in which such a duty has been held to arise. The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The early cases are concerned with the creation of hazards in a public place, generally in circumstances which apart from statutory authority would constitute a public nuisance: see Pickard v Smith (1861) 10 CB (NS) 470 (which appears to be the first reported case of a non-delegable duty), Penny v Wimbledon Urban District Council [1898] 2 QB 212 and Holliday v National Telephone Company [1899] 2 QB 392. In Honeywill and Stein Ltd v Larkin Brothers (Londons Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly to extra-hazardous operations generally. Many of these decisions are founded on arbitrary distinctions between ordinary and extraordinary hazards which may be ripe for re-examination. Their justification, if there is one, should probably be found in a special public policy for operations involving exceptional danger to the public. But their difficulties do not need to be considered further on these appeals, because teaching children to swim, while it unquestionably involves risks and calls for precautions, is not is not on any view an extra-hazardous activity. It can be perfectly satisfactorily analysed by reference to ordinary standards of care. The second category of non-delegable duty is, however, directly in point. It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendants. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock). The analogy with public services is often close, especially in the domain of hospital treatment in the National Health Service or education at a local education authority school, where only the absence of consideration distinguishes them from the private hospital or the fee-paying school performing the same functions under contract. In the law of tort, the same consequence follows where a statute imposes on the defendant personally a positive duty to perform some function or to carry out some operation, but he performs that duty by entrusting the work to some one else for whose proper performance he is legally responsible. In Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716, 725-728, Lord Denning MR analysed the liability of a non-contractual bailee for reward in similar terms, as depending on his duty to procure that proper care was exercised in the custody of the goods bailed. Origins This characterisation of non-delegable duties originated in the law of nuisance, and in a number of seminal judgments of Lord Blackburn in the late nineteenth century. It was implicit in the famous judgment of the Exchequer Chamber in Rylands v Fletcher (1866) LR 1 Ex 265, delivered by Blackburn J and subsequently affirmed by the House of Lords (1868) LR 3 HL 330, that the duty of the defendant to prevent the escape of water from his reservoir was non-delegable, for on the facts it was due to the operations of an independent contractor. The point became explicit in Dalton v Henry Angus & Co (1881) 6 App Cas 740, in which the House of Lords had to consider the duty of adjoining landowners not to withdraw support from each others land. The withdrawal of support had been due to works carried out on the defendants land by an independent contractor. Lord Blackburn, who delivered the principal speech on this point, regarded the interposition of an independent contractor as irrelevant, because of the nature of the duty. At p 829 he put the point in this way: Ever since Quarman v Burnett (1840) 6 M & W 499 it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v Sittingbourne Railway Co (1861) 6 H & N 488; Pickard v Smith 10 CB (NS) 470; Tarry v Ashton (1876) 1 QBD 314. Rylands v Fletcher and Dalton v Henry Angus & Co might have been explained by reference to the hazardous character of the operation carried out by the defendants contractor, and sometimes have been, notably by the Court of Appeal in Honeywill and Stein Ltd v Larkin Brothers (Londons Commercial Photographers) Ltd [1934] 1 KB 191. But it is clear from Lord Blackburns observations that the essential point about them was that there was an antecedent relationship between the parties as neighbouring landowners, from which a positive duty independent of the wrongful act itself could be derived. The duty was personal to the defendant, because it attached to him in his capacity as the occupier of the neighbouring land from which the hazard originated. All of these features were also present in Hughes v Percival (1883) 8 App Cas 443, which was one of the first cases in which the same principle was applied to a duty of care. The parties were neighbouring householders with a party wall. A builder working in the defendants house negligently cut into the party wall, causing the partial collapse of both the defendants house and the Plaintiffs house next-door. On its facts, therefore, the case had many of the classic features of the cases about non-delegable duties in the law of nuisance, and Lord Blackburn, delivering the leading speech in the Appellate Committee, proceeded by analogy with them. He put the matter in this way, at pp 445-446: The first point to be considered is what was the relation in which the defendant stood to the plaintiff. It was admitted that they were owners of adjoining houses between which was a party-wall the property of both. The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party-wall which was between the plaintiff's house and the defendant's, so that if one fell the other would be damaged. The defendant had a right so to utilize the party-wall, for it was his property as well as the plaintiff's; a stranger would not have had such a right. But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. This is the law I think clearly laid down in Pickard v Smith 10 CB (NS) 470, and finally in (1881) Dalton v Angus 6 App Cas 740. But in all the cases on the subject there was a duty cast by law on the party who was held liable. Assumption of responsibility The duty to which Lord Blackburn was referring would today be regarded as arising from an assumption of responsibility imputed to the defendant by virtue of the special character of his relationship with the claimant. The concept of an assumption of responsibility is usually relevant in the law of negligence as a tool for determining whether a duty of care is owed to protect against a purely economic loss. There is no doubt in this case that the education authority owed a duty of care to its pupils to protect them from injury. But the concept of assumption of responsibility is relevant to determine its scope, whether the potential loss is economic or physical. The circumstances must be such that the defendant can be taken not just to have assumed a positive duty, but to have assumed responsibility for the exercise of due care by any one to whom he may delegate its performance. This is a markedly more onerous obligation. What are the circumstances in which a person may be taken to have assumed it? They have been considered in a number of cases involving injuries sustained by employees, hospital patients, school pupils and invitees, at the hands of persons working for the defendant for whom the defendant was not vicariously liable. There are a number of situations where by virtue of some special relationship the defendant is held to assume positive duties. Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 is a classic example of a duty of care to perform professional services, arising out of a special relationship equivalent to contract but not contractual: see, in particular Lord Goff of Chieveley at pp 180-181. A corresponding relationship may also arise out of a sufficient degree of dependence, even in the absence any reliance, as it did in very different circumstances in Dorset Yacht Company v Home Office [1970] AC 1004 and White v Jones [1995] 2 AC 207, 275 (Lord Browne-Wilkinson). It does not, however, follow from the mere existence of a positive duty that it is personal to the defendant so as to make it non- delegable. In the nuisance or quasi-nuisance cases, the personal character of the duty results, as I have pointed out, from the fact it arises from the defendants occupation of the land from which the hazard originates. In other cases, the personal character of the duty must be derived from something else. Both principle and authority suggest that the relevant factors are the vulnerability of the claimant, the existence of a relationship between the claimant and the defendant by virtue of which the latter has a degree of protective custody over him, and the delegation of that custody to another person. The employment cases These matters first arose for consideration in the context of the common law duty of an employer to his workforce. This was an area in which the courts at an early stage of the development of the law of tort, adopted a protective approach to those who were vulnerable and not in a position to defend their own interests. In Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the House of Lords not only held that the employer had a duty to provide a safe system of work, but also that it was (in the modern terminology) non-delegable. Liability was not therefore excluded on the ground that the breach was due to the negligence of another employee, for which the employer would not (as the law then stood) have been liable because of the doctrine of common employment. The duty was non- delegable because of its personal character. Lord Macmillan said at p 75: [The defendant] cannot divest himself of this duty, though he mayand, if it involves technical management and he is not himself technically qualified, mustperform it through the agency of an employee. It remains the owner's obligation, and the agent whom the owner appoints to perform it performs it on the owner's behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. If the owner's duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible. The fullest rationalisation of the principle appears in the speech of Lord Wright. Referring to the earlier decision of the House in Lochgelly Iron and Coal Co v Mc Mullan [1934] AC 1, he observed at p 78: This House held that, on the contrary, the statutory duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. The same principle, in my opinion, applies to those fundamental obligations of a contract of employment which lie outside the doctrine of common employment, and for the performance of which employers are absolutely responsible. Dealing, later in his speech, with the scope of the duty, Lord Wright said at pp 83- 84: The true question is, What is the extent of the duty attaching to the employer? Such a duty is the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by servants or agents. A failure to perform such a duty is the employer's personal negligence. This was held to be the case where the duty was statutory, and it is equally so when the duty is one attaching at common law... I think the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations. The principle thus expressed was qualified only by its limitation to those acts of the delegate which were within the scope of the employers personal duty: It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow-servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman, or other employees. (pp 84-5) So far as there was ever any doubt about the application of this principle to the negligence of an independent contractor, it was resolved by the House of Lords in McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906. The hospital cases In Gold v Essex County Council [1942] 2 KB 293, a voluntary hospital operated by a local authority was held liable for the negligence of a radiographer employed by it. The decision was an orthodox application of the doctrine of vicarious liability. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of special skill of a kind which the authority could not reasonable be expected to supervise or control. Lord Greene MR, however, considered more broadly the basis of the hospitals liability for the negligence of those through whom it discharged its duty of care to patients, at p 301: the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill. It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than can an individual, and it is no answer to say that the obligation is one which on the face of it they could never perform themselves. In Cassidy v Ministry of Health [1951] 2 KB 343, Gold v Essex County Council was followed in another case involving employed medical staff. The majority of the Court of Appeal (Somervell and Singleton LJJ) were content to treat the matter as an ordinary case of vicarious liability and to leave it at that. But Denning LJ considered that the critical factor was not the hospitals relationship with the doctor or surgeon, but its relationship with the patient, arising from its acceptance of the patient for treatment. He put the point as follows, at pp. 362-363: when hospital authorities undertake to treat a patient, and themselves select and appoint and employ the professional men and women who are to give the treatment, then they are responsible for the negligence of those persons in failing to give proper treatment, no matter whether they are doctors, surgeons, nurses, or anyone else... where the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient. This is a robust assertion, albeit reflecting a minority view, that a hospitals duty of care to patients is personal as well as vicarious, and therefore non-delegable. Denning LJ cited in support of his view the classic statements of the principle of non-delegable duty by Lord Blackburn in Dalton v Angus and Hughes v Percival. At pp 364-365, he went on to consider the scope of the matters for which the authority was responsible: The truth is that, in cases of negligence, the distinction between a contract of service and a contract for services only becomes of importance when it is sought to make the employer liable, not for a breach of his own duty of care, but for some collateral act of negligence of those whom he employs. He cannot escape the consequences of a breach of his own duty, but he can escape responsibility for collateral or casual acts of negligence if he can show that the negligent person was employed, not under a contract of service but only under a contract for services... These distinctions are, however, of no importance in the present case, because we are not concerned with any collateral or casual acts of negligence by the staff, but negligence in the treatment itself which it was the employer's duty to provide. In Roe v Minister of Health [1954] 2 QB 66, Denning LJ repeated his analysis in Cassidy, but the case was once again decided on other grounds by the other members of the Court of Appeal. These dicta have never been adopted as part of the ratio of any English case. But the principle which they embody is supported by powerful dicta. In particular, Lord Browne-Wilkinson, delivering the leading speech in the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, considered that a hospital authority assumed a personal and not just a vicarious liability for the negligence of medical staff, which might therefore be broken even in a case where no duty of care was owed by the staff themselves. At p 740, he observed: It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of the staff is himself in breach of a separate duty of care owed by him to the plaintiff: Gold v Essex County Council [1942] 2 KB 293, 301, per Lord Green[e]; Cassidy v Ministry of Health [1951] 2 KB 343, per Denning LJ; Roe v Minister of Health [1954] 2 QB 66; see also Wilsons & Clyde Coal Co Ltd v English [1938] AC 57; McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906. Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed directly by the authority to the plaintiff. The Australian case-law Professor Glanville Williams, who was hostile to the whole notion of a non- delegable duty of care, criticised these statements in a famous article, "Liability for Independent Contractors" [1956] CLJ, 180, on the ground that they asserted that a non-delegable duty arose without explaining why. I think that this criticism is unfair, for the circumstances which made the duty non-delegable are reasonably clear from the facts that were being discussed. But they have been considered and applied in four important decisions of the High Court of Australia, which consider in some detail the underlying rationale of non-delegable duties. In Commonwealth v Introvigne (1982) 150 CLR 258, the Commonwealth of Australia, as the authority responsible for a school in the Australian Capital Territory, was held liable for injury to a child on school premises, notwithstanding that the running of the school and the employment of the staff were delegated to the State of New South Wales. This was because the duty of the Commonwealth was held to be a non-delegable duty. Mason J, with whom Gibbs CJ agreed, took the dicta in Gold and Cassidy as his starting point, and justified this step at paras 29-35 by reference to the vulnerability and consequent dependence of school children: 29. The concept of personal duty, performance of which is incapable of delegation, has been strongly criticised, especially outside the master and servant relationship where its introduction was designed to overcome the consequences of the doctrine of common employment (see Glanville Williams "Liability for Independent Contractors" (1956) Cambridge Law Journal, p 180). It has been said that the concept of personal duty departs from the basic principles of liability and negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. This criticism fails to acknowledge that the law has, for various reasons, imposed a special duty on persons in certain situations to take particular precautions for the safety of others, e.g. the occupier of premises. 30. There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school... The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants. ... 32. By establishing a school which was "maintained" on its behalf at which parents could enrol their children for instruction pursuant to the obligation imposed on them by the Ordinance, the Commonwealth, in my opinion, came under a duty of care to children attending the school. The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score. 33. The fact that the Commonwealth delegated the teaching function to the State, including the selection and control of teachers, does not affect its liability for breach of duty. Neither the duty, nor its performance, is capable of delegation. It is not enough for the Commonwealth, in providing a school, to leave it to the State to take care for the safety of the children attending the school. Nor does it matter that the Commonwealth does not control and cannot direct the teaching staff in the performance of its duties. That would be a relevant factor if the question was: are the teachers servants of the Commonwealth? However, that is not the issue here. The issue is whether the Commonwealth is liable as a school authority when it establishes the school and arranges with the State to run the school on its behalf. In my opinion, the Commonwealth does not cease to be liable because it arranges for the State to run the school on its behalf. 34. ...the Government of the State of New South Wales is not a subcontractor. What it did was to supply the services of its employees to perform for the Commonwealth a task which the Commonwealth had undertaken, i.e. the establishment and operation of schools in the Australian Capital Territory. The High Court of Australia returned to this question in Kondis v State Transport Authority (1984) 154 CLR 672. Kondis was not about schools. It concerned the duty of care owed by an employer. The case was argued on the basis of vicarious liability, but Mason J, with whom Deane and Dawson JJ agreed, decided it on the ground that the relevant duty was non-delegable. For present purposes, the most valuable part of his analysis is a section at paras 29-33 in which he took the opportunity to consider more generally the basis on which the law holds some duties to be non-delegable: 32. ...when we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed... 33. The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. In Burnie Port Authority v General Jones Pty (1994) 179 CLR 520, the High Court of Australia was concerned with a case in which fire escaped from the defendants property and damaged the Plaintiffs goods which were stored on an adjoining property. The case is best known for subsuming the rule in Rylands v Fletcher within the law of negligence, a step which has not been taken in England: Transco Plc v Stockport Metropolitan Borough Council [2004] 2 AC 1. Viewing it as part of the law of negligence, the court considered the case-law on non- delegable duties and adopted the general statement of the test based on control which had been proposed by Mason J in Kondis. The difference was that this being a dispute about the duties arising from the occupation of land, they were talking about control over the source of the hazard rather than (as in Kondis) control over the Plaintiff. At para 37, the Court observed: The relationship of proximity which exists, for the purposes of ordinary negligence, between a plaintiff and a defendant in circumstances which would prima facie attract the rule in Rylands v Fletcher is characterized by such a central element of control and by such special dependence and vulnerability. One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other party to that relationship is a person outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger... In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. Finally, in New South Wales v Lepore (2003) 212 CLR 511, the High Court of Australia revisited the question of the non-delegable duty owed by schools to pupils. It was a difficult case arising out of sexual assaults on children by a teacher in circumstances where there was no allegation and no finding of vicarious liability by the courts below, perhaps because criminal assaults were thought to be outside the course of a teachers employment (the case was pleaded and tried before the decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215). The Court was divided. Several of its members thought that vicarious liability was a simpler route to liability than a non-delegable duty of care. Nonetheless, by a majority of 4-3 (Gaudron, McHugh, Gummow and Hayne JJ) the Court held that the schools owed a non-delegable duty. There are differences of emphasis among the majority. Gaudron J, citing the judgment of Blackburn J in Hughes v Percival, based her view on (i) the fact that the school owed a positive duty to take reasonable care for the safety of children in their charge, and not merely a negative duty to avoid the consequences of a foreseeable risk of injury (paras 104-105), and (ii) the material increase in risk associated with the operation of institutions for the young or vulnerable, such as schools, prisons, nursing homes, old peoples homes and geriatric wards. McHugh J considered that the non-delegable duty arose upon the enrolment of the child para 142. In each case, he observed at para 139, the duty arises because the school authority has control of the pupil whose immaturity is likely to lead to harm to the pupil unless the authority exercises reasonable care in supervising him or her and because the authority has assumed responsibility for the child's protection. Gummow and Hayne JJ were more cautious. At para 255, they suggested that in each case in which a non-delegable liability had been held to exist, there was: ...a relationship in which the person owing the duty either has the care, supervision or control of the other person or has assumed a particular responsibility for the safety of that person or that person's property. It is not suggested, however, that all relationships which display these characteristics necessarily import a non-delegable duty. In what circumstances will a non-delegable duty arise? The main problem about this area of the law is to prevent the exception from eating up the rule. Non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based, and are therefore exceptional. The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree. In particular, the question cannot depend simply on the degree of risk involved in the relevant activity. The ordinary principles of tortious liability are perfectly capable of answering the question what duty is an appropriate response to a given level of risk. In my view, the time has come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non-delegable duties of care. If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features: (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes. (2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren. (3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties. (4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendants custody or care of the claimant and the element of control that goes with it. (5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. In A (Child) v Ministry of Defence [2005] QB 183, at para 47 Lord Phillips of Worth Matravers MR, delivering the leading judgment in the Court of Appeal, suggested that hitherto a non-delegable duty has only been found in a situation where the claimant suffers an injury while in an environment over which the defendant has control. This is undoubtedly a fundamental feature of those cases where, in the absence of a relevant antecedent relationship, the defendant has been held liable for inherently hazardous operations or dangers on the public highway. But I respectfully disagree with the view that control of the environment in which injury is caused is an essential element in the kind of case with which we are presently concerned. The defendant is not usually in control of the environment in which injury is caused by an independent contractor. That is why as a general rule he is not liable for the contractors negligence. Where a non-delegable duty arises, the defendant is liable not because he has control but in spite of the fact that he may have none. The essential element in my view is not control of the environment in which the claimant is injured, but control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility. The actual result in A (A Child) was therefore correct. The Ministry of Defence was not responsible for the negligence of a hospital with whom it contracted to treat soldiers and their families. But the true reason was the finding of the trial judge (quoted at para 28 of Lord Phillips judgment) that there was no sound basis for any feeling... that secondary treatment in hospital was actually provided by the Army (MoD) as opposed to arranged by the army. There was therefore no delegation of any function which the Ministry had assumed personal responsibility to carry out, and no delegation of any custody exercised by the Ministry over soldiers and their families. For exactly the same reason, I think that the Court of Appeal was right in Myton v Woods (1980) 79 LGR 28 to dismiss a claim against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school. The school had no statutory duty to transport children, but only to arrange and pay for it. As Lord Denning MR put it, the authority was not liable for an independent contractor except he delegates to the contractor the very duty which he himself has to fulfil. Likewise, the Court of Appeal was right in Farraj v Kings Healthcare NHS Trust [2010] 1 WLR 2139, to dismiss a claim against a hospital which had employed an independent laboratory to analyse a tissue sample for a patient who was not being treated by the hospital and was therefore not in its custody or care. As Dyson LJ put it at para 88, the rationale of any non-delegable duty owed by hospitals is that the hospital undertakes the care, supervision and control of its patients who are in special need of care. Patients are a vulnerable class of persons who place themselves in the care and under the control of a hospital and, as a result, the hospital assumes a particular responsibility for their well-being and safety. The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. But I do not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above. My reasons are as follows: (1) The criteria themselves are consistent with the long-standing policy of the law, apparent notably in the employment cases, to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives. Schools are employed to educate children, which they can do only if they are allowed authority over them. That authority confers on them a significant degree of control. When the schools own control is delegated to someone else for the purpose of performing part of the schools own educational function, it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate. (2) Parents are required by law to entrust their child to a school. They do so in reliance on the schools ability to look after them, and generally have no knowledge of or influence over the arrangements that the school may make to delegate specialised functions, or the basis on which they do so, or the competence of the delegates, all of which are matters about which only the school is in a position to satisfy itself. (3) This is not an open-ended liability, for there are important limitations on the range of matters for which a school or education authority assumes non-delegable duties. They are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions). In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours, to take some of the examples canvassed in argument and by Laws LJ in his dissenting judgment. (4) It is important to bear in mind that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable. The recognition of limited non-delegable duties has become more significant as a result of the growing scale on which the educational and supervisory functions of schools are outsourced, but in a longer historical perspective, it does not significantly increase the potential liability of education authorities. (5) The responsibilities of fee-paying schools are already non-delegable because they are contractual, and the possibility of contracting out of them is limited by legislation. In this particular context, there seems to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services are provided by a public authority. A similar point can be made about the technical distinctions that would otherwise arise between privately funded and NHS hospital treatment. (6) It can fairly be said that the recognition of a non-delegable duty of care owed by schools involves imputing to them a greater responsibility than any which the law presently recognises as being owed by parents. Parents would not normally incur personal liability for the negligence of (say) a swimming instructor to whom they had handed custody of a child. The Appellants pleaded allegation that the school stood in loco parentis may not therefore assist their case. The position of parents is very different to that of schools. Schools provide a service either by contract or pursuant to a statutory obligation, and while LEA schools do not receive fees, their staff and contractors are paid professionals. By comparison, the custody and control which parents exercise over their children is not only gratuitous, but based on an intimate relationship not readily analysable in legal terms. For this reason, the common law has always been extremely cautious about recognising legally enforceable duties owed by parents on the same basis as those owed by institutional carers: see Surtees v Kingston-on-Thames Borough Council [1992] PIQR 101, 121 (Beldam LJ); Barrett v Enfield London Borough Council [2001] 2 AC 550, 588 (Lord Hutton). Application to the present case In my opinion, on the limited facts pleaded or admitted, the respondent education authority assumed a duty to ensure that the Appellants swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions. The Appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. The swimming lessons were an integral part of the schools teaching function. They did not occur on school premises, but they occurred in school hours in a place where the school chose to carry out this part of its functions. The teaching and the supervisory functions of the school, and the control of the child that went with them, were delegated by the school to Mrs Stopford and through her to Ms Burlinson, and probably to Ms Maxwell as well, to the extent necessary to enable them to give swimming lessons. The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty. I would accordingly allow the appeal and set aside the judges order striking out the allegation of a non-delegable duty. LADY HALE (with whom Lord Clarke, Lord Wilson and Lord Toulson agree) The common law is a dynamic instrument. It develops and adapts to meet new situations as they arise. Therein lies its strength. But therein also lies a danger, the danger of unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case. So it must proceed with caution, incrementally by analogy with existing categories, and consistently with some underlying principle (see Caparo Industries plc v Dickman [1990] 2 AC 605). But the words used by judges in explaining why they are deciding as they do are not be treated as if they were the words of statute, setting the rules in stone and precluding further principled development should new situations arise. These things have been said many times before by wiser judges than me, but are worth repeating in this case, where we are accepting an invitation to develop the law beyond the point which it has currently reached in this jurisdiction. It is because we are doing that, and thus disagreeing with the conclusions reached in the courts below, that I am adding a few thoughts to the judgment of Lord Sumption, with which of course I agree. It is also important, so far as possible, that the distinctions produced by this process make sense to ordinary people. They should not, as Lord Steyn observed in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 495, produce an imbalance in the law of tort which might perplex the man on the underground. In that case, their Lordships obviously thought that the public would be perplexed if the police officers who were present at the Hillsborough disaster could claim compensation for the psychiatric harm they had suffered as a result of the negligence of their fellow officers when the spectators who had suffered the same harm for the same reason could not. In this case we have the reverse situation, where the public might well be perplexed if one pupil could sue her school for injuries sustained during a negligently conducted swimming lesson but another could not. Consider the cases of three 10-year-old children, Amelia, Belinda and Clara. Their parents are under a statutory duty to ensure that they receive efficient full-time education suitable to their age, ability and aptitude, and to any special needs they may have (Education Act 1996, section 7). Amelias parents send her to a well-known and very expensive independent school. Swimming lessons are among the services offered and the school contracts with another school which has its own swimming pool to provide these. Belindas parents send her to a large school run by a local education authority which employs a large sports staff to service its schools, including swimming teachers and life-guards. Claras parents send her to a small state-funded faith school which contracts with an independent service provider to provide swimming lessons and life-guards for its pupils. All three children are injured during a swimming lesson as a result (it must be assumed) of the carelessness either of the swimming teachers or of the life-guards or of both. Would the man on the underground be perplexed to learn that Amelia and Belinda can each sue their own school for compensation but Clara cannot? As lawyers, we know that the three girls fall into three different legal categories. Amelia (we will assume) has the benefit of a contractual obligation of the school to secure that care be taken for her safety. Belinda has the benefit of the rule which makes an employer vicariously liable for the negligence of its employees. Clara has the benefit of neither and can only succeed if the school has an obligation to secure that care be taken for her safety. In many ways, as Christine Beuermann points out in her valuable article Vicarious liability and conferred authority strict liability (2013) 20 Torts Law Journal 265, it is unfortunate that the courts have not considered both bases of liability in previous cases concerning harm suffered by school pupils. They are conceptually quite different, as Laws LJ made clear in the Court of Appeal at [2012] EWCA Civ 239; [2013] 3 WLR 853, paras 5 to 7, and Lord Sumption explains at paras 3 and 4 above. In the one case, the defendant is not liable because he has breached a duty which he owes personally to the claimant; he is liable because he has employed someone to go about his business for him and in the course of doing so that person has breached a duty owed to the claimant. In the other case, the defendant is liable because he has breached a duty which he owes personally to the claimant, not because he has himself been at fault, but because his duty was to see that whoever performed the duty he owed to the claimant did so without fault. No-one in this case has seriously questioned that if a hospital patient is injured as a result of a nurses carelessness it matters whether the nurse is employed by the hospital or by an agency; or if a pupil at school is injured by a teacher it matters whether the teacher is employed by the school or is self- employed. Yet these are not employees of the hospital or school, nor can it be said that their relationship with the school is akin to employment in the sense in which the relationship of the individual Christian Brothers to their Order was akin to employment in the case of Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56, [2013] 2 AC 1. The reason why the hospital or school is liable is that the hospital has undertaken to care for the patient, and the school has undertaken to teach the pupil, and that responsibility is not discharged simply by choosing apparently competent people to do it. The hospital or school remains personally responsible to see that care is taken in doing it. As Lord Sumption has shown, the principle of personal responsibility of this sort is well-established in our law. The prime example is the responsibility of an employer to see that his employees are provided with a safe place of work, safe equipment and a safe system of working. As Lord Brandon of Oakwood put it in McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906, 919: The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty. The duty may originally have been formulated in that way to get round the problem that, at common law, an employer could not be vicariously liable for injuries negligently caused by one of his employees to another. But McDermid shows that it not only survived the abolition of that doctrine by the Law Reform (Personal Injuries) Act 1948 but also applied where performance of the duty was delegated to an independent contractor. Also, given that there exists a contract of employment between employer and employee, the duty might perhaps have been formulated as an implied term in that contract, rather than in the law of tort. But it was not. As Lord Sumption has explained, both Lord Greene MR in Gold v Essex County Council [1942] 2 KB 293, 301, and Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343, 362-363, would have applied the same principle to get round what was then perceived to be another problem with the law of vicarious liability, that its theoretical foundation was supposed to be the control which the employer could exercise over the manner in which the employee did his work. This provides a ready answer to the examples of the agency nurse and the supply teacher and I agree with Lord Sumption that the time has come to recognise that Lord Greene and Denning LJ were correct in identifying the underlying principle. I also agree that the principle will apply in the circumstances set out by Lord Sumption at paragraph 23, subject of course to the usual provisos that such judicial statements are not to be treated as if they were statutes and can never be set in stone. In my view, those features clearly apply to the delegation of the conduct of swimming lessons to the swimming teacher, Mrs Burlinson, and (subject to any factual matters of which we are unaware) to the lifeguard, Ms Maxwell. Taking care to keep the children safe is an essential part of any swimming lesson and of the responsibility which the school undertakes towards its pupils. That is what the life-guard is for. These features clearly would not apply to the negligent ice-cream vendor or zoo-keeper. They would not normally apply to the bus driver but they might do so if the school had undertaken to provide transport and placed the pupils in his charge rather than that of a teacher. The boundaries of what the hospital or school has undertaken to provide may not always be as clear cut as in this case and in Gold and Cassidy, but will have to be worked out on a case by case basis as they arise. I also agree with Lord Sumption that recognising the existence of a non- delegable duty in the circumstances described above would not cast an unreasonable burden upon the service-providers for all the reasons he gives. It is particularly worth remembering that for the most part public authorities would have been vicariously liable to claimants who were harmed in this way until the advent of outsourcing of essential aspects of their functions. As Lord Sumption also explains, it is not particularly helpful to plead that the school is in loco parentis. The school clearly does owe its pupils at least the duty of care which a reasonable parent owes to her children. But it may owe them more than that. Children rarely sue their parents for the harm that they suffer at their parents hands save where that harm is covered by an insurance policy. But that is not because the parents do not owe them a duty of care. Rather it is because any damages recovered will normally reduce the resources available to cater for the needs of the child and her family. The courts are also anxious not to impose an impossibly high standard of care in an ordinary domestic setting, as was common ground between the judges in Surtees v Kingston-upon-Thames Borough Council [1992] PIQR 101 (although speaking for myself, I share the dissenting view of Beldam LJ that the judges factual findings were incomprehensible and the foster parents had not discharged the burden of showing that the severe scalding suffered by their two year old foster child had occurred without negligence on their part). But neither of those factors applies to institutional carers including schools. As Lord Hutton explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 588, when considering the liability of a local authority for the exercise of its parental responsibility towards a child in its care: I consider that the comparison between a parent and a local authority is not an apt one in the present case because the local authority has to make decisions of a nature which a parent with whom a child is living in a normal family relationship does not have to make, . . . Moreover a local authority employs trained staff to make decisions and to advise it in respect of the future of a child in its care, and if it can be shown that decisions taken in respect of the child constitute, in the circumstances, a failure to take reasonable care, I do not think that the local authority should be held to be free from liability on the ground that it is in the position of a parent to the child. Both of those features apply as much to a school as to a local authority having parental responsibility for a child and constitute reasons for imposing upon it a responsibility which the law would not impose upon a parent. Finally, it is of interest to consider the objections raised by Professor Glanville Williams in his famous article Liability for Independent Contractors [1956] CLJ 180. I agree with Lord Sumption that it was unfair to criticise the concept of the non-delegable duty on the ground that it was not adequately explained. It has been. But his main criticism was one of policy that liability should rest solely with the person at fault. In his view The argument from poverty hardly applies to contractors, who are often far wealthier than their employers (195) and it may be questioned whether the social evil of the occasional insolvent tortfeasant contractor is of sufficient gravity to justify the somewhat complicated rules and the imposition of vicarious liability (198). Such arguments scarcely apply in todays world where large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors. Nor can it be an objection that there may be more than one tortfeasor to hold liable. That, after all, is the situation in vicarious liability, as Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 made clear. Thus, for all those reasons, in agreement with Lord Sumption, I would allow this appeal and set aside the judges order striking out the allegation of a non-delegable duty. |
Between August 2005 and April 2011 Mr Smith, the respondent, who is by trade a plumbing and heating engineer, did work for Pimlico Plumbers Ltd (Pimlico), the first appellant, which conducts a substantial plumbing business in London. Mr Mullins, the second appellant, owns Pimlico. in an employment tribunal (the tribunal). He alleged In August 2011 Mr Smith issued proceedings against Pimlico and Mr Mullins (a) that he had been an employee of Pimlico under a contract of service within the meaning of section 230(1) of the Employment Rights Act 1996 (the Act) and as such he complained, among other things, that Pimlico had dismissed him unfairly contrary to section 94(1) of it; and/or (b) that he had been a worker for Pimlico within the meaning of section 230(3) of the Act and as such he complained that Pimlico had made an unlawful deduction from his wages contrary to section 13(1) of it; and (c) that he had been a worker for Pimlico within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833) (the Regulations) and as such he complained that Pimlico had failed to pay him for the period of his statutory annual leave contrary to regulation 16 of them; and (d) that he had been in Pimlicos employment within the meaning of section 83(2)(a) of the Equality Act 2010 (the Equality Act) and as such he complained that both Pimlico and Mr Mullins had discriminated against him by reference to disability contrary to section 39(2) of it and had failed to make reasonable adjustments in that regard contrary to section 39(5) of it. By a judgment dated 16 April 2012 delivered by Employment Judge Corrigan (the judge), the tribunal decided that Mr Smith had not been an employee of Pimlico under a contract of service; and, by a judgment dated 21 November 2014 delivered by Judge Serota QC, the Employment Appeal Tribunal (the appeal tribunal) dismissed Mr Smiths cross appeal against that decision. He has not sought further to challenge it. The result is that he cannot proceed with the complaints referred to in para 2(a) above. Nevertheless, by that same judgment dated 16 April 2012, the tribunal made three further decisions: (a) that Mr Smith had been a worker for Pimlico within the meaning of section 230(3) of the Act; (b) that he had been a worker for Pimlico within the meaning of regulation 2(1) of the Regulations; and (c) that he had been in Pimlicos employment within the meaning of section 83(2)(a) of the Equality Act. Were the decisions on these three threshold issues to be upheld, the result would be that Mr Smith could proceed with the complaints referred to in para 2(b), (c) and (d) above. Indeed the tribunal made directions for their substantive consideration. Pimlico brought an appeal against the tribunals three further decisions to the appeal tribunal, which dismissed it by that same judgment dated 21 November 2014. Pimlico thereupon brought an appeal against the appeal tribunals decision to the Court of Appeal, which on 10 February 2017, by substantive judgments delivered by Sir Terence Etherton MR and Underhill LJ and by a judgment of Davis LJ which agreed with both of them, dismissed it ([2017] ICR 657). Today this court determines Pimlicos yet further appeal, which is in form a challenge to the decision of the Court of Appeal but which is in substance a further inquiry into the entitlement of the tribunal to have made the three decisions referred to in para 4 above. Pimlico argues that the tribunals reasoning in support of them was inadequate and it asks the court to set them aside and to direct the tribunal to reconsider the three threshold issues. It follows that the tribunal held that, although Mr Smith was not an employee under a contract of service, he was an employee within the meaning of section 83(2)(a) of the Equality Act. It is regrettable that in this branch of the law the same word can have different meanings in different contexts. But it gets worse. For, as I will explain, different words can have the same meaning. As long ago as 1875 Parliament identified an intermediate category of working people falling between those who worked as employees under a contract of service and those who worked for others as independent contractors. For in that year it passed the Employers and Workmen Act, designed to give the county court an enlarged and flexible jurisdiction in disputes between an employer and a workman; and, by section 10, it defined a workman as, in effect, a manual labourer working for an employer under a contract of service or a contract personally to execute any work or labour. From 1970 onwards Parliament has taken the view that, while only employees under a contract of service should have full statutory protection against various forms of abuse by employers of their stronger economic position in the relationship, there were self employed people whose services were so largely encompassed within the business of others that they should also have limited protection, in particular against discrimination but also against certain forms of exploitation on the part of those others; and for that purpose Parliament has borrowed and developed the extended definition of a workman first adopted in 1875. Thus in 1970 Parliament passed the Equal Pay Act which obliged employers to offer to any woman whom they employed terms equal to those upon which they employed men for the same or equivalent work; and, by section 1(6)(a), it defined the word employed as being under a contract of service or of apprenticeship or a contract personally to execute any work or labour. Then, in section 167(1) of the Industrial Relations Act 1971, we find the birth of the modern worker, defined there as a person who works (a) under a contract of employment, or (b) under any other contract whereby he undertakes to perform personally any work or services for another party to the contract who is not a professional client of his . Now we have section 230(3) of the Act, in which a worker is defined to include not only, at (a), an employee under a contract of service but also, at (b), an individual who has entered into or works under any other contract whereby the individual undertakes to perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual Other subsections of section 230, to which thankfully it will be unnecessary to refer, proceed to extend the words employee, employment and employed to the situation of a worker falling within subsection (3)(b) and conveniently described as a limb (b) worker. Regulation 2(1) of the Regulations defines a worker in terms identical to those in section 230(3) of the Act. On its face section 83(2)(a) of the Equality Act defines employment in terms different from those descriptive of the concept of a worker under section 230(3) of the Act and under regulation 2(1) of the Regulations. For it defines it as being either under a contract of employment or of apprenticeship or under a contract personally to do work. Comparison of the quoted words with the definition of a limb (b) worker in section 230(3) of the Act demonstrates that, while the obligation to do the work personally is common to both, the Equality Act does not expressly exclude from the concept a contract in which the other party has the status of a client or customer. As it happens, however, this distinction has been held to be one without a difference. Part 5 of the Equality Act, which includes section 83, primarily gives effect to EU law. Article 157(1) of the Treaty on the Functioning of the European Union requires member states to ensure application of the principle of equal pay for male and female workers for equal work or work of equal value. In Allonby v Accrington and Rossendale College (Case C 256/01) [2004] ICR 1328 the Court of Justice of the European Communities, at paras 67 and 68, interpreted the word workers in what is now article 157(1) as persons who perform services for and under the direction of another person in return for which [they receive] remuneration but excluding independent providers of services who are not in a relationship of subordination with the person who receives the services. In Hashwani v Jivraj [2011] UKSC 40, [2011] 1 WLR 1872, the Supreme Court applied the concepts of direction and subordination identified in the Allonby case to its interpretation of a contract personally to do work in the predecessor to section 83(2)(a). In Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] 1 WLR 2047, Lady Hale observed at paras 31 and 32 that this interpretation of the section yielded a result similar to the exclusion of work for those with the status of a client or customer in section 230(3) of the Act and in regulation 2(1) of the Regulations. She added, however, at para 39 that, while the concept of subordination might assist in distinguishing workers from other self employed people, the Court of Appeal in that case had been wrong to regard it as a universal characteristic of workers. Notwithstanding murmurs of discontent in the submissions on behalf of Mr Smith, this court is not invited to review its equation in the Bates van Winkelhof case of the definition of a worker in section 230(3) of the Act with that of employment in section 83(2)(a) of the Equality Act. I therefore proceed on the basis that the three decisions of the tribunal referred to at para 4 above stand or fall together; and that it is conceptually legitimate as well as convenient to treat all three of them as having been founded upon a conclusion that Mr Smith was a limb (b) worker within the meaning of section 230(3) of the Act. MR SMITHS AGREEMENTS WITH PIMLICO Mr. Smith made two written agreements with Pimlico, the first dated 25 August 2005 and the second (which replaced the first) made on 21 September 2009 and wrongly dated 21 September 2010. No one has argued that, for the purposes of these proceedings, the agreements have different legal consequences. In places they are puzzling. In his judgment in the appeal tribunal Judge Serota QC concluded that, on the one hand, Pimlico wanted to present their operatives to the public as part of its workforce but that, on the other, it wanted to render them self employed in business on their own account; and that the contractual documents had been carefully choreographed to serve these inconsistent objectives. But the judge rightly proceeded to identify a third objective, linked to the first, namely to enable Pimlico to exert a substantial measure of control over its operatives; and this clearly made development of the choreography even more of a challenge. The first agreement was on a printed form but there were manuscript amendments. The print described it as a contract; but the manuscript substituted the word agreement. Against Mr Smiths name the print explained that it was name of contracted employee; but the manuscript added the prefix sub to the word contracted. Against the date of 25 August 2005 the print explained that it was date of commencement of employment; but the manuscript deleted the word employment. The agreement provided that its terms were as set out in a manual entitled Company Procedures & Working Practices (the manual) but since, as I will explain, the manual was again incorporated into the second agreement, it is convenient to address it in that context. In the second agreement, drafted so as to refer to Pimlico as the Company and to address Mr Smith as you, the terms material to the issue before the court were as follows: You shall provide such building trade services as are within your (a) the Company may terminate [the agreement immediately] if you commit an act of gross misconduct or do anything which brings the Company into disrepute (b) skills in a proper and efficient manner . (c) You shall provide the Services for such periods as may be agreed with the Company from time to time. The actual days on which you will provide the Services will be agreed between you and the Company from time to time. For the avoidance of doubt, the Company shall be under no obligation to offer you work and you shall be under no obligation to accept such work from the Company. However, you agree to notify the Company in good time of days on which you will be unavailable for work. (d) You warrant that you will be competent to perform the work which you agree to carry out [and] you will promptly correct, free of charge, any errors in your work which are notified to you by the Company . (e) If you are unable to work due to illness or injury on any day on which it was agreed that you would provide the Services, you shall notify the Company (f) You acknowledge that you will represent the Company in the provision of the Services and that a high standard of conduct and appearance is required at all times. While providing the Services, you also agree to comply with all reasonable rules and policies of the Company from time to time and as notified to you, including those contained in the Company Manual. (g) . you shall be paid a fee in respect of the Services equal to 50% of the cost charged by the Company to the client in relation to labour content only, provided that the Company shall have received clear funds from the client . (h) If an invoice remains unpaid [by the client] for more than one month, the fee payable to you will be reduced by 50%. If an invoice remains unpaid for more than six months, you will not receive a fee for the work. (i) security contributions to the appropriate authorities. You will provide all your own tools, equipment, materials and other (j) items as shall be required for the performance of the Services, except where it has been agreed that equipment or materials will be provided through the Company. The Company may, at a rental price to be agreed with you, provide a vehicle for use in providing the Services If you provide your own materials , you will be entitled to up to 20% trade mark up (pre VAT) on such materials provided [their] cost is at least 3,000 (pre VAT) [and otherwise] up to 12.5% . (k) You will have personal liability for the consequences of your services to the Company and will maintain suitable professional indemnity cover to a limit of 2m You will account for your income tax, value added tax and social (l) You shall at all times keep the Company informed of your other activities which could give rise to a direct or indirect conflict of interest with the interests of the Company, provided that you shall not be permitted at any time to provide services to any Customer other than under this Agreement. (m) you will not for three months following [termination of the agreement] be engaged in any Capacity with any business which is in competition with [the business of the Company nor] for 12 months solicit the business of [any customer of the Company nor] be involved with the provision of goods or services to [him] in the course of any business which is in competition with [that of the Company]. You are an independent contractor of the Company, in business on (n) your own account. Nothing in this Agreement shall render you an employee, agent or partner of the Company and the termination of this Agreement shall not constitute a dismissal for any purpose. (o) This Agreement contains the entire agreement between the parties The manual was incorporated into the second agreement by virtue of the term recited at para 18(f) above. It obliged him to comply with the manual [w]hile providing the Services. My view is that the quoted words are apt to have made the manual govern all aspects of Mr Smiths operations in relation to Pimlico; in any event, however, the case proceeded before the tribunal on the basis that even after 2009 the manual remained as much a part of the contract as, on any view, it had previously been. Its relevant provisions are as follows: (a) [Y]our appearance must be clean and smart at all times The Company logo ed uniform must always be clean and worn at all times. (b) Normal Working Hours consist of a five day week, in which you should complete a minimum of 40 hours. (c) required, time off or period of unavailability. Adequate notice must be given to Control Room for any annual leave (d) Engineers on call between 12.00pm (midnight) 6.00am will qualify for the 100% rate, providing the office has not taken the job booking [or] for the 50% rate if the office takes the job booking. (e) On Call Operatives will be given preference for: Overtime. Better jobs. Newer vans. (f) Any Operative requiring assistance on any job must inform the customer of the additional charges involved . and obtain the customers approval for such charges. (g) Callbacks [for remedial work] must be treated as a matter of absolute priority by all Operatives. No further work will be allocated to any Operative until his Callbacks are attended to Until all issues have been settled and all callbacks resolved any outstanding money will be held back for the last month . No payment will be made to that Operative, unless the customer is completely satisfied Any claim made against the Company as a result of the Operatives incompetence/negligence will be passed on to the Operative and his Insurers. (h) No payment will be made to the Operative until payment in full has been received by the office A 50% deduction will be made from the Operatives percentage if payment is received by the office later than one month from the job date Invoices which remain unpaid after six months from the date of the job will be written off. (i) ID card must be carried when working for the Company. (j) Operatives will be issued with a mobile telephone system The mobile telephone charges, plus VAT, will be deducted from wages on a monthly basis. Pimlico Plumbers ID Cards are issued to every Operative Your (k) Any individual undertaking private work for or as a result of contacts gained during your working week and contravening the signed contract will be dismissed immediately (l) Operatives who fail to observe the rules outlined in this working practice manual in respect of procedures or conduct, will be given a warning and may thereafter be subject to instant dismissal. (m) Wages will be paid directly into the Operatives designated bank or building society account (n) The following standard rate of Van Rental Charges, payable monthly in advance, allows Operatives to work on a Self employed basis: 120.00 + VAT. This figure will increase if the Operative is involved in consistent vehicle damage. PERSONAL PERFORMANCE? If he was to qualify as a limb (b) worker, it was necessary for Mr Smith to have undertaken to perform personally his work or services for Pimlico. An obligation of personal performance is also a necessary constituent of a contract of service; so decisions in that field can legitimately be mined for guidance as to what, more precisely, personal performance means in the case of a limb (b) worker. Express & Echo Publications Ltd v Tanton [1999] ICR 693 was a clear case. Mr Tanton contracted with the company to deliver its newspapers around Devon. A term of the contract provided: In the event that the contractor is unable or unwilling to perform the services personally he shall arrange at his own expense entirely for another suitable person to perform the services. The Court of Appeal held that the term defeated Mr Tantons claim to have been employed under a contract of service. Nevertheless, in his classic exposition of the ingredients of a contract of service in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, Mackenna J added an important qualification. He said at p 515: Freedom to do a job either by ones own hands or by anothers is inconsistent with a contract of service, though a limited or occasional power of delegation may not be He cited Atiyahs Vicarious Liability in the Law of Torts (1967), in which it was stated at p 59 that it seems reasonably clear that an essential feature of a contract of service is the performance of at least part of the work by the servant himself. Where, then, lie the boundaries of a right to substitute consistent with personal performance? Mr Smiths contracts with Pimlico, including the manual, gave him no express right to appoint a substitute to do his work. There were three passing references in the manual to his engagement of other people, of which the most explicit was the reference, quoted at para 19(f) above, to his requiring assistance. The evidence was indeed that some of Pimlicos operatives were accompanied by an apprentice or that they brought a mate to assist them. But assistance in performance is not the substitution of performance. Equally the tribunal found that, where a Pimlico operative lacked a specialist skill which a job required, he had a right to bring in an external contractor with the requisite specialism. But again, since in those circumstances the operative continued to do the basic work, he is not to be regarded as having substituted the specialist to perform it. But the tribunal found that Mr Smith did have a limited facility to substitute. For he had accepted that, if he had quoted for work but another more lucrative job had subsequently arisen, he would be allowed to arrange for the work to be done by another Pimlico operative. The tribunal rejected Pimlicos contention that there was a wider facility to substitute and concluded that there was no unfettered right to substitute at will. The Court of Appeal interpreted the tribunals findings to be that Mr Smiths facility to substitute another Pimlico operative to perform his work arose not from any contractual right to do so but by informal concession on the part of Pimlico. In circumstances in which the contract provided no express right to substitute and included a clause that it contained the entire agreement between the parties, there is much to be said for such an analysis. In the absence of escape from it by the construction of a collateral contract, an entire agreement clause is likely to be effective in preventing extraneous contractual terms from arising: MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24, para 14. But the Court of Appeals analysis does not sit easily with some of the words chosen by the tribunal to describe the facility; and in what follows, I will assume (without deciding) that it is the product of a contractual right. Having found that Mr Smith had the right to substitute another Pimlico operative to perform his work, the tribunal unfortunately saw fit to turn its attention to the terms of a revised contract between Pimlico and its operatives which was introduced following the termination of Mr Smiths contract. The tribunal quoted two of the new terms. One of them gave the operative a right to assign or subcontract his duties subject to the prior consent of the Company. The other obliged him either to perform his duties personally or to engage another Pimlico contractor to do it. The two terms appear to be inconsistent, unless they can be reconciled on the basis that Pimlicos prior consent would always be necessary but would not be given unless the assignee of the duties were to be another Pimlico operative. At all events the two new terms led the judge to comment: In my view this clarifies that [Mr Smith] was contracted to provide work personally with, at most, only a limited power to substitute either to other internal operatives or with the prior consent of [Pimlico]. My view, with respect, is that the two new terms did not clarify anything at all. The judges qualification reflected in the words at most seems to indicate an element of uncertainty on her part about their meaning. At all events her comment leads Pimlico to argue either that the judge found Mr Smith to have been entitled to substitute not only another Pimlico operative but also, with its consent, any other plumber or that her findings are so confused that the exercise should be directed to be conducted again. So Pimlico there put before the tribunal an irrelevant contract, cast in highly confusing terms, and now complains that the tribunals interpretation of them was highly confused. Irrespective of whether a wider right of substitution would have been fatal to Mr Smiths claim, this court can in my view be confident that the tribunal found, and was entitled to find, that Mr Smiths only right of substitution was of another Pimlico operative. Such is the judges express finding both in the central part of her judgment and again in her conclusion. Ambiguous terms of a contract to which Mr Smith was not a party cannot widen it. So the question becomes: was Mr Smiths right to substitute another Pimlico operative inconsistent with an obligation of personal performance? It is important to note that the right was not limited to days when, by reason of illness or otherwise, Mr Smith was unable to do the work. His own example of an opportunity to accept a more lucrative assignment elsewhere demonstrates its wider reach. The judge concluded that the right to substitute another Pimlico operative did not negative Mr Smiths obligation of personal performance. She held that it was a means of work distribution between the operatives and akin to the swapping of shifts within a workforce. In challenging the tribunals conclusion Pimlico relies heavily on the decision of the Court of Appeal in Halawi v WDFG UK Ltd (t/a World Duty Free) [2014] EWCA Civ 1387, [2015] 3 All ER 543. Mrs Halawi had been working as a beauty consultant in a duty free outlet at Heathrow airport, managed by World Duty Free. It was the latters practice to grant space in the outlet to cosmetic companies, in which consultants in the uniform of the companies would sell their products. Shiseido, a Japanese cosmetic company, took space in the outlet; and Mrs Halawis role was to sell Shiseidos products there. But her contract was not with Shiseido, still less with World Duty Free. Her contract, or rather her service companys contract, was with a management services company which sold her services on to Shiseido; and then there was a contract between Shiseido and World Duty Free for an accounting between them referable to sales. Notwithstanding the absence of a contract between it and Mrs Halawi, World Duty Free controlled the outlet and in a handbook purported to impose certain rules upon those who worked there. One was that, instead of working personally, a consultant could appoint a substitute provided that she had both an airside pass and the approval of World Duty Free to work in an outlet. In due course World Duty Free withdrew its approval of Mrs Halawi to work in the outlet and thereby prevented her from continuing to do so; but she was held not to be entitled to bring a claim of unlawful discrimination against World Duty Free in that regard. The primary answer to Mrs Halawis claim, most clearly given by the appeal tribunal but apparently adopted by the Court of Appeal, was that she had no contract with World Duty Free of any sort. But the Court of Appeal saw fit also to hold, secondly, that the necessary degree of subordination of Mrs Halawi to World Duty Free was absent: and, thirdly, that her power of substitution (which Pimlico suggests to be analogous to Mr Smiths right to substitute another operative) negatived any obligation of personal performance. But her so called power of substitution was not a contractual right at all. World Duty Frees declaration that Mrs Halawi might appoint a substitute reflected its understandable lack of interest in personal performance on her part under her contract with her own service company and/or under its contract with the management services company. Its interest was only that someone sufficiently presentable and competent to have secured its approval to work in an outlet, and of course in possession of an airside pass, should attend on behalf of Shiseido each day. In my view Mrs Halawis case is of no assistance in perceiving the boundaries of a right to substitute consistent with personal performance. The case of Mirror Group Newspapers Ltd v Gunning [1986] ICR 145 concerned the right to distribute that companys Sunday newspapers around Sheffield. Mrs Gunnings father had held the distributorship but, on his retirement, the company refused to renew it in her favour. She alleged that its refusal was discriminatory and to that end she needed to establish that her fathers contract had required personal performance of it on his part. In allowing the companys appeal the Court of Appeal held at pp 151 and 156 that Mrs Gunning had failed to show that the dominant purpose of her fathers contract had been that he should perform it personally; instead the purpose had been that the companys Sunday newspapers should be efficiently distributed around Sheffield. But in James v Redcats (Brands) Ltd [2007] ICR 1006 Elias J, as president of the appeal tribunal, convincingly suggested at paras 65 to 67 that an inquiry into the dominant purpose of a contract had its difficulties; that, even when a company was insistent on personal performance, its dominant purpose in entering into the contract was probably to advance its business; and that the better search might be for the dominant feature of the contract. In the Hashwani case, cited in para 14 above, Lord Clarke of Stone cum Ebony, at paras 37 to 39, referred to the suggestions of Elias J in the James case with approval but stressed that, although it might be relevant to identify the dominant feature of a contract, it could not be the sole test. The sole test is, of course, the obligation of personal performance; any other so called sole test would be an inappropriate usurpation of the sole test. But there are cases, of which the present case is one, in which it is helpful to assess the significance of Mr Smiths right to substitute another Pimlico operative by reference to whether the dominant feature of the contract remained personal performance on his part. The terms of the contract made in 2009 are clearly directed to performance by Mr Smith personally. The right to substitute appears to have been regarded as so insignificant as not to be worthy of recognition in the terms deployed. Pimlico accepts that it would not be usual for an operative to estimate for a job and thereby to take responsibility for performing it but then to substitute another of its operatives to effect the performance. Indeed the terms of the contract quoted in para 18 above focus on personal performance: they refer to your skills, to a warranty that you will be competent to perform the work which you agree to carry out and to a requirement of a high standard of conduct and appearance; and the terms of the manual quoted in para 19 above include requirements that your appearance must be clean and smart, that the Pimlico uniform should be clean and worn at all times and that [y]our [Pimlico] ID card must be carried when working for the Company. The vocative words clearly show that these requirements are addressed to Mr Smith personally; and Pimlicos contention that the requirements are capable also of applying to anyone who substitutes for him stretches their natural meaning beyond breaking point. The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smiths contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done. The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker unless the status of Pimlico by virtue of the contract was that of a client or customer of his. CLIENT OR CUSTOMER? It is unusual for the law to define a category of people by reference to a negative in this case to another persons lack of a particular status. It usually attempts to define positively what the attributes of the category should be. In Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667 at para 16 Mr Recorder Underhill QC (as Underhill LJ then was) described as clumsily worded the requirement that the other party be neither a client nor a customer. It is hard to disagree. In determining whether Pimlico should be regarded as a client or customer of Mr Smith, how relevant was it to discern the extent of Pimlicos contractual obligation to offer him work and the extent of his obligation to accept such work as it offered to him? The answer is not easy. Clearly the foundation of his claim to be a limb (b) worker was that he had bound himself contractually to perform work for Pimlico. No one has denied that, while he was working on assignments for Pimlico, he was doing so pursuant to a contractual obligation to Pimlico. Does that not suffice? Is it necessary, or even relevant, to ask whether Mr Smiths contract with Pimlico cast obligations on him during the periods between his work on its assignments? In the event both of the specialist tribunals and the Court of Appeal all chose, albeit with difficulty, to wrestle with whether Mr Smiths contract with Pimlico was an umbrella contract, in other words was one which cast obligations on him during the periods between his work on assignments for Pimlico; or whether it was a contract which cast obligations on him only during his performance of such successive assignments as were offered to him by Pimlico and accepted by him. The difficulty arose again from Pimlicos apparently inconsistent contractual provisions. The 2009 contract provided (see para 18(c) above): the Company shall be under no obligation to offer you work and you shall be under no obligation to accept such work from the Company. But the manual stated (see para 19(b) above): Normal Working Hours consist of a five day week, in which you should complete a minimum of 40 hours. Pimlico suggests that, to the extent that its contract and its manual are inconsistent, the former should prevail. But the tribunal found that a purposive construction of the two provisions enabled them to be reconciled. It found, in accordance with Mr Smiths evidence, that Pimlico had no obligation to provide him with work on any particular day and if there was not enough work [it] would not have to provide him with work and he would not be paid. The Court of Appeal construed this finding, in my view legitimately, as being that, if by contrast it did have enough work to offer to Mr Smith, Pimlico would be obliged to offer it to him. In other words Pimlicos contractual obligation was to offer work to Mr Smith but only if it was available; indeed, if the work was available, it would seem hard to understand why in the normal course of events Pimlico would not be content to be obliged to offer it to him. Mr Smiths contractual obligation by contrast was in principle to keep himself available to work for up to 40 hours on five days each week on such assignments as Pimlico might offer to him. But his contractual obligation was without prejudice to his entitlement to decline a particular assignment in the light (for example) of its location; and of course it did not preclude Pimlico from electing, as seems to have occurred, not to insist on his compliance with the obligation in any event. So the tribunal found, legitimately, that there was an umbrella contract between Mr Smith and Pimlico. It is therefore unnecessary to consider the relevance to limb (b) status of a finding that contractual obligations subsisted only during assignments. The leading authority in this respect is now Windle v Secretary of State for Justice [2016] ICR 721, in which Underhill LJ suggested at para 23 that a persons lack of contractual obligation between assignments might indicate a lack of subordination consistent with the other party being no more than his client or customer. The energetic submission of Ms Monaghan QC on behalf of Mr Smith that, on the contrary, it might indicate a greater degree of subordination to that other party must await appraisal on another occasion. Mr Smith correctly presented himself as self employed for the purposes of income tax and VAT. His accounts for the six years ending on 5 April 2011 were put in evidence. Mr Smith clearly took advantage of the facility to purchase materials himself for use on each assignment and to charge the customer, albeit funnelled through Pimlico, 20% more than he had paid for them. His accounts for the year ended 5 April 2011 showed turnover of about 131,000, cost of materials of about 53,000 and, following deduction of motor and other expenses, a net pre tax profit of about 48,000. These accounts are the starting point for Pimlicos submission that the tribunal fell into appealable error in holding that its status was not that of a client or customer of Mr Smith. By reference to what considerations should an inquiry into the existence or otherwise of this status be conducted? In Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005, [2013] ICR 415, Maurice Kay LJ observed at para 20 that there was no single key with which to unlock the words of the statute in every case. How could there be? If there was a single key, it would amount to a gloss. But there are in particular two authorities which may prove to be of some assistance in the conduct of the inquiry. The first is the judgment of Langstaff J, sitting with others in the appeal tribunal in Cotswold Developments Construction Ltd v Williams [2006] IRLR 181. At para 53 he said a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principals operations, will in most cases demonstrate on which side of the line a given person falls. The second is the judgment of Lord Clarke in the Hashwani case cited at para 14 above. A contractual provision for disputes to be resolved by arbitration provided that all the arbitrators should be members of the Ismaili community. One party proposed to appoint Sir Anthony Colman, a retired High Court judge, as one of the arbitrators. He was not a member of the Ismaili community. Would an arbitrator be a worker, entitled to protection from discrimination on religious grounds? There was no doubt that an arbitrator would be obliged to perform his work personally. But there was a further question, which we in the present case are casting as an inquiry into the status of Pimlico as a client or customer. In para 34 Lord Clarke, with whom the other members of the court agreed, identified the question (already summarised in para 14 above) as being whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services. At para 40 Lord Clarke proceeded to address that question in relation to the obligations of an arbitrator. He concluded that an arbitrator would not be subject to the direction of, nor be subordinate to, those with whom he contracted and so would not be a worker entitled to protection against discrimination. To these two authorities, Pimlico would add a third, namely the decision of the Court of Justice of the European Union (the CJEU) in FNV Kunsten Informatie en Media v Staat der Nederlanden (Case C 413/13) [2015] All ER (EC) 387. A Dutch union negotiated terms for the minimum remuneration of self employed musicians when engaged as substitutes to play in Dutch orchestras. But were the terms anti competitive under EU law? Not (so held the CJEU) if the musicians were false self employed, being a concept which seems to equate to that of a limb (b) worker. The court held: 33. a service provider can lose his status of an independent trader if he does not determine independently his own conduct on the market, but is entirely dependent on his principal, because he does not bear any of the commercial risks arising out of the latters activity and operates as an auxiliary within the principals undertaking It follows that the status of worker within the meaning 36. of EU law is not affected by the fact that a person has been hired as a self employed person under national law, for tax, administrative or organisational reasons, as long as that person acts under the direction of his employer as regards, in particular, his freedom to choose the time, place and content of his work , does not share in the employers commercial risks and, for the duration of that relationship, forms an integral part of that employers undertaking, so forming an economic unit with that undertaking The CJEUs examples of relevant considerations are helpful but should be applied cautiously. In Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28, the question was whether Ms Percy, a former minister of the Church of Scotland, was entitled to claim that the Church had unlawfully discriminated against her on grounds of sex. The appellate committee held that she was a worker so was entitled to present her claim. Lady Hale observed at para 146 that [t]he fact that the worker has very considerable freedom and independence in how she performs the duties of her office does not take her outside the definition. In support of its contention that it was a client or customer of Mr Smith, Pimlico makes four substantial points: (a) Without prejudice to his overall obligation (which Pimlico has to accept for this purpose) to make himself available to accept work, if offered, for up to 40 hours each week, Mr Smith was entitled to reject any particular offer of work, whether because of the location or timing of it or for any other reason. (b) Subject to that overall obligation, Mr Smith was free to take outside work albeit not if offered by Pimlicos clients. In a concluding paragraph the tribunal observed that he did not elect to take outside work; but, as Pimlico rightly objects, the analysis must be of his contractual entitlement rather than of his election not to exercise it. (c) Pimlico reserved no right to supervise, or otherwise interfere with, the manner in which Mr Smith did his work. (d) There were financial risks, as well as advantages, consequent upon Mr Smiths work for Pimlico. He was bound by the estimate for the price of the work which he had given to the client. Pimlico did not pay him, not even for any materials which he had supplied, until the client had paid it; if a client paid more than one month late, its payment to him was halved; and, if a client failed to pay within six months, it paid him nothing, not even for his materials, and irrespective of whether the client made payment thereafter. If a client complained about his work, even about work done by another Pimlico operative whom he had substituted to do it, it was Mr Smith who was responsible for remedying it and who received no payment referable to it until he had done so. On the other hand, there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor. The contract made references to wages, gross misconduct and dismissal. Were these terms ill considered lapses which shed light on its true nature? And then there was a suite of covenants restrictive of his working activities following termination. Accurate though it would be, it would not be a proper disposal of this issue to describe this courts own conclusion to be that Pimlico cannot be regarded as a client or customer of Mr Smith. The proper disposal is, of course, for it to declare that, on the evidence before it, the tribunal was, by a reasonable margin, entitled so to conclude. At the end of its submissions Pimlico appends a thin point, into which not even Mr Linden QC on its behalf has proved able to inject substance, namely that the tribunal had failed to address the factors upon which, in relation to this second issue, Pimlico had in particular relied. The complaint turns out to be little more than that the judge had not in her conclusion repeated references to factors which she had addressed earlier. I will not lengthen this judgment by elaborating upon the poverty of this particular complaint. CONCLUSION I would dismiss Pimlicos appeal. The result of doing so would be that the substantive claims of Mr Smith as a limb (b) worker could proceed to be heard in the tribunal. |
This case concerns the circumstances in which sentences passed on assisting offenders (that is, offenders who have given assistance to prosecuting authorities) should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act 2005. The Divisional Court in Northern Ireland ([2015] NIQB 33, Morgan LCJ, Weir J and Treacy J) concluded that the decision of a member of the Public Prosecution Service (PPS) not to refer to the original sentencing court the sentences passed on Robert and David Stewart should be quashed. PPS appeals that decision. The relevant facts Robert and David Stewart are brothers. They had been, by their own admission, members of a loyalist paramilitary organisation in Northern Ireland for several years. On 4 August 2008, they went to a station of the Police Service of Northern Ireland (PSNI) in Antrim. There they admitted having been involved in the murder of a man called Thomas English. Mr English had been killed on 30 October 2000. After many interviews with police officers, the Stewart brothers entered into agreements with a specified prosecutor, Mr Raymond Kitson. A specified prosecutor is a person nominated in section 71(4) of the 2005 Act or a person designated for the purposes of the section by one of the nominated individuals. Mr Kitson, who was a member of the PPS, was duly designated as a specified prosecutor under this provision. The agreements were made on 15 October 2008. Among other things, they required the Stewarts to assist in the investigation being conducted by the Police Service of Northern Ireland into offences relating to the murder of Thomas English on 31 October 2000 . and into other offences connected and unconnected with [that] incident . The agreements also required that the Stewarts participate in a debriefing process, that they should provide all information available to them and give a truthful account of the activities of all others involved. It was further stipulated that the Stewarts plead guilty to the offences to which they had admitted. It was also required that they maintain continuous and complete co operation throughout the investigation and any consequent court proceedings and that they give truthful evidence in any court proceedings arising from the investigation. The agreements stated that failure to comply with their terms could result in any sentence the Stewarts might receive being referred back to the court for review pursuant to section 74 of the 2005 Act. On 10 February 2010, the Stewarts duly pleaded guilty to various offences, including murder, and on 5 March 2010, they were sentenced to life imprisonment. Hart J, a very experienced criminal judge, stated that, in normal circumstances, the tariff for these offences would be 22 years. He applied a 75% reduction on that notional tariff, taking account of the Stewarts assistance under the 2005 Act. The judge then further reduced the period to be served in light of their guilty pleas and personal circumstances. The final effect was that the Stewarts were required to serve a minimum term of three years before they could be considered for release on licence. Taking into account the period that they had served on remand, they were both released on life licence on 18 August 2011. As a result of the interviews with the Stewarts, a number of persons were charged with various offences. Following a lengthy trial before Gillen J, all but one were acquitted of the charges. The single defendant to be convicted was found guilty on the basis of evidence other than that given by the Stewarts. The respondent, Jason Loughlin, was one of the accused who was acquitted. He applied for judicial review of the decision not to refer the case of the Stewarts back to the sentencing court and it was his application which succeeded before the Divisional Court. A number of observations can be made about the trial: (i) There were 14 defendants and 37 counts on the indictment comprising five episodes or instances of alleged criminal behaviour. By any standards, this was a case of considerable complexity which would have presented substantial challenges to all involved in it, including the principal witnesses; (ii) The Stewarts gave evidence over 26 and 30 days respectively. They were each subject to cross examination by no fewer than 14 sets of counsel for the accused; clearly, the opportunity to exploit even minor differences in evidence and recollection will increase as testimony about a significant number of historical events is repeatedly albeit entirely properly challenged and scrutinised; (iii) An application for a direction of no case to answer on all counts was made to the trial judge at the end of the Crown case. Gillen J held that the proper test to be applied was that outlined in R v Courtney [2007] NICA 6, which had applied the principles set out in R v Galbraith 73 Cr App R 124, R v Shippey (1998) Crim LR 767 and Chief Constable v Lo [2006] NICA 3. The judge therefore held that he must look at all the evidence whether supportive of the Stewart brothers or otherwise and ask myself whether that evidence is not so weak or so discredited that it could not conceivably support a guilty verdict para 15 of the judgment on the application for a direction [2012] NICC 3. He refused an application on all but two counts. (iv) None of the accused gave evidence on their trial; (v) The judge expressed himself as not having the slightest difficulty [in] accepting in general terms the statement by the Stewarts throughout their evidence that a variety of circumstances had contributed to faulty recollections on their part para 252 of his principal judgment [2012] NICC 5; (vi) The judge concluded that the Stewarts had lied to the police and to the court. He conducted a wide ranging, painstaking examination of their evidence. Frequently, in his judgment, he acknowledged the extreme difficulty in reaching conclusions about whether accounts he found to be unreliable were the product of imperfect memory, the ravages that alcohol and drug consumption had wrought on both witnesses, the circumstance that both had been engaged in long careers of criminal offending, a natural inclination to understate their own role and to exaggerate that of others, or plain fabrication. But it is unquestionably true that in a number of instances, the judge found that the Stewarts had not been truthful. The 2005 Act The background to the 2005 Act is well explained in the judgment of the Court of Appeal in R v P and Blackburn [2007] EWCA Crim 2290. At para 22 the court said this: There never has been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they have provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. Moreover, the very existence of this process, and the risk that an individual for his own selfish motives may provide incriminating evidence, provides something of a check against the belief, deliberately fostered to increase their power, that gangs of criminals, and in particular the leaders of such gangs, are untouchable and beyond the reach of justice. The greatest disincentive to the provision of assistance to the authorities is an understandable fear of consequent reprisals. Those who do assist the prosecution are liable to violent ill treatment by fellow prisoners generally, but quite apart from the inevitable pressures on them while they are serving their sentences, the stark reality is that those who betray major criminals face torture and execution. The solitary incentive to encourage co operation is provided by a reduced sentence, and the common law, and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction. The 2005 Act placed the common law position on a statutory footing. In its material parts, section 73 of the Act, dealing with reductions in sentences which may be passed on assisting offenders provides: 73. Assistance by defendant: reduction in sentence (1) This section applies if a defendant (a) following a plea of guilty is either convicted of an offence in proceedings in the Crown Court or is committed to the Crown Court for sentence, and (b) has, pursuant to a written agreement made with a specified prosecutor, assisted or offered to assist the investigator or prosecutor in relation to that or any other offence. (2) In determining what sentence to pass on the defendant the court may take into account the extent and nature of the assistance given or offered. If the court passes a sentence which is less than it (3) would have passed but for the assistance given or offered, it must state in open court that it has passed a lesser sentence than it (a) would otherwise have passed, and (b) what the greater sentence would have As the facts of this case illustrate, substantial reductions in sentences, even for the most serious crimes, may be achieved under this section. Indeed, as the Divisional Court pointed out, section 73(5) of the 2005 Act permits the sentencing court to decide on a reduction which would have the effect of imposing a sentence of less than the minimum term that is otherwise prescribed by law. Since sentences passed on those who have entered agreements under section 74 will, at least usually, be imposed before any assessment of their adherence to the terms of the agreement can be made, it is unsurprising that the 2005 Act provides for possible review of the sentences passed. The circumstances in which such a review may take place are provided for in section 74 which, so far as is material, provides: 74. Assistance by defendant: review of sentence (1) This section applies if the Crown Court has passed a sentence on (a) a person in respect of an offence, and (b) the person falls within subsection (2). (2) A person falls within this subsection if (a) he receives a discounted sentence in consequence of his having offered in pursuance of a written agreement to give assistance to the prosecutor or investigator of an offence but he knowingly fails to any extent to give assistance in accordance with the agreement (3) A specified prosecutor may at any time refer the case back to the court by which the sentence was passed if the person is still serving his sentence, and the specified prosecutor thinks it is in the (a) (b) interests of justice to do so. (4) A case so referred must, if possible, be heard by the judge who passed the sentence to which the referral relates. (5) If the court is satisfied that a person who falls within subsection (2)(a) knowingly failed to give the assistance it may substitute for the sentence to which the referral relates such greater sentence (not exceeding that which it would have passed but for the agreement to give assistance) as it thinks appropriate Two aspects of this section deserve special mention. First, so far as the Stewarts are concerned, it was a prerequisite of consideration whether to refer their sentences that they knowingly failed to give assistance in accordance with the agreement. (Sub paragraphs (b) and (c) of section 74(2) prescribe other circumstances in which a referral may be made but they are not relevant here.) Unless, therefore, it is concluded that the Stewarts had knowingly failed to comply with the agreements, they do not come within section 74(2) and the section does not apply to them. The second feature of the section which should be noted is that, even when it is concluded that assisting offenders such as the Stewarts have knowingly failed to give the assistance in accordance with the agreement, the specified prosecutor must address the question whether it is in the interests of justice to make the reference. It is only when she or he thinks that it is in the interests of justice that this should happen, that the reference may be made. Before the Divisional Court, some debate was engaged about whether the test was that the interests of justice required that the sentences be referred. For reasons that I will give presently, I do not consider that it is useful to approach the question of what is in the interests of justice as one of necessity. But it is equally undesirable, in my view, to constrain the specified prosecutors consideration of whether the interests of justice indicate one course or the other, by reference to a test which has not been referred to in the statute, such as whether the circumstances have changed from those in which the original sentences were passed. Again, I will give my reasons for that conclusion later in this judgment. The specified prosecutors consideration of whether to refer Pamela Atchison was the deputy Director of Public Prosecutions for Northern Ireland at the time that consideration was undertaken as to whether the sentences passed on the Stewarts should be referred to the original sentencing court. She was designated as the specified prosecutor to consider whether such a reference should be made. Mrs Atchison took the advice of experienced senior counsel on some aspects of her decision but she has stated that the conclusion that she reached was hers alone. The reasons she decided not to refer the Stewarts case were outlined by Mrs Atchison in a lengthy document of some 260 paragraphs. In it, she explained that she had concluded that both Stewarts had knowingly failed on a number of occasions to give the assistance which they had undertaken to provide. Her conclusions broadly reflected those in which Gillen J had decided that the witnesses evidence was deliberately mendacious. The respondent has claimed that this fell impermissibly short of the proper examination of this issue. In effect, the respondent argued that the specified prosecutor was required to examine minutely every conceivable aspect of the Stewarts accounts, both during their evidence in court and in their interviews before the trial. The Divisional Court did not accept that argument. Nor do I. Quite apart from the impossible logistical burden which this would have imposed on the specified prosecutor, the respondents argument rested mainly on the proposition that, because the trial judge had referred in general terms at various points in his judgment to the Stewarts having lied, this should have prompted the specified prosecutor to examine their accounts intensely to decide whether there were instances of a failure to comply with the agreements into which they had entered and which had not been referred to by the judge. The lack of realism of this submission is exposed when one considers that Gillen Js judgment on the application for a direction of no case to answer consisted of 85 paragraphs and his final judgment ran to 556 paragraphs. Both judgments were carefully considered by Mrs Atchison and every specific instance in which the judge found that the Stewarts had lied was analysed by her in detail. It was entirely reasonable for her to conclude that the judge had examined meticulously all the evidence on the question of whether the Stewarts had lied. The specified prosecutor was therefore perfectly entitled to concentrate on those passages of the judgments which dealt directly with that issue. On the question of whether it was in the interests of justice that the case be referred to the sentencing court, the specified prosecutor outlined a number of reasons which led her to the conclusion that it should not be. Of the five breaches by David Stewart of the undertakings that he had given, she said that these either did not attribute criminal conduct to the accused (beyond that which had otherwise been alleged) or were self serving lies which undermined his credibility rather than imputing criminal conduct to an innocent individual. To put the significance of Stewarts lies further in context, Mrs Atchison at para 247 of her decision document said this: the issue of lies was only one of several issues that impacted negatively upon the credibility of [David Stewart]. Further issues, all of which were significant, included his previous bad character, his abuse of alcohol and drugs, the possibility of contamination, his difficulties with memory, and his tendency to confuse incidents and the details of those participating in them. In these circumstances, I do not consider it possible to conclude that the breaches per se were in any way determinative of the outcome of the trial. In other words, even if David Stewart had not told lies about these incidents, the other frailties in his testimony were just as likely to lead to the same result. In a word, it was impossible to conclude that the fact of lying was in any way pivotal. Mrs Atchison identified five factors which, she said, were of primary importance in deciding not to refer David Stewarts case to the court which had sentenced him. These were: a. The nature and extent of the assistance provided. She concluded that David Stewart had given very significant evidence to the police and that this was a factor in his favour. The time which had elapsed since the original sentence had been b. passed. The duration of any return to custody, if ordered, was likely to be short, in her estimation, given the nature and materiality of the breaches and the fact that more than 18 months had elapsed between his release from prison and her consideration of whether to refer the case back to the sentencing court. (Her report was prepared in April 2013.) c. Whether the imposition of a revised sentence might be considered oppressive. In this context, medical evidence suggested that, if he was returned to prison, there was a risk to David Stewarts life. While Mrs Atchison accepted that this consideration was not determinative of whether the case should be referred, it was a factor of some weight against taking that course. The potential damage to public confidence in the justice system if a d. referral was not made. The specified prosecutor accepted that public confidence might be undermined if it was perceived that an assisting offender had failed to comply with undertakings on which a discounted sentence was based. But this was offset by the consideration that the failure to comply did not result per se in the acquittal of the defendants. Moreover, in light of the risk that a referral would not result in an increase in the sentences, there was a chance that, so far from increasing confidence in the 2005 Act regime, it would have the opposite effect. The prospects of a successful application to the reviewing court. e. Mrs Atchison pointed out that, section 74(5) invests the reviewing court with a discretion as to what, if any, sentence it should substitute where there had been a breach of the section 73 agreement. The court was likely to have regard to the same or similar factors which had influenced her decision. The prospects of a referral resulting in a change in sentence were low, therefore, in her view. The specified prosecutor carried out a similar analysis in relation to Robert Stewart. In his case, only two instances of deliberate untruths were identified. For similar reasons to those expressed in relation to his brother, Mrs Atchison decided that his case should not be referred. The Divisional Courts judgment Central to the Divisional Courts decision was its consideration of R v P and Blackburn [2007] EWCA Crim 2290. The court considered that the critical passage from the Court of Appeals judgment was para 33. This is what Morgan LCJ said about it in para 56 of his judgment: At para 33 the court indicated that a review under section 74 is a fresh process which takes place in new circumstances. We consider that this analysis is helpful in understanding how the prosecutor should approach the interests of justice test in section 74(3)(b) of the 2005 Act. If the prosecutor concludes that the failure to give assistance is such that the court could not conclude that the circumstances had altered as a result, the interests of justice would rarely require referral. If, as is generally likely to be the case where there has been a failure or refusal to provide assistance, the court could take the view that the circumstances had changed the interests of justice would point towards a referral unless there were countervailing considerations. It is with those principles in mind that we examine the approach of the prosecutor in this case. This statement suggests that, absent countervailing considerations, where there had been a change in circumstances, a referral to the original sentencing court should occur. That proposition, if correct, would involve a radical circumscription of the specified prosecutors consideration of where the interests of justice lay. A close examination of what the Court of Appeal in fact said in P and Blackburn is therefore necessary. Before conducting that examination, it should be observed that passages from the Divisional Courts judgment put beyond doubt that the critical question for that court was whether circumstances had changed. At paras 63 and 64 of his judgment, the Lord Chief Justice said that the first task of the prosecutor is to determine whether the court [to which the sentence might be referred] could conclude that the circumstances had changed and [t]he prosecutor did not ask whether the court could conclude that the circumstances had changed. These statements suggest (i) that the specified prosecutor, in deciding where the interests of justice lay, must first address the question whether it was possible that the sentencing court might conclude that there had been a change in circumstances from those which obtained when the original discounted sentence had been passed; and (ii) that if she decided that such a possibility existed, unless there were countervailing circumstances, she was bound to conclude that it was in the interests of justice that the cases be referred to the original sentencing court. For reasons that I will give later, I do not consider that either of these propositions is right. R v P and Blackburn In the case of P, he had been charged with offences arising from the importation of controlled drugs. While awaiting trial, he instructed his solicitor to contact police officers investigating a murder, which had occurred some years earlier. A meeting was arranged between the applicant and a senior investigating police officer. During the meeting, P provided information relating to the murder. He also told police about unrelated criminal activity by a major drug dealer. In due course, he pleaded guilty to various charges. All of this took place before the coming into force of the 2005 Act and, although the trial judge was informed of Ps co operation, it was clear that this had not led to any police investigation of the crimes which P had told the police about nor to any particular risk to him. A sentence of 17 years was imposed. After he had been sentenced, P contacted the police again. He provided information relating to a current murder investigation and agreed to give evidence against those persons alleged to be responsible for the murder, as well as detailing the criminal offences which he had personally committed. The led to a document being prepared by a senior police officer for the purposes of Ps appeal against sentence. As a result his sentence was reduced to 15 years imprisonment. Again, this took place before the coming into force of the 2005 Act. After that Act came into force in April 2006, P entered an agreement with a specified prosecutor. This was in similar terms to the agreements made with the Stewart brothers in this case. P not only supplied information about the criminal activity of others, he admitted to a series of offences which had not been involved in his earlier appearances before the courts. He and his family were considered to be at serious risk as a consequence of the information which he supplied about crimes committed by others. P came before the criminal courts again, firstly, to be sentenced in relation to the offences that he had lately admitted but also on a reference back under section 74(3) of SOCPA by the specified prosecutor for a review of the sentence of 15 years imprisonment, as substituted by the Court of Appeal for the original sentence. This, then, was the converse of the situation in which a reference back to the original sentencing court in the case of the Stewarts was considered. As a result of the further co operation given by P, plainly the specified prosecutor considered that a reduction of the sentence of 15 years should be considered. The judge agreed. As well as sentencing P for the newly admitted offences, he reviewed the sentence of 15 years and substituted for this one of five years imprisonment. The Court of Appeal did not disturb this sentence but it reduced the sentence for the offences to which P had been required to admit as a result of his involvement in the agreement made under the 2005 Act. Blackburns case is less directly relevant to the issues which arise in this appeal. He had entered an agreement under the 2005 Act with a specified prosecutor before he appeared before Simon J. He was sentenced to four years imprisonment and his appeal was, essentially, confined to the argument that this did not entirely reflect the appropriate discount for the assistance which he had given and that the overall starting point was too high. The Court of Appeal accepted those arguments and reduced the sentence to two and a half years imprisonment. A clear insight into the circumstances in which the Court of Appeal considered that it should review the substituted sentence is critical to the outcome of this appeal. Did it suggest that a change in circumstances from those which existed at the time that the originally discounted sentence was passed would normally call for a reference back to the sentencing court? The answer to that question must begin with an examination of what the Court of Appeal actually said in para 33: 33. Ps appeal raises a specific question relating to the involvement of this court. The original 17 year sentence was reduced to 15 years when this court exercised its powers under section 9 of the Criminal Appeal Act 1968. The jurisdiction to conduct a review of sentence on the basis of post sentence assistance is vested in the Crown Court. Its decision on the review is subject to appeal to this court. Therefore, the review itself is not an appeal against sentence, whether imposed in the Crown Court or this Court. It is a fresh process which takes place in new circumstances. Accordingly, the process of review is not inhibited by the fact that this court has already heard and decided an appeal against the original sentence, whether the sentence is varied on appeal or not. This Court may be required to address either a sentence imposed in the light of the written section 73 agreement, or a review conducted in accordance with section 74, or, as here in the case of P, where the assistance provided may impinge on both decisions. From this passage, it is clear that the Court of Appeal was referring to the fresh process in order to distinguish it from a conventional appeal against sentence and to make the point that the review could proceed, unconstrained by the fact that an earlier appeal had taken place. The court did not suggest that a change in circumstances should normally precipitate a referral to the sentencing court. In fact, of course, in the case of P there was a change in circumstances in that he had latterly decided to give useful information to the police and had agreed to testify against former colleagues. It was this which had prompted the decision to refer. Clearly, Ps change of heart and his willingness to assist in the police operation against serious criminals was considered to warrant the referral. But it is wrong to extrapolate from this that, where a change in circumstances (such as a failure to comply fully with an agreement made with a specified prosecutor) occurs, this will inevitably, or even usually, lead to a decision to refer. As I have said earlier, Ps case was the obverse of the Stewarts. The enhanced level of his co operation prompted a referral in order to secure a greater discount on his sentence. In the case of the Stewarts, the question was whether their failure to live up to the expectations generated by the agreement required a referral in the interests of justice. In a case such as the Stewarts, it is difficult to think of a situation in which a referral back to the sentencing court would be contemplated unless circumstances had changed. Indeed, from the statements contained in paras 63 and 64 of the Divisional Court (referred to in para 20 above) it is clear that the court considered that, if the specified prosecutor believed that there was a possibility that the sentencing court might consider that the circumstances had changed, it was her duty to refer. In effect, any lapse from the co operation expected of an assisting offender would require the specified prosecutor to refer. How otherwise could she conclude that there was no possibility that the sentencing court would conclude that circumstances had not changed? If the Divisional Courts formulation was correct, the decision of the specified prosecutor as to whether it was in the interests of justice to refer the case back to the sentencing court would have no meaningful content. If there was the merest deviation by the assisting offender from the agreement made with the specified prosecutor, the case would have to be referred. Discussion The Divisional Courts view that the predominant factor in deciding where the interests of justice lay was whether a change in circumstances had occurred between those which obtained at the time that the agreement with the specified prosecutor was made and the time at which consideration of whether to refer the case back to the original sentencing court took place cannot be upheld. Consideration of the interests of justice in this context involves an open ended deliberation. Section 74(3) imposes no explicit constraint on how the specified prosecutor should approach the question and there is no warrant, in my opinion, for implying a fetter on the exercise of the unrestricted discretion for which the statute clearly provides. It is not difficult to envisage a wide range of factors beyond the question of whether circumstances had changed which might be pivotal in deciding if the original sentence should be referred back to the court which imposed it. Reasons for a failure to strictly adhere to the terms of the agreement with the specified prosecutor could range over a broad spectrum of possibilities. If a change of circumstances is considered to occur when the assisting offender gives testimony which is at odds with the account that he originally gave to the police, what if, despite this, a number of the accused were convicted on the basis of his evidence? Could it be said that the interests of justice inevitably require referral back to the sentencing court? Or, if the witness, because of a well established fear of attack on his family, recants on the evidence that he had agreed to give, is that to be left out of account in deciding whether the interests of justice demand that there be a referral to the original sentencing court? It is not suggested that the factors which Mrs Atchison took into account were irrelevant to a consideration of where the interests of justice lay, provided that consideration is untrammelled by the precondition which the Divisional Court believed should apply. Hers was an open examination of that question. In my view, she was not only entitled to approach the issue in that way, she was obliged to do so. I consider that her report demonstrates a careful, perfectly legitimate investigation of the question of the interests of justice in these particular cases and that her conclusions cannot be impeached. Other incidental arguments The appellant submitted that the challenge in this case was to a species of prosecutorial decision, analogous to that as to whether to instigate criminal proceedings. Mr McGleenan QC argued that cases such as R v Director of Public Prosecutions, Ex p Manning [2001] QB 330; Mohit v Director of Public Prosecutions of Mauritius [2006] UKPC 20; [2006] 1 WLR 3343; In re Lawrence Kincaid [2007] NlQB 26; Sharma v Brown Antoine [2007] 1 WLR 870; McCabe [2010] NIQB 58; and In re Mooneys Application [2014] NIQB 48 all impelled reticence on the part of a court in reviewing any prosecutorial decision. I do not feel it necessary to address this argument. The decision under challenge here is certainly one taken by a prosecutor. Whether it is truly analogous with a decision whether to instigate criminal proceedings (as in the cited cases) is significantly less clear. Many considerations which touch on the question of whether proceedings should be instituted are not relevant in the present context. For the respondent, Mr Scoffield QC submitted that the overweening consideration in the interests of justice consideration was that an appropriate sentence be passed on the Stewarts for their admitted egregious crimes and that this should be primarily a matter for a court, rather than the specified prosecutor, to decide. I reject this argument principally because of its implicit premise which replicates the approach of the Divisional Court that the specified prosecutor should defer to the sentencing courts possible view that a different sentence would be appropriate. The specified prosecutor may well have to consider many factors which would not be directly relevant to a conventional sentencing exercise. Factors quite extraneous to the personal circumstances of the individuals who might be subject to a referral might properly influence the specified prosecutors decision. It might well be relevant, for instance, that a decision to refer could affect the possibility of others offering the type of assistance which assisting offenders such as the Stewarts said that they were prepared to provide. It was argued that, at various points in the document in which Mrs Atchison explained why she had decided not to refer the Stewarts case, she had stated that the interests of justice did not require that the cases be referred. It was suggested that this betokened a view that unless the interests of justice positively required a referral, it should not take place. The specified prosecutor repudiated that suggestion. She explained that this was merely a form of words which she customarily used when reaching a decision as to where the interests of justice lay. There is no reason to invest the use of these words with the significance that the respondent has sought to ascribe to them. Conclusion I would allow the appeal and dismiss the respondents application for judicial review. |
The appeal raises troublesome issues of construction of para 4 of Chapter 2 of Part 1 of Schedule 1 to the Mobile Homes Act 1983 (the 1983 Act). By section 1, the 1983 Act applies to any agreement under which a person (the occupier) is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence; and, by section 2, the terms set out in Part 1 of Schedule 1 to it shall, notwithstanding any express term to the contrary, be implied in any such agreement between the site owner and the occupier. Thus, by paragraph 1 of Chapter 2 of Part 1, a term is, subject to an irrelevant exception, implied that the occupiers right to station his mobile home on the site shall subsist until the agreement is determined under one of four subsequent paragraphs. Of the three (now numbered 4, 5 and 5A) which relate to determination by the site owner, the relevant paragraph is 4 (the para 4 term) which provides that: The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. In the present case the occupiers breach was an act of anti social behaviour. It raises the following issues: (i) Can an occupier remedy a breach of a covenant against anti social behaviour? If not, what is the effect of the para 4 term? (ii) (iii) Alternatively, if so, (a) how may he comply with a notice to remedy and (b) what is the effect of his obligation to do so within a reasonable time? Mr Telchadder, who is an occupier of a mobile home, appeals against an order of the Court of Appeal (Mummery LJ, Black LJ and Dame Janet Smith) dated 16 May 2012, [2012] EWCA Civ 635, by which it dismissed an appeal against an order made by HHJ Moloney QC in the Southend County Court on 17 August 2011. In proceedings brought by Wickland (Holdings) Ltd (Wickland), which owns and operates a site for mobile homes at Meadowview Park, Little Clacton, Essex, Judge Moloney held that, pursuant to the para 4 term, Wickland was entitled to terminate its agreement with Mr Telchadder dated 1 June 2006 and he proceeded to order that his licence to station his mobile home at Plot No.160 at the park be terminated forthwith. Pending determination of this appeal and, were it to fail, of a potential application to suspend execution of the judges order under section 4 of the Caravan Sites Act 1968 (the 1968 Act), Mr Telchadder continues to station his mobile home at Plot no. 160 and to occupy it there. The site at Meadowview Park is protected within the meaning of sections 5(1) of the 1983 Act and 1(2) of the 1968 Act. It is not a site for holiday caravans: the mobile homes are for occupation throughout the year and are fixed to the ground and, notwithstanding their description, they are not easily removed. There are about 200 homes on the site. The close proximity in which they are set places a premium on good neighbourliness. About 30% of the occupiers are aged at least 70 and children aged under 16 are not permitted permanently to reside there. Wickland does not own the homes and it appears that the occupiers themselves almost always own them. Occupiers who merely rent the homes from third parties may well not be protected under the 1983 Act: see Clayden, The Law of Mobile Homes and Caravans, 2nd ed (2003), p 87. On 1 June 2006 Mr Telchadder entered into a written agreement with Wickland for the right to station a mobile home, which he owns, on the park, at Plot No.160, on payment of a pitch fee of 1516 p.a. subject to annual review. The terms which the 1983 Act required to be implied into the agreement, therefore including the para 4 term, were all set out expressly in accordance with section 1(2)(d) of that Act. Mr Telchadder also expressly undertook not to act in such a way as to annoy or disturb other occupiers of the park. Furthermore he undertook to comply with the Park Rules, which were annexed to the agreement. By way of preface to the rules, Wickland stated that their object was not to place unnecessary restrictions on residents but to ensure that they might live peacefully in unspoilt surroundings and it explained that some of them were necessary because residents lived in closer proximity than house dwellers. One rule forbade residents to carry offensive weapons or any other objects likely to give offence while on the park. Another rule repeated the prohibition against acts of annoyance to other residents. Judge Moloney found that Mr Telchadder, who is middle aged, was somewhat eccentric and suffered certain mental problems, had a mild learning disability and exhibited autistic traits. On 31 July 2006 Miss Puncher, a female resident of the park, complained to Wickland that a man in camouflage clothing, with camouflage netting over his head, had startled her by jumping out at her from behind a tree on the park and by waving at her. The man was Mr Telchadder. Although Wickland did not plead this incident in its Particulars of Claim, the judge held that he thereby breached a term of the agreement for the purposes of the para 4 term, in that he broke his undertaking not to act so as to annoy or disturb other occupiers of the park; and the successive appeals have proceeded on that basis. By letter dated 15 August 2006 to Mr Telchadder, Wickland wrote: there is the extremely serious matter of your behaviour in that you are dressing in what appears to be military combat clothing and obscuring your face with a mask while outside your home in the Park area. You are also making unwanted approaches to some Residents while dressed in this manner causing alarm and distress. Your apparel in itself is not a great problem but not really desirable or in keeping with Meadowview Park, it is your actions which are not acceptable in that: A. ON NO ACCOUNT MUST YOU MASK OR OBSCURE YOUR FACE WHEN YOU ARE IN ANY AREA OF THE PARK OUTSIDE YOUR HOME B. ON NO ACCOUNT MUST YOU MAKE UNSOLICITED APPROACHES OR ADVANCES TO OTHER RESIDENTS ON MEADOWVIEW PARK Should you ignore either A or B above you will leave us no alternative but to apply to Colchester Court to have your Agreement terminated and your home removed from Meadowview Park. Judge Moloney held that the letter dated 15 August 2006 amounted to a notice to remedy the breach which had occurred on 31 July 2006 for the purposes of the para 4 term. The Court of Appeal agreed with him; and the current appeal proceeds on that basis. The central fact in this appeal is that Mr Telchadder committed no further breach of the agreement until 15 July 2009, almost three years after the notice dated 15 August 2006. It is true that in June 2007 and April 2008 Wickland had written further letters to Mr Telchadder, prompted by further complaints by residents of a relatively minor character, but the judge attached no significance to them. On 15 July 2009 Mr Telchadder (so the judge found) told Mr Carter, a resident of the park, that two women had reported him for jumping out on them in the woods and that he, Mr Telchadder, was going to kill them. When Mr Carter told him to calm down, he said Ill fucking kill you as well Ive got shotguns and air rifles. Mr Carter called the police and Mr Telchadder left. But he soon returned, swinging a stick and repeating that he was going to kill him. The judge found, however, that Mr Telchadder never intended to implement his threats to kill the women or Mr Carter and that the threats were stupid and ill advised. By letter dated 12 August 2009 Wickland informed Mr Telchadder that, because he had been harassing, threatening and terrorising other residents, it proposed to apply to court for termination of his agreement. On 8 September 2009 it issued its claim for possession of Plot No.160. But the hearing of the claim did not begin until 15 August 2011 and, in the intervening period of almost two years, Mr Telchadder, so the judge found, perpetrated other acts to which the judge had regard in considering, for the purpose of sub para (b) of the para 4 term, whether it was reasonable for the agreement to be terminated. The other acts were as follows: (i) (ii) In October 2009 an anonymous note was delivered to Mr Carters home. Mr Carter decorates his home with two Samurai swords. The note asked Mr Carter to leave one of the swords outside for the writer to collect. Later Mr Carter saw Mr Telchadder lurking outside his house. Mr Telchadder (so the judge found) had written the note. In February 2010 Mr Telchadder harassed and intimidated two elderly residents, one of whom was also disabled, as a result of which, on his plea of guilty, the local magistrates made an order restraining him from contacting them again. (iv) (iii) In July 2010 Mr Telchadder behaved in a threatening manner to a member of the family which owns and operates Wickland. In March 2011 Mr Telchadder left empty shotgun cartridges outside Mr Carters home. In April 2011 Mr Telchadder approached two elderly residents, who asked him to go away and threatened to call the police. At their request another resident joined them. Later Mr Telchadder returned, confronted the other resident, used foul language towards him and put his face up close to him. The other resident pushed him away. (v) Legislation About 85,000 households live in mobile homes on about 2000 sites governed by the 1983 Act. The number of households is increasing: in 2002 there were only about 65,000. As at Meadowview, a substantial proportion of the residents of mobile homes (about 68% in 2002 and probably more today) are elderly. The law has been slow to bring security of tenure to occupiers of mobile homes. First, limited, steps were taken in the 1968 Act. Section 2 provides that, where a contract is terminable by notice, at least four weeks notice must be given. Section 3(1) makes it a criminal offence for a site owner to recover possession of a plot otherwise than by court order. Section 4(1) empowers the court to suspend execution of a possession order for up to a year at a time. The Mobile Homes Act 1975 (the 1975 Act), by section 2(1), obliged a site owner to enter into a written agreement with an occupier for a minimum of five years. Section 3 required the agreement to include a number of terms there specified, including provision for: (g) the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it; Before proceeding to consider the 1983 Act, I should compare section 3(g) of the 1975 Act with section 146(1) of the Law of Property Act 1925 (the 1925 Act), which replaced section 14(1) of the Conveyancing and Law of Property Act 1881 (44 & 45 Vict c 41) and which restricts a lessors right of forfeiture for breach of covenant on the part of the lessee. The right is unenforceable unless and until the lessor serves on the lessee a notice (i) (ii) (iii) specifying the particular breach complained of; and if the breach is capable of remedy, requiring the lessee to remedy the breach; and in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money for the breach. In drafting section 3(g) of the 1975 Act the draftsman almost certainly had section 146(1) of the 1925 Act in mind. Both subsections require service of a notice of the breach which gives the lessee/occupier a reasonable opportunity to remedy it. More importantly for present purposes, both qualify their provisions by reference to the case of a breach which is capable of remedy or capable of being remedied. But the qualification operates at different stages. Section 146(1) requires service of a notice in any event but, if the breach is capable of remedy, the notice must require the lessee to remedy it and he must be given a reasonable time in which to do so. Section 3(g), by contrast, did not require service of a notice at all unless the breach was capable of being remedied. For reasons irrelevant to this appeal, the limited security of tenure which, by the 1975 Act, Parliament sought to give to occupiers of mobile homes proved to be flawed. The 1983 Act largely replaced the 1975 Act and, in particular, section 6(2) of the former (together with its related Schedule) repealed section 3(g) of the latter. The three terms implied by paragraphs 4, 5 and 5A of Chapter 2 of Part 1 of Schedule 1 to the 1983 Act, and which represent the owners only means of determining an agreement to which the Act applies, take an unusual form. They provide that the owners very entitlement to determine the agreement arises only once a court (or in some cases a tribunal) has been satisfied of one of the three facts respectively there specified and has concluded that it is reasonable for the agreement to be determined. If, at the end of the proceedings, his entitlement thus arises, the owner can, as the history of the present case demonstrates, there and then exercise his entitlement and obtain an order that the licence be duly terminated. Thus I arrive back at the para 4 term, set out in 1 above. The difficulties surround the requirement in sub para (a), which it is convenient to set out again, namely that the court should be satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; Omitted from sub para (a) of the para 4 term is any reference to a breach which is capable of being remedied, such as was included in section 3(g) of the 1975 Act and as is, with minor terminological variation, included in section 146(1) of the 1925 Act. Debate surrounds the omission. We should surely assume that the draftsman of sub para (a) had in mind the words of the provision which it was replacing and we should strive to attach significance to the omission. But there is nothing in the para 4 term, even when considered in the context of the other terms and of the apparent purpose of the entire 1983 Act, which casts any light on the reasons for the omission. In the end the question is whether to seek to attribute significance to the omission by concluding that the twin requirements in sub para (a) to serve notice and to afford to the occupier a reasonable time within which to comply with it apply even to a breach which is incapable of remedy. In my opinion the question has only to be asked for it to be rejected. It would be nonsensical to require service of a notice to remedy a breach which is incapable of remedy. A similar approach was adopted by Lord Reid in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235. The basis of the decision of the House of Lords was that, in context, the word condition in the contract between the parties did not mean a term, breach of which afforded to the other party an immediate and unqualified right to rescind. But, in his reasoning to that end, Lord Reid adverted to clause 11(a)(i) of the contract which entitled either party to determine the agreement if the other shall have committed a material breach of its obligations hereunder and shall have failed to remedy the same within 60 days of being required in writing so to do. In a passage with which Lord Simon of Glaisdale agreed, Lord Reid said, at p 249, that it appeared to him that the clause was intended to apply to all material breaches of the agreement which were capable of being remedied. So, although it was contractual rather than statutory, the provision, as here, referred to a breach, to a written requirement to remedy it and to a failure to do so; and, notwithstanding the absence of any express limitation to breaches capable of remedy, it was construed to be so limited. I conclude that the twin requirements in sub para (a) of the para 4 term refer only to a breach capable of remedy. Perhaps the draftsman of sub para (a) considered that the reference in section 3(g) of the 1975 Act to a breach capable of remedy was unnecessary. Alternatively his omission of it might even have been a rare, inadvertent error. Breach Capable of Remedy The next challenge is to identify the nature of a breach which, in the context of the 1983 Act, is capable of remedy. The only jurisprudence which affords assistance relates to the interpretation of the clause in section 146(1) of the 1925 Act that if the breach is capable of remedy. I see no danger in borrowing from it. The breach by a lessee (or a licensee) most obviously capable of remedy is a breach of a positive obligation. Under the agreement Mr Telchadder had, for example, obligations to pay the pitch fee monthly in advance and to keep his mobile home insured and in a sound state of repair. Any breach of these obligations would ordinarily have been capable of remedy by belatedly paying the fee (together with interest) and by belatedly insuring or repairing the home (together with damages for any loss caused by his delay in doing so). In Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340, at p 355, Slade LJ, with whom the other members of the Court of Appeal agreed, accepted that the breach of a positive covenant would ordinarily be capable of remedy. Ordinarily but not always. Slade LJ noted that, for instance, the burning down of the premises during a period of the tenants failure to insure would be irremediable. So, no doubt, would be their collapse by reason of a failure to repair. But what about a breach of a negative obligation? In Rugby School (Governors) v Tannahill [1935] I QB 87 the school owned a property in Great Ormond Street which, in breach of her covenant not to do so, its lessee allowed to be used as a brothel. The Court of Appeal rejected the trial judges conclusion that breach of a negative covenant was never capable of remedy. But, although the lessee had closed the brothel, it proceeded to hold that the stigma attaching to the property and the resultant loss of value rendered the breach irremediable (Greer LJ, p 91) or, at least, irremediable within a reasonable time (Maugham LJ, pp 93 94). Notwithstanding an early grumble of discontent (see Hoffmann v Fineberg) [1949] Ch 245), the law has proceeded from the foot of the observations of the Court of Appeal in the Rugby School case that some breaches of negative covenants are remediable within the meaning of section 146(1) of the 1925 Act. As OConnor LJ said in the Expert Clothing case, at p 362: To stop doing what is forbidden by a negative covenant may or may not remedy the breach even if accompanied by compensation in money. Thus to remove the window boxes and pay for the repair of any damage done will remedy the breach, but to stop using the house as a brothel will not, because the taint lingers on and will not dissipate within a reasonable time. In Savva v Hussein (1996) 73 P and CR 150 the breaches by a lessee of commercial premises were of negative covenants, namely not to change the exterior sign and not to alter the premises without consent. The Court of Appeal held that the breaches were remediable. Staughton LJ said at p 154: In my judgmentthe question is: whether the remedy referred to is the process of restoring the situation to what it would have been if the covenant had never been broken, or whether it is sufficient that the mischief resulting from a breach of the covenant can be removed. When something has been done without consent, it is not possible to restore the matter wholly to the situation which it was in before the breach. The moving finger writes and cannot be recalled. That is not to my mind what is meant by a remedy, it is a remedy if the mischief caused by the breach can be removed. In the case of a covenant not to make alterations without consent or not to display signs without consent, if there is a breach of that, the mischief can be removed by removing the signs or restoring the property to the state it was in before the alterations. Aldous LJ, at p 157, cited the conclusion of Slade LJ in the Expert Clothing case that the test was whether the harm resulting from the breach could effectively be remedied and noted that the breach in that case was of a positive covenant. He observed: There is in my view nothing in the statute, nor in logic, which requires different considerations between a positive and negative covenant, although it may be right to differentiate between particular covenants. The test is one of effect. In Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 1 WLR 201, the breach by a lessee of commercial premises was also of a negative covenant, namely not to share possession of the premises. The Court of Appeal held that the lessors notice failed to comply with section 146(1) of the 1925 Act in that it specified only other alleged breaches which it had failed to establish. But the court went on to observe that the breach was remediable and indeed had been remedied by a discontinuance of the sharing of possession. Neuberger LJ, with whom Mummery LJ agreed, suggested at para 64 that the proper approach to the remediability of a breach should be practical rather than technical; and he conjectured at para 65 that the great majority of breaches of covenant should be capable of remedy. The breaches of negative covenants in the Rugby School, Savva and Akici cases had a continuing effect. They precipitated a state of affairs. The brothel stayed open until it was closed and even then the continuing stigma precluded remediability. The sign stayed up until it was taken down; the alterations remained until they were removed. Possession remained shared until the sharing was discontinued. Mr Telchadder entered into negative covenants of analogous effect. He undertook, for example, not to erect a shed on the plot licensed to him. Had he done so, the breach would surely have been remediable by his dismantling it and paying any necessary compensation. But the nature of the covenant which he broke and of his breach of it was of a different order. The covenant was not to act so as to annoy or disturb other occupiers and the breach was to jump out at Miss Puncher while he was dressed in camouflage and thereby to startle her. Nothing could thereafter have been done to unstartle Miss Puncher. That is why the word does not exist. The incident had ended. It must have been highly unpleasant for her but there is unsurprisingly no evidence that she suffered other than transient distress. So its effects had ended too. Was that breach remediable and, if so, how? In my view the answer is to be found by a practical inquiry whether and if so how (to adapt the words of Staughton LJ in the Savva case) the mischief resulting from Mr Telchadders breach could be redressed. In relation to a breach of a covenant against anti social behaviour, there is no escape from the conclusion that the inquiry requires a value judgement on the part, first, of the covenantee and, then, of the court in determining whether the requirements of section 146(1) of the 1925 Act, or, as the case may be, of the para 4 term have been satisfied. Had Mr Telchadder not only jumped out at Miss Puncher but, for example, deliberately perpetrated a significant injury upon her, Wickland might well have been entitled to conclude that the breach was irremediable; that there was therefore no need for it to serve a notice to remedy; that it should apply directly to the court under the para 4 term; but that, as a prelude to doing so, it should notify Mr Telchadder of its proposed application and of its reasons for having concluded that the breach was irremediable and that therefore there was no need for it to serve a notice to remedy. Obviously there would have been a risk that the circuit judge would either have disagreed with Wickland about the irremediability of the breach or have declined to consider it reasonable for the agreement to be terminated. Nevertheless, by reference only to the simple facts postulated, Wickland might have contemplated that risk with equanimity. But Mr Telchadders breach was in no way of that gravity. To an inquiry whether, and if so how, the mischief resulting from it could be redressed, the practical response is to say: yes, of course it can be redressed by his committing no further breach of his covenant against anti social behaviour for a reasonable time. That was in effect Wicklands own reaction to the breach when it wrote the letter dated 15 August 2006, namely that Mr Telchadder should remedy it by not perpetrating any further breach. I need to recognise, however, that the para 4 term refers to a failure to comply within a reasonable time. That preposition is apt when the necessary remedy is to do something say belatedly to pay the pitch fee required by a positive obligation or to remove an alteration effected in breach of a negative obligation. It is inapt when the necessary remedy is not to do something: it makes no sense to require Mr Telchadder not to commit a further breach within a reasonable time. In this context sense can be made of the para 4 term only by reading the word within as if it meant for. A Reasonable Time In the Court of Appeal Mummery LJ, with whom the other members of the court agreed, said at para 52: [Counsel for Mr Telchadder] objected that the notice could not possibly have been intended by Parliament to have perpetual effect. As there had been compliance for a reasonable time following the 2006 notice, it was necessary, he asserted, to serve another notice before commencing proceedings. I do not agree. Paragraph 4 does not set any end date for the expiration of a notice. There is no reason why the notice served in this case should not have continuing effect for the whole period of [Mr Telchadders] occupation of the mobile home on Plot Number 160. All that the notice was seeking to achieve was future compliance with continuing obligations in circumstances where [a breach] had already occurred. It is, indeed, tempting to reflect that Mr Telchadder had committed a breach of the agreement; that it was hardly oppressive to require him to abide by it for as long as it was to subsist; and that, even were he to commit a further breach, the safety net of sub para (b) of the para 4 term remained in place to protect him unless it was reasonable for the agreement to be terminated. But, with respect to a distinguished judge, I consider that Mummery LJ has failed to afford proper value to sub para (a) of the para 4 term. If, which I doubt, it is helpful to speak of the expiration of the notice, it occurs under sub para (a) once the occupier has complied with it within a reasonable time. It is wrong to say that para 4 sets no end date for its expiration. To equate the phrase within a reasonable time with throughout the subsistence of the agreement is, in this context, to deprive it of all significance. It raises the prospect of an order for termination based primarily upon a breach committed perhaps 20 or 30 years earlier, provided that (which seems doubtful) the site owner is then in a position to prove it. And it places the occupier for whom, like Mr Telchadder, the requisite remedy happens to be not to do something in an anomalously different situation from that of the occupier for whom the requisite remedy happens to be to do something. The latter can do it promptly, thereby comply with the notice and rid himself of its overhanging effects under sub para (a). Wickland protests that to reject the Court of Appeals conclusion that the requirement to comply with the notice continues indefinitely is to permit the anti social occupier to play cat and mouse with the site owner to the distress of the park community. The spectre is that the occupier commits a breach and is served with a notice; that he commits no further breach for a reasonable time and thereby complies with the notice; that thereupon he commits a further breach; that the cycle begins again; and that his licence cannot be terminated. I trust that the spectre is indeed just that unreal; but I am confident that, all other things being equal, a reasonable time for compliance with a notice to remedy a second breach will be longer than for compliance with a notice to remedy a first. Conclusion It remains only to consider whether in all the circumstances the period of almost three years during which Mr Telchadder complied with the notice dated 15 August 2006 amounted to a reasonable time for him to comply with it. My view is that it clearly did so; and it is inappropriate to speculate about whether some shorter period would also have done so. In retrospect it is obvious that, following the breach dated 15 July 2009, Wickland should have served a further notice to remedy; or, in the light of its seriousness, have raised an allegation that it was irremediable, upon which, no doubt, there would have been lively argument. Relevant to that issue would have been a finding (which the judge did not make) as to whether, although Mr Telchadder never intended to implement his threats to kill, Mr Carter took them seriously. It is too late to introduce into these proceedings the issue of whether that breach was irremediable. But, in the light of the surprising absence, until now, of any analysis of the proper application of the para 4 term to a breach of a covenant against anti social behaviour, Wickland can hardly be criticised for having proceeded as it did. I would allow Mr Telchadders appeal and would determine the issues identified in para 2 above as follows: (i) An occupier can in principle remedy a breach of a covenant against anti social behaviour but some such breaches are so serious as to be irremediable. (ii) Not applicable (iii) (a) The occupier complies with a notice to remedy a remediable breach of such a covenant by not committing any further breach of it within a reasonable time. (b) The effect of his obligation not to do so within a reasonable time is that he must not do so for a reasonable time. Since drafting this judgment, I have read, in draft, the judgments of Lady Hale, of Lord Carnwath (with which Lord Reed agrees) and of Lord Toulson. I suggest that the effect of the four judgments is as follows: (a) I, Lady Hale and Lord Toulson conclude that, in the case of an irremediable breach, the para 4 term does not require service of a notice to remedy it. But our conclusion in this respect is not central to this decision because the breach dated 31 July 2006 was not irremediable and in any event a notice to remedy it was duly served. (b) All members of the court conclude that Mr Telchadders appeal should be allowed but the reasons given by Lord Carnwath and Lord Reed for their subscription to that conclusion represent a minority view. Their reasons are that, in the case of a remediable breach of a covenant against anti social behaviour, compliance with the notice to remedy must continue indefinitely (Lord Carnwath, para 91 below) but that there needs to be a causal or temporal link between the notice to remedy and the subsequent breach (para 92 below), which was absent in the present case (para 96 below). (c) By contrast, the reasons of the majority are, in essence, that a breach of such a covenant is remediable if the mischief resulting from it can be redressed; and that Mr Telchadder redressed the mischief resulting from the breach dated 31 July 2006, and thereby complied with the notice to remedy, by not committing a further breach prior to 15 July 2009. LADY HALE The issue in this case is simple to state but difficult to decide: is it open to the owner of a mobile home park to launch proceedings to evict the occupier of a plot, on the basis of a notice to remedy a breach of the term of his licence to occupy which prohibited anti social behaviour, some years after that notice was served? The answer is important for the large and growing number of people who live in mobile homes and to the owners of the sites where their homes are located. It is important that the occupiers, many of whom are elderly or vulnerable, are protected, not only from anti social behaviour by their neighbours, but also from over hasty eviction from their homes. The site owner is only able to terminate his agreement with the occupier in the circumstances laid down in Part 1 of Schedule 1 to the Mobile Homes Act 1983. The relevant one for our purposes is para 4: The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body [in this case the local county court] (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. The problem lies with the interpretation of paragraph 4(a). This has three elements: that the occupier has breached a term of the agreement; (i) that the owner has served a notice to remedy that breach; and (ii) (iii) that the occupier has not complied with the notice within a It is easy to see how this works in the case of a breach of a positive obligation which can readily be put right. If the mobile home has not been painted when it should have been painted, the owner can serve a notice telling the occupier to paint it, and if the occupier does not paint it within a reasonable time, then para 4(a) is satisfied. If the occupier has not paid his site fees on time, the reasonable time. owner can serve a notice telling him to pay, and if he does not do so (with interest) within a reasonable time, then para 4(a) is satisfied. Incidentally, it is for the court, not the owner, to decide what is a reasonable time, but there is nothing to prevent the owner telling the occupier what he thinks will be a reasonable time, after which he may go to court. It is not so easy to see how this works (a) in the case of a breach which cannot be put right; and (b) in the case of a breach of a negative obligation which can be put right. Does the owner have to serve a notice at all in case (a)? What is the effect of a notice in case (b)? The views of the court on this issue are, strictly speaking, obiter dicta, as we are all agreed that the breach in respect of which the notice was served in this case, the incident on 31 July 2006 (see para 7) which prompted the letter of 15 August 2006 (see para 8), could be put right. 48. This brings me to the second question. What is the effect of a notice in the case of a breach of a negative obligation which can nevertheless be put right? Lord Wilson has helpfully pointed out (para 28) that it is easy to see how a breach of some negative obligations can be put right: putting up a prohibited shed can be put right by taking the shed down; allowing children under 16 to live in the mobile home can be put right by turning them out. It is not so easy to see how breach of a covenant not to annoy or disturb other residents can be put right: but I agree with Lord Wilson (para 30) and Lord Toulson (para 64) that an incident such as that on 31 July 2006 can be put right by refraining from such behaviour for a reasonable time, time enough for the fears and anxieties it caused to calm down. I also agree with Lord Toulson (para 63) that, while the occupier remains under a contractual obligation not to annoy or disturb other residents throughout the term of the agreement, the effect of a notice to remedy lapses once a reasonable time has elapsed without further incident. 49. This is the majority view and constitutes the ratio decidendi of this case. Whatever the reasonable time in question, it must have elapsed before the incident on 15 July 2009 which prompted these proceedings. I would only add that the minority view, that there must be some causal or temporal link between the notice to remedy and the acts which justify the courts intervention (para 92 of Lord Carnwaths judgment), is likely to lead to the same result in most cases. 50. The different analyses of para 4(a) lead to different conclusions as to how the site owners should have dealt with the much more serious incident on 15 July 2009. There would, as Lord Wilson points out (para 36), have been lively argument about whether the breach was remediable. If it was not, then on the majority view, no notice was required and the site owners could have begun proceedings immediately, although they would have been wise to serve the sort of notice he suggests (at para 31). It appears that, in the minority view, notice would have been required. But it also appears to be their view that the site owners would not have had to wait for a reasonable time before launching proceedings (note that the court has to make its findings before the site owner is entitled to terminate forthwith). For the reasons given earlier, I have difficulty in accepting that analysis. That difficulty reinforces my view that Lord Wilsons analysis is the correct one. LORD TOULSON 51. The interpretation of para 4(a) of the Mobile Homes Act 1983 raises the question what is required to remedy a breach. A linked question is, what is the correct procedure if a breach cannot be remedied within a reasonable time? I agree with Lord Wilson that the answer to the first question calls for a practical approach, that is, whether and how the mischief caused by the breach can be redressed. The context is a relationship between an occupier of land and the owner of the land, who also has responsibilities towards others living in close proximity including the elderly and vulnerable. In a case of anti social behaviour by an occupier towards a neighbour, much must depend on the nature of the conduct in determining whether and how the mischievous effect of a particular breach may be remediable. 52. 53. A minor incident may not be expected to cause lasting harm to the peace of mind of other residents. In some cases an apology may be an appropriate means of redress. But human nature being what it is, there may be cases (for example, involving serious violence or threats of violence) where the conduct is such as to cause physical harm or feelings of fear and anxiety which the injured person could not be expected to get over within a reasonable time period, regardless of the other persons subsequent behaviour. There is no reason why neighbours, especially if elderly and vulnerable, should be expected to live for months (let alone years) in a state of fear and anxiety. 54. The second question presents a difficulty because of the wording of the term implied by para 4, which entitles the owner to terminate the agreement if the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. 55. Lord Wilson observes that it would be nonsensical to require service of a notice to remedy a breach which is incapable of remedy. Therefore he says that the requirement to serve a notice to remedy should be read by necessary implication as limited to a breach which is capable of remedy (within a reasonable time). 56. Lord Carnwath observes that para 4 replaced (with amendments) an analogous provision in section 3 of the Mobile Homes Act 1975 which expressly limited the requirement for service of a notice to a breach which is capable of remedy. He says that the omission of similar words from para 4 must have been deliberate and that the court should not read into it words which the drafter has omitted. Lord Carnwath concludes that a notice to remedy must be served in all cases. He also says that in the case of a negative user condition, compliance with a notice to remedy will require ceasing the use indefinitely. There is no shorter reasonable period for compliance with obligations which the occupier is already contractually bound to observe for the full term of the agreement. It is not difficult to imagine cases where the irreparable effects of an occupiers conduct may be such that the only reasonable course is for the owner to be able to terminate the contract forthwith. Four possible approaches have been canvassed in the course of argument. First, some egregious misconduct might arguably be treated as amounting to a repudiation of the contract, and so entitling the owner to treat the contract as terminated without going through the statutory procedure of Schedule 1; but even if that were so, it would be unlikely to cover every instance of an irremediable breach. As a possible solution to the problem of an irremediable breach, it would therefore be incomplete. 57. 58. No such limitation applies on Lord Wilsons approach, which is that a notice to remedy is not required in the case of an irremediable breach as a matter of construction of the Schedule. 59. A third possible solution is that the owner must serve a notice to remedy as a matter of form, but that the notice may adopt the Hill & Redman formula, quoted by Lord Carnwath at para 79, of stating the occupier must remedy the breach if he can; and that the notice may also state that the owner does not believe it to be capable of remedy and will therefore be issuing proceedings. 60. A fourth approach is that a notice to remedy is required in all cases and that even in the case of an irremediable breach the occupier must be allowed a period of time amounting to a reasonable time to comply with the notice before possession proceedings are begun. I would reject that approach. If the consequences of the breach are such that they are impossible to remedy, I cannot see how a reasonable time to comply with the notice could be assessed by the owner or the court. They would face the conundrum what is a reasonable time to perform the impossible? The question defies an answer. Any period chosen would be arbitrary and purposeless. It would serve simply to delay matters in circumstances which may sometimes be dangerous or intolerable for other occupiers. 62. 61. Both Lord Wilsons and Lord Carnwaths favoured solutions involve some straining of language. The former involves reading words of limitation into the provision about service of a notice to remedy. The latter involves reading the words after service of a notice to remedy the breach, has not complied with the notice within a reasonable time as satisfied in a case where there was nothing which the occupier could have done to comply with it, and so was not given any time to do so. In practical terms it makes no difference whether the notice requirement in para 4 (a) is construed as limited to breaches which are capable of remedy (within a reasonable time) or applies in all cases but may be satisfied in the case of an irremediable breach in the way just considered. In that sense the difficulty which arises from the unsatisfactory wording of the statute does not matter in terms of the result, but I prefer the approach of Lord Wilson. It makes no sense to require a person to remedy something which is incapable of remedy, and, but for the legislative history, I would have little difficulty in reading the requirement of service of a notice to remedy as confined to a remediable breach, just as the House of Lords in L Schuler AG v Wickman Machine Tools Ltd [1974] AC 235 construed a contractual requirement of a notice to remedy in a similar fashion. The legislative history to which Lord Carnwath has referred makes it all the more of a mystery why para 4(a) omits any words of qualification, but it is a matter of judgment what weight should be given to the legislative history in a given case. Sometimes it may throw considerable light on the proper interpretation of a later statute; in other cases the court may be left uncertain about the reason for a change of wording, in which event a comparative study will not help the court in its task of giving to the current statute the meaning which appears to fit best with its purpose. In this case the statutory scheme of serving a notice to remedy a breach and allowing the occupier a reasonable time in which to do so serves an obvious purpose in the case of a remediable breach, but would serve no comprehensible purpose if the breach is irremediable and would therefore be a vain requirement. 63. The question which I have been discussing arose in argument but it is strictly obiter. The issue at the heart of the appeal arises from the proposition that a notice to remedy a breach of a negative user condition requires indefinite compliance. Contractual conditions have effect throughout the life of the contract. A notice to remedy a breach which has occurred is rather different, and I do not share the view that it is continuing and indefinite in the same way. 64. 65. 66. I come back to my starting point that whether a breach can be remedied for the purposes of the para 4 procedure depends on whether the mischief caused by that breach can be redressed within a reasonable time. A notice to remedy gives the occupier the opportunity to do so, and should not be regarded as a gateway throughout the remainder of the contract for termination in the event of a subsequent breach. That does not mean that in the case of a serial offender every breach must be looked at without reference to past history. Repeated misconduct may lead to the proper conclusion that the cumulative mischief caused by him has passed the point of being remediable and that the owner should be entitled to terminate the contract forthwith. Although I have expressed myself differently from Lord Wilson, in practical terms I suspect that the result is likely to be the same. In the present case the owner did not regard the offensive behaviour towards Miss Puncher in July 2006 as causing irremediable harm. The incident in July 2009, which the judge described as very serious, might have been seen as sufficiently harmful to justify immediate termination of the agreement, with or without reference to the past background, but the case was not argued before us on that basis. Like Lord Wilson, I do not consider that the possession order can be justified on the platform of the notice which had been served on the appellant 3 years earlier. So I agree that the appeal must be allowed. I agree with Lord Wilsons summary of the effect of the judgments. LORD CARNWATH (with whom Lord Reed agrees): 67. I gratefully adopt Lord Wilsons exposition of the relevant facts and the legal background. In this judgment I will address: i) The structure and effect of the para 4 term; ii) The particular problem of negative user conditions and repeated breaches; iii) The resolution of this appeal. The structure of paragraph 4 A long pedigree 68. Paragraph 4 is best understood, in my view, as the draftsmans attempt to reproduce the essential features of the section 146 regime as it had evolved through the authorities, but in simpler and more modern form, appropriate for the relatively uncomplicated legal world of the mobile home. So seen it is not in my view necessary to depart materially from its ordinary wording. In this respect I respectfully disagree with Lord Wilsons approach to construction (para 20) for reasons I shall explain in this section. 69. As he shows (para 16), provisions restricting the right of an owner to terminate a lease or licence for breach of its terms have a pedigree dating from the 19th century. Relevant in the present context are the following: i) Section 146(1) of the Law of Property Act 1925 (replacing section 14 of the Conveyancing and Law of Property Act 1881) provided that a right of forfeiture under a lease for breach of covenant shall be unenforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (c) in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. Even where these requirements were satisfied, the landlord faced a further hurdle in the right of the tenant (under s 146(2)) to apply to the court for relief from forfeiture, in relation to which the court had a wide discretion to grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit. ii) The Mobile Homes Act 1975 section 3 (no longer in force) provided that the written agreement for stationing a mobile home to be occupied as a residence (required by s 1) was to contain specified terms and conditions, including: (g) the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it; iii) Finally, para 4 itself: the Mobile Homes Act 1983 Schedule 1, provided for certain terms or conditions to be implied by [the] Act, including : 4. The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. Reference was also made before the Court of Appeal (paras 34, 40) to analogous provisions under the Housing Acts 1985 and 1988, but it was noted that the contents of the notices are generally prescribed by regulations. They were not relied on by either party in this court. 70. Common to each of these provisions is the concept of giving notice of the breach to the tenant or licensee and allowing him a reasonable time (or opportunity) to remedy it. The 1983 Act In the present case we have to look at the issue of construction through the eyes of the draftsman of the 1983 Act. In doing so it is clearly reasonable to assume that he would have had in mind the approach adopted in authorities under section 146 and its predecessor. 71. 72. Lord Wilson has referred to Rugby School v Tannahill [1935] 1 QB 87, which in 1983 was still the leading authority on the subject. (It was so regarded by the Court of Appeal in Expert Clothing Service in 1985.) The judge, MacKinnon J [1934] 1 KB 695, had taken the apparently logical view that a negative covenant was in principle incapable of remedy. The Court of Appeal declined to endorse such an absolute rule. Greer LJ said: I think perhaps [the judge] went further than was really necessary for the decision of this case in holding that a breach of any negative covenant the doing of that which is forbiddencan never be capable of remedy. It is unnecessary to decide the point on this appeal; but in some cases where the immediate ceasing of that which is complained of, together with an undertaking against any further breach, it might be said that the breach was capable of remedy. (p 90) However, the court accepted the landlords argument so far as directed to a case where the nature of the particular breach (use as a brothel in that case) would have an effect on value even after the use had ceased. 73. Maugham LJ referred in his concurring judgment ([1935] 1 KB 87 at pp 92 93) to authorities dating from 1893 (including the House of Lords case of Fox v Jolly [1916] 1 AC 1), which showed that the section has always been construed, having regard to the common sense of the matter, that the tenant is to be given reasonable information as to what he is required to do, and he is given the right to apply to the Court for relief. He cited, as an example of this common sense interpretation, the early decision (Lock v Pearce [1893] 2 Ch 271) that although its language pointed in the opposite direction the section did not require the notice to claim compensation which the lessor did not want. 74. The draftsmen of what became the relatively short lived 1975 Act borrowed from section 146 the distinction between remediable and irremediable breaches, but none of its other significant features. There was no general requirement for a notice specifying the breach, and no general discretion for the court to oversee the process of enforcement. 76. 75. The structure of the 1983 provision was quite different from the 1975 model, but much closer to that of section 146 as it had evolved. The key features were the service of a notice to remedy the breach (not in terms limited to breaches capable of remedy), non compliance with the notice after a reasonable time, and a judgment of the court as to the merits (reasonableness) of termination. As under section 146, the reference to compliance within a reasonable time was not to something needing to be specified in the notice itself, but rather a matter to be judged retrospectively by the court in considering the merits of enforcement. It is hardly surprising that the draftsman of a modern Act for a different subject matter did not find it necessary or desirable to replicate all the 19th Century language. For example, the phrase considers it reasonable was an entirely adequate substitute for the convoluted language used to express the comparably broad discretion conferred on the court by section 146(2). The more controversial feature of the 1983 model was the omission of the reference to breaches capable of remedy. I shall return to that after considering the post 1983 case law. (For completeness I should note that new parliamentary materials on the background to this provision, submitted by the respondents following the hearing, were at best inconclusive and for the most part clearly inadmissible under ordinary principles of statutory construction.) Post 1983 developments 77. As Lord Wilson has shown, the courts have continued to grapple with these issues since 1983, but in context of breaches of covenant quite different from the present. The more significant include Expert Clothing (1986) (breach of positive covenant to reconstruct), Savva (1996) (covenant against alteration of premises without consent), and Akici (2005) (covenant against sharing possession of commercial premises). As the judgments in the last case indicate, the approach of the courts is practical rather than technical ([2006] 1 WLR 201, para 64), and most breaches are now regarded as capable of remedy. As regards negative covenants relating to user, it appears to be accepted that breaches can be remedied by ceasing the unlawful use concerned, save where the breach causes the premises to be stigmatised (Hill & Redmans Law of Landlord and Tenant para [4685]). 78. The result of the narrowing of categories of breach regarded as incapable of remedy is conveniently summarised in Woodfall: Landlord and Tenant para 17.132.1, after referring to the stigma cases: Until recently it was assumed that breach of a covenant against carrying out alterations without consent was also irremediable. However, the position appears to have changed. The test is now one of fact and degree as to whether in reality the mischief can be remedied. Similarly, it now appears that parting with or sharing possession, at least where it falls short of creating or transferring a legal interest, is a remediable breach. In addition the following breaches have been held to be incapable of remedy: 1. running catering premises contrary to the licensing laws in breach of a covenant to conduct them according to those laws; 2. contravening the Food and Drugs Act resulting in 14 convictions; 3. assigning the lease without the landlords consent; 4. sub letting the premises or part thereof; 5. using the property for the sale of obscene material; 6. using the premises for espionage resulting in convictions under the Official Secrets Act. 79. (The references to all but the last of the six examples are from cases decided before 1983.) In the modern law, technical issues about such distinctions, and the contents of a section 146 notice more generally, should not normally be of practical concern for landlords or the courts. A well drafted notice will simply state that the tenant is required to remedy the breach, if it is capable of remedy (Hill & Redman para [4681]). Nor need the notice itself specify what is a reasonable time for compliance. All that the statute requires is that a reasonable time to remedy the breach must elapse between service of the notice and the exercise of the right of re entry or forfeiture (Billson v Residential Apartments Ltd [1992] 1 AC 494, 508 per Sir Nicolas Browne Wilkinson V C). 80. Thus, unless the breach is one of the limited categories now regarded as incapable of remedy under section 146, the practical purpose of the notice is simply to alert the tenant to the nature of the alleged breach and give him an opportunity to remedy it, and, if he is unwilling or unable to remedy to do, to trigger his right to invoke the jurisdiction of the court to consider the overall merits of enforcement in the context of an application for relief. Although these principles have been refined and restated in more recent cases, the general approach has not changed materially, at least since the Rugby School case in 1935. Alternative interpretations I turn to Lord Wilsons proposed explanation for the omission of the reference to breaches capable of remedy, and of its consequences (para 20). He suggests that, assuming no rare, inadvertent error, the words were treated in effect as surplusage, because it would have been nonsensical to require notice to remedy a breach which was incapable of remedy (para 20). He concludes that the twin requirements to serve notice and to afford the occupier a reasonable time to comply apply only to a breach capable of remedy. 81. 82. That seems to me, with respect, to involve unwarranted violence to the statutory language. I would discount the possibility of an error by the draftsman, who was replacing the very recent wording of the 1975 Act, covering the same issue on a matter of some public controversy. We must proceed on the basis that the omission was deliberate. 83. There is another explanation which is no less plausible in my view, and has the merit of consistency with the language used. The draftsman was seeking to reproduce the general effect of the section 146 protection in simplified form, including the general requirement for a formal notice as a preliminary step to enforcement. However, he may have thought it desirable to dispense at the notice stage with the historic distinction between remediable and irremediable breaches, and the baggage of sometimes confusing case law associated with it. He may have considered it an unnecessary complication, given the very limited categories of breach still recognised as in principle incapable of remedy, following the Rugby School cases, and the even more limited significance of most of them for ordinary owners and occupiers of mobile homes. In those circumstances no practical harm would result from a general requirement for a notice to remedy as a preliminary to court action. 84. As I understood it the alternative reading now proposed by Lord Wilson was not advanced by either side at the hearing in this court. There was, however, some discussion of the operation of the paragraph in relation to breaches which on any view would be incapable of remedy, one of the more extreme examples being setting fire to the adjoining mobile homes. One suggested answer was that such a breach might be treated as a repudiation of the contract under common law principles, and thereby implicitly excluded from the protection of Schedule 1 of the 1983 Act. Whatever the merits of that argument, I agree with Lord Toulson that the general requirement for a notice to remedy cannot sensibly be understood as carrying with it the implication that every breach, however grave, must be treated by the court as remediable. There will be breaches sufficiently serious that, as he suggests, the owner will be entitled to treat the notice to remedy as a matter of form only, and to commence proceedings for possession forthwith. In such cases the court may be satisfied that the occupier has failed to comply, not because he has failed to act within a particular time, but, because having regard to the nature of the breach, there was nothing he could have done to remedy it. This will be matter to be determined, by reference to the practical realities of mobile home life, rather than to parallels with cases in a different context under a different statute. Negative user conditions and repeated breaches 85. Whatever the true explanation for the structure and wording of para 4, the principal difficulty in the present case arises from the intermittent nature of the breaches in question. The mischief lies not so much in that of the initial breach, which in common sense terms can be readily dispelled (as Lord Wilson says: para 30), but in its repetition at irregular intervals over a significant period. Those features do not appear in any of the cases to which we have been referred under section 146. Indeed, none of the more recent authorities was concerned with breach of a negative user condition, that is one prohibiting conduct of a specified kind. In respect of such breaches, the law does not appear to have developed materially since the Rugby School case in 1935. 86. Lord Wilson (para 33) has referred to an argument relied on by the owners in the present case, which he describes as the cat and mouse spectre The spectre is that the occupier commits a breach and is served with a notice; that he commits no further breach for a reasonable time and thereby complies with the notice; that thereupon he commits a further breach; that the cycle begins again; and that his licence cannot be terminated. 87. He discounts this concern as unreal. I do not think that the argument can be dismissed so summarily. It is of interest that some 80 years ago a similar argument was successful at first instance in the Rugby School case. In holding that negative covenants were in principle irremediable, McKinnon J took account of a very obvious disadvantage from the landlords point of view of the opposite approach: supposing the case of a breach of covenant not to do something and, when the landlord complained, an immediate abstention from the user of the premises in breach of the covenant, the landlord would be deprived of any cause of action, or, if he had already begun one, he would have it dismissed with costs. And that might happen again and again; the landlord would have to give a fresh notice in each case, with the same result. ([1934] 1 KB 695, 701). This passage was also cited with approval as part of Harman Js grumble of discontent in Hoffmann v Fineberg [1949] Ch 245, 254: Lord Wilson para 25. 88. The Court of Appeal in Rugby School did not find it necessary to address the point, in view of its conclusion on the facts of the case. However, its reasoning may provide a clue to the answer. The assumption behind McKinnon Js concern was that a notice to remedy the breach would become spent as soon as there had been compliance, for however short a period, and would have no effect if the offending use was resumed thereafter. That does not appear to be how Greer LJ saw the matter (para 72 above). His view of compliance required not simply the immediate ceasing of that which is complained of but also an undertaking against any further breach. Although it was unnecessary for him to explore the legal practicalities of that suggestion, it shows that immediate cessation by itself was not enough. 89. Thus, in the context of a negative user condition, compliance with the notice meant not simply a temporary pause, but ceasing the use altogether and indefinitely. If when the matter came to court, it was found that the tenant had, following a period of abstinence, resumed the offending use, the court would be able to hold both that a reasonable time had elapsed and that he had failed to comply, and (subject to questions of relief under section 146(2)) to uphold the landlords right to enforce. The same approach in my view can be applied under the 1983 Act, and it provides a practical and common sense answer to the cat and mouse problem as it arises under para 4. 90. That reading also provides an answer to Lord Wilsons concern about the need to give some meaning to the words within a reasonable time. He concludes that, in relation to breach by an occupier of a negative user condition, the effect of the obligation not to do the prohibited act within a reasonable time is that he must not do it for a reasonable time (paras 30, 35(iii)). The implicit assumption is that the landlord, and ultimately the court, would have to determine what was the reasonable time during which the occupier should be expected to comply with the covenant, so as to bring any repetition of the breach within the scope of that particular notice to remedy. Again, with respect, I find this an unwarranted distortion of the wording of the provision. First, it would be strange to find the same phrase within a reasonable time being used in two quite different senses in the same provision. Secondly, I find it difficult to understand why or on what basis the landlord or the court should be expected to specify a reasonable period for the occupier to comply with his obligations under the agreement, other than the full term for which he is already contractually bound. 91. On the reading I have proposed, it is an unnecessary distortion. Compliance within a reasonable time in this context means immediate and continuing compliance. If when the matter comes to court, that has not been achieved, the court can be satisfied of the matters required under para 4(a), and the determining issue will be that of reasonableness under (b). That approach seems to me both consistent with the wording of the paragraph, and one which maintains a fair balance between the interests of owner and occupier. The present case 92. It remains to apply these principles to the present case. The application of the analysis outlined above would have presented no real difficulty if the later breaches had occurred within a short time after the first (and only) qualifying notice to remedy. Further incidents within a few weeks or even months of the notice to remedy could fairly have been treated as parts of a continuing failure to comply, properly referable to the same notice, regardless of the intervening periods of good behaviour. The problem arises because of the very long gap (some three years) between that notice to remedy and the breaches which in the event triggered the court action. The structure of para 4 suggests the need for some causal or temporal link between the notice to remedy and the acts which justify the courts intervention. As Lord Toulson says, a notice to remedy should not be regarded as a gateway for termination for any breach throughout the remainder of the contract. I agree with him, however, that the history may be relevant in judging whether a later breach is truly irremediable. In the Court of Appeal, Mummery LJ did not see the gap in time as an obstacle. As he explained in a passage quoted by Lord Wilson (para 31), he saw no reason why the notice served in 2006 should not have continuing effect for the whole period of the defendant's occupation of the mobile home (para 52). 93. 94. As I understand it, the judge had adopted a similar approach. He had helpfully explained his view of the law at the beginning of his judgment: First of all, my interpretation of clause 4(a) is that what is required is that there be what I might call an initial breach, then a notice to remedy that breach, and a failure to comply with the notice within a reasonable time. In the context of this case, which concerns what I can roughly call antisocial behaviour, that would mean an instance of antisocial behaviour, a notice complaining of it and requiring him to desist from it and then a proven instance of further antisocial behaviour in disregard of the notice. (para 4) 95. His factual conclusion under para 4(a) came towards the end of the judgment (para 33). Having set out the relevant clause 14 prohibiting any act which may be or become a nuisance, damage, annoyance or inconvenience to the neighbours. he said: I do find, first of all, that he was warned against antisocial behaviour of that kind by the notice of 15 August 2006 No unsolicited approaches or advances to other residents on Meadowview Park causing alarm and distress and it appears to me that that is sufficient, though I think only just sufficient, to constitute a notice complaining of harassment of neighbours and warning him of the consequences of harassment to neighbours. As I have found, I take the view that on 15 July 2009 he did engage in a very serious incident of such antisocial behaviour when he made the threats to kill to Mr. Carter and made threatening gestures with a pole in the manner that I have found. So I do I consider that that is a pleaded and actionable and proven breach after notice, satisfying the requirements of clause 4(a) and opening the way to the court to remove him if it considers it reasonable to do so. 96. 97. He then went on to express his conclusions on the issue of reasonableness under (b), in relation to which no there is no challenge. In agreement with the other members of the court, I have concluded that this reasoning cannot be supported. He does appear to have treated the notice to remedy the August 2006 breach as a sufficient platform in itself for the action in respect of the breach three years later. Although my interpretation of para 4 differs in some respects from that of Lord Wilson, I agree with him, and with Lord Toulson, that the lapse of that period between the notice to remedy, and the conduct on which the court ultimately based its order, was too great. I reach this conclusion with some regret. Faced with a very disturbing case, and in the absence of clear guidance in the statute or the cases, the judge adopted what seemed a sensitive and practical approach, and his conclusion on the reasonableness of termination is not under challenge. I also agree with what Lord Toulson says about the July 2009 incident, viewed as a potential ground for proceedings in its own right. However, that was not the basis on which the case has proceeded. 98. Accordingly, for the reasons given above, but in agreement with Lord Wilson as to the conclusion, I would allow the appeal. The main practical difference of my approach is that it gives effect to the natural reading of the paragraph by requiring a formal notice to remedy in every case, even where the owner intends to assert that it is irremediable. As to the issues identified by Lord Wilson (paras 2, 35) I agree with his answer to questions (i) and (ii), but would answer question (iii) as explained in para 91 above. On the first question, I agree with Lord Wilson (para 20) that, strictly speaking, the site owner does not have to serve a notice in respect of a breach which cannot be put right. I do not see this as writing words into the Act. A notice to remedy necessarily implies that a remedy is possible. The site owner is telling the occupier to remedy the breach and how to do it. How can he do that if no remedy is possible? Why indeed, in such a rare and egregious case, should he have to wait for a reasonable time to elapse before bringing proceedings? If a notice to remedy were always required, then it seems to me that a failure to remedy within a reasonable time would also be required. I have difficulty in seeing how the first can be required, even in the case of an irremediable breach, without the second. It follows that the owner would have to wait for a reasonable time before bringing proceedings even in respect of an irremediable breach. I do not myself see any room for the common law doctrine of a repudiatory breach of contract to apply (the first possibility aired by Lord Toulson at para 57). The site owner is not entitled to bring the agreement to an end otherwise than in accordance with the provisions of Schedule 1: para 1 provides that (subject to an irrelevant exception) the right to station the mobile home on land forming part of the protected site shall subsist until the agreement is determined under paras 3, 4, 5 or 6 below. In practice, however, given the view expressed by the Court of Appeal in Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 1 WLR 201 that the great majority of breaches should be capable of remedy, it would be unwise for a site owner to bring proceedings without giving the occupier some sort of either/or notice: You have done [this] in breach of [this] term of your agreement. I do not consider that this breach is capable of remedy. However, in case the court takes a different view, I hereby give you notice that you must remedy the breach within a reasonable time of this notice. If you do not, I may bring proceedings against you. 46. |
A judge who is holding an extradition hearing pursuant to the Extradition Act 2003 (the 2003 Act) is required to consider whether the extradition of the person against whom the order is sought would be compatible with that persons human rights under the Human Rights Act 1998. If not, that person must be discharged. The issues of principle raised by this appeal relate to the approach that should be adopted in carrying out this exercise where extradition will interfere with that persons right to respect for his private and family life under article 8 of the European Convention on Human Rights (the Convention). Once I have identified these principles, I shall apply those that are relevant to the case of the appellant, Mr Norris. His extradition is sought by the respondent, the United States Government (the Government), in order that he may be tried on an indictment charging him with obstruction of justice. His case is that when the consequences of extradition to the article 8 rights that he and his wife enjoy in this country are weighed against the public interest in his extradition for what is no more than an ancillary offence, the interference that this would cause with those rights cannot be justified. This case was rejected by District Judge Evans and by the Divisional Court, consisting of Laws LJ and Openshaw J. I shall say no more about the facts until I have dealt with the issues of principle. The 2003 Act The 2003 Act created a new extradition regime that was intended to simplify the process. Under the new regime considerations that were for the Secretary of State are transferred to the court, and these include the compatibility of extradition with Convention rights. Part 1 of the 2003 Act deals with extradition to Category 1 territories. These are, in effect, members of the European Union which operate the European Arrest Warrant. Part 2 deals with extradition to Category 2 territories that have been designated by order of the Secretary of State. The United States is a category 2 territory. Under both Part 1 and Part 2 procedures the appropriate judge has to carry out an extradition hearing at which he considers whether there exists any of the prescribed statutory bars to extradition. These include incompatibility with Convention rights. Section 21 in Part 1 and section 87 in Part 2 provide in identical terms that the judge must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. If yes, an order for extradition must follow. If no, the person must be discharged. General provision is made in both Part 1 and Part 2 for circumstances that may well involve interferences with Convention rights. Section 13 in Part 1 and section 81 in Part 2 bar extradition by reason of extraneous considerations which might result in discrimination or an unfair trial, in violation of the Convention. Section 14 in Part 1 and section 82 in Part 2 provide that extradition is barred by the passage of time if, but only if, this would make extradition appear unjust or oppressive. Section 91 in Part 2 precludes extradition where it appears to the judge that the physical or mental condition of the person whose extradition is sought is such that it would be unjust or oppressive to extradite him. It is not alleged that any of these provisions applies in the case of Mr Norris. Extradition treaties Public international law does not impose a general duty upon countries to accede to requests for extradition. Obligations to extradite arise out of bilateral treaties. Nonetheless a number of Conventions have been concluded that impose on states an obligation to extradite or prosecute in respect of certain offences or which limit the grounds upon which a state can refuse to extradite. These reflect increasing international cooperation in the fight against crime. The relevant treaty in the present case is the Extradition Treaty of 1972 between the United Kingdom and the United States, for this applies in the case of any extradition proceedings in which the extradition documents were submitted before 26 April 2007. On that date a new treaty, the Extradition Treaty of 2003 (Cm 5821) came into force. The extradition documents in this case were submitted in January 2005. The 1972 Treaty imposes, subject to specified exceptions, mutual obligations to extradite in respect of offences which carry a sentence of at least 12 months imprisonment in each jurisdiction. Article V (2) of the 1972 Treaty provides that extradition may be refused on any ground which is specified by the law of the requested party. Thus the United Kingdom will not be in breach of its treaty obligations if, by reason of section 87 of the 2003 Act, extradition is refused on human rights grounds. Common ground Article 8 of the Convention provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others The following matters are common ground: i) In this case, as in most extradition cases, extradition of Mr Norris from this country will interfere with his exercise in this country of his right to respect for his private and family life. ii) This interference will be in accordance with the law. iii) The critical issue in this case is whether this interference is necessary in a democratic societyfor the prevention of disorder or crime. iv) Resolving this issue involves a test of proportionality. The interference must fulfil a pressing social need. It must also be proportionate to the legitimate aim relied upon to justify the interference. The Government contends that the legitimate aim, or pressing social need, is the honouring of extradition arrangements (an important aspect of the prevention of crime), that this aim weighs heavily in the scales and that the circumstances in which interference with article 8 rights will not be proportionate to it will be exceptional. Mr Sumption QC for Mr Norris does not challenge this assertion. He accepts that it will only be in exceptional circumstances that extradition will be refused on the ground that it involves a disproportionate interference with article 8 rights. He submits, however, that this fact cannot be translated into a legal principle. The court cannot impose on a person challenging extradition a threshold requirement of demonstrating that his case is exceptional. He submits that this is what the Divisional Court did. The primary issue of principle The primary issue of principle is whether the court can properly require a person resisting extradition on article 8 grounds to demonstrate exceptional circumstances. Mr Sumption contends that the Divisional Court erred in doing just this. His argument is precisely expressed in the following two paragraphs of his written case: 19. [The Divisional Courts] essential error was that they sought to balance the principle of international cooperation in enforcing the criminal law, against the respect due to the private and family life of accused persons. Concluding that the former was the more potent interest, they held as a matter of law that the latter could prevail only on facts which were striking or unusual or which reached a high threshold. Hence the question which they certified as being of general public importance: Is the public interest in honouring extradition treaties such as to require, in any extradition case, that an appellant must show striking and unusual facts or reach a high threshold if his article 8 claim is to succeed? The effect is to create a strong presumption against the application of article 8 in extradition cases, and to require exceptional circumstances before any objection to extradition on article 8 grounds can succeed, a proposition which has been rejected by the House of Lords, following a substantial body of case law in the European Court of Human Rights. 20. The correct approach is to balance the public interest in the extradition of this particular accused against the damage which would be done to the private or family life of this particular accused and his family. The court must ask how much damage will really be done to the orderly functioning of the system of extradition, or the prevention of disorder or crime, by declining to extradite Mr. Norris in this case. And whether that damage is so great as to outweigh the devastating impact that extradition would have upon the rest of his and his wifes life together. These questions must, moreover be answered with an eye to the fact that the test imposed by article 8(2) is not whether his extradition is on balance desirable, but whether it is necessary in a democratic society. For the Government Mr Perry QC has not sought to challenge the assertion that the court must not replace the test of proportionality with a test of exceptionality. His submission has been that the Divisional Court has not done so. All that it has done is to acknowledge the fact that, in an extradition context, an article 8 challenge will rarely succeed. This is unobjectionable. Subsidiary issues of principle A number of subsidiary issues of principle in relation to the application of the test of proportionality in an extradition case became apparent in the course of argument. These are as follows: i) Is the gravity of the crime in respect of which extradition is sought a relevant factor? Mr Sumption submits that it is and that this weighs in favour of Mr Norris for, so he submits, the extradition crime in this case is not a grave one. Mr Perry joins issue with this last contention, but submits that the gravity of the extradition crime is of no relevance. The obligation to extradite only arises in respect of offences which attract at least 12 months imprisonment. Subject to that it matters not whether the person whose extradition is sought is a thief or a mass murderer. ii) Do you consider the interference in respect for family rights solely from the viewpoint of the person whose extradition is sought (the extraditee), or also from the viewpoint of other members of his family who are affected? Mr Perry submits the former, so that we should consider only the effect of extradition on Mr Norris. Mr iii) Sumption submits the latter, and places particular emphasis on the effect that Mr Norris extradition will have upon his wife. Is it relevant to consider whether it would be possible to prosecute the extraditee in the requested state? It has become common to urge this possibility as a factor that weighs against extradition. It is not suggested that Mr Norris could be prosecuted in this jurisdiction for obstructing justice in the United States, so this issue is of no interest to Mr Sumption. Mr Perry none the less urges us to make it clear that the possibility of prosecution in the requested state is an irrelevance. Preliminary observations Before embarking on an analysis of the jurisprudence I would make these preliminary observations. The jurisprudence often deals with deportation and extradition without distinguishing between the two. In one context this is understandable. Usually human rights issues relate to the treatment of an individual within the jurisdiction of the State whose conduct is under attack (domestic cases). Issues have, however, arisen as to whether, and in what circumstances, the Convention can be infringed by despatching a person to a territory where there is a risk that his human rights will not be respected (foreign cases). In considering such issues it may be of no or little relevance whether the individual in question is facing deportation or extradition. It would, however, be a mistake to assume that this question is of no relevance in a case such as the present. This is a domestic case. The family rights that are in issue are rights enjoyed in this country. The issue of proportionality involves weighing the interference with those rights against the relevant public interest. The public interest in extraditing a person to be tried for an alleged crime is of a different order from the public interest in deporting or removing from this country an alien who has been convicted of a crime and who has served his sentence for it, or whose presence here is for some other reason not acceptable. This is a matter to which I shall return after considering the relevant jurisprudence. The Strasbourg jurisprudence I propose to follow the development of the Strasbourg jurisprudence in relation to deportation and extradition with particular reference to the issues raised on this appeal. The starting point is Soering v United Kingdom (1989) 11 EHRR 439. This was the first case in which the Strasbourg Court recognised that the Convention could be infringed by sending a person to a country where Convention rights would be violated. It was an extradition case. The issue was whether the United Kingdom would be in breach of the Convention if it extradited the applicant to Virginia to stand trial for capital murder. The evidence was that, if he was convicted, the applicant would face up to eight years on death row. This, he contended, would be inhuman and degrading treatment. The Court accepted this argument. It first made this observation in relation to the fact that article 1 of the Convention requires each contracting state to secure the Convention rights for those within their jurisdiction. 86. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of article 3 in particular. The Court went on to conclude, however: 88 . It would hardly be compatible with the underlying values of the Convention, that common heritage of political traditions, ideals, freedom and the rule of law to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of article 3, would plainly be contrary to the spirit and intendment of the article, and in the Courts view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that article. 91 In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. In paras 110 and 111 the Court considered an argument advanced on behalf of Soering that it was relevant that, instead of extraditing him to Virginia, he could be deported to his own country, Germany, where he could be tried without the risk of the death penalty or death row conditions. The United Kingdom Government urged that no such distinction should be drawn. The Court held, nonetheless: However, sending Mr Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstance of relevance for the overall assessment under article 3 in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case. A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration. (paras 110, 111) At para 113 the Court dealt with a submission that extradition would also infringe the applicants article 6 rights because he would not be able to obtain legal assistance in Virginia. The Court held: The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk. (emphasis added) In HG v Switzerland (Application No 24698/94) (unreported) given 6 September 1994 the Commission considered the admissibility of a complaint by a Turkish national that extradition from Switzerland to Turkey to serve a sentence imposed for kidnapping and raping a 14 year old girl would infringe article 3 because of Turkish prison conditions, article 6 because his trial in Turkey had not been fair and article 8 because extradition would interfere with respect for his family life in Switzerland. The Commission held in para 2 that expulsion or extradition might in exceptional circumstances involve a violation of fundamental rights because of the serious fear of treatment contrary to article 2 or 3 in the requesting country. It further held that an issue might exceptionally be raised under article 6 where a fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting state (emphases added). The Commission held that, on the facts, this was not such a case. It went on to reject the admissibility of the article 8 claim on the facts. In Raidl v Austria (1995) 20 EHRR CD 114 the Commission once again considered the admissibility of a claim that extradition to Russia on suspicion of murder had infringed the applicants Convention rights. After finding ill founded a complaint based on article 3 the Commission went on to consider the applicants complaint that extradition had interfered with her married life in Austria, thereby violating her article 8 rights. The Commission held at p 123: the interference with the applicants family life was proportionate to the legitimate aim pursued, given the seriousness of the crime, of which the applicant was suspected even before she contracted marriage in Austria. (emphasis added) In Launder v United Kingdom (1997) 25 EHRR CD 67 the Commission considered the admissibility of a complaint that the United Kingdom would violate articles 2, 3, 5, 6 and 8 if it extradited him to the Hong Kong Special Administrative Region. In finding the application manifestly ill founded the Commission said this in relation to article 8, at para 3: The Commission considers that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life. (emphasis added) In Chahal v United Kingdom (1996) 23 EHRR 413 the United Kingdom had detained Mr Chahal for some six years on the ground that they were taking action against him with a view to his deportation, this being a justification for interference with the article 5 Convention right to liberty by virtue of article 5(1)(f). The Government wished to deport him to India because he was suspected of involvement in terrorism. The Court held that, because of the danger of torture or inhuman or degrading treatment that he would face if deported, his deportation would violate article 3. It rejected the contention of the UK Government that the fact that he posed a risk to the security of the United Kingdom had any relevance to the assessment of this question. Mr Chahal and his wife and two children, who joined in his application, also contended that his deportation would violate their article 8 rights to respect for their family life in the United Kingdom. The Court held that it had no need to decide this hypothetical question. The principles to be applied when considering the proportionality of deportation that would interfere with article 8 family rights were first enunciated by the Court in Boultif v Switzerland (2001) 33 EHRR 1179. The applicant, an Algerian, had married a Swiss citizen and established a home in Switzerland. He then committed a robbery for which he received a two year prison sentence. After he had come out of prison the Swiss authorities refused to renew his residence permit. This meant that he would have to return to Algeria whither, the Court found, his wife could not reasonably be expected to follow him. The Court laid down the following principles: 46. The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia, cited above, p. 91, 52, and Mehemi vs France, judgment of 26 September 1997, Reports 1997 VI, p. 1971, 34). 47. Accordingly, the Court's task consists in ascertaining whether the refusal to renew the applicant's residence permit in the circumstances struck a fair balance between the relevant interests, namely the applicant's right to respect for his family life, on the one hand, and the prevention of disorder and crime, on the other. 48. The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other's country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society. In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant's conduct in that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couples family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion. Applying these principles, the Court found violation of article 8. confirmed the principles laid down in Boultif, adding to these at para 58: In ner v The Netherlands (2006) 45 EHRR 421 the Grand Chamber the best interests and well being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of social, cultural and family ties with the host country and with the country of destination. The Court then went on to say this: 59. The Court considered itself called upon to establish guiding principles in the Boultif case because it had only a limited number of decided cases where the main obstacle to expulsion was that it would entail difficulties for the spouses to stay together and, in particular, for one of them and/or the children to live in the others country of origin . It is to be noted, however, that the first three guiding principles do not, as such, relate to family life. This leads the Court to consider whether the Boultif criteria are sufficiently comprehensive to render them suitable for application in all cases concerning the expulsion and/or exclusion of settled migrants following a criminal conviction. It observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy family life there within the meaning of article 8. However, as article 8 also protects the right to establish and develop relationships with other human beings and the outside world (see Pretty v the United Kingdom, no.2346/02, [61], ECHR 2002 III) and can sometimes embrace aspects of an individuals society identity (see Mikulic v Croatia, No.53176/99, [53], ECHR 2002 1), it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of private life within the meaning of article 8. Regardless of the existence or otherwise of a family life, therefore, the court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the family life rather than the private life aspect. 60. In the light of the foregoing, the Court concludes that all the above factors (see [57] [59]) should be taken into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction. Finally I must refer to the decision of the Grand Chamber in Saadi v Italy (2008) 24 BHRC 123. The United Kingdom intervened in this case in an attempt to persuade the Grand Chamber to reconsider the principles laid down in Chahal. The attempt did not succeed. The Grand Chamber held: 139. The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of risk and dangerousness in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test. 140. With regard to the second branch of the United Kingdom Government's arguments, to the effect that where an applicant presents a threat to national security, stronger evidence must be adduced to prove that there is a risk of ill treatment (see para 122, above), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third party intervener, by requiring in cases like the present that it be proved that subjection to ill treatment is more likely than not. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary and sufficient for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by article 3. Discussion The Strasbourg cases to which I have referred illustrate three different situations. The first is the foreign case, where the applicant seeks to establish a breach of the Convention because of the treatment that he fears that he will receive in the country to which he is to be sent. Here Strasbourg has not differentiated between extradition and expulsion or deportation. Language has been used suggesting that it will only be in exceptional circumstances that a foreign case will involve an infringement of the Convention and that the Convention will only prove a bar to extradition or deportation where there is a real risk of a flagrant breach of the Convention. It is not any anticipated breach that will suffice. The second situation is where, in a domestic case, breach of article 8 rights within the territory of the respondent State is relied upon as a bar to deportation or expulsion of an alien. Here the Grand Chamber has made it plain that the question of proportionality is detailed and fact specific. On the one hand the extent to which the removal of the alien is necessary in the public interest has to be considered having regard to the facts of the particular case. On the other hand the extent of the interference with article 8 rights has to receive an equally careful evaluation, having regard to the facts of the particular case. While it is unusual for an applicant to be able to make out a case of breach of the Convention in such circumstances, it is by no means unknown. The third situation is where, in a domestic case, breach of article 8 rights within the territory of the respondent State is advanced as a bar to extradition. There is, in fact, no reported case in which such a complaint has succeeded, or even been held admissible where not joined with other allegations of breach. So far as the subsidiary issues are concerned, i) The reasoning of the Court in Soering 11 EHRR 439 and the express reference to the seriousness of the crime in Raidl 20 EHRR CD 114, 123 suggest that the gravity of the crime in respect of which extradition is sought is capable of being a material factor. ii) There is no support for the proposition that the Court is solely concerned with the family rights of the applicant, to the exclusion of those of other members of the family. On the contrary, at least in deportation and expulsion cases, the Grand Chamber has made it clear in ner 45 EHRR 421 that the interests of children are particularly material, and there is no reason to conclude that the same is not true in an extradition case, in so far as family rights weigh in the balance at all. iii) The Court in Soering held that the possibility of trying a defendant in a forum where his fundamental rights will not be at risk can be a material factor when considering the proportionality of extradition in the face of a risk to those rights. The domestic jurisprudence When considering the domestic jurisprudence it is important to distinguish between the three different categories of case that I have identified in paragraphs 29 to 31 above. It is a failure to do so that has led to the primary issue of principle in this appeal. I shall start my survey of the domestic cases with three appeals to the House of Lords that were heard together R (Ullah) v Special Adjudicator; Do v Immigration Appeal Tribunal [2004] UKHL 26; [2004] 2 AC 323; R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368. The appellants in each appeal were unsuccessful asylum applicants who were resisting removal from the United Kingdom. In Ullah the applicants complained that in the countries to which they were to be removed their article 9 rights to practise their religions would be infringed. In Razgar the applicant complained that in Germany, to which country he was to be removed, he would not receive appropriate treatment for psychiatric illness from which he suffered, with the consequence that there would be interference with his article 8 right to respect for his private life. Thus these were foreign cases; indeed it was on these appeals that Lord Bingham of Cornhill coined the phrases domestic cases and foreign cases that I have adopted in this judgment: see [2004] 2 AC 323, paras 8 9. The principal issue was whether, in a foreign case, rights other than article 3 could be engaged. The House of Lords, applying dicta of the Strasbourg Court, held that they could. In paragraphs 17 to 20 of Razgar Lord Bingham set out five sequential questions that an immigration adjudicator should consider in cases where removal was resisted in reliance on article 8. The fourth was whether interference with the article 8 right was necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others these being the criteria of justification under article 8(2). The fifth question, assuming an affirmative answer to the fourth question, was whether such interference was proportionate to the legitimate public end sought to be achieved. Lord Bingham made the following comments on the answers to these questions: 19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah [2004] 2 AC 323, 339, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively. 20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. He subsequently added: Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis. It is not apparent that these observations were restricted to foreign cases. They appear to have been of general application to cases of immigration control. More generally, so far as there was discussion in these appeals of the approach to foreign cases, no distinction was drawn between expulsion and extradition. Indeed, in Ullah at para 13 Lord Bingham held that what he described as the Soering principle was potentially applicable in either case. He held that in either case successful invocation of Convention rights in a foreign case required the satisfaction of a stringent test. Where qualified rights, such as those under articles 8 and 9, were concerned, it would be necessary to show that there would be a flagrant denial or gross violation of the right, so that it would be completely denied or nullified in the destination country see para 24. distinction between foreign cases and domestic cases. She said: In Razgar, at para 42, Baroness Hale of Richmond, emphasised the The distinction is vital to the present case. In a domestic case, the state must always act in a way which is compatible with the Convention rights. There is no threshold test related to the seriousness of the violation or the importance of the right involved. Foreign cases, on the other hand, represent an exception to the general rule that a state is only responsible for what goes on within its own territory or control. The Strasbourg court clearly regards them as exceptional. It has retained the flexibility to consider violations of articles other than articles 2 and 3 but it has not so far encountered another case which was sufficiently serious to justify imposing upon the contracting state the obligation to retain or make alternative provision for a person who would otherwise have no right to remain within its territory. For the same reason, the Strasbourg court has not yet explored the test for imposing this obligation in any detail. But there clearly is some additional threshold test indicating the enormity of the violation to which the person is likely to be exposed if returned. I doubt whether, in making these comments, Lady Hale had in mind the question of whether a threshold test was appropriate in an extradition case. Razgar and Ullah were considered by the Divisional Court in R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200; (Admin); [2007] QB 727. Among the many points taken by the applicants, who were resisting extradition to the United States on charges of fraud in relation to the Enron affair, was a contention that their article 8 rights in respect of family life in this jurisdiction would be infringed by their extradition. Further infringements of article 8 rights in the United States were also invoked. Laws LJ, in delivering the sole judgment, referred to the opinion of Baroness Hale, but doubted whether the cases classification as foreign or domestic would cast much light on the stringency of the test for violation of Article 8 which the Court should apply para 115. At para 118 he said this: If a person's proposed extradition for a serious offence will separate him from his family, article 8(1) is likely to be engaged on the ground that his family life will be interfered with. The question then will be whether the extradition is nevertheless justified pursuant to article 8(2). Assuming compliance with all the relevant requirements of domestic law the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in honouring extradition treaties made with other states (the Ullah case [2004] 2 AC 323, para 24). It rests in the value of international co operation pursuant to formal agreed arrangements entered into between sovereign states for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending state and the relevant bilateral treaty, and its execution is resisted on article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim. Bermingham is also of relevance to one of the subsidiary issues. The applicant sought an order that the Director of the Serious Fraud Office should exercise his statutory powers to investigate the possibility of instituting criminal proceedings in this jurisdiction, having particular regard to the fact that if the prosecution took place here the article 8 rights of the defendants would be protected. The court held that it would not be appropriate to grant such relief. Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 involved the approach that should be adopted by an appellate authority to the invocation of article 8 rights by aliens who wished to be permitted to remain in this country in order to live with members of their families who were already established here. Thus the appeals involved domestic cases. Mr Nicholas Blake QC, for Mrs Huang, appears from p 179 of the law report to have suggested that Razgar had laid down a truly exceptional threshold test for the successful invocation of article 8 rights in the face of deportation, and to have attacked such a test. question of proportionality, at para 20: In delivering the opinion of the committee Lord Bingham said this about the In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test. The final comment has since been treated as an embargo on the application of a test of exceptionality, not only in domestic immigration cases but in extradition cases. So far as immigration cases are concerned, the decision in Huang led to a number of cases being remitted to the Asylum and Immigration Tribunal on the ground that a test of exceptionality had mistakenly been applied by the Tribunal. In AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, [2008] 2 All ER 28, a domestic immigration case, Sedley LJ said this about Huang, at para 25: The effect of their Lordships' decision (and, if we may say so, the intended effect of this court's decision) in Huang has thus not been to introduce a new interpretation of article 8 but to clarify and reiterate a well understood one. While its practical effect is likely to be that removal is only exceptionally found to be disproportionate, it sets no formal test of exceptionality and raises no hurdles beyond those contained in the article itself. At para 31 Sedley LJ found it necessary to reiterate that there was no legal test of exceptionality as a surrogate for the article 8 decision. He said: The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with article 8 is a consequence, not a precondition, of the statutory exercise. No doubt in this sense successful article 8 claims will be the exception rather than the rule; but to treat exceptionality as the yardstick of success is to confuse effect with cause. The first decision to which we have been referred in which Huang was applied in an extradition context is Jaso v Central Criminal Court No 2 Madrid [2007] EWHC 2983 (Admin). The Madrid Court had issued European Arrest Warrants against the three appellants on charges of membership of a criminal organisation and terrorism. The appellants had unsuccessfully challenged extradition before the District Judge on a large number of grounds. These included the contention that extradition would violate articles 3, 5, 6 and 8 of the Convention. The factual basis for this contention was an allegation that, if extradited, the appellants would be subject to incommunicado police detention for up to 5 days. Thus this was a foreign case. The District Judge had applied an exceptionality test and this was attacked before the Divisional Court. Dyson LJ, when giving the leading judgment, held, applying Huang, that there was no exceptionality test. He added, however, at para 57: It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditees article 8 rights. Jaso was followed by Richards LJ, when giving the leading judgment in the Divisional Court in Tajik v Director of Public Prosecutions and Government of the United States of America [2008] EWHC 666 (Admin). He said at para 156: What is said in Jaso about the need for striking and unusual facts to lead to the conclusion that extradition would be disproportionate does not constitute a separate legal test but recognises the practical reality that article 8 will rarely provide a ground for refusing extradition The final decision to which I should refer is R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72; [2009] 1 AC 335. The appellant was resisting extradition to Missouri on charges which included two counts of murder in the first degree. He contended that, if convicted, he would be sentenced to imprisonment for life without eligibility of parole and that this would be inhuman treatment in violation of article 3. The House unanimously dismissed his appeal. A majority of the House held that the desirability of extradition was such that punishment which would be regarded as inhuman and degrading in the domestic context would not necessarily be so regarded when the choice was between either extraditing or allowing a fugitive offender to escape justice altogether. This has proved a controversial finding, but this is not an occasion on which it would be appropriate to review it. The case underlines the weight that the desirability of extradition carries as an essential element in combating public disorder and crime. The judgment of the Divisional Court. In giving the judgment of the Divisional Court in this case [2009] EWHC 995 (Admin), Laws LJ followed the approach of that court in Jaso and Tajik. He said: 21 the learning, here and in Strasbourg, shows that the public interest in giving effect to bilateral extradition arrangements possesses especially pressing force because of its potency (a) in the fight against increasingly globalised crime, (b) in the denial of safe havens for criminals, and (c) in the general benefits of concrete co operation between States in an important common cause. The gravity of the particular extradition crime may affect the weight to be attached to these factors, but because they are of a strategic or overarching nature, the public interest in extradition will always be very substantial. Accordingly the claim of a prospective extraditee to resist his extradition on article 8 grounds must, if it is to succeed, possess still greater force. That is why there must be striking and unusual facts (Jaso), and in practice a high threshold has to be reached (Tajik). 22. That is how the balance between the public interest and the individual's right, inherent in the whole of the Convention, is to be struck where an article 8 claim is raised in an extradition case. Their Lordships in Huang disapproved the application of a test of exceptionality as the means of striking the balance; though it is perhaps not without interest that the European Commission of Human Rights stated in Launder v United Kingdom (1997) 25 EHRR CD 67 that [I]t is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life. The formulations in Jaso and Tajik show that what was sought, incorrectly, to be gathered in a test of exceptionality is correctly reflected in a recognition of the force of the public interest in giving effect to a properly founded extradition request: a recognition, that is to say, of the relevant article 8(2) considerations (which in my judgment find concrete form in the three public benefits I have set out at paragraph 21). Mr Sumption submitted in his written case that this reasoning embodied three fundamental errors: i) Whilst purporting to abjure any test of exceptionality, in effect it applied just such a test. ii) It subordinated a fact sensitive assessment of the interest in extradition in the individual case to a categorical assumption about the importance of that interest generally. It relied upon a sentence from the Commissions decision in Launder when this had never been approved or followed by the Strasbourg Court and was inconsistent with the Courts approach in article 8 deportation cases. iii) Discussion It was a fundamental premise of Mr Sumptions submissions that, when considering the impact of article 8, the Court should adopt a similar approach in an extradition case as that to be adopted in a case of deportation or expulsion. He drew our attention to the fact that in France the Conseil dEtat certainly does not do this. In a deportation case, the Conseil dEtat now has regard to the human rights implications see Abraham, R. La Convention europeenne des droits de lhomme et les measures deloignement detrangers (1991) Rev fr Droit adm, 497. So far as extradition is concerned, however, the Conseil dEtat considers that, as a matter of principle extradition justifies any interference with article 8 rights that may be involved see De Deus Pinto, CE, ass, 8 October 1999. Mr Sumption submitted that the latter stance was incompatible with the Strasbourg jurisprudence. I agree that there can be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. The public interest in extradition nonetheless weighs very heavily indeed. In Wellington the majority of the House of Lords held that the public interest in extradition carries special weight where article 3 is engaged in a foreign case. I am in no doubt that the same is true when considering the interference that extradition will cause in a domestic case to article 8 rights enjoyed within the jurisdiction of the requested State. It is certainly not right to equate extradition with expulsion or deportation in this context. It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under article 8(2). In practice it is only in the most exceptional circumstances that a defendant would consider even asserting his article 8 rights by way of challenge to remand in custody or imprisonment see R (P) v Secretary of State of the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, para 79, for discussion of such circumstances. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate. Massey v United Kingdom (Application No 14399/02) (unreported) given 8 April 2003 illustrates this proposition. The applicant complained, inter alia, that criminal proceedings and a sentence of six years imprisonment constituted an unwarranted interference with his family life and his childrens right to a father. In ruling the complaint inadmissible, the court held: The Court recalls that article 8.2 permits interference with an individuals right to respect for his private and family life in certain circumstances. The Court considers that the bringing of criminal proceedings and the imposition of a punishment following conviction fall within these exceptions since they are in accordance with the law and pursue . legitimate aims, namely, public safety, the prevention of disorder and crime and protection of the rights and freedoms of others. The Court therefore concludes that the prosecution and imprisonment of the applicant does not raise any issues under article 8 of the Convention. There is an analogy between the coercion involved in extradition and the coercion involved in remanding in custody a prisoner reasonably suspected of wishing to abscond. In either case the coercion is necessary to ensure that the suspect stands his trial. Each is likely to involve a serious interference with article 8 rights. The dislocation of family life that will frequently follow extradition will not necessarily be more significant, or even as significant, as the dislocation of family life of the defendant who is remanded in custody. It seems to me that, until recently, it has also been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. This perhaps explains why we have been referred to no reported case, whether at Strasbourg or in this jurisdiction, where extradition has been refused because of the interference that it would cause to family life. I reject Mr Sumptions contention that it is wrong for the court, when approaching proportionality, to apply a categorical assumption about the importance of extradition in general. Such an assumption is an essential element in the task of weighing, on the one hand, the public interest in extradition against, on the other hand, its effects on individual human rights. This is not to say that the latter can never prevail. It does mean, however, that the interference with human rights will have to be extremely serious if the public interest is to be outweighed. The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. That, no doubt, is what the Commission had in mind in Launder 25 EHRR CD 67, 73 when it stated that it was only in exceptional circumstances that extradition would be an unjustified or disproportionate interference with the right to respect for family life. I can see no reason why the District Judge should not, when considering a challenge to extradition founded on article 8, explain his rejection of such a challenge, where appropriate, by remarking that there was nothing out of the ordinary or exceptional in the consequences that extradition would have for the family life of the person resisting extradition. Exceptional circumstances is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition. These considerations are reflected in the judgment of Laws LJ in this case and the attack made on that judgment by Mr Sumption is not justified. What general approach to human rights should the District Judge adopt at the extradition hearing? My comments in relation to this question should not be treated as laying down a course that the judge is bound to follow. They are no more than advisory. Mr Hermer QC, who appeared for Liberty as intervener, submitted that the judge should not start with consideration of the case for extradition, before turning to ask whether this was outweighed by the impact that extradition would have on article 8 rights. This approach was the wrong way round. The judge should first consider the effect of the proposed extradition on the article 8 rights, before going on to consider whether such interference could be justified. The decision in each case should turn upon its individual facts. Mr Hermers submissions did not recognise any difference between extradition and expulsion or deportation. I did not find them either realistic or helpful. The 2003 Act specifies those matters that the extradition judge has to consider. Before considering any objections to extradition, he has to consider whether the statutory requirements for extradition have been satisfied. This requires the judge to consider, among other things, the offence or offences in respect of which extradition is sought. These must carry a minimum sentence of at least 12 months imprisonment, but this leaves scope for a very wide variation in the seriousness of the offence or offences that are alleged to have been committed. The judge then has to consider a considerable number of possible statutory barriers to extradition. These include the matters that might violate human rights to which I have referred at para 4 above. It is only after he has done this that the judge has to consider whether extradition will be compatible with Convention rights pursuant to section 87 of the 2003 Act. This is a fact specific exercise, and the judge must have regard to the relevant features of the individual case. It is at this point that it is legitimate for the judge to consider whether there are any relevant features that are unusually or exceptionally compelling. In the absence of such features, the consideration is likely to be relatively brief. If, however, the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material. I do not accept Mr Perrys submission that the gravity of the offence can never be of relevance where an issue of proportionality arises in the human rights context. The importance of giving effect to extradition arrangements will always be a significant factor, regardless of the details of the particular offence. Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence. This obvious fact has been recognised at Strasbourg (see para 32 above). When considering the impact of extradition on family life, this question does not fall to be considered simply from the viewpoint of the extraditee. On this subsidiary issue also I reject Mr Perrys submission to the contrary. This issue was considered by the House of Lords in the immigration context in Beoku Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] AC 115. After considering the Strasbourg jurisprudence the House concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition. Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act. At this point I will deal with the other subsidiary issue of principle that has been raised is it of relevance when considering proportionality that a prosecution for the extradition offence might be brought in the requested jurisdiction? As I have pointed out, the Strasbourg Court gave a positive answer to this question in Soering 11 EHRR 439. There has recently been a spate of cases in which the extraditee has argued that he ought to be prosecuted in this jurisdiction, of which Bermingham [2007] QB 727 was but one. The most recent was R(Bary) v Secretary of State for the Home Department [2009] EWHC 2068 (Admin). References to the others can be found at para 72 of the judgment in that case. In each one the argument was rejected. Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this countrys treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an enquiry as to the possibility of prosecution in this country. Application of the principles to the facts of this case Human rights are in issue and it is for this court to reach its own decision as to whether Mr Norris extradition would be compatible with his article 8 rights. This is the second occasion on which this matter has reached the highest court in this jurisdiction. Mr Norris is a British national, born on 15 February 1943. He retired owing to ill health in 2002. For some four years before he had been Chief Executive Officer of Morgan Crucible plc (Morgan) and he had worked in the carbon division of that company for 29 years before then. Morgan and its subsidiaries became involved in the United States in price fixing that was contrary to the law of the United States. Criminal proceedings in the United States resulted in a plea bargain under which Morgan paid a fine of $1 million and one of its subsidiaries paid a fine of $10 million. Most of Morgans senior personnel were granted immunity from prosecution but these did not include Mr Norris. On 28 September 2004 Mr Norris was indicted by a Grand Jury in Pennsylvania on one charge of price fixing and three charges of obstructing justice. Extradition proceedings were commenced which he resisted on grounds, among others, that the conduct with which he was charged was not criminal under English law. So far as the price fixing charge was concerned, this contention succeeded, but only when the matter reached the House of Lords Norris v Government of the United States of America [2008] UKHL 16; [2008] AC 920. The House held, however, that the conduct alleged in relation to the charges of obstructing justice would have been criminal if carried out in this jurisdiction and that, accordingly, those offences were extraditable. The House remitted the matter for reconsideration by the District Judge because: he exercised his judgment on a basis different from that which now pertains, namely that Mr Norris was to be extradited on the main price fixing count, and not merely the subsidiary counts. (Para 110). Mr Sumption fastened on this passage and submitted in his written case that the main stuffing of the case against Mr Norris had been knocked out by the decision of the House. As to that submission I would simply comment that there is plenty of stuffing left. The gravamen of the case of obstructing justice appears in the following passages of the judgment of Auld LJ in the earlier proceedings Norris v Government of the United States of America (Goldshield Group plc intervening) [2007] EWHC 71 (Admin); [2007] 1 WLR 1730 based on a deposition of Lucy P.McClain, a trial attorney for the antitrust division of the US Department of Justice: 12. Mr Norris instructed, through a 'task force' he set up for the purpose, all Morgan entities involved in the price fixing conspiracy to remove, conceal or destroy any documentary material, in particular Morgan's sales files in Europe, evidencing Morgan's involvement in the conspiracy. He also instructed the retention and concealment of certain documents to enable Morgan to continue monitoring the working of the conspiracy. 13. In about November 1999 Mr Norris met several of the co conspirators in England to discuss the United States authorities' investigation into their conspiratorial dealings and meetings, and to devise a false explanation, other than price fixing, to be put to the authorities for the meetings. As Ms McClain put it in her affidavit: 'Norris and his subordinates discussed ways in which they could conceal the true purpose of the price fixing meetings when asked about them. They decided to falsely characterise their meetings with competitors as discussions of legitimate joint ventures rather than disclose the fact that they were price fixing meetings. Norris expressed his concern that the United States investigators would not believe Morgan's false explanation that the meetings were held to discuss joint ventures, in part because Morgan had no contemporaneous notes of the meetings to support its joint venture explanation. Norris then directed his subordinates to create false summaries of the price fixing meetings that they would use as a guide or script in answering any future questions about what had occurred at their meetings.' 14. To that end, a 'script' was prepared which Mr Norris approved, of false information as to the purpose of the meetings for use in the event of any of the Morgan staff or others involved in the conspiracy being questioned by the authorities or by the federal grand jury. Those provided with the script were rehearsed and questioned about their recollection of the material contained in it. Those who Mr Norris felt would not be able to withstand questioning, he distanced from Morgan by arranging for their retirement or for them to become consultants. In January 2001 false handwritten summaries of potentially incriminating meetings were provided to the United States' authorities' investigators, who made plain they regarded Morgan's accounts of the meetings as false. 15. At or about the same time, Morgan sought to persuade a German company alleged to be a party to the conspiracy, to support it in its false representations to the United States authorities so as, not only to exculpate Morgan, but also to cast blame on a French company, also alleged to be a party to the conspiracy a solicitation in which Mr Norris took a prominent and personal role. Laws LJ rightly observed [2009] EWHC 995 (Admin), para 29 that the obstruction of justice charges, taken at their face value, were very grave indeed. The evidence is that, if Mr Norris is convicted, the conduct in question is likely to attract a sentence of between 21 and 27 months imprisonment. There is a possibility that the sentence will be significantly longer in order to reflect the gravity of the conduct that the obstruction of justice was designed to conceal. If Mr Norris is extradited a year or more is likely to elapse before his trial. It is possible that the Department of Justice would oppose the grant of bail before and during the trial. If convicted he might be imprisoned in a low security Federal Correctional Institution with dormitory or cubicle accommodation. There is a considerable body of medical evidence before the court, as there was before the Divisional Court, and I shall adapt and adopt the careful summary of that evidence made by Laws LJ. Mr Norris is now 66 years of age. He and his wife were married in 1966. They have two sons and three grandchildren. The US Department of Justice investigation began in 1999. In 2000 Mr Norris was diagnosed as suffering from prostate cancer and underwent surgery in March 2001. He contracted MRSA in the hospital. A benign tumour was removed from his side in June 2002. He was not, however, free of cancer and had to undergo radiotherapy in 2002. He retired from Morgan on health grounds in October of that year. Towards the end of the same year Morgan struck a plea agreement with the Department of Justice, but it did not include the appellant. The extradition process effectively commenced in 2005, with the appellant's arrest on 13 January. In her first witness statement (made on 27 April 2005) Mrs Norris describes with some eloquence the deteriorating quality of life which she and her husband faced as these events crowded around them. In her second statement (30 May 2008) she paints a worsening picture, and also states (paragraph 8) that if the appellant had to spend any length of time in custody in the United States her psychiatric condition would prevent her from re locating there, where the only people she knows are connected with Morgan, and they are prohibited by the terms of the plea bargain from speaking to her or her husband. In a letter of 20 April 2005 to Mr Norriss solicitors Dr Jones, his general practitioner, reviewed the prostate cancer history, as regards which he could not say there had been a complete recovery, and the onset of other problems: raised blood pressure and shortness of breath. In October 2006 Dr Jones described difficulties relating to the appellant's hearing, left knee, right hip, incontinence and a recently developed hernia. He stated that "[t]he legal problems Mr Norris has been having during the past 2 3 years have had a devastating effect upon him and his family". By 7 February 2007, when the GP next wrote, the appellant's mental state had deteriorated. His powers of concentration were poor, he had marked short term memory loss, was depressed and tended to shut himself away. He was anxious about his wife's psychological state. His physical problems largely persisted although his blood pressure was normal. He and his wife were "at the end of their tether". By 23 May 2008, when the GP next reported, the appellant was registered disabled and had had a total left knee replacement. Dr Jones was anxious as to his mental state and arranged for him and his wife to see a psychologist. There are in fact psychiatric reports on both Mr Norris and his wife which pre date the GP's May 2008 letter. Professor Tom Fahy provided these on 15 February 2007. In his report on Mr Norris he states that when he interviewed him, he "presented a normal mental state". However, Although Mr Norris' current symptoms fall short of a formal psychiatric diagnosis, it is reasonable to assume that his symptoms would deteriorate in the face of imminent extradition, and/or actual imprisonment in the US. extradition, conviction Professor Fahy reported again on 27 May 2008. He stated that Mr Norris' mental health has deteriorated since I saw him in February 2007. He is now describing more prominent symptoms of low mood, loss of interest and pleasure in his usual activities and feelings of helplessness and pessimism about his life situation. However, Finally, Mr Norris' mood disturbance is not persistent or severe enough to warrant a diagnosis of a depressive illness. There is no serious prospect of this situation improving for him until the legal situation is resolved, though if he were to be extradited, it is likely that imprisonment and isolation from his family would lead to a further deterioration in his mental health and the development of more significant depressive symptoms. Mrs Norris' state of health is described in a report dated 19 June 2008 from Michael Kopelman, who is a professor of neuropsychiatry at King's College London and St Thomas's Hospital. He saw both Mr and Mrs Norris on 9 June 2008, and interviewed them separately and together. Mrs Norris told him she had had suicidal ideas, panic attacks and palpitations. Mr Norris told him there had been a "total change" in his wife's personality. Professor Kopelman opined that Mrs Norris suffered from a "major depression of moderate severity" or a "moderate depressive episode" (depending on which set of criteria was used). Its severity was however difficult to evaluate: she was able to maintain at least some social activities, but was a person who the doctor suspected was "good at hiding her real emotions". He concluded (Opinion, paragraph 6): I have no doubt that the prolonged and more serious nature of Mrs Norris's current depression results from the prolonged extradition proceedings. To this extent, the continuing nature of these extradition proceedings has caused Mrs Norris 'hardship' in the sense of severe psychological suffering and mental deterioration. I have no doubt that this would be greatly worsened, were her husband to be extradited. Mr Sumption submits that Mr and Mrs Norris poor health, together with the length and closeness of their marriage, has made them highly dependent on each other. This and their advancing years, make them less resilient to the separation that Mr Norris extradition would involve. It was originally Mrs Norris intention to accompany her husband to the United States should he be extradited, but in a witness statement that she made last year she says that she cannot now contemplate going to the US to live on her own there without friends and family support. Because Mrs Norris will not accompany her husband to the United States, the interruption to their family life should he be remanded in custody, and during his imprisonment, should he be convicted, will be total. This contrasts with the position that would have prevailed had Mr Norris been imprisoned in this country, where visiting rights enable the family relationship to be preserved. Mr Sumption contends that Mr Norris extradition in these circumstances cannot be said to represent a proportionate answer to a pressing social need. Nor, he argues, can it plausibly be said that the prevention of crime or the orderly functioning of extradition are public interests which will suffer substantial damage if someone in the particular position of Mr Norris is not extradited. The Government has argued that not to extradite Mr Norris would damage the principle of automatic, or virtually automatic, extradition, but no such principle exists. In a case such as this it is the exception that proves the rule. One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies such as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves. This is not such a case. Unhappily the delay that has been caused by Mr Norris efforts to avoid extradition to the United States has increased the severity of the consequences of that extradition for his family life. But those consequences do not undo the justification that exists for that interference. For these reasons I would dismiss this appeal. Postscript On the eve of delivering judgment in this case the court received the report of the admissibility decision in King v United Kingdom Application no. 9742 /07. In holding Mr Kings application in relation to his extradition to Australia manifestly ill founded the Court at para 29 followed Launder in expressing the view, mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross border dimension), that it will only be in exceptional circumstances that an applicants private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition Referring to the fact that the applicant had a wife, two young children and a mother in the United Kingdom whose ill health would not allow her to travel to Australia the Court remarked that this was, in its view, not an exceptional circumstance. This decision does not alter my view that it is more helpful, when considering proportionality, to consider whether the consequences of interference with article 8 rights are exceptionally serious rather than simply whether the circumstances are exceptional. Either test is, however, likely to produce the same result and the decision demonstrates the futility of attempting to found an appeal on the basis that there has been inappropriate use of a test of exceptionality. The court also cited Soering in support of the proposition that the considerations of whether prosecution exists as an alternative to extradition may have a bearing on whether extradition would be in violation of a Convention right. I remain of the view that rarely, if ever, is this possibility likely in practice to tilt the scales against extradition and it certainly does not do so in this case. LORD HOPE It would not be right to say that a persons extradition can never be incompatible with his right to respect for his family life under article 8 of the European Convention on Human Rights. But resisting extradition on this ground is not easy. The question in each case is whether it is permitted by article 8(2). Clearly some interference with the right is inevitable in a process of this kind, which by long established practice is seen as necessary in a democratic society for the prevention of disorder or crime. That aim extends across international boundaries, and it is one which this country is bound by its treaty obligations to give effect to. In this case extradition will be in accordance with the law, as the preconditions for Mr Norriss lawful extradition have all been satisfied. So, as Mr Sumption QC made clear in his opening remarks, the issue is entirely one of proportionality. This, as he said, is a fact specific issue. He submitted that in the circumstances of this case extradition would be a violation of the article 8 right. Mr Sumption challenged the governments assertion that the circumstances in which the interference with article 8 rights would not be proportionate will be exceptional. In para (2) of a closing memorandum on law which he provided to the District Judge and made available to the court on the second day of the argument he said that it was not necessary to show exceptional circumstances in order to make out a case for refusing extradition. He referred to Huang v Secretary of State for the Home Department [2007] 2 AC 167, para 20, where Lord Bingham of Cornhill said that exceptionality was not a legal test. Applying that observation to this case, he added that the law recognises that the balance will not necessarily come down in favour of extradition, and that it would not be right to treat the test as a rule of thumb with substantially the same effect. In oral argument he said that there was no such threshold that had to be crossed. As it was put in Haung, this may be the expectation but it is not a legal test. The phrase only in exceptional circumstances was used by the Commission in Launder v United Kingdom (1997) 25 EHRR CD 67, but he said that this was an early decision and it had not been adopted by the Strasbourg Court in its later case law. I agree that exceptionality is not a legal test, and I think that it would be a mistake to use this rather loose expression as setting a threshold which must be surmounted before it can be held in any case that the article 8 right would be violated. As Lord Phillips has observed, the phrase exceptional circumstances says little about the nature of the circumstances: para 56, above. It tends to favour maintaining the integrity of the system as the primary consideration rather than focusing on the rights of the individual. It risks diverting attention from a close examination of the circumstances of each case. Although in its admissibility decision in King v United Kingdom, Application No 9742/07, 26 January 2010, it followed the Commissions decision in Launder in using the phrase exceptional circumstances, decisions of the Strasbourg court have repeatedly shown that an intense focus on the rights of the individual is necessary when striking the balance that proportionality requires. I do not think that there are any grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life. Huang v Secretary of State for the Home Department was a domestic case where article 8 was relied on as a bar to expulsion, but I think that Lord Binghams statement that exceptionality is not a legal test can be applied to extradition cases too. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 13, he said that, while there were substantive differences between expulsion and extradition, the Strasbourg court had held the Soering principle to be potentially applicable in either situation: Cruz Varas v Sweden (1991) 14 EHRR 1, para 70. Lord Steyn said in para 33 that, while the purpose of the two procedures was different, in the context of the possible engagement of fundamental rights under the ECHR the Strasbourg court has not in its case law drawn a distinction between cases in the two categories. I would apply that approach to this case. The fact remains however that the cases in which an argument of the kind that Mr Sumption sought to present will succeed are likely to be very few. I agree with Lord Phillips that the reality is that it is only if some exceptionally compelling feature, or combination of features, is present that the interference with the article 8 right that results from extradition will fail to meet the test of proportionality. The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it. As against that, those aspects of the article 8 right which must necessarily be interfered with in every case where criminal proceedings are brought will carry very little, if any, weight; Massey v United Kingdom (Application No 14399/02) (unreported) given 8 April 2003, p 12. Separation by the person from his family life in this country and the distress and disruption that this causes, the extent of which is bound to vary widely from case to case, will be inevitable. The area for debate is likely to be narrow. What is the extra compelling element that marks the given case out from the generality? Does it carry enough weight to overcome the public interest in giving effect to the request? In the present case extradition is sought on charges of obstructing justice. These are serious charges because of the methods that are said to have been used and the nature of the alleged conduct, and there is a strong public interest in giving effect to the treaty obligation so that they can be properly dealt with. It was submitted that extradition in this case would cause disproportionate damage to Mr and Mrs Norriss physical or psychological integrity, having regard to their state of health, their age and the likely effect of the separation that extradition will impose on them. Added to that is the fact that Mr Norris has had this process hanging over him for three years, much of which has been due to his successful challenge to his extradition on the charges of price fixing. The effect of the delay is that he and his wife are that much older than they otherwise would have been, and this will make it all the more difficult for them to adapt to the consequences. Mr Sumption invited the court to avoid short cuts and to pay close attention to all the relevant facts in its assessment. The only circumstance which strikes me as not inherent in every extradition process is the delay. Otherwise the issues that are raised in this case are really questions of degree. Distressing the process of separation will undoubtedly be, and I am conscious of the extra element of hardship which will arise because of the state of health of the parties. Due to their age, and especially to Mrs Norriss psychological condition, this is greater than it would normally be, but in my opinion not excessively so. Mr Norris is fit to travel and he is fit to stand trial. His family life must, for the time being, take second place. The delay is unusually long due to the time it took for Mr Norris to assert his legal rights in regard to the charges of price fixing. Its effect has been to increase the element of hardship. Had the remaining charges been less serious this might perhaps have been sufficient to tip the balance in Mr Norriss favour. But allegations of an attempt to obstruct the course of justice must always be taken very seriously, and I see no grounds for making an exception in this case. In view of the strong public interest in giving effect to the respondents request so that these charges can be brought to trial in the jurisdiction that is best equipped to deal with them, I do not think that it is possible to say that Mr Norriss extradition on these charges would be disproportionate. For these reasons, and those which Lord Phillips has given with which I am in full agreement, I agree that the appeal should be dismissed. LORD BROWN I agree entirely with the judgment of Lord Phillips on this appeal. For the reasons he gives it will be only in the rarest cases that article 8 will be capable of being successfully invoked under section 87 of the Extradition Act 2003. As Lord Phillips observes (at para 82): [O]nly the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves. Paragraph 65 of his judgment instances a rare case where the defence might succeed. It is difficult to think of many others, particularly where, as here, the charges are plainly serious. It is important to understand the difference between the public interests under consideration by Strasbourg in the Boultif v Switzerland (2001) 33 EHRR 1179 and ner v The Netherlands (2006) 45 EHRR 421 line of cases, upon which so much of the appellants argument rested, and those involved in extradition. True, the ECtHR describes this interest as the prevention of disorder or crime but this is always in the specific context of the expulsion and/or exclusion of settled migrants following a criminal conviction (ner paras 59 and 61). Those invoking article 8 rights in such cases have already been convicted and punished for their crimes. Decisions to expel or exclude are taken essentially in the interests of a sovereign states right to regulate the entry and expulsion of aliens, besides, of course, the interests of deterring immigrants generally from crime. The public interests in extradition, however, are altogether more compelling. I fully share Lord Phillips views expressed at para 52 of his judgment and for my part would also wish to endorse paras 21 and 22 of Laws LJs judgment in the court below. As to our domestic jurisprudence, Huang v Secretary of State for the Home Department [2007] 2 AC 167 was concerned with article 8 in the context, not of extradition, but of immigration control. In this context, of course, the immigration rules and supplementary directions (to which Lord Bingham, giving the opinion of the Committee, referred at para 20) for the most part take account of the immigrants article 8 rights. But not in all circumstances, so that there remains scope for article 8 to be successfully invoked in some cases. We rejected an exceptionality test since exceptionality as such can never be a helpful touchstone against which to judge whether in any particular case the interests of a lawful immigration policy are outweighed by the immigrants (and his familys) rights to private and/or family life. But even in this, non extradition, context we contemplated article 8 succeeding only in a very small minority of cases. The legal test is proportionality, not exceptionality, but in immigration cases the court will seldom find removal disproportionate and, in extradition cases, more rarely still. Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 was a domestic extradition case concerned not with section 87 but with section 82 of the Extradition Act 2003 (making identical provision to section 14 in Part 1 of the Act). Amongst the issues arising was the correct approach to the question raised by section 82 as to whether the passage of time makes extradition unjust. In giving the judgment of the Committee I said this: [W]e would . stress that the test of establishing the likelihood of injustice will not be easily satisfied. The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co operation in this field is ever more important to bring to justice those accused of serious cross border crimes and to ensure that fugitives cannot find safe havens abroad. We were told that the section 82 (or section 14) defence is invoked in no fewer than 40% of extradition cases. This seems to us an extraordinarily high proportion and we would be unsurprised were it to fall following the Committees judgment in the present case. (para 36) Seemingly it is now the section 87 (section 21 in Part 1) defence based on the extraditees article 8 rights which is regularly being invoked. The incidence of this too may be expected to decline in the light of the Courts judgments on the present appeal. The reality is that, once effect is given to sections 82 and 91 of the Act, the very nature of extradition leaves precious little room for a defence under section 87 in a domestic case. To my mind section 87 is designed essentially to cater to the occasional foreign case where (principally although not exclusively) article 2 or 3 rights may be at stake. It follows that I too would dismiss this appeal. In doing so I would register my agreement also with the judgments of Lord Hope, Lord Mance, Lord Collins and Lord Kerr, each of which I understand to be (as I believe and intend my own judgment to be) entirely consistent with everything said by Lord Phillips. LORD MANCE Central to the issues argued on this appeal is the submission by Mr Jonathan Sumption QC for the appellant, Mr Norris, that the District Judge and Divisional Court, while purporting to apply the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, erred by in effect reintroducing for extradition cases an exceptionality test. Huang was a case involving claims by two failed asylum seekers that their removal would infringe their rights under article 8 of the European Convention on Human Rights to enjoy family life with relatives in the United Kingdom. But it is submitted that that difference in subject matter is immaterial. It is further submitted that, whatever the test, the Divisional Court erred in concluding that the interference with Mr and Mrs Norriss private life that Mr Norris extradition would entail is necessary in a democratic society (that it is proportionate to the legitimate interest served by his extradition) within the meaning of article 8(2) of the Convention. That extradition would interfere with Mr and Mrs Norriss private and family life within article 8(1) is not in doubt. Further, it would do so within the United Kingdom, where such life is currently enjoyed. The case is thus a domestic rather than a foreign one, in the sense in which Lord Bingham drew this distinction in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para. 9. This is relevant when considering whether the interference is justified or excused under article 8(2), as being in accordance with the law and necessary in a democratic society in an interest or for a purpose there specified. In foreign cases (like Ullah itself and R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368) the person resisting removal to a foreign country on the ground that it would interfere there with rights protected under article 8 must present a very strong case: see Ullah per Lord Bingham at para. 24. In the same case, Lord Steyn at para. 50 spoke of the need to satisfy a high threshold test, by establishing at least a real risk of a flagrant violation of the very essence of the right before other articles [of the Convention] become engaged. See also per Lord Carswell at paras. 67 70, as well as the later decisions in EM (Lebanon) v Secretary of State for the Home Department (AF (A Child) intervening) [2008] UKHL 64; [2009] AC 1198 and MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; [2009] 2 WLR 512. The approach taken in foreign cases cannot be transposed to domestic cases, where the removal of a foreigner from the jurisdiction would interfere with his or her private or family life within the jurisdiction. Huang was a domestic case, in which Lord Bingham, giving the opinion of the appellate committee, noted that the questions generally to be asked in deciding whether a measure is proportionate were "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective". However, Lord Bingham at para 19 went on to stress the need in applying this test to balance the interests of society with those of individuals and groups, and to refer, in this connection, to the Houses previous statement in Razgar [2004] 2 AC 368, paras 17 20, 26, 27, 60, 77 that the judgment on proportionality "must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage". Similar reference to the importance of achieving a fair balance between public and private interests is found in Strasbourg case law, including Dickson v United Kingdom (2007) 46 EHRR 927 and S v United Kingdom (2008) 48 EHRR 1169 (paras. 109 and 111 below). Addressing a submission by the Secretary of State that it would only be in an exceptional case that the removal under the immigration rules would infringe article 8 (p. 173E), Lord Bingham in Huang [2007] 2 AC 167, para 20 said that, where the issue of proportionality was reached, . the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test. In a later domestic case, EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159, Lord Bingham again described the exercise required under article 8: 12. the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard edged or bright line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires. The present case concerns extradition, not immigration control, a distinction which Mr Perry QC for the Government emphasises. The purpose for which Mr Norriss extradition is sought is, in terms of article 8(2), the prevention of disorder or crime . Mr Sumption argues that this restricts the courts focus to the particular risks of disorder or crime which may flow, presumably from Mr Norris himself, if Mr Norris were not extradited. That is in my view unrealistic. The balancing exercise between the public and private interests involves a broader focus. Ullah underlines both the great importance of operating firm and orderly immigration control in an expulsion case and the great desirability of honouring extradition treaties made with other states: [2004] 2 AC 323, para 24. The European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439 acknowledged the beneficial purpose of extradition in preventing fugitive offenders from evading justice (para. 86) and said that, as movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice (para. 89). These statements refer to fugitive offenders, but similar public interests in extradition apply to suspects who have allegedly committed offences in countries other than those where they habitually reside. In agreement with others of your Lordships, it is clear that the general public interest in extradition is a powerful one. This is so, not only in respect of a person already convicted, but also in respect of a person wanted to face trial. Without affecting the need for a case by case approach, I see it as being, in each of these situations, generally stronger than either the public interest in enforcing immigration control in respect of a failed asylum seeker or an over stayer who has established family roots within the jurisdiction or even than the public interest in deporting a convicted alien upon the conclusion of his sentence, although this be to avoid the commission of further offences within the jurisdiction of the deporting state. Under article 8, the ultimate question is whether Mr and Mrs Norriss interests in the continuation of their present private and family life in the United Kingdom are outweighed by a necessity, in a democratic society and for the prevention of disorder or crime, for Mr Norris to be extradited in order to face trial in the United States. Whether extradition is necessary depends upon whether it is proportionate to the legitimate interest served by extradition in his case or, as the European Court of Human Rights said in Dickson 46 EHRR 927 para 71, whether a fair balance [is] struck between the competing public and private interests involved. The first step in any such enquiry must, in this context also, be to identify and examine all the relevant facts in the particular case. The nature and seriousness of the alleged offence will be relevant to the strength of the case in favour of extradition: see e.g. Raidl v Austria (1995) 20 EHRR CD114 and King v United Kingdom (Application no. 9742/07) (both extradition cases) in which complaints were held inadmissible. Laws LJ examined this aspect in the Divisional Court [2009] EWHC 995, paras. 28 29 and concluded that the obstruction of justice charges, taken at their face value, are very grave indeed. Lord Phillips after re examining the position in his paras. 69 72 reaches the same conclusion, and so do I. Another relevant factor may sometimes be whether a trial would be possible in the United Kingdom, but I agree with Lord Phillips (paras. 66 67) that, while one should not prejudge the facts of particular cases, this is in practice likely to be relevant (if it can be at all) only in otherwise marginal cases. Mr and Mrs Norriss personal circumstances, the nature of their private and family life and the likely effect of extradition upon it and each of them will all be of primary importance. I need not repeat here the detailed account of these matters contained in the judgment of Laws LJ in the Divisional Court, paras. 30 37 and of Lord Phillips, paras. 73 80. In weighing up such personal factors against other factors, it is of course also relevant that extradition is by its nature very likely to have adverse consequences for the private or family life within the jurisdiction of the person being extradited. The mere existence of some adverse consequences will not be a sufficient counterweight, where there is a strong public interest in extradition. The principal question of law raised by Mr Sumption centres upon the District Judges and Laws LJs use of phrases referring to a need for a high threshold or for striking and unusual facts before the claim of a prospective extraditee to resist extradition under article 8 would in practice succeed. However, Laws LJ prefaced his reference to such phrases with an explanation of the force of the public interest in extradition. This meant, he stated, that any claim to resist extradition on article 8 grounds must, if it is to succeed, possess still greater force: para. 21. Provided that it is recognised that the force of the public interest in extradition must itself be weighed according to the particular circumstances, I see no objection to this last statement. In a case involving obstruction of justice charges of a gravity such as the present, the public interest in extradition is self evidently very substantial. It has to be weighed against other relevant factors, including the delay and above all the impact on Mr and Mrs Norriss private and family life. Interference with private and family life is a sad, but justified, consequence of many extradition cases. Exceptionally serious aspects or consequences of such interference may however outweigh the force of the public interest in extradition in a particular case. There is a possible risk about formulations which suggest in general terms that any person seeking to avoid extradition under article 8 must cross a high threshold or establish striking and unusual facts or exceptional circumstances. They may be read as suggesting that the public interest in extradition is the same in every case (in other words, involves a threshold of a constant height, whereas in fact it depends on the nature of the alleged offence involved) and also that the person resisting extradition carries some form of legal onus to overcome that threshold, whereas in fact what are in play are two competing interests, the public and the private, which have to be weighed against each other, as required by the case law under the Convention as well as by s.87 of the Extradition Act 2003. It can be expected that the number of potential extraditees who can successfully invoke article 8 to resist extradition will be a very small minority of all those extradited, but that expectation must not be converted into an a priori assumption or into a part of the relevant legal test. A further potential problem about such formulations is that they may tend to divert attention from consideration of the potential impact of extradition on the particular persons involved and their private and family life towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill. Different people have different ages, different private and family lives and different susceptibilities. They may react and suffer in different ways to the threat of and stress engendered by potential extradition in respect of the same offence or type of offence. And some of the circumstances which might influence a court to consider that extradition would unduly interfere with private or family life can hardly be described as exceptional or striking and unusual. Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependant upon the care performed by the former. Strasbourg case law supports the need for caution about the use of such formulations, while also indicating that statements that undue interference with article 8 rights will only occur in exceptional circumstances have not either necessarily or always been viewed as problematic. Thus, the Commission in Launder v United Kingdom (1997) 25 EHRR CD67, 73, para 3 after reciting the basic test of necessity (which implies a pressing social need and requires that the interference at issue be proportionate to the legitimate aim pursued) added: The Commission considers that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life. The Commission finds that in the present case no such circumstances have been shown to exist. In King v United Kingdom (where Mr King was accused of being a member of a gang engaged in a conspiracy to import large quantities of ecstasy into Australia) the Court returned to this passage, saying: Mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross border dimension), the Court considers that it will only be in exceptional circumstances that an applicants private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition (see Launder v United Kingdom, no. 27279/95, Commission decision of 8 December 1997). The fact that Mr King had in the United Kingdom two young children and a mother whose health would not allow her to travel to Australia was not an exceptional circumstance, in which connection the Court could not overlook the very serious charges he faces and was accordingly satisfied that it would not be disproportionate to extradite him to Australia. In Dickson v United Kingdom 46 EHRR 927 the issue was the consistency with article 8 of a policy whereby requests for artificial insemination by prisoners were carefully considered on individual merit but only . granted in exceptional circumstances (para. 13). The European Court of Human Rights considered that the policy set the threshold so high against them [the applicant prisoners] . that it did not allow a balancing of the competing individual and public interests and a proportionality test ,,,, as required by the Convention (para. 82); and that it was not persuasive to argue . that the starting point of exceptionality was reasonable since only a few persons would be affected, implying as it did the possibility of justifying the restriction of the applicants Convention rights by the minimal number of persons adversely affected (para. 84). On the other hand, in McCann v United Kingdom 47 EHRR 913, the local authority had determined Mr McCanns right to remain in his home by obtaining from his wife a notice to quit, the effect of which upon him she did not understand. The European Court of Human Rights, while holding that Mr McCann should in these circumstances have been given the opportunity to argue the issue of proportionality under article 8, added: 54. The court does not accept that the grant of the right to the occupier to raise an issue under article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 observed . , it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings. The minority observation which the European Court approved appears in these terms in Lord Binghams speech [2006] 2 AC 465, para 29: I do not accept, as the appellants argued, that the public authority must from the outset plead and prove that the possession order sought is justified. That would, in the overwhelming majority of cases, be burdensome and futile. It is enough for the public authority to assert its claim in accordance with domestic property law. If the occupier wishes to raise an article 8 defence to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if, and to the extent that, it is called upon to do so. In the overwhelming majority of cases this will be in no way burdensome. In rare and exceptional cases it will not be futile. The context in both Kay and McCann was one of an absolute common law right to possession of property, to enforcement of which the article 8 right to respect for the home might sometimes represent an obstacle. In contrast, as Lord Bingham noted in Huang [2007] 2 AC 167, para 17, the statutory scheme governing immigration control itself contemplates that a person may fail to qualify under the immigration rules and yet have a valid claim under article 8. A similar exercise of weighing competing interests is required under s.87 of the Extradition Act 2003. Finally, in S v United Kingdom 48 EHRR 1169, the European Court held that the blanket and indiscriminate retention of fingerprints, cellular samples and DNA profiles of persons suspected, but not convicted, of offences, and subject only to a discretion in exceptional circumstances to authorise their deletion, failed to strike a fair balance between the competing public and private interests (paras. 35 and 125). The preferable course is, in my view, to approach the exercise required by article 8 by (a) identifying the relevant facts and on that basis assessing the force of, and then weighing against each other, the considerations pointing in the particular case for and against extradition, and (b) when addressing the nature of the considerations which might outweigh the general public interest in extradition to face trial for a serious offence, doing so in terms which relate to the exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case. But this is very far from saying that any adjudicative exercise which refers to a need in practice for exceptional circumstances or striking and unusual facts in the context of a particular application for extradition is axiomatically flawed. Still less can it be a ground of objection if the expectation that only a small minority of potential extraditees will in practice be able successfully to rely on article 8 to resist extradition proves statistically to be the case as a result of the decisions reached over a period and over the whole range of such cases. What matters in any event is whether, as a result of whatever formulation has been adopted, the adjudicative exercise has been slanted or distorted in a manner which undermines its outcome in any particular case. In the present case, on the facts set out by Laws LJ and Lord Phillips and for the reasons given in relation to those facts by Lord Phillips in para 82 and by Lord Hope in para 93, I am left in no doubt that the balance between public and private interests comes down clearly in favour of Mr Norriss extradition, as serving a pressing social need and being proportionate to the legitimate aim pursued, or, in conclusion, as reflecting an appropriate weighing of the public and private interests engaged, despite the grief and interference with his and his wifes private and family life that extradition will undoubtedly cause. I have read Lord Phillips judgment with its addendum written in the light of King v United Kingdom, and find nothing inconsistent with the way in which I see the matter and in which I have expressed my own reasons for reaching the same conclusion as he does. LORD COLLINS I agree with Lord Phillips that Mr Norris appeal should be dismissed for the reasons he gives. In 1878 the Report of the Royal Commission on Extradition said: it is the common interest of mankind that offences against person and property, offences which militate against the general well being of society, should be repressed by punishment [W]e may reasonably claim from all civilised nations that they shall unite with us in a system which is for the common benefit of all (in Parry, British Digest of International Law, vol 6 (1965), at 805) Some 75 years ago the commentary to the Harvard draft Convention on extradition pointed out: The suppression of crime is recognized today as a problem of international dimensions and one requiring international co operation The State, whose assistance is requested, should view the request with favor, if for no other reason, because it may soon be in the position of requesting similar assistance [T]he most effective deterrent to crime is the prompt apprehension and punishment of criminals, wherever they may be found. For the accomplishment of these purposes States cannot act alone; they must adopt some effective concert of action (Harvard Research in International Law, 1935, p 32) This appeal concerns crime of an international character, although with some unusual features. The principal charge in the United States was that of price fixing contrary to the Sherman Act. The 1972 UK US Extradition Treaty (by contrast with the 2003 Treaty, Article 2(4) and Extradition Act 2003, section 137(3)) applied only to offences committed within the jurisdiction of the other Party (Article I). Much of Mr Norris alleged conduct was said to have occurred outside the United States (in particular, participation in meetings in Europe, Mexico and Canada to discuss and agree prices), but Morgan Crucible had subsidiaries in the United States which were alleged to be part of the price fixing cartel, and no point on extra territoriality was taken. The basis of the decision of the House of Lords in March 2008 was that price fixing was not a criminal offence in England until the Enterprise Act 2002, and that since it was not a criminal offence when the offence was alleged to have been committed, it was not an extradition offence under the Extradition Act 2003 and therefore there was not the requisite double criminality: Norris v Government of the United States of America [2008] UKHL 16, [2008] AC 920. But the obstruction of justice charges brought against Mr Norris were held to satisfy the double criminality test: if Mr Norris had done in England what he was alleged to have done in the United States he would have been guilty in England of offences of conspiring to obstruct justice or of obstructing justice. The obstruction of justice charges involve conduct outside the United States, but also include allegations that Mr Norris directed an alleged co conspirator to instruct an employee of a United States subsidiary to conceal or destroy incriminating documents, and that he participated in a scheme to prepare false evidence to be given to the United States authorities and to the Grand Jury. The effect of the evidence before the Divisional Court was that, if Mr Norris is convicted on the obstruction of justice charges, it is at the least possible that the judge will have regard to the anti trust violations in sentencing him for obstruction of justice. The Divisional Court, applying Welsh v Secretary of State for the Home Department [2006] EWHC 156 (Admin), [2007] 1 WLR 1281 and R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727, held that this was not contrary to the principle of specialty (also, but less commonly, referred to as speciality): [2009] EWHC 995 (Admin). The principle is reflected in Article XII(1) of the 1972 UK US Extradition Treaty and section 95 of the Extradition Act 2003. The traditional statement of the principle is that a surrendered person will not be tried or punished for any offence other than that in respect of which he has been extradited: Oppenheims International Law, 9th ed Jennings and Watts (1992), vol 2, para 420; Whiteman, Digest of International Law, vol 6 (1968), p 1095 (and at 1100 on non extraditable offences as aggravation). The Divisional Court refused to certify as a question of law of general public importance the question whether it offended the specialty principles if offences which were not extradition offences could be treated as aggravating factors for sentencing purposes. The Appeal Committee of the House of Lords did not give leave to appeal on this point, and it is therefore not before this court. The sole question before this court is whether Mr Norris extradition to the United States is compatible with the Convention rights within the meaning of the Human Rights Act 1998 (Extradition Act 2003, section 87(1)). The same question would have arisen prior to the Extradition Act 2003 as a result of the combined effect of the Human Rights Act 1998, section 6(1), and the discretion of the Home Secretary under the Extradition Act 1989, section 12. The only direct reference to extradition in the Human Rights Convention is the exception to the right to liberty under Article 5(1) for the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition (Article 5(1)(f)). But the extradition process may engage other Convention rights, as the leading judgment in Soering v United Kingdom (1989) 11 EHRR 439 on the responsibility of the requested State under Article 3 dramatically shows. But while the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition it makes it quite clear that successful reliance demands presentation of a very strong case. [T]he removing state will always have what will usually be strong grounds for justifying its own conduct: the great desirability of honouring extradition treaties made with other states: R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, at [24]. In the present case the question is whether, in extraditing Mr Norris to the United States, the United Kingdom would be in breach of its obligation under Article 8 of the Human Rights Convention to respect private and family life. The primary object of Article 8 is to protect the individual against arbitrary action by public authorities, but it is well established that there are, in addition, positive obligations inherent in effective respect for family life. The removal of a person from a country where close members of that persons family are living may amount to an infringement of the right to respect for family life: Boultif vs Switzerland (2001) 33 EHRR 1179, and many other decisions including Y v Russia [2008] ECHR 1585, at [103]. In determining whether interference by a public authority with the rights guaranteed by Article 8(1) is necessary for the purposes of Article 8(2), regard must be had to the fair balance which has to be struck between the competing interests of the individual and of the community as a whole: Keegan vs Ireland (1994) 18 EHRR 342, at [49], and most recently Eberhard and M v Slovenia [2009] ECHR 1976, at [126]. In this case the balance has to be struck in the context of a bilateral extradition treaty providing for the surrender of persons alleged to have committed extraditable crimes. It hardly needs to be said that there is a strong public interest in international co operation for the prevention and punishment of crime. Consequently, the public interest in the implementation of extradition treaties is an extremely important factor in the assessment of proportionality: e.g. R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, at [24]; Wright v Scottish Ministers (No 2) 2005 1 SC 453, at [77]; R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] 1 AC 335, at [24]. As a result, in cases of extradition, interference with family life may easily be justified under Article 8(2) on the basis that it is necessary in a democratic society for the prevention of crime: HG v Switzerland, Application 24698/94, September 6, 1994 (Commission). In Soering v United Kingdom (1989) 11 EHRR 439 at [89] the Strasbourg Court said: inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition More recently the Court, in calan v Turkey (2005) 41 EHRR 45, re affirmed what had been said in Soering and added (at [86]): The Convention does not prevent cooperation between States, within the framework of extradition treaties or in matters of deportation, for the purpose of bringing fugitive offenders to justice, provided that it does not interfere with any specific rights recognised in the Convention It is inherent in the extradition of a citizen of the requested state that it is almost certain to involve an interference with family life, and that it is why it has been said that it is only in exceptional circumstances that extradition to face trial for serious offences in the requesting state would be an unjustified or disproportionate interference with family life: Launder v United Kingdom (1997) 25 EHRR CD67, at [3]; and cf Raidl v Austria (1995) 20 EHRR CD114, at 123. See also R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin), at [40] [41]. This approach has been confirmed in the recent admissibility decision in King v United Kingdom, Applicn 9742/07. The public interest in the prevention and suppression of crime, which includes the public interest in the United Kingdoms compliance with extradition arrangements, is not outweighed by the mutual dependency and the ill health, both physical and mental, of Mr and Mrs Norris. Lord Phillips has dealt with the question whether it is relevant whether a prosecution for the alleged offences could be brought in the requested State. It was treated as a factor in Soering v United Kingdom at para 110. In the admissibility decision in King v United Kingdom, Applicn 9742/07, the Court confirmed that considerations as to whether prosecution existed as an alternative to extradition might have a bearing on whether the extradition would be in violation of Convention rights. The point has also arisen in Ahsan v United Kingdom [2009] ECHR 362, a case involving a request by the United States for extradition to answer charges for alleged terrorist offences, in which the Strasbourg court has asked the parties for submissions on the relevance, if any, which is to be attached to the applicants submission that he could and should be tried in the United Kingdom. Although the point does not arise for decision on this appeal, it will not normally be relevant, for the reasons given by Lord Phillips, that a prosecution could be brought in the United Kingdom. LORD KERR I agree that this appeal should be dismissed. The centrepiece of the appellants case is that the importance to be attached to the need for an effective system of extradition should only be assessed by reference to the particular circumstances of an individual case. Thus, the question becomes, would the decision not to extradite this person because of interference with his Article 8 rights cause unacceptable damage to the public interest. I do not accept this argument. The specific details of a particular case must obviously be taken into account but recognition of a wider dimension is also required. In other words, it is necessary to recognise that, at some level of abstraction or generality, the preservation and upholding of a comprehensive charter for extradition must be maintained. The question cannot be confined to an inquiry as to the damage that an individual case would do to the system of extradition. It must be approached on a broader plane. It should also be recognised that the public interest in having an effective extradition system extends beyond deterrence of crime. It also embraces the need for effective prosecution of offenders see Soering v United Kingdom (1989) EHRR 439, para 89. Although the appellant argued that the Divisional Court, while disavowing an exceptionality approach, in fact applied such a test in a somewhat re cast form, that claim does not survive careful consideration of what the Divisional Court actually said. The Divisional Court did not impose an exceptionality requirement. It merely reflected the significant difficulty involved in displacing the substantial consideration of the need for a coherent and effective system of extradition. Mr Perry QCs principal argument was to the effect that the public interest in preserving a workable and effective system of extradition was unalterable and constant. I would be disposed to accept that argument provided constant is understood in this context to mean that it will always arise. I do not accept that it will be of unvarying weight in every case. It will always be a highly important factor but there will be some cases where its importance will be properly assessed as overwhelming. Recognition of the fact that this will always be an important consideration does not create an exceptionality requirement, however; it merely reflects the reality that this is an unchanging feature of the extradition landscape. Sedley LJ was therefore right in AG (Eritrea) v Secretary of state for the Home Department [2007] EWCA Civ 801; [2008] 2 All ER 28 when he said at para 31 that the circumstance that article 8 claims will rarely be successful is one of result rather than a reflection of an exceptionality requirement. While it will be, as a matter of actual experience, exceptional for article 8 rights to prevail, it seems to me difficult, in light of Huang v Secretary of State for the Home Department [2007] 2 AC 167, to revert to an exceptionality test a test which, at times, Mr Perry appeared to invite us to rehabilitate. But it is entirely possible to recognise that article 8 claims are only likely to overcome the imperative of extradition in the rarest of cases without articulating an exceptionality test. This message does not depend on the adoption of a rubric such as striking or unusual to describe the circumstances in which an article 8 claim might succeed. The essential point is that such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any article 8 argument. This merely reflects the expectation of what will happen. It does not erect an exceptionality hurdle. I accept Mr Sumption QCs argument that the starting point must be that article 8 is engaged and that it is then for the state to justify the interference with the appellants rights. But, because of the inevitable relevance of the need to preserve an effective extradition system, that consideration will always loom large in the debate. It will always be a weighty factor. Following this line, there is no difficulty in applying the approach prescribed in para 12 of EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159. On this analysis the individual facts of each case can be evaluated but that evaluation must perforce be conducted against the background that there are substantial public interest arguments in play in every extradition case. That is not an a priori assumption. It is the recognition of a practical reality. There is nothing about the facts of this case that distinguishes it significantly from most cases of extradition, or indeed from most cases of white collar crime. If Mr Norris were prosecuted in this country, no doubt many of the fears, apprehensions and effects on his and his wifes physical and mental health would accrue in any event. The added dimension of having to face trial and possible incarceration in America is, of course, a significant feature but not substantially more so than in many other cases of extradition. The only matter of moment is the delay that has occurred from the time that extradition was first sought but, as has been pointed out, this was to some extent created by the actions of the appellant himself and is, in any event, not of sufficient significance that it cannot be outweighed by the need to preserve effective extradition. |
This is the judgment of the Supreme Court. The principal issues in this appeal are whether a civil court (the court) has power to strike out a statement of case as an abuse of process after a trial at which the court has held that the defendant is liable in damages to the claimant in an ascertained sum and, if so, in what circumstances such a power should be exercised. The driving force behind the appeal is the defendants liability insurers, who say that fraudulent claims of the kind found to exist here are rife and should in principle be struck out as an abuse of the courts process under CPR 3.4(2) or under the inherent jurisdiction of the court. The facts and judgment at first instance The claimant was born on 16 June 1976. On 13 May 2003, while employed by the defendant, he was injured in an accident at work. He fell from a stacker truck and suffered both a fractured scaphoid bone in his right hand and a comminuted fracture of his left calcaneum, or heel bone. On 28 October 2003, the defendant admitted liability through its insurers. On 10 May 2006 the claimant issued a claim form which alleged breach of duty or negligence on the part of the defendant but did not contain detailed particulars of quantum. On 7 July 2006 the defendant applied for permission to withdraw the admission of liability after seeing medical records which appeared to cast doubt on the claimants account of the accident. In March 2007 the defendant served an amended defence on liability. On 28 August 2007, after trial, His Honour Judge Tetlow (the judge) gave judgment for the claimant on liability, with damages to be assessed. He made an interim award of 2,000 on account of costs. The defendant subsequently made a voluntary interim payment of 10,000 on account of damages. On 4 October 2007 the defendant for the first time obtained images of the claimant by means of undercover surveillance. Until then the defendants case had not been based upon abuse of process. On 5 October 2007 the claimant signed a witness statement which included the assertion that he was not able to stand for more than 10 to 15 minutes. The defendant continued to subject the claimant to undercover surveillance, the last such surveillance being on 25 September 2008. On 17 November 2008 the parties orthopaedic experts met and prepared a joint statement without either expert seeing the surveillance videos. On 9 December 2008 the claimant served his first schedule of loss. It was in the sum of 838,616. On 23 December 2008 the defendant disclosed the surveillance evidence to the claimant and served a re amended defence alleging that the claimants claim was grossly and dishonestly exaggerated and asserting that it should be struck out in its entirety. Detailed particulars of the dishonesty were given. The defendant also served a counter schedule setting out a secondary case on quantum. On 29 January 2009 the claimant made a Part 36 offer to settle for 190,200. On 9 February 2009 the orthopaedic experts, who had by now seen the surveillance material, met again and prepared a second joint statement. In May 2009 the Department of Work and Pensions (DWP) disclosed surveillance showing the claimant apparently working without difficulty in 2009. On 29 June 2009 the claimant served a second schedule of loss valuing the claim at 250,923. He made a Part 36 offer to settle for 150,000. On 22 July 2009 the trial of quantum was adjourned because of the DWP disclosure. On 24 November 2009 the claimants solicitors invited the defendant to attend a joint settlement meeting but the defendant declined to do so. On 14 December 2009 the claimant served a third schedule of loss in almost the same sum as the second schedule. The claim was put at 251,481. All the claimants pleadings and schedules of loss were supported by statements of truth. That claim was maintained at the trial which took place between 25 and 27 January 2010. In the light of the joint statement, neither of the orthopaedic experts was called to give oral evidence and the surveillance evidence was not challenged. Indeed, the principal, if not the only, witness to give oral evidence was the claimant. There was however a good deal of written medical evidence before the judge, together with extracts from the claimants wifes diary which appeared to show him working and playing football. On 23 February 2010 the judge handed down a 27 page judgment which analysed the facts and the issues in considerable detail and with impressive clarity. The critical findings of facts are set out in paras 54 to 61 as follows: 54. Having rehearsed the evidence at some length it is time to come to some conclusions. Firstly as to the nature and extent of the disability caused by the injury. There is no doubt that the Claimant suffered a fracture of the right scaphoid and a serious ankle fracture which required at least two operations for an arthrodesis. The schedule of loss prepared on 9th December 2008 and signed with a statement of truth by the Claimant maintained the Claimant was at that date still in constant pain taking pain killers, needing to use crutches outside and to wear an ankle brace at all times. Standing and sitting was limited due to pain; he was still suffering psychiatrically from the effects of the accident. He had not worked since the accident and was unlikely to do so for the 55. foreseeable future. In the light of the surveillance evidence the subsequent two schedules opted for a sum of 30,000 instead of the original 47,500 put forward for general damages. Further the loss of earnings in the second schedule of the 19th June 2009 ran up to 13th October 2008 only, in effect accepting that the orthopaedic experts' conclusion as to the Claimant's fitness for work was correct. That said the Claimant by his evidence does not accept that that is correct and that position was maintained from the witness box. I am prepared to accept that the Claimant's ankle injury was sufficiently serious as to require the first arthrodesis; further that the first operation failed necessitating the second one. Although I accept in the light of subsequent events that the second operation also failed to create complete fusion, the result of that second operation was to render the Claimant asymptomatic to all intents and purposes as is disclosed by the surveillance videos from October 2007 onwards. I can accept as Messrs O'Connor and Hodgkinson conclude that the Claimant would not be fit for heavy work and would find walking over uneven ground uncomfortable but those are the only outstanding disabilities. I can also accept their conclusion that the Claimant would have been weight bearing without crutches within six months of the second operation i.e. by March 2007. Since the Claimant was clearly fit for work in early October 2007 I conclude that the Claimant was fit for work some months earlier than that and capable of getting a job including a job as a site supervisor as he had pre accident, that not being heavy work. I conclude that the time when the Claimant was fit and should have got back to work as being at the end of June 2007. I accept that he would not have been able to work before then. There is no evidence that the ankle even though not properly fused was likely to give rise to problems in the future. 56. Although the Claimant was not fit for work between the date of the accident and the end of June 2007, in my judgment, I do not conclude he was in that period as housebound and incapable of activity as the Claimant maintains. The recorded incident of June 2003 of the Claimant, upset at being told that the effects of the injury might be permanent, going out to the pub to drown his sorrows demonstrates greater agility than the Claimant maintains and sounds more probable than the Claimant's now explanation that it all happened at home. It is rather similar to the Claimant's curious denial of having been convicted of an offence. 57. I have also concluded that the psychiatric problems alluded to by the psychiatrist were genuine initially and were materially contributed to by the effects of the accident. I agree with the conclusion of Dr Wood with which Dr Thomas does not appear to disagree that such problems had settled to all intents and purposes by about June 2007. It is interesting that that conclusion was come to in ignorance of what the surveillance evidence showed. That ties in nicely with my conclusion as to when the Claimant was able to resume and should have resumed work. 58. Those conclusions must mean that I reject what the Claimant said to his treating doctors and the medical experts as to ongoing symptoms in and after March 2007. I do so because; (a) What is seen on the video tapes is absolutely inconsistent with such disabilities; it is also absolutely inconsistent with what is contained in the DWP application form. (b) The Claimant's explanation that when he was being filmed he was taking strong pain killers in order to force himself with the object of getting back into work is just not credible in particular when he is seen on two separate occasions going to and from two separate medical experts' consulting rooms without crutches when leaving and returning home and with crutches when entering and leaving the doctors premises. (c) The Claimant's wife's diary belies any such protestation of ongoing symptoms. 59. The evidence before me is sufficiently cogent to sustain a claim of fraud not only applying the civil standard of being satisfied on the balance of probabilities but also on the criminal standard of being satisfied beyond reasonable doubt insofar as that standard is materially different when allegations of fraud are made. In my judgment the Claimant has deliberately lied to the medical men and to the Department of Work and Pensions on the application form when he said he had ongoing symptoms after March 2007. The Claimant was clearly able to work without difficulty or pain when filmed in October 2007 driving and loading a van with kitchen fitting components and again in 2009 when filmed with the mobile food van. His wife's diary confirms he was working at various other times. I can only infer he was working for reward; the diary confirms such a conclusion; the explanations of helping out for free, of pushing himself and of learning the business of a mobile food van with a view to purchase is deliberate falsehood and an attempt to explain away what cannot be explained away. Messrs O'Connor and 60. 61. Hodgkinson's final opinion already referred to is in my judgment absolutely right. I am not able to say on what days the Claimant was gainfully employed but that matters not. He was fit for work and able to get work and was in a position to do so, as I have found, since the end of June 2007. I am also satisfied that the Claimant was able to do cooking, washing and other housework and most activities involving DIY and decorating by March 2007 when Mr Hodgkinson considered the Claimant no longer needed crutches. Any residual disability as regards DIY and decorating would have ceased by the end of June 2007. He was certainly fit enough to play football by early 2009. It is urged upon me that the third arthrodesis is attributable to the accident. In my judgment it is not. It is attributable to the lies he told Mr Dalal that he was in continuous horrible pain; there can be no doubt that if he had told Mr Dalal the truth namely that he was to all intents and purposes better the surgeon would never have advised him to undergo a further procedure. The Claimant has got stuck with his own lie; had he told the truth he would be admitting this claim is grossly exaggerated and that he has been claiming benefits under false pretences; this he is not prepared to do as is evidenced by his testimony before me, false as I find, that he is still in pain and needing to use crutches. In para 62 the judge rejected the claimants evidence that he suffered psychiatric problems after June 2007, except in January 2009 when he was distraught at having been found out. The judge further rejected any suggestion that any such illness then was caused by the accident. In para 63 he allowed the loss of earnings claim for the period from the date of the accident to 30 June 2007. In para 64 he rejected the claimants evidence as to the prospects of promotion. He did so on the basis that, in the light of the unreliability of the claimants evidence, he would not accept that there were such prospects in the absence of independent evidence. He accordingly found no future loss. At para 65, for similar reasons he refused to make a Smith v Manchester award. He held that the claimant was at no greater disadvantage in the open labour market than he had been before the accident. He so held on the basis that it behoved the claimant to prove such a disadvantage and that he had only himself to blame for failing to do so. As to care, he analysed the figures in some detail in para 66 and again said that, if he had been less than generous to the claimant, the claimant had only himself to blame. He reached similar conclusions as to services, DIY and decorating in paras 67 and 68. In short, it is plain from the judgment that, because of the behaviour of the claimant and the unreliability of his evidence, the judge drew a series of inferences adverse to him. It was not suggested that the judge was not entitled to do so. Indeed none of his conclusions is challenged in this appeal. It seems almost certain that, if the claimant had advanced an honest claim and given reliable evidence, the measure of damages would have been greater, perhaps significantly greater, than found by the judge. As to general damages, by the time of the trial the claimant had reduced the figure he had originally contended for to 30,000. The defendant argued for 10,000. The judge awarded 18,500. The parties subsequently agreed that, on the basis of the judges findings of fact, namely that he was fit to return to work by the end of June 2007, the claimants loss of earnings caused by the accident was 63,776.76. In addition care and assistance were assessed at 5,400 and other services at 1,040. The total figure found by the judge was thus 88,716.76 before deduction of various benefits and the interim payment of 10,000. At the end of his principal judgment the judge noted in para 72 that the defendant wished to argue that the court had power to strike out the claim on the ground that it was tainted by fraud and was an abuse of process and that Ul Haq v Shah [2009] EWCA Civ 542; [2010] 1 WLR 616, which was followed in November 2009 by Widlake v BAA Limited [2009] EWCA Civ 1256 (Widlake v BAA), was wrongly decided. The judge further noted that it was recognised on behalf of the defendant that those decisions were both binding on him. At a subsequent hearing on 16 April 2010 the judge granted permission to appeal on the basis that there was a real prospect that this court would take a different view from the Court of Appeal in those two cases. He contemplated that the Court of Appeal would dismiss the appeal leaving the defendant to take his chances here. The judge also granted a stay of the order in favour of the claimant pending appeal. At the hearing in 16 April the judge heard argument on interest and costs and considered an application on behalf of the defendant for permission to commence contempt proceedings against the claimant. As appears below, in our opinion, his decisions in these respects are of some significance in resolving the issues in this appeal. It is important to note that the defendant did not challenge any of those decisions in its appeals to the Court of Appeal or to this court. As to interest, it was contended on behalf of the defendant that no interest should be awarded on general or special damages after 30 June 2007. It relied on the finding that the claimant had lied about the extent of his injuries, about his ability to work and about his need for care and assistance. It further relied upon the fact that the claimant maintained the lie up to and during the trial. The judge accepted the defendants submissions as to the claimants behaviour but nevertheless awarded interest over the whole period. The judge set out the position relating to the claimants Part 36 offers and noted that the defendant did not make a Part 36 offer of its own. He also observed that the defendant refused to attend a joint settlement meeting saying that its attendance would not change its position regarding the dishonest and fraudulent behaviour of the claimant. While recognising that the claimant maintained his dishonest stand in his later witness statement and at trial, the judge had regard to the fact that his solicitors were taking a realistic position as to the courts likely findings and were willing to negotiate on that basis. The defendant, on the other hand, was not willing to negotiate because it wanted more out of the litigation than a settlement, which would probably have been on advantageous terms both as to quantum and as to costs. In particular it wanted an opportunity of persuading the Supreme Court to strike out the whole claim. The judge held that, as a result, the claimant was locked in, he had a valid claim and discontinuance was not a sensible option. He found that in these circumstances the claimants lies as to continuing disability did not affect the defendants attitude to negotiation or settlement. He referred to the law as stated in Ul Haq v Shah and, in the exercise of his discretion, directed that the claimant should have interest on the damages to which the court had held he was entitled over the whole period. As to costs, the defendants primary submission before the judge was that the claimant should pay all the defendants costs from the date of the judgment on liability. In the alternative it contended for no order for costs on the basis that the claimants fraudulent conduct had increased the costs. The judge correctly directed himself as to the relevant principles by reference to the decision of the Court of Appeal in Widlake v BAA and in particular to paras 36 to 44 of the judgment of Ward LJ, with whom Smith and Wilson LJJ agreed. He identified these five propositions as relevant to this case. (1) If, as here, the conduct of the claimant is unreasonable the court must take it into account. (2) As regards such conduct, the court should principally enquire into its causative effect. To what extent did the claimants lies and gross exaggeration cause costs to be incurred or wasted? (3) In addition, the court is entitled in an appropriate case to say that the conduct is so egregious that a costs penalty should be imposed on the offending party. There is, however, a considerable difference between a concocted claim and an exaggerated claim and the court must be astute to measure how reprehensible the conduct is. (4) Defendants have the means of defending themselves against false or exaggerated claims by making a Part 36 offer. (5) Where the facts are well enough known for the defendant to make a Part 36 offer, failure to make a sufficiently high offer counts against the defendant. At para 13 of his second judgment the judge summarised the principal factors in this way. If the claimant had come clean there would have been an earlier trial on quantum. The claimant persisted in his lies up to and including trial. On the other hand, unbeknown to the claimant, by October 2007 the defendant knew that he was grossly exaggerating his disability. The judge said that he understood that the defendant would wish to obtain further evidence to demonstrate the claimants falsity rather than prematurely disclose what it had discovered. However he recognised that it could be argued that it should have disclosed the video evidence earlier than January 2009. On the other hand, the defendant did not want to let the claimant off the hook once the video evidence was disclosed, even though the claimant's solicitors were eager to come to terms. It wanted to obtain, as the judge put it, a clarification of or advance in the law. The judge added this at para 13(6): Despite the Defendant's pleas to the contrary the Defendant had the means of assessing the true value of the Claimant's claim so soon as they got the video evidence in October 2007 and by obtaining as they did further medical advice from Mr Hodgkinson. The Defendant was not deflected from ascertaining the true position by the Claimant's continued lies. They saw through them. The Claimant was living in a fools paradise until January 2009. Thereafter his continued denials of recovery fooled no one; it is difficult to tell why he did so; it may be he could not bring himself to own up in part because of the action of the Department of Work and Pensions in investigating his benefit fraud and the Defendant's insurers reporting the Claimant's dishonesty to the police; that is speculation since I do not know when the Claimant became aware of such investigations or complaints. The judge further added that, in spite of the claimants solicitors wishing to negotiate and making Part 36 offers, which in the event were too high, the defendant was not willing to negotiate and deliberately decided not to make any counter offer when it could have done so. As a result, although the claimants dishonesty caused the proceedings to be extended, the defendant by its own choice caused them to take longer to get to trial and to end in a trial by their refusal to negotiate with a view to settlement, which would in all probability have been achieved if the defendant had been willing to take part in negotiations. Moreover the defendant was not fooled by the claimants dishonesty. The judge ordered the defendant to pay the claimants costs up to February 2008, save that the claimant was to pay the defendants costs of obtaining the surveillance evidence. He made no order for costs after March 2008. The defendant has not challenged the judges decision on interest or costs on appeal. Nor has it challenged the judges refusal to give it permission to bring proceedings for contempt against the claimant. As to contempt, by CPR 32.14(1), proceedings for contempt may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. However, by CPR 32.14(2), such proceedings may only be brought by the Attorney General or with the permission of the court. The judge held at para 18 that, given his findings, there was a strong prima facie case for believing that the defendant would be able to show that the claimant was guilty of contempt to the criminal standard. He added that the same was true of the criminal offences of attempting to pervert the course of justice, or to obtain property or a pecuniary advantage by deception. The only question was whether it was in the public interest that these proceedings should be brought to an end or whether the court should exercise its discretion to give the permission sought. He held that it was not in the public interest. He took into account broadly the same considerations as led him to his conclusions on interest and costs. He further noted that the claimants wrongdoing had been publicly recognised by the judgment in the action. Finally he said that, if the defendant was dissatisfied, it (or the insurers) could try to persuade the Attorney General to take up the baton. So far as we are aware, no such attempt was made. We were informed that the CPS considered whether to prosecute the claimant but concluded that it was not in the public interest to do so. The Court of Appeal The appeal to the Court of Appeal came on before Ward and Smith LJJ on 7 October 2010. They held that they were bound by Ul Haq v Shah and Widlake v BAA to hold that the court had no power to strike out the claim in its entirety. The Court of Appeal refused permission to appeal to this Court, which subsequently granted it. Jurisdiction As stated at the outset, it was submitted on behalf of the defendant that the court has power to strike out the claim both under CPR 3.4(2) and under its inherent jurisdiction. CPR 3.4(2) provides: The court may strike out a statement of case if it appears to the court a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order. Attention was also drawn, both to the overriding objective stated in CPR 1.1 and 1.2 that the court must deal with cases justly, and to the courts general powers of case management in CPR 3.1(2), which includes a power in CPR 3.1(2)(m) to take any other step or make any other order for the purpose of managing the case and furthering the overriding objective. It was submitted that under those rules the court has ample power to strike out the claimants claim as an abuse of process. It was further submitted that CPR 3.4(2) should be seen as a codified expression of the pre existing inherent jurisdiction to strike a claim out as an abuse of process. It was correctly accepted on behalf of the claimant that, in making false statements of truth which he knew to be false and in presenting a dishonest case as to the effect of his injuries and on quantum, he was guilty of a serious abuse of process. It was initially submitted on his behalf that there was nevertheless no power to strike the claim out for the reasons given by the Court of Appeal in Ul Haq v Shah and Widlake v BAA. In the alternative, it was submitted either that the court has no power, or that it would be wrong in principle, for the court to strike the claim out after a trial at which the court has held that a defendant is liable to the claimant in an ascertained sum. In the further alternative, it was submitted that the court should not strike the claim out on the facts of this case. Reliance was placed in particular upon Ul Haq v Shah and Widlake v BAA. In Ul Haq v Shah there had been a collision between a car driven by Mr Ul Haq and a car driven by Mrs Shah. Mrs Shah caused the collision by negligently driving into the back of Mr Ul Haqs car. Mr Ul Haq claimed for damage to the car and for minor whiplash injuries. His wife also claimed for minor whiplash injuries. It was common ground that Mr Ul Haq, his wife and their two children were in the car when the accident occurred. However there was an issue as to whether Mr Ul Haqs mother was also in the car. She too made a claim in respect of alleged whiplash injuries. Her claim was defended on the basis that she was not in the car and so could not have suffered whiplash or any injury as a result of the accident. At the trial before the recorder, after hearing evidence from Mr Ul Haq, his wife and his mother, the recorder held that Mr Ul Haq and his wife had suffered injury and awarded each a modest sum. However he held that Mr Ul Haqs mother had not been in the car and that her claim was fraudulent. He dismissed her claim and ordered her to pay costs on an indemnity basis. He concluded that Mr Ul Haq and his wife had conspired to support the fraudulent claim and ordered them to pay two thirds of Mrs Shahs costs. In the result all the claimants incurred a net loss. Before the recorder it was submitted that the claims of Mr Ul Haq and his wife should be struck out as an abuse of the process of the court under CPR 3.4(2). It was conceded on behalf of the claimants that the court had power to make such an order under that rule. The recorder had some doubts as to his jurisdiction but accepted the concession. On an appeal to Walker J, he held that there was power to strike out a genuine claim, even after the trial of an action, but declined to do so. In the Court of Appeal, although it was again conceded that there was such a power, the court disagreed and dismissed the appeal for want of jurisdiction. The principal judgment was given by Smith LJ, with whom Ward and Toulson LJJ agreed. Toulson LJ added a valuable judgment of his own. The case was argued entirely on the basis of CPR 3.4(2). It was not suggested that the substantive rights of Mr and Mrs Ul Haq to damages were affected by their abuse of process in supporting his mothers claim. Smith LJ noted at para 17 that in nearly 40 years experience she knew of no case in which a judge had refused to award damages for a genuine injury on the ground that the claimant had dishonestly sought to exaggerate the injury or its effects. As we read the judgments of Smith and Toulson LJJ, their reasoning can be summarised in this way. It is the policy of the law and the invariable rule that a person cannot be deprived of a judgment for damages to which he is otherwise entitled on the ground of abuse of process (paras 16, 17, 20 and 36). The Court of Appeal rejected the submission that the principles of insurance law should apply in this context. As Toulson LJ explained in para 37, there is a special rule of insurance law that an insured cannot recover in respect of any part of a claim in a case where the claim has been fraudulently exaggerated or where a genuine claim has been supported by dishonest devices: Manifest Shipping Co Ltd v Uni Polaris Insurance Co Ltd [2003] 1 AC 469; Agapitos v Agnew [2003] QB 556; and Axa General Insurance Ltd v Gottlieb [2005] 1 All ER (Comm) 445. The principle relates only to fraudulent insurance claims: see Axa per Mance LJ at para 31. In addition, it is restricted to the period prior to the issue of proceedings: see Manifest Shipping per Lord Hobhouse at para 77 and Agapitos v Agnew per Mance LJ at paras 47 53. In Ul Haq v Shah the submission that the court should not have proceeded to give judgment on the claims but could and should have struck out the whole claim as an abuse of process under CPR 3.4(2)(b) was rejected (para 43). The inclusion of a false claim with a genuine claim or claims does not of itself turn a genuine claim into a false one or justify the striking out of the genuine claim or claims. To do so would be to deprive a claimant of his substantive rights as a mark of disapproval, which the court has no power to do (para 46). It was not a case, like Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167, where the conduct of a litigant put the fairness of the trial in jeopardy, even in the broadest sense, in which case the claim might be struck out as an abuse, but a case in which it was not suggested that there could not be a fair trial of the claims of Mr Ul Haq and his wife (paras 25 28 and 47 49). Further the Court of Appeal said that CPR 3.4 is directed at the control of the process of litigation and is not apt to describe the decision that a judge makes at the end of a trial; at that stage the judge either upholds the claim or dismisses it, he does not strike it out (paras 24 and 29 per Smith LJ). The point was concisely summarised thus by Toulson LJ in the course of para 50: Where, as in this case, there has been a full trial, the proper course for the judge is to give judgment on the issues which have been tried. To have struck out the claims of the first and third claimants would have been to invoke a case management power not for a legitimate case management purpose (in other words, for the purpose of achieving a just and expeditious determination of the parties rights, or avoiding an unjust determination where a partys conduct had made a safe determination impossible), but for the very different purpose of depriving those parties of their legal right to damages by way of punishment for their complicity in the second claimants fraudulent claim, which in my judgment he had no power to do. It was open to him to impose costs sanctions on the first and third claimants, which he did, but that is a different matter. The principles in Ul Haq v Shah were restated by the Court of Appeal in Widlake v BAA. We recognise that there have been many cases in which claimants dishonestly inflate their claims or even, as in the case of Mr Ul Haqs mother, fraudulently invent them. In the last sentence of his judgment referred to above Toulson LJ said that if, as has been suggested, such fraudulent claims have reached epidemic proportions, it may be that prosecutions are needed as a deterrent to others. We see the force of that. The first question in this appeal, however, is whether we should decline to follow Ul Haq v Shah and hold that there is power to strike out a claim under CPR 3.4(2), even where there has been a trial of an action and, as here, the judge has been able fairly to assess the damages. It is striking that there is no appeal from the judges assessment of the claimants damages, namely 88,716.76. Nor, as explained above, is there any appeal from the judges decisions on interest or costs, or indeed from his decision refusing the defendants application for permission to take proceedings against the claimant for contempt. We have reached the conclusion that, notwithstanding the decision and clear reasoning of the Court of Appeal in Ul Haq, the court does have jurisdiction to strike out a statement of case under CPR 3.4(2) for abuse of process even after the trial of an action in circumstances where the court has been able to make a proper assessment of both liability and quantum. However, we further conclude, for many of the reasons given by the Court of Appeal, that, as a matter of principle, it should only do so in very exceptional circumstances. We are conscious of the fact that there are now many cases decided since the advent of the CPR where it has been held that the court should approach the CPR as a code and that it should decline to have regard to decisions under the RSC. However, this is an exceptional class of case and it seems to us that it is appropriate to have regard to the way in which the inherent jurisdiction of the court was exercised in cases of abuse of process before the CPR came into force. The pre CPR authorities established a number of propositions as follows: i) The court had power to strike out a claim for want of prosecution, not only in cases of inordinate and inexcusable delay which caused prejudice to the defendant, but also where the court was satisfied that the default was intentional and contumelious, eg disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court: Birkett v James [1978] AC 297 per Lord Diplock at p 318F G. In the latter case it was not necessary to show that a fair trial was not possible or that there was prejudice to the defendant. See also, for example, Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426, per Lord Woolf MR (with whom Waller and Robert Walker LJJ agreed) at p 1436H. ii) In a classic, much followed, statement in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Lord Diplock described the courts power to deal with abuse of process thus at p 536C: This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power. iii) The court had power to strike out a claim on the ground of abuse of process, even though the effect of doing so would be to extinguish substantive rights. It follows from the conclusion in Birkett v James that the court could strike out a claim as an abuse of process for intentional and contumelious conduct amounting to an abuse of the process of the court without the necessity to show prejudice that the fact that a strike out might extinguish substantive rights is not a bar to such an order. iv) Although it appears clear that in the vast majority of cases in which the court struck out a claim it did so at an interlocutory stage and not after a trial or trials on liability and quantum, the cases show that the power to strike out remained even after a trial in an appropriate case. The relevant authorities, such as they are, were considered by Colman J in National Westminster Bank plc v Rabobank Nederland [2006] EWHC 2959 (Comm), where he summarised the position thus in paras 27 and 28: 27. In my judgment, there can be no doubt that the court does have jurisdiction to strike out a claim or any severable part of a claim of its own volition whether immediately before or during the course of a trial. This is clear from the combined effect of CPR 1.4, 3.3 and 3.4 as well as 3PD 1.2, and by reason of its inherent jurisdiction. 28. However, the occasion to exercise this jurisdiction after the start of the trial is likely to be very rare. The normal course will be for all applications to strike out a claim or part of a claim on the merits to be made under CPR 3.4 or 24.2 and determined well in advance of the trial. v) We agree with Colman J. His conclusions are consistent with Glasgow Navigation Co v Iron Ore Co [1910] AC 293, Webster v Bakewell RDC (1916) 115 LT 678, Harrow LBC v Johnstone [1997] 1 WLR 459, Bentley v Jones Harris & Co [2001] EWCA Civ 1724 per Latham LJ at para 75 and The Royal Brompton Hospital NHST v Hammond [2001] EWCA Civ 550; [2001] Lloyds Rep PN 526, per Clarke LJ at paras 104 109, especially at para 107. As we see it, the present position is that, whether under the CPR or under its inherent jurisdiction, the court has power to strike out a statement of case at any stage on the ground that it is an abuse of process of the court, but it will only do so at the end of a trial in very exceptional circumstances. Some assistance is to be derived from Masood v Zahoor [2009] EWCA Civ 650, [2010] 1 WLR 746, where the judgment of the Court of Appeal (comprising Mummery, Dyson and Jacob LJJ) was given by Mummery LJ. It had been argued that the judge should have struck the claim out as an abuse of process on the ground that some at least of the claims were based on forged documents and false written and oral evidence. The Court of Appeal referred extensively to the decision of the Court of Appeal in Arrow Nominees Inc v Blackledge and held at para 71 that it was authority for the proposition that, where a claimant is guilty of misconduct in relation to proceedings which is so serious that it would be an affront to the court to permit him to continue to prosecute his claim, then the claim may be struck out for that reason. It noted that in the Arrow case, the misconduct lay in the petitioners persistent and flagrant fraud whose object was to frustrate a fair trial. It held that the question whether it is appropriate to strike out a claim on this ground will depend on the particular circumstances of the case. It added that it was not necessary to express any view as to the kind of circumstances in which (even where the misconduct does not give rise to a real risk that a fair trial will not be possible) the power to strike out for such reasons should be exercised. It then referred to what this Court agrees is a valuable discussion by Professor Zuckerman in a note entitled Access to Justice for Litigants who Advance their case by Forgery and Perjury in (2008) 27 CJQ 419. The Court of Appeal expressed its conclusions of principle as follows: 72. We accept that, in theory, it would have been open to the judge, even at the conclusion of the hearing, to find that Mr Masood had forged documents and given fraudulent evidence, to hold that he had thereby forfeited the right to have the claims determined and to refuse to adjudicate upon them. We say in theory because it must be a very rare case where, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way. 73. One of the objects to be achieved by striking out a claim is to stop the proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined. Once the proceedings have run their course, it is too late to further that important objective. Once that stage has been achieved, it is difficult see what purpose is served by the judge striking out the claim (with reasons) rather than making findings and determining the issues in the usual way. If he finds that the claim is based on forgeries and fraudulent evidence, he will presumably dismiss the claim and make appropriate orders for costs. In a bad case, he can refer the papers to the relevant authorities for them to consider whether to prosecute for a criminal offence: we understand that this was done in the present case. In para 74 the Court of Appeal stressed the importance, if possible, of making an application to strike out at an early stage in order to preserve court resources and save costs. However, it also appreciated that in a complex case it might not be possible to avoid a full trial. It appears to us that the approach identified in paras 71 74 of Masood v Zahoor is somewhat different from that in Ul Haq v Shah. It recognises the possibility of striking out a claim at the end of a trial, whereas, as we read Ul Haq v Shah, it was there held that such a course was not permissible. We prefer the approach of Masood v Zahoor. We can summarise what we see as the correct approach in this way. The language of the CPR supports the existence of a jurisdiction to strike a claim out for abuse of process even where to do so would defeat a substantive claim. The express words of CPR 3.4(2)(b) give the court power to strike out a statement of case on the ground that it is an abuse of the courts process. It is common ground that deliberately to make a false claim and to adduce false evidence is an abuse of process. It follows from the language of the rule that in such a case the court has power to strike out the statement of case. There is nothing in the rule itself to qualify the power. It does not limit the time when an application for such an order must be made. Nor does it restrict the circumstances in which it can be made. The only restriction is that contained in CPR 1.1 and 1.2 that the court must decide cases in accordance with the overriding objective, which is to determine cases justly. Under the CPR the court has a wide discretion as to how its powers should be exercised: see eg Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926. So the position is that the court has the power to strike out a statement of case for abuse of process but at the same time has a wide discretion as to which of its many powers to exercise. The position is the same under the inherent jurisdiction of the court, so that in the future it is sufficient for applications to be made under the CPR. We can see no reason why the conclusion reached should be any different, whether the application is made under the CPR or the inherent jurisdiction of the court. We agree with the Court of Appeal in Masood v Zahoor at para 72 quoted above that, while the court has power to strike a claim out at the end of a trial, it would only do so if it were satisfied that the partys abuse of process was such that he had thereby forfeited the right to have his claim determined. The Court of Appeal said that this is a largely theoretical possibility because it must be a very rare case in which, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way. We agree and would add that the same is true where, as in this case, the court is able to assess both the liability of the defendant and the amount of that liability. We have considered whether the possibility is so theoretical that it should be rejected as beyond the powers of the court. However it was ultimately accepted on behalf of the claimant that one should never say never. Moreover we are mindful of Lord Diplocks warning in Hunter quoted at para 35 above that it would be unwise to limit in advance the kinds of circumstances in which abuse might be found. See also the speech of Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1, at 31. It was submitted that an ascertained claim for damages could only be removed by Parliament and not by the courts. We are unable to accept that submission. It is for the court, not for Parliament, to protect the courts process. The power to strike out is not a power to punish but to protect the courts process. The European Convention on Human Rights The right to a fair and public hearing in the determination of civil rights is enshrined in Article 6 of the European Convention on Human Rights (ECHR). The right includes a right of access to a court: Golder v United Kingdom (1975) 1 EHRR 524. The court must act compatibly with Article 6: Human Rights Act 1998 section 6(1). The court is of course itself a public authority: section 6(3). The right of access is not absolute: Golder at para 38. In Ashingdane v United Kingdom (1985) 7 EHRR 528 the European Court of Human Rights accepted at para 57 that the right might be subject to limitations. Contracting States enjoy a margin of appreciation. However, the essence of the right of access must not be impaired, any limitation must pursue a legitimate aim and the means employed to achieve the aim must be proportionate. In the instant case the claimant obtained judgment on liability for damages to be assessed. We accept that that judgment is a possession within the meaning of Article 1 Protocol 1 of the ECHR and that the effect of striking out his claim for damages would be to deprive him of that possession, which would only be permissible if in the public interest and subject to the conditions provided for by law The State has a wide margin of appreciation in deciding what is in the public interest, but is subject to the principle of proportionality: Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301 at paras 31 39. It is in the public interest that there should be a power to strike out a statement of case for abuse of process, both under the inherent jurisdiction of the court and under the CPR, but the Court accepts the submission that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly. The exercise of the power As noted at para 42 above, the court has a wide discretion as to how to exercise its case management powers. These include the power to strike out the whole or any part of a statement of case at whatever stage it is made, even if it is made at the end of the trial. However the cases stress the flexibility of the CPR: see eg Biguzzi per Lord Woolf MR at p 1933B, Asiansky Television v Bayer Rosin [2001] EWCA Civ 1792; [2002] CPLR 111 per Clarke LJ at para 49 and Aktas v Adepta [2010] EWCA Civ 1170, [2011] QB 894, where Rix LJ said at para 92: Moreover, it should not be forgotten that one of the great virtues of the CPR is that, by providing more flexible remedies for breaches of rules as well as a stricter regulatory environment, the courts are given the powers and the opportunities to make the sanction fit the breach. That is the teaching of one of the most important early decisions on the CPR to be found in Biguzzi v Rank Leisure plc. The draconian step of striking a claim out is always a last resort, a fortiori where to do so would deprive the claimant of a substantive right to which the court had held that he was entitled after a fair trial. It is very difficult indeed to think of circumstances in which such a conclusion would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small. It was submitted on behalf of the defendant that it is necessary to use the power to strike out the claim in circumstances of this kind in order to deter fraudulent claims of the type made by the claimant in the instant case because they are all too prevalent. We accept that all reasonable steps should be taken to deter them. However, there is a balance to be struck. To date the balance has been struck by assessing both liability and quantum and, provided that those assessments can be carried out fairly, to give judgment in the ordinary way. The reasons for that approach are explained by the Court of Appeal in both Masood v Zahoor and Ul Haq v Shah. We accept that such an approach will be correct in the vast majority of cases. Moreover, we do not accept the submission that, unless such claims are struck out, dishonest claimants will not be deterred. There are many ways in which deterrence can be achieved. They include ensuring that the dishonesty does not increase the award of damages, making orders for costs, reducing interest, proceedings for contempt and criminal proceedings. A party who fraudulently or dishonestly invents or exaggerates a claim will have considerable difficulties in persuading the trial judge that any of his evidence should be accepted. This may affect either liability or quantum. In the instant case, as explained above, the claimants fraud and dishonesty led the judge to reject his evidence except where it was supported by other evidence. The judge naturally refused to draw any inferences of fact in his favour. It is likely that, if the claimant had told the truth throughout, his damages would have been assessed at a somewhat larger figure than they were in fact. This is often likely to be the case. As to costs, in the ordinary way one would expect the judge to penalise the dishonest and fraudulent claimant in costs. It is entirely appropriate in a case of this kind to order the claimant to pay the costs of any part of the process which have been caused by his fraud or dishonesty and moreover to do so by making orders for costs on an indemnity basis. Such cost orders may often be in substantial sums perhaps leaving the claimant out of pocket. It seems to the Court that the prospect of such orders is likely to be a real deterrent. There was much discussion in the course of the argument as to whether the defendant can protect its position in costs by making a Part 36 offer or some other offer which will provide appropriate protection. It was submitted that a Part 36 offer is of no real assistance because, if it is accepted, the defendant must pay the claimants costs under CPR 36.10. We accept the force of that argument. However, we see no reason why a defendant should not make a form of Calderbank offer (see Calderbank v Calderbank [1976] Fam 93) in which it offers to settle the genuine claim but at the same time offers to settle the issues of costs on the basis that the claimant will pay the defendants costs incurred in respect of the fraudulent or dishonest aspects of the case on an indemnity basis. In Fox v Foundation Piling Ltd [2011] EWCA Civ 790 the Court of Appeal correctly accepted at para 45 that the parties were entitled to make a Calderbank offer outside the framework of Part 36. The precise formulation of such an offer would of course depend upon the facts of a particular case, but the offer would be made without prejudice save as to costs and, unless accepted, would thus be available to the defendant when the issue of costs came to be considered by the trial judge at the end of a trial. The court can also reduce interest that might otherwise have been awarded to a claimant if time has been wasted on fraudulent claims. As to contempt, we do not accept the submission that it cannot be an effective sanction for the kind of behaviour evidenced in this case. We were referred to a number of examples. In South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin) an application was made to commit the defendant to prison for contempt of court on the ground that, having been injured at work as a fireman, he made a false claim that since his accident he had been unable to work. The case thus has some similarities to the instant case. The Divisional Court sentenced him to 12 months imprisonment for the contempt. The sentence was suspended for 12 months on certain terms because of the particular circumstances of the case, notably the delays since the offence. However, the case is of some importance because it set out the general approach of the courts to this type of case. In giving judgment, with which Dobbs J agreed, Moses LJ said this at paras 2 7: 2. For many years the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation. 3. They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest claimants and honest claims, when in response to those claims, understandably those who are liable are required to discern those which are deserving and those which are not. 4. Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, upon transparency and above all upon honesty. The system is seriously damaged by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim, either in relation to liability or in relation to claims for compensation as a result of liability. 5. Those who make such false claims if caught should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims, and there is no other way to improve the administration of justice. 6. The public and advisors must be aware that, however easy it is to make false claims, either in relation to liability or in relation to compensation, if found out the consequences for those tempted to do so will be disastrous. They are almost inevitably in the future going to lead to sentences of imprisonment, which will have the knock on effect that the lives of those tempted to behave in that way, of both themselves and their families, are likely to be ruined. 7. But the prevalence of such temptation and of those who succumb to that temptation is such that nothing else but such severe condemnation is likely to suffice. We have set out those paragraphs verbatim because we agree with them and in order to make clear to all what is the correct approach to contempt of court on the facts of cases such as this. The approach in that case was followed by the Divisional Court in Nield v Loveday [2011] EWHC 2324 (Admin) and in Lane v Shah [2011] EWHC 2692 (Admin), where sentences were imposed of between three and nine months imprisonment. Although contempt proceedings have to be brought in the High Court whereas the underlying proceedings may be in the county court, there should be no practical difficulty in that regard: see eg Ali v Esure Services Ltd [2011] EWCA Civ 1582. The defendant indicated some reluctance to proceed by way of proceedings for contempt. We, however, see no difficulty in proceedings by way of contempt in such cases, provided of course that the relevant facts can be proved. It was submitted in the course of argument that there might be difficulties in inviting the trial judge to hear applications for permission to bring proceedings for contempt. However, in the absence of special circumstances, we cannot see any difficulty in the trial judge hearing both the application for permission and, if permission is granted, the proceedings themselves. On the contrary, it seems to us that the trial judge is likely to be best placed to hear both. Such an approach is likely to be both the most economical and the most just way to proceed. The only circumstances in which that would not be the case would be where there was apparent bias on the part of the judge: see eg Wilkinson v S [2003] EWCA Civ 95; [2003] 1 WLR 1254, per Hale LJ at para 25. Finally, the possibility remains of criminal proceedings being brought. It would be open to the judge to refer the matter to the CPS or the DPP in an appropriate case. The test in every case must be what is just and proportionate. It seems to us that it will only be in the very exceptional case that it will be just and proportionate for the court to strike out an action after a trial. The more appropriate course in the civil proceedings will be that proposed in both Masood v Zahoor and Ul Haq v Shah. Judgment will be given on the claim if the claimants case is established on the facts. All proper inferences can be drawn against the claimant. The claimant may be held entitled to some costs but is likely to face a substantial order for indemnity costs in respect of time wasted by his fraudulent claims. The defendant may well be able to protect itself against costs by making a Calderbank offer. Moreover, it is open to the defendant (or its insurer) to seek to bring contempt proceedings against the claimant, which are likely to result in the imprisonment of the claimant if they are successful. It seems to us that the combination of these consequences is like to be a very effective deterrent to claimants bringing dishonest or fraudulent claims, especially if (as should of course happen in appropriate cases) the risks are explained by the claimants solicitor. It further seems to us that it is in principle more appropriate to penalise such a claimant as a contemnor than to relieve the defendant of what the court has held to be a substantive liability. We note two points by way of postscript. First, nothing in this judgment affects the correct approach in a case where an application is made to strike out a statement of case in whole or in part at an early stage. As the Court of Appeal put it in Masood v Zahoor at para 73 (set out above) in a passage with which we agree, one of the objects to be achieved by striking out a claim is to stop proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined. Secondly, nothing in this judgment affects the case where the fraud or dishonesty taints the whole claim. In that event, if the court is aware of it before the end of the trial, judgment will be given for the defendant and, if it comes to light afterwards, it will be open to a defendant to raise the issue in an appeal. Application to the facts If the approach set out above is applied to the facts of this case, we conclude that this is not an appropriate case in which to strike the action out instead of giving judgment for the claimant. It would not be proportionate or just to do so. It would therefore be wrong in principle to do so. We accept the submission that this is a serious case of abuse of process. The claimant persistently maintained his claim on a basis or bases which he knew to be false, both before he was found out and thereafter at the trial. Nevertheless, as a matter of substantive law, he had suffered significant injury as a result of the defendants breach of duty and, on those findings of fact, subject to the deductions referred to below was entitled to damages amounting to 88,716.76. The judge then made the orders for costs and interest referred to above which he explained in detail and which the defendant does not challenge on appeal. He further refused the defendant permission to bring contempt proceedings for the reasons explained in his judgment. The defendant has not appealed against that decision. But for the particular circumstances of this case, which the defendant (or its insurer) was determined to bring as a test case, it seems likely that permission would have been granted to bring proceedings for contempt, which would have had every prospect of success. We note by way of further postscript that substantial sums fall to be deducted from the sum of 88,716.76 referred to above before any money is paid to the claimant. The interim payment of 10,000 must of course be deducted. So must the value of the various state benefits which the claimant received. That value is not agreed but we were a given a figure of over 63,000. Whatever the true figures turn out to be, it seems unlikely that the claimant will receive much, if anything, out of the award of 88,716.76. CONCLUSION Although we have accepted the defendants submission that the court has power under the CPR and under its inherent jurisdiction to strike out a statement of case at any stage of the proceedings, even when it has already determined that the claimant is in principle entitled to damages in an ascertained sum, we have concluded that that power should in principle only be exercised where it is just and proportionate to do so, which is likely to be only in very exceptional circumstances. We have further concluded that this not such a case. Submissions upon the precise form of the order and on costs should be made within 28 days. |
The liability of employers for deaths caused by mesothelioma has pre occupied courts and legislators over recent years. The present appeals concern claims to pass the burden of this liability on to insurers, made either by employers or in the case of insolvent employers by the personal representatives of former employees using the mechanism of the Third Party (Rights against Insurers) Act 1930. The appeals concern employers liability insurance. This is in contrast with Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 where public liability insurance was in issue. Employers liability focuses necessarily upon the relevant employment relationships and activities. Public liability relates to any of the insureds relationships and to activities affecting the world at large. Another feature of employers liability is that, under the Employers Liability (Compulsory Insurance) Act 1969 (the ELCIA), it has since 1 January 1972 been compulsory for every employer other than local authorities carrying on any business in Great Britain to insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain The appeals arise because the relevant insurers maintain that the employers liability insurances which they issued respond (or, better, could only have responded) to mesothelioma which developed (or, possibly, manifested itself) as a disease during the relevant insurance periods all long past. In contrast, the relevant employers and personal representatives maintain that the insurances respond to mesothelioma which develops and manifests itself later; all that is required, they say, is exposure of the victim during the insurance period to asbestos in circumstances where the law attributes responsibility for the mesothelioma to such exposure. These alternative bases of response (or triggers of liability) have been loosely described as an occurrence (or manifestation) basis and an exposure (or causation) basis. It is in issue whether the ELCIA, after it came into force, mandated any particular basis of response. A secondary issue, arising if the insurances only respond on an occurrence basis, is whether the aetiology of mesothelioma justifies a conclusion that there was during the relevant insurance period an occurrence sufficient to trigger liability under the insurances. Burton J, [2008] EWHC 2692 (QB), concluded that the relevant insurances all responded on an exposure basis. The Court of Appeal, [2010] EWCA Civ 1096, by a majority (Rix and Stanley Burnton LJJ), upheld the judge in relation to some of the insurances (particularly those covering disease contracted during the relevant insurance period); but they concluded that others (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. Smith LJ would have upheld the judges judgment in its entirety. The full judgments in both courts repay study. They have been of great assistance to this court and make it possible to go directly to the heart of the issues. Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres: Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, para 1, per Lord Phillips. It is a cancer of the pleura, which are thin linings around the lungs and on the inside of the rib cage. It is usually undetectable until shortly before death. Its unusual features include what Burton J in this case at para 30 described as the unknowability and indescribability of its precise pathogenesis. In particular, it is impossible to know whether any particular inhalation of asbestos (at least any occurring more than ten or so years prior to diagnosability) played any or no part in such development. Because of this unusual feature, the law has developed a special rule. The special rule was the product of judicial innovation in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. It was modified by statutory intervention in the form of the Compensation Act 2006, section 3. Leaving aside exposures occurring within the ten or so years prior to diagnosability, the rule can now be stated as being that when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a "material increase in risk" of the victim contracting the disease will be held to be jointly and severally liable in respect of the disease. Burton Js findings in the present case justify certain further propositions, mostly also corresponding with the summary in Lord Phillips judgment in Sienkiewicz (para 19): (i) A significant proportion of those who contract mesothelioma have no record of occupational exposure to asbestos. The likelihood is that (vi) in their case the disease results from inhalation of asbestos dust that is in the environment. There is, however, a possibility that some cases of mesothelioma are "idiopathic", i.e. attributable to an unknown cause other than asbestos. (ii) The more fibres that are inhaled, the greater the risk of contracting mesothelioma. (iii) There is usually a very long period between the exposure to asbestos and the development of the first malignant cell. Typically this can be at least 30 years. (iv) For a lengthy period (perhaps another five years) after the development of the first malignant cell, there remains a possibility of dormancy and reversal, but at a point (Burton J thought a further five years or so before the disease manifested itself, and was thus diagnosable) a process of angiogenesis will occur. This involves the development by malignant cells of their own independent blood supply, so assuring their continuing growth. (v) The mechanism by which asbestos fibres cause mesothelioma is still not fully understood. It is believed that a cell has to go through 6 or 7 genetic mutations before it becomes malignant, and asbestos fibres may have causative effect on each of these. It is also possible that asbestos fibres have a causative effect by inhibiting the activity of natural killer cells that would otherwise destroy a mutating cell before it reaches the stage of becoming malignant. Mesothelioma currently claims about 3000 lives a year in the United Kingdom. This speaks to the common use of asbestos materials up to the 1960s and 1970s. In Annex I to his judgment Rix LJ set out the insuring clauses of the various forms of policy wording in use from time to time. Subject to re ordering to reflect the development of the language, Annex A to this judgment includes the same and some further wording. It can be seen that the Excess policies and the first two MMI policies promise to indemnify the insured employer against liability if at any time during the period of insurance (or of any renewal) any employee shall sustain under the earlier policies personal injury by accident or disease or under the later policies [any] bodily injury or disease in the case of the first Excess policy while engaged in the service of the Employer or in other cases arising out of and in the course of [his] employment by the insured employer. In the case of the Independent policy, the insurer, under the recital, promised to indemnify the employer during the period of insurance or of any renewal. The insuring clause itself contains no express limitation to any period. It promises indemnity against all sums for which the employer shall be liable for damages for such injury or disease if any employee shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule. The third MMI policy and the BAI policies were in more developed form. The former promises indemnity in respect of legal liability for sums payable as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any employee when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy. The latter promised indemnity against all sums which the Insured may become liable to pay to any Employee . in respect of any claim for injury sustained or disease contracted by such Employee during the period of insurance or any renewal. The insurers party to the present appeals have at all times represented only a small part of the employers liability insurance market. By far the larger part of the market consists of companies who until the late 1960s (when competition rules intervened) operated a tariff system which bound them to adopt a specified policy form and specified rates. Until 1948 tariff insurance was focused on Workmens Compensation Act claims, but in 1948 legislative changes (in particular the abolition by the Law Reform (Personal Injuries) Act 1948 of the doctrine of common employment) made a common law claim for future accruing causes of action much more attractive. It may well have been in anticipation of these changes that the tariff companies introduced a new form of policy in May 1948, still in widespread use today, providing indemnity if any employee shall sustain any personal injury by accident or disease caused during the period of insurance. Under this tariff wording, sustain looks to the occurrence of an accident or development of a disease at any time, while caused makes clear that the trigger to cover is that the accident or disease has been caused during the insurance period. The present insurers were non tariff companies, and have always been free to set their own wordings. From dates after the insurances the subject of this appeal, three of the insurers in fact ceased to use the wordings set out in Annex A, and themselves moved expressly to causation based wordings Excess in about 1976, Independent in the mid 1980s, and BAI in 1983. As a matter of insurance practice, however, until the decision in Bolton in 2006, all these wordings, whether tariff or non tariff and whether using the language caused, sustain or sustained or contracted, paid out on long tail claims (including the mesothelioma claims which became increasingly frequent in the 1980s) by reference to the date(s) of exposure. Where successive employers with different insurers had exposed a particular employee victim to asbestos, liability was in practice apportioned between the employers, and so insurers, broadly according to the extent of exposure for which each employer was responsible. The rival cases Insurers submit that all the wordings in Annex A require the injury or disease to occur during the period of insurance or of any renewal. In the alternative, if the use of the word contracted in the third MMI policy and the BAI policies or the different formulation of the Independent policy leads to any different conclusion in any of such cases, they submit that this leaves unaffected the clear meaning of the Excess and first two MMI policy wordings. The employers and interested employees contend that all these policies are to be understood as operating on an exposure or causation basis. The implications of these alternative interpretations are clear. On insurers primary contention, the policies set out in Annex A would not respond to current mesothelioma claims. It is unlikely that most of them would have responded to many, if any, mesothelioma claims, since it was only in the 1980s that such claims began to emerge to any great extent. Policies written on a causation basis since the dates indicated in paragraph 10 above would also not respond to current mesothelioma claims. Insurers response is that any insurance must be read according to its terms. Until 1 January 1972, when the ELCIA came into force, it was not obligatory for employers to have any form of employers liability insurance. Further, viewed on an occurrence or manifestation basis, the policies would pick up long tail claims arising from exposure occurring at any time in the past. In this connection, it is to be noted that various long tail diseases were well recognised perils from the era of Workmens Compensation legislation before 1948. Instances were scrotal cancer, pneumoconiosis and more specifically (from the time of Merewether and Prices 1930 Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry) asbestosis. All these would only develop over and could manifest themselves after considerable periods of years. Following upon the 1930 report, The Asbestos Industry Regulations 1931 (SI 1931/1140) were introduced to regulate factories handling and processing raw fibre, and in 1969 The Asbestos Regulations 1969 (SI 1969/690) extended this regulation more widely it appears in the light of an appreciation that mesothelioma could result from exposure to small quantities of asbestos dust (see In re T & N Ltd (No 3) [2006] EWHC 1447 (Ch), [2007] 1 All ER 851, para 118). The Court of Appeals conclusions The force of insurers case rests in the use of the word sustain, whether in connection with the phrase personal injury by accident or disease or bodily injury or disease or in the conjunction injury or disease . sustained or contracted or injury sustained or disease contracted. Rix and Stanley Burnton LJJ concluded that the word sustain looked prima facie at the experience of the suffering employee rather than its cause (paras 232 and 343). Insurances responding to injury or disease sustained during the insurance period would not, on this basis, cover mesothelioma sustained long afterwards. Rix LJ had some compunction about the result because of what he (though not Stanley Burnton LJ) felt was a tension with the commercial purpose of employers liability insurance in the extraordinary context of mesothelioma (para 235). Rix LJ would have liked to hold that mesothelioma sufferers sustained sufficient injury on exposure to asbestos to trigger the insurances in force at the date of such exposure, but felt bound by Bolton to conclude the contrary (paras 277 289). However, Rix LJ, though not Stanley Burnton LJ, considered that the particular wording of the Independent insurances did not explicitly require the injury or disease to be sustained during the insurance period, and could be read as covering the sustaining of injury at any time arising out of and in the course of employment during the insurance period (paras 300 and 350). Rix and Stanley Burnton LJJ differed as to the significance of the ELCIA extension provisions included in the Independent wording, the third MMI wording and the second BAI wording, as quoted in Annex A. Rix LJ thought that the ELCIA required employers to insure on a causation basis (paras 184 and 186) although, since he also expressed the view that an insurance arranged and maintained on a sustained basis could comply with the ELCIA, he may perhaps only have meant required in practice. At all events, he held that the ELCIA extension provisions covered liability incurred to the personal representatives of employees on a causation basis, while enabling insurers to recoup themselves so far as possible from the relevant employers in respect of liability they would not otherwise have had to meet (paras 292, 300 and 302). Stanley Burnton LJ did not agree that the ELCIA required causation wording (para 342), but considered that it required insurance to be taken out and maintained in respect of ex employees, or at least those who were or had been employed at any time after the coming into force of ELCIA (para 342; and see Rix LJs comments at paras 305 307). Rix, Smith and Stanley Burnton LJJ were all agreed that, where provision was made for disease contracted, this could and should be construed as introducing cover on a causation basis, even if or though wording such as injury (or disease) sustained could only respond on an occurrence basis. Analysis Annex A sets out the insuring clauses. Insurers case is, as I have said, rooted most strongly in the word sustain, particularly when it is used by itself, rather than in conjunction with a more ambivalent alternative in the phrase sustained or contracted. The natural meaning of the word sustain, taken in isolation and as defined in the Shorter Oxford English Dictionary from an appropriate date (1965, 3rd ed), is, with respect to injury, undergo, experience, have to submit to, or, possibly, to have inflicted upon one, suffer the infliction of. But the insurance cover granted (and no doubt required) extended expressly beyond injury by accident to embrace disease. This was achieved by less natural conjunctions, such as sustain [any] personal injury by accident or disease or sustain [any] bodily injury or disease. Conscious perhaps that the verb sustain does not fit naturally with the concept of disease, some companies (MMI in its third wording and BAI in its first and second wordings) introduced the different verb contracted in the formulations sustained or contracted or injury sustained or disease contracted. This use of contracted with respect to disease is considerably more natural, but is clearly open to an interpretation that it looks back to the initiating or causative factor of the disease, and (whatever the answer on that point) highlights a question whether any substantial difference exists in this connection between such wordings and other wordings referring more awkwardly to the sustaining of personal injury by disease or the sustaining simply of disease. To resolve these questions it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more broadly. As Lord Mustill observed in Charter Reinsurance Co Ltd v Fagan [1977] AC 313, 384, all such words must be set in the landscape of the instrument as a whole and, at p 381, any instinctive response to their meaning must be verified by studying the other terms of the contract, placed in the context of the factual and commercial background of the transaction. The present case has given rise to considerable argument about what constitutes and is admissible as part of the commercial background to the insurances, which may shape their meaning. But in my opinion, considerable insight into the scope, purpose and proper interpretation of each of these insurances is to be gained from a study of its language, read in its entirety. So, for the moment, I concentrate on the assistance to be gained in that connection. A first point, made very clearly below by Rix LJ (para 263), is that the wordings on their face require the course of employment to be contemporaneous with the sustaining of injury. This leaves open what is meant either by sustaining or by injury. Rix LJ thought that the Independent wording could be understood differently in effect, as if it had expressly read: If any person who is under a contract of service or apprenticeship with the Insured shall at any time sustain bodily injury or disease arising out of and in the course of his employment by the Insured during the policy period in connection with the Contract specified or type of work described in the Schedule . That interpretation assumes that sustain in this context equates with the occurrence, rather than causation, of the injury or disease, and only arises for consideration if that assumption is correct. A second point is that the insurance wordings demonstrate a close link between the actual employment undertaken during each insurance period and the premium agreed to be payable for the risks undertaken by insurers in respect of that period. Premium is linked expressly to actual wages, salaries and earnings during the insurance period under the Excess policies, the first MMI wording and the BAI policies. The second and third MMI wordings contemplate that premium may be linked to wages, salaries and earnings, and, to the extent that any inference regarding the general nature and scope of cover under these standard wordings can be drawn from such a link, it must be capable of being drawn whether or not premium was actually so linked in any particular case. As to the Contractors Combined Policy issued by the Independent, it is a probable inference that the estimates which were provided and were to be updated will have included, in respect of the employers liability cover in section 1, wages, salaries and other earnings paid. Finally, the Independent cover is linked to the actual contract or work which the employer is undertaking during the insurance period. These links are in my view significant. True, premium may sometimes be calculated on a rough and ready basis. Minor discrepancies between the premium calculation and the risk may be understandable: see e.g. Ellerbeck Collieries, Ld v Cornhill Insurance Co [1932] 1 KB 401, 418, per Greer LJ (who pointed out that any such discrepancy there was more apparent than real, since workmen not earning wages because off work would not actually be at risk of any fresh accident, even though they would remain susceptible to certification for disablement). Here the position is quite different. Great care is taken in all the policies to tie premium to the actual employment undertaken during the insurance period, and in the case of the Excess, Independent and MMI policies to tie cover to a business, contract or activities described in the schedule. The natural expectation is that premium is measured by reference to actual employment or work during the insurance period because it is the risks attaching to such employment or work which are being undertaken by insurers. At the very least, the drawing of this link makes improbable the contention advanced by some of the insurers that the present insurances were apt to pick up liabilities emerging during the insurance period which could be attributable to employment and activities undertaken and negligent conduct committed at times long past. The number of employees, their employment activities and the risks involved at those times could be very different. The significance which attaches to the employment current during the insurance period is underlined by legal and practitioner texts. As long ago as 1912, MacGillivray on Insurance (1st ed), pp 966 wrote: The nature and scope of the employers business must be clearly defined in the insurance policy, and workmen employed outside the scope of the assureds business as described in the policy will not be covered In the section on Employers Liability Insurance in Stone & Coxs Accident, Fire and Marine Year Book (1957), pp 688 689, the authors stressed the importance of identifying any special hazards, such as signs of careless management or lack of control or careless workmen, and observed: The surveying of Employers Liability risks has probably become more general than formerly. Apart from the question of the possibilities of accident, there is now the serious question of disability due to disease and in particular the disease known as pneumoconiosis. In 1974 MMI produced a Guide to Insurance Officers in Local Government, which it said that it would like to see on the desk of every insurance officer for ready reference at any time; this, after noting that employers liability was almost invariably dealt with by a separate policy and that its importance had been increased by the ELCIA, went on: "7. Premiums are usually based on wages and salaries this is not only a convenient yardstick but is logical since loss of earnings usually represents a substantial part of claims. Rates of premiums vary according to the nature of the work of the labour force, and the claims experience. 8. A feature of employers liability claims is the length of time which often elapses between the date of the accident and the final settlement, and the cost of servicing claims tends to be high. Injury caused at work during the period of insurance even though it may not be diagnosed till years afterwards can be a liability under the policy." I note in parenthesis that 1974 was the year in which MMI changed from a pure sustain form of wording to a form covering bodily injury or disease suffered, when sustained or contracted during the currency of the policy. Yet there is no suggestion in the Guide of any change in substance. It is in this light improbable that the present insurances can or should be read as offering cover in respect of ancient, as opposed to current, employment and activities. But there is a third point. If insurances in the present form only address risks arising from employment during the insurance period, then, on insurers case, there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to injury or disease in another later period. If the employment relationship spans both insurance periods and the employer remains insured with the same insurers in both periods, there may be no problem. The employee is employed at all relevant times and the insurance may be viewed as a single continuing contract. The policy wordings set out in Annex A, with their references to insurance during the period of insurance or during any subsequent renewal period, would support the latter view. But, even in the days of more stable long term employment and insurance relationships, employees could and would move employment or retire, or employers would cease business, or change insurers. On the basis that the insurances only cover risks arising from employment during the insurance period, there would be no cover unless the liability arose from and in the course of and involved injury or disease during the currency of the same employment and the same insurance (including any renewal). Fourthly, on insurers case, employers would as a result be vulnerable to any decision by insurers not to renew; and such a decision might arise from the simple performance by employers of their common law duty to disclose past negligence to insurers upon any renewal. Employers who discovered or came to appreciate that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease (e.g. by exposing their employees to asbestos) would have such a duty. Insurers could then, on their own case, simply refuse any renewal or further cover. Employers could then have to disclose that refusal also to any further insurers to whom they made a proposal for cover. One response made by insurers to such problems is that they would not arise in the large bulk of cases. That is no doubt true. Most employers liability cases involve short tail claims: typically, an accident involving injury. It is not surprising if the language of the insurances fits more easily with situations in which cause and effect coincide in time. But, by the same token, this does not mean that the underlying risk being assumed was in either partys mind limited to circumstances in which a cause gave rise to an effect during one and the same insurance period. Rix LJ, in accepting that cover depended upon injury being sustained in the sense of experienced during the insurance period, was influenced by the thought that this was not an absurd or meaningless interpretation. The insurance could operate entirely successfully in some 99% of cases (para 235). In the light of this Courts recent decision in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, para 30, this, in my view, gives too little weight to the implications of the rival interpretations and to the principle that where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense. The 1% of cases in which there might be no cover could not be regarded as insignificant. Well before 1948, there was general awareness of the existence of long tail diseases which would only develop and manifest themselves after considerable periods of years (see para 12 above; and see also Cartledge v E Jopling & Sons Ltd [1963] AC 758). The connection between asbestos exposure and mesothelioma became generally known in the mid 1960s, following the publication in 1965 of Newhouse and Thompsons report on Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area and a Sunday Times article. Yet on insurers case, the present insurances would not cover any situation where, after the termination of employment or the expiry of an insurance, injury or disease developed from an employers breach of duty to a relevant employee during an insurance period. A fifth point concerns the way in which the policies deal with the issue of extra territorial scope. The first Excess wording stands apart from the others in its treatment of that issue. Cover only exists in respect of any employee in the employers service who shall sustain any personal injury by accident or disease while engaged in the service of the employer in Great Britain, Northern Ireland, the Isle of Man or Channel Islands, in work forming part of the process in the employers business. As soon as one postulates a delay in time between the causation and experiencing of a disease, it becomes apparent that this wording could operate to very curious effect if sustain looks to the latter rather than the former. A disease (e.g. a cancer) experienced during employment could be covered although caused by pre employment exposure, while a disease caused by employment would not be covered if only experienced while working abroad. The natural inference to draw from the references to being engaged in the employers service and in work forming part of the employers business process is that it was envisaged that the accident or disease would and should arise out of such service and work, rather than merely occur during it. That points to an underlying focus on causation, even if the assumption was that in the majority of cases causation and experiencing of any injury by accident or disease would coincide. As to the other policies, at the very least, the way they deal with territorial issues throws doubt on any proposition that their wordings are so carefully or well chosen that a court should be careful to stick literally to whatever might be perceived as their natural meaning. They address territorial scope by specific exclusions, but the cover and the exclusions use different language. Thus, although the second and third Excess wordings cover liability to employees who sustain personal injury by accident or disease, the territorial exclusion is in respect only of accidents occurring outside Great Britain, etc, leaving it unclear how disease, whether caused or developing outside Great Britain, should be dealt with. The Independent wording also covers liability to employees who sustain bodily injury or disease, while the territorial exclusion is for injury, illness, loss or damage caused elsewhere than in Great Britain, etc. While the contrast in language is capable of lending some support to a view that sustain looks to experiencing, rather than to causation, an alternative possibility is that the two words were understood as having the same effect and that the cover was understood as focused on causation. The language of this exclusion thus cuts both ways, as Rix LJ recognised (para 297). A similar position applies to the contrast between injury or disease sustained and injury or disease caused outside Great Britain, etc. under the first two MMI wordings. Under the third wording, the language of the cover and the exclusion have been deliberately matched. Under the BAI wordings, however, there is an incongruity between cover for injury sustained or disease contracted and the exclusion in respect of liability for accidents . arising outside the United Kingdom. Again, this leaves the position in respect of disease unclear, and the difference between injury sustained and accidents arising can be read either as deliberate or as suggesting that no significance was attached to the difference or that the real concern was with causation. The history and Workmens Compensation Acts Much attention was, both below and before the Supreme Court, paid to the development of employees rights to compensation in respect of personal injury and disease, at common law and under the scheme of the Workmens Compensation Acts (WCAs). The WCAs were in force from 1897 until replaced in 1948 under the National Insurance (Industrial Injuries) Act 1946. The history and a number of the decisions under the WCAs were examined by Rix LJ in paras 126 to 165 of his judgment. He concluded that such an examination yields in the present context not a lot. To a considerable extent, I agree and I shall not repeat the whole exercise, but identify some potentially relevant aspects. Etymologically, some of the language presently in issue can be traced back to statutory language found in the Employers Liability Act 1880 and the WCA 1897. The 1880 Act modified the common law doctrine of common employment, by entitling employees to recover common law compensation for injury caused by specified matters for which employers were responsible, provided that they gave notice, within six weeks of sustaining the injury of its cause and the date at which it was sustained. The 1897 Act, applying to personal injury by accident arising out of and in the course of employment, also required notice to be given of the accident as soon as it occurred, stating the cause of the injury and the date at which it was sustained. These Acts therefore distinguished the causation and the sustaining of an injury, but not in any presently relevant context. Further, any reference to sustaining disappeared from the Workmens Compensation scheme in the 1906 Act, which amended the scheme to require a notice stating the cause of the injury and the date at which the accident happened. The 1906 WCA also expressly extended the scheme to cover certain diseases specified in section 8. In that context, it provided that, where a workman was certified as disabled or suspended from employment or died due to a disease and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous the date of the disablement or suspension, whether under one or more employers, then he or his dependants shall be entitled to compensation under this Act as if the disease or such suspension . were a personal injury by accident arising out of and in the course of that employment . Section 8(a) provided: The disablement or suspension shall be treated as the happening of the accident. Under section 8(c), the compensation was recoverable from the employer last employing the employee within the previous twelve months, providing the employee furnished that employer with particulars of all his other employers in the employment to the nature of which the disease was due. It was not necessary to prove that the disease actually arose from the last employment, merely to prove that the relevant employment gave rise to a risk of such a disease: Blatchford v Staddon and Founds [1927] AC 461. The 1906 Act may be regarded in this respect as involving an early statutory instance of the kind of liability recognised in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572. However, failing such particulars, the last employer could excuse himself upon proving that the disease was not contracted whilst the workman was in his employment (section 8(c)(i)). The last employer might also join any other employer (within the last twelve months) and it was provided that upon proof that the disease was in fact contracted whilst the workman was in the employment of that other employer, that other employer shall be the employer from whom the compensation is to be recoverable (section 8(c)(ii)). Finally, section 8(c)(iii) provided that: if the disease is of such a nature as to be contracted by a gradual process, any other employer within the last twelve months was liable to make such contributions as might be agreed or determined by arbitration under the Act. Under this scheme, therefore, compensation for disease was initially based upon the nature of the employment and its potential for causing, rather than upon proof that it caused, such a disease. The paternal benevolence of the Legislature (as Visc Sumner put it in Blatchford: p 469) is well known, and if the price of that benevolence is paid by the last employer, who thus has to bear others burdens, that is nothing new in this kind of legislation. However, the last relevant employer could seek, in specified circumstances, to avoid or to pass on to another employer responsibility by proof that the disease was not actually contracted in his employment. Alternatively, in the case of a disease of such a nature as to be contracted by a gradual process, all relevant employers within the last twelve months would be liable to contribute. The scheme was, as I see it, concerned with either the risk of or actual causation, and in its use of the word contracted it appears to me to have been directing attention to the causation, rather than the mere experiencing or manifestation, of disease. The WCA scheme was the subject of further amendment by the 1925 Act. Section 43 superseded section 8 of the 1906 Act as regards scheduled diseases, while section 47 made specific provision for the introduction of a parallel scheme covering silicosis. Effect was given to this by inter alia the Metal Grinding Industries (Silicosis) Scheme which came into force in July 1927, making provision for obtaining compensation from the last employer within the previous three years, and giving such employer rights to look to other such employers within the last five years. An insurance covering employers liability in this connection was considered in Smith & Son v Eagle Star (1933) 47 Ll. L.R. 88, (1934) 48 Ll. L.R. 67. Mr Hill had been employed in processes giving rise to silicosis for some 20 years. For the last two of these years, from 31 March 1928 to 16 June 1930, he worked for Smith & Son. From 30 June 1927 to 17 June 1930, Smith & Son had an insurance against WCA liability in respect of any personal injury or disease which at any time during the continuance of this policy shall be sustained or contracted by any workmen . The policy was expressly extended to cover any liability in connection with any claim made by employees in respect of silicosis, and the decision of the Court of Appeal rested on this ground. But Scrutton LJ also examined the main policy language, and in particular what was meant by contracted. He noted that there has been a good deal of discussion in the Courts about a disease which is gradually contracted commencing at some stage and through the process going on increasing the disease until at last it results in total disablement (p 70), and concluded that the word was not to be read as first contracted, but in the sense of influenced or increased until it ultimately comes to total disablement. This, although not directly focusing on the first development of a disease from some earlier cause, suggests a flexible view of the word contracted, directed once again to the employments responsible for causing the disease. Confirmation that this was Scrutton LJs view can be found in the earlier case of Ellerbeck Collieries Ltd v Cornhill Insurance Co [1932] 1 KB 401. Two workmen who had been in the colliery companys service for many years were on respectively 11 and 12 March 1929 (dates they were actually off work) certified as suffering from miners nystagmus. The Cornhill had on 8 March 1929 issued the colliery company with a three month provisional cover note insuring in terms matching the wording of the insuring clause in the first Excess wording (i.e. against liability in respect of any employee who shall sustain any personal injury by accident or disease while engaged in the service of the employer). Failing a satisfactory survey, the cover note actually expired on 18 March 1929. The first point decided was whether the employees had sustained personal injury by accident or disease during the period of validity of the cover note (8 to 18 March 1929). It was held that they did. The judgments in the Court of Appeal are of interest for a number of reasons. First, both Scrutton LJ (p 408) and Greer LJ (p 417) approached the question of construction on the basis that the policy was intended to protect the employers against their liability to their workmen under the WCAs. Scrutton LJ added that it seems to me that the policy was intended to cover the liability of the employers for the results of industrial diseases caused by the employment (p 409). His description of the policy, covering in terms any employee sustaining personal injury by accident or disease in service, as intended to cover liability . for the results of diseases caused by the employment fits precisely with the analysis which I consider correct (paragraphs 18 28 above). Second, Scrutton LJ went on to refer to the difficulties in saying when an industrial disease, such as miners nystagmus or lead poisoning, begins, and in these circumstances the difficulty for an employee to pick the proper employer to sue. He described the way in which Parliament, by what became section 43 of the WCA 1925, had addressed such difficulties by providing a conventional and artificial means for enabling the workman to get compensation, leaving the various employers to fight out their proportion of the liability between themselves (p 409). He said that the last employer, liable under the WCA scheme, then claims on the insurance company on the ground that he is liable to make compensation for an injury by disease, and the date of the injury or disablement is by statute and certificate fixed as happening between the dates for which he is provisionally covered (p 411). On this basis, and in the light of the House of Lords decision in Blatchford, Scrutton LJ concluded that he was bound to hold that an accident has happened within the period of the provisional cover against the consequences of which the insurance company is bound to indemnify the employer (p 413). In short, the conventional and artificial provisions of the WCA defined what constituted an accident and when personal injury by accident or disease was sustained for the purposes of the insurance. Greer LJ, more shortly, adopted the same approach (p 418). Only Slesser LJ (p 421) expressed a reservation about the possibility that the artificial deeming provisions of section 43(a) of the WCA 1925 might only apply as between employee and employer, and that it might have been necessary to consider separately the date of the sustaining of injury as between the employer and the insurer, had there been any admissible evidence that the two employees had actually contracted the scheduled disease before the granting of the statutory medical certificate. Commercial purpose and practice Much general evidence was directed or elicited before Burton J in relation to the commercial purpose of the present insurances, and to practice relating to their operation in the years before the present issue arose. It was argued that there was, prior to the decision in Bolton, a universal usage of the insurance industry to pay out mesothelioma or similar claims under [employers liability] policies by reference to the date of inhalation/exposure whatever the wording, or an estoppel by convention to like effect. Burton J rejected the argument (paras 180 to 201, esp. para 201), for the reasons that, first, there was no evidence relating to years earlier than the 1980s which could be put down to any kind of arguable usage, second, any usage was not certain, not least because of the multiplicity of approaches to or bases for it and, third, it was not binding. It was not incorporated into the insurance contracts. No issue of estoppel by convention was pursued to the Court of Appeal (Rix LJ, para 24, and Stanley Burnton LJ, paras 332 and 335) and the issue of a universal custom was only pursued by Zurich Insurance Company (Rix LJ, para 24). By a multiplicity of approaches to or bases for insurers practice, Burton J was referring to evidence that insurers followed the practice they did in some cases because they believed that their contracts were to be interpreted on a causation/exposure basis, in others because they believed that the aetiology of diseases such as mesothelioma was such that injury was in fact sustained (in the sense of experienced) at the date of inhalation, while yet others may have failed to realise that their historically relevant wordings had been on a different basis to the causation wordings to which they had since switched or may have failed to address their minds to any relevant issue at all in relation to an insured who was usually a longstanding repeat client. Rix LJ (para 228) contented himself with agreeing with Burton Js reasoning on this aspect, while Stanley Burnton LJ noted and agreed in particular with Burton Js second reason, relating to the believed aetiology of mesothelioma (para 335). Smith LJ, on the other hand, treated the commonly held understanding that diseases such as mesothelioma involved injury at the date of inhalation as part of the factual matrix of all the insurance contracts (paras 322 323), and considered against that background that no difference in meaning should be held to exist between policies using sustained and causation wording, until the time when the two sides of the insurance industry should be considered to have appreciated that some diseases, including mesothelioma, do not occur until many years after exposure to the causative agent (para 327). She put that as around the time of the decision in Bolton, after which parties using a sustained wording must be taken to have meant only to cover injuries actually occurring during the policy period (para 327). The argument of a binding usage was not pursued before the Supreme Court, rightly so for the reasons given by the judge and the majority in the Court of Appeal. Equally, there has been no suggestion of estoppel by convention, along the lines recognised as possible in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 47. However, on the issues of policy interpretation, Mr Stuart Smith QC for Zurich Insurance, maintained before the Supreme Court an argument that there was a consensus based on market practice, whereby, for one reason or another, such policies would respond to long tail diseases by reference to the date of exposure, and that this could constitute relevant background to their construction. Assuming that, short of a binding usage or estoppel by convention, a practice, if known to or shared by the relevant parties, could in some circumstances be relevant background (see e.g. Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989), still, in my opinion the argument fails in the present case. It fails in particular in the light of the judges findings, even in relation to policies made in and after the 1980s. A practice based on a mistaken understanding, by only some insurers, that the policies operated on a causation basis cannot be relevant background to the interpretation of every policy; on the judges findings other insurers do not appear to have understood that the policies operated on that basis. A practice based on a mistaken understanding by others in the market as to when long tail diseases could be said to have been experienced or to involve injury is likewise an unpromising start for construing all policies; if the understanding were good, it would mean that such diseases fell within the policies, even though the policy cover was restricted to injury or disease experienced during the policy period. The understanding would not therefore carry any imperative to read a sustained wording as meaning caused. Before the Supreme Court, both employers and employees continued to rely upon the evidence given at trial regarding the general purpose of employers liability insurance as part of the background to the interpretation of the present insurances. Rix LJ (paras 223 to 235) gave it some weight as such, but Stanley Burnton LJ thought that there was little if any assistance to be gained by reference to the commercial purpose of EL insurance, as this was simply to provide the cover defined in the policy (para 333). The Supreme Court was provided with a useful summary of the considerable volume of evidence relied upon in this connection. It consisted in general of answers given by insurers, two at least of them with experience going back to the 1940s. They were asked (frequently in response to leading though not inadmissible on that score questions in cross examination) about their or others views, understandings or perceptions as to the purpose of the policies, and the way in which these would or should respond, in relation to injuries arising from exposure in the course of activities during the policy period. In my judgment, Stanley Burnton LJ was right to reject such evidence as inadmissible. The parties cannot be asked what they meant by their contract, and, failing any binding usage, it is equally inadmissible to ask other persons operating in the market to give general evidence as to what they would have understood the parties to have meant by the words used in the context in which they were used. The evidence does not seem to have amounted to more than that. However, I do not agree with Stanley Burnton LJs suggestion that no useful conclusions can be drawn about the commercial purpose of the policies, save that it was to provide the defined cover. In my opinion, relevant conclusions about the general nature and purpose of the individual policies can be drawn in this case, just as they could in the case of the different (and wordier) instrument in issue in In re Sigma Finance Corporation [2009] UKSC 2, [2012] 1 All ER 571 (see especially paras 10, 12 and 37). They can be drawn from an overall consideration of the individual insurance wordings, and particularly from the features which tie cover to the employees and activities during the relevant policy period and the five points considered in paragraphs 18 to 28 above. Further, if the policies are on any view apt to cover employers liability for long tail diseases which initiate during, but only manifest themselves years after, the original policy period, one may look with scepticism at an interpretation which distinguishes this situation from other situations where a long tail disease is caused but does not strictly begin during the policy period, and only manifests itself years later. This is particularly so if a conclusion that the latter diseases fell outside the policy cover meant that they would or might well not fall within any subsequent employers liability policy. ELCIA 1969 Section 1 of the ELCIA provides: 1. (1) Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain (3) For the purposes of this Act (a) approved policy means a policy of insurance not subject to any conditions or exceptions prohibited for those purposes by regulations. 4. (1) Provision may be made by regulations for securing that certificates of insurance in such form and containing such particulars as may be prescribed by the regulations, are issued by insurers to employers entering into contracts of insurance in accordance with the requirements of this Act . (2) . the employer shall during the currency of the insurance and such further period (if any) as may be provided by regulations (a) comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees; . The only conditions or exceptions ever prohibited were certain exemptions from liability. Under section 3, the ELCIA did not however apply to local authority employers, such as most of MMIs insureds. Under section 4, provision might be made for certificates of insurance to be issued to employers, and in that event the employer was, obliged during the currency of the insurance and such further period (if any) as may be provided by regulations to comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees. In reaching his conclusions on the ELCIA (para 16 above), Rix LJ engaged in an impressive analysis, to which I would refer (paras 166 to 186). The only doubt this leaves is how, if the ELCIA requires a causation wording, an employer could properly insure on a wording which only covered injury sustained in the sense of experienced (see para 186 and paragraph 16 above). The scope of the ELCIA is, as Rix LJ indicated, open to three alternative analyses: that it requires cover in respect of (i) all future liability incurred during the insurance period, whenever the negligence or injury, or (ii) liability for all future injury or disease sustained (in the sense of experienced) by employees during the insurance period, whenever the negligence, or (iii) liability for all negligence or breach of statutory duty during the insurance period giving rise to liability as in (ii). The retrospectivity of cover involved in (i) and (ii) is unlikely to have been intended. The only one of the three possibilities not involving a degree of retrospectivity is (iii). A duty on every employer to insure, and maintain, insurance is consistent with a requirement to have the insurance in place during, though to maintain it after, the relevant insurance period. The provision, contemplated by section 4, for copies of insurance certificates to be issued by insurers and to be displayed by any employer for the information of his employees during the currency of the insurance and such further period as may be provided by regulations indicates, first, a desire to assure employees of their insurance protection during the relevant insurance period, and, secondly, an awareness that this assurance might need to remain in place after such insurance period; it is therefore suggestive of (iii), rather than (i) or (ii). As Rix LJ observed, it is only cover in accordance with (iii) that can give an employee the assurance that any injury or disease suffered as an employee and arising out of and in the course of [his] employment will be covered by insurance, the benefit of which would, if necessary, be available to him at the time under the Third Party (Rights against Insurers) Act 1930. An obligation to have a policy in force only at or by the time when injury is actually experienced would leave employees or ex employees at the mercy of compliance with the statute by their employers or ex employers at uncertain future dates. It would also leave such employees or ex employees at the mercy of employers who, for whatever reason, ceased to carry on business either in Great Britain or (for example due to insolvency) at all. Further, if injury or disease suffered or contracted bears the same meaning as insurers suggest that injury or disease sustained or contracted bears, then an employee, who had the misfortune to succumb to a disease abroad caused by his employment or previous employment in Great Britain, would not be covered (unless regulations intervened to ensure that he was). Stanley Burnton LJ thought that any issue as to the nature of the insurance required under ELCIA was resolved by its use of the word sustained, rather than caused. He went on to conclude that the ELCIA covered any injury sustained (in the sense of experienced) during a period of insurance, by anyone who was then or had at any previous time been an employee. However, that latter conclusion introduces a retrospectivity into the scope of the ELCIA, which, as already indicated, I think unlikely to have been intended. The statute could have used the tariff wording of causation instead of sustained. But in the statutory language the word sustained is not coupled with a phrase such as during the period of the insurance. Even if sustained means experienced in the context of the statute, the statute may require insurance on what is effectively a causation basis; the words sustained by his employees may well mean sustained at any future time by his current employees. The key to the meaning of the statutory language seems to me the combination of the phrases arising out of and in the course of their employment in Great Britain and not including injury or disease suffered or contracted outside Great Britain. Together, and for reasons given in the last two paragraphs, they indicate a statutory requirement to insure in respect of activities during the course of employment in Great Britain which may in the future give rise in or out of Great Britain to liability to the employees involved in such activities. In my judgment, therefore, the conclusion which gives proper effect to the protective purpose of the legislation is that the ELCIA requires insurance on a causation basis. The ELCIA extension provision to the Independent and second BAI wordings (see Annex A), as well as a similar extension provision to the MMI policy intended for insureds who were not local authorities, achieved this result expressly in relation to policies written subsequent to the coming into force of the ELCIA, at least for the purpose of ensuring that employees claims were covered by insurance. Any other subsequent insurances not containing that extension provision should, if possible, be read as providing the relevant employers cover required by statute. This is a powerful tool in the interpretation of such insurances. Bolton M.B.C. v Municipal Mutual Insurance Ltd The Court of Appeal in the present case was bound by its previous decision in Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 on public liability policies. The majority regarded that case as, in effect, determining the meaning which must be put on the word sustained in the present employers liability policies: see paras 284, per Rix LJ, and 339, per Stanley Burnton LJ, who however also found the logic of Longmore LJs judgment convincing in relation to the latter type of policies. Smith LJ on the other hand considered that public liability and employers liability insurances gave rise to different considerations (para 328). In my opinion, that is right. Employers liability policies are subject to particular terms and considerations, analysed above (particularly in paragraphs 18 28 and, in the case of policies effected after the coming into effect of the ELCIA, paragraphs 41 46). These considerations are not or certainly not necessarily applicable to public liability insurances. The present case was concerned with employers liability not public liability insurances, and it may well be that not all the relevant facts relating to the latter are before us. We certainly have not heard full argument on the proper conclusions which may be drawn regarding the basis of liability or trigger generally applicable under the latter. In these circumstances, I would proceed on the basis that we are not bound by Bolton, that this does not involve any view about the correctness or otherwise of Bolton, but only that it is unnecessary to consider what the position generally may be under public liability policies. Assuming that, in relation to public liability insurance, the position generally is as stated in Bolton, that does not alter the conclusions which I reach. It merely means, in their light, that public liability insurance generally and the present employers liability policies operate on different bases, because of their different backgrounds, terms and purposes. Contracted There is no difficulty about treating the word contracted as looking to the causation or initiation of a disease, rather than to its development or manifestation. In relation to the two BAI wordings and the third MMI wording, this interpretation obtains strong support from the general nature and purpose of the relevant policies, derived from their immediate context and terms and analysed in paragraphs 18 to 28 and 41 above. To the limited extent that the WCA background may assist to inform the meaning of later policies, it can be seen overall as a legislative scheme which was concerned with either the risk of or actual causation (para 32 above). Even if, in the phrase sustained or contracted or injury sustained or disease contracted, the word sustained is to be understood as meaning experienced, that would reflect no more than the fact that the cause and effect of an injury commonly coincide; I would still unhesitatingly conclude, as did the Court of Appeal, that the word contracted used in conjunction with disease looks to the initiating or causative factor of the disease. Sustained The majority of the Court of Appeal considered that it was impossible to view policies with pure sustained wordings as operating by reference to the initiating or causative factor of a disease. They did so primarily by reference to the wording of the insuring clauses. In my view, as indicated in paragraphs 18 19 above, a broader approach is necessary. The general nature and purpose of these policies can be derived from their immediate context and terms, analysed in paragraphs 18 to 28 and 41 above. It is true, as Rix LJ said, that phrases such as injury sustained by an employee or an employee who shall sustain injury, in either case by accident or disease, appear to address the impact of the accident or disease on the employee. But the underlying focus of the insurance cover is on the employees and activities current during the insurance period. The cover would be potentially incomplete, and employers would be potentially exposed to uninsured risks, were sustained to be understood as meaning developed or manifested. This is so, even before the ELCIA came into force. Any policies written subsequent to the coming into force of the ELCIA either afford cover consistent with the Acts requirements by virtue of an ELCIA extension provision, or, to the extent that this is not the case, should be construed, if at all possible, as meeting employers obligations under that Act. In my view, such obligations included taking out insurance in respect of negligence during the insurance period affecting an employee in a manner giving rise to bodily injury or disease then or at any subsequent time. On this basis, I consider that, although the word sustained may initially appear to refer to the development or manifestation of such an injury or disease as it impacts employees, the only approach, consistent with the nature and underlying purpose of these insurances both before and after the ELCIA, is one which looks to the initiation or causation of the accident or disease which injured the employee. The disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself subsequently. Disease sustained, read as meaning experienced or incurred Rix LJ was attracted by the submission that, even if sustaining disease meant experiencing or incurring it during the period of the insurance, long tail diseases could be said to have been sustained during the period of insurance in this sense. He asked rhetorically whether an employee who had inhaled asbestos had not sustained an injury in the form of an assault of the fibres, as a result of which he was worse off through having dangerous fibres in his lungs (para 280). He noted that, although there was at most trivial injury or damage, and nothing that could create actionable damage, nevertheless, when mesothelioma develops, it is the risk of mesothelioma created by the exposure which is the damage (see . Barker ) and it is the exposure, and the risk of mesothelioma, that is the damage (para 281). He only felt bound to reject this analysis (para 284) because of the Court of Appeals previous decision in Bolton. It may be that in the case of some long tail diseases, the victim can be said to have incurred or caught them at the same time as the initial ingestion or scratch giving rise to them. But it is clear that this is not the position with inhalation of asbestos in relation to either asbestosis or mesothelioma. No cause of action arises from exposure or inhalation alone: Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281. Further, for reasons which I develop in paragraphs 64 65 below, the exposure and risk are not by themselves damage in any sense known to the law. Damage is only incurred when mesothelioma develops. Only when it develops does the victim incur damage which is legally relevant, and even then this is not because any physical link necessarily exists or can be proved between the mesothelioma and the original exposure. The rule in Fairchild and Barker imposes liability for the mesothelioma upon persons who have exposed the victim to asbestos, and so created a risk of mesothelioma. But it is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure. And, even if it were viewed simply as a rule imposing retrospective liability on employers for exposing their employees to the risk of mesothelioma, the insurance policies do not insure risks of physical injury or disease, but only actual injury or disease. The application of the insurances in respect of mesothelioma At the outset of these appeals, the application of the insurances in respect of mesothelioma suffered by employees exposed to asbestos during their employment by an insured employer did not appear controversial. This changed after a question from Lord Phillips on day 4 of the hearing, followed by a later written note. All the same, the transcript pages containing any argument on the point numbered only 40 out of a total of some 1140. So far as Mr Edelman made any submissions on this point, in his written case or orally, they were to this effect: if the correct analysis of the Houses decision in Fairchild be that an employer who exposes an employee to asbestos is deemed to have caused that employees mesothelioma, then employers liability insurances held by the employer on a causation basis should respond; but, if the policies do not respond on a causation basis, there is no justification for treating the employee as having suffered injury or a disease during their currency, because employers cannot prove that any particular inhalation caused any injury. This led to some discussion, particularly with counsel for employers and employees, of the points which I have already addressed in paragraphs 50 52 above. The point now expressed forcefully by Lord Phillips in his judgment is that exposure to the risk of mesothelioma is the correct analysis of the Fairchild principle, at least as subsequently interpreted, and that such exposure can satisfy neither the concept of injury nor the concept of causation for the purposes of the policies. If that is right, then the present insurance claims must all fail. Indeed, the great bulk of insurance claims settled by other insurers (e.g. former tariff insurers) or by the present insurers under the causation policies they have issued in more recent years (paragraph 10 above) should presumably also have failed. The only exception may be the case of an employee exposed to asbestos in only one employment by an employer holding insurance throughout with only one insurer. In such a case it might (perhaps) be said that, whichever particular inhalation(s) may have been responsible for the employees mesothelioma, it (or they) must have been insured. Even then, the logic of the Supreme Courts reasoning in Fairchild and Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229 might lead to the conclusion that causation was still unprovable in the light of the possibilities of environmental or idiopathic causation of mesothelioma. Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts. Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context. In their leading work on Causation in the law (Clarendon Press, 2nd ed 1985) Professor H. L. A. Hart and Tony Honor examined both this understanding and its relationship to legal decision making. Generally, but not always, a cause must involve an act or omission that was at least a sine qua non of the injury in respect of which responsibility attaches (the but for test). But sometimes two separate acts or omissions may each independently have been sufficient to give rise to that injury (as when A and B simultaneously, but independently shoot C dead), and then we may as a matter of legal policy accept a weaker causal relationship for the imposition of responsibility: see p lxv in the preface to and p 123 of the 2nd edition. Other cases where causal requirements have been relaxed include Bonnington Castings Ltd v Wardlaw [1956] AC 613; there, materially contributing to part of an accumulation of dust which cumulatively led to pneumoconiosis gave rise to liability for the whole disease (although it has been suggested that some apportionment might now be possible in fact and law). Another relevant authority is McGhee v National Coal Board [1973] 1 WLR 1; there, liability for dermatitis was held to exist because the defendant had materially contributed to part of the claimants exposure to dirt, any part of which might, independently of any other, have given rise to the abrasion leading to the claimants dermatitis. It was recognised that this involved liability based on materially contributing to the risk of the injury. Lord Reid at p.4G H described the result as reached taking a broader view of causation, and Lord Wilberforce at p 5G viewed it as involving a conclusion as to the causal connection that had to exist between the default and the disease complained of. The contrary view (viz, that proof of risk was insufficient without proof that the risk caused or materially contributed to the disease) had a logic which Lord Wilberforce acknowledged, but rejected for policy and evidential reasons set out at p.6C F. In Fairchild, McGhee was seen as a precursor of the decision there reached. Putting aside the possibility of an idiopathic or environmental cause, a Fairchild type situation exists when (a) there are two separate potential causes exposing the claimant to the same risk, one involving an act or omission by the defendant, (b) either one of which causes would have been sufficient to give rise to the injury, and (c) one of which did so, but (d) neither of which can as a matter of probability be shown to have done so. Taking into account the later decisions in Barker v Corus and Sienkiewicz, the Fairchild principle extends to any case where there has been an act or omission exposing a person to asbestos, which exposure may have caused the mesothelioma, but which cannot be shown as a matter of probability to have done so. On that basis, the House held in Barker v Corus that each or any persons liability should only be proportionate to the extent that he had exposed another to the risk of mesothelioma. Parliament by the Compensation Act 2006 reversed that conclusion and made each such person liable in respect of the whole of the damage caused by the mesothelioma. Lord Phillips in his judgment addresses the basis of Fairchild in the light of Barker v Corus, the 2006 Act and Sienkiewicz. He accepts that, if Fairchild is now correctly to be understood as a special rule deeming employers who have exposed an employee to asbestos to have caused any subsequently suffered mesothelioma, then the insurance policies should apply (para 109). But he concludes that Fairchild must be understood as creating liability not for the disease, but for the creation of the risk of causing the disease. It follows in his view that employers and employees gain no assistance from the special rule in asserting that mesothelioma suffered by any person was caused or initiated in any particular policy period. On this basis, even though the insurances respond to injuries caused or initiated during their periods, the employers and employees fail for want of proof. It is not fruitful to repeat the exercise undertaken in Barker v Corus of examining in detail the significance of the speeches in Fairchild. The House was not agreed about this in Barker, but the majority speeches of Lords Hoffmann, Scott and Walker were at pains to reject any analysis of Fairchild as proceeding upon a fiction that each exposure had caused or materially contributed to the disease: see paras 31, 61 and 104; they each also referred to the liability created by Fairchild as being not for causing the disease, but for materially increasing the risk of the mesothelioma which was in fact suffered: paras 31, 36 and 40, 53, 61 and 113. Lord Rodger (dissenting) perceived the majority to be misinterpreting Fairchild by failing to acknowledge that it was based on an equation of materially increasing risk with materially contributing to causation, an equation which he thought had been accepted as sufficient causation in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1. It is on the apparently bright line distinction said to have been drawn by the majority in Barker between materially contributing to increasing the risk of, and causing, a disease that Lord Phillips now founds his judgment in these appeals. The Compensation Act 2006 applies where a person who has exposed someone to asbestos is liable in tort in connection with damage caused to the latter by mesothelioma whether by reason of having materially increased a risk or for any other reason (section 3(1)(d)). It makes the former person liable in respect of the whole of the damage (section 3(2)(a)). On its face, the Act assumes rather than creates the liability, and only alters the measure of recovery. That was the view expressed in Sienkiewicz by Lords Phillips, Rodger and Brown (paras 70, 131 and 183). However, on further analysis, the distinction identified in paragraphs 58 59 above proves more elusive. Even in Barker itself, Lord Walker described exposing the employee to the risk of mesothelioma as being equated with causing his injury and the result as an explicit variation of the ordinary requirement as to causation (para 104), and spoke of the rule as one by which exposure to the risk of injury is equated with legal responsibility for that injury (para 109). However, it is conceivable that he meant that the ordinary requirement of causation of the disease was entirely replaced by another liability creating rule. It is in the later authority of Sienkiewicz that the difficulty of drawing any clear cut distinction between creating a risk and causation of the disease becomes most apparent. Lord Phillips there stated that the rule in its current form was that the person responsible for the exposure and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease (para 1). Later, he said that the law was presently contained in Fairchild and Barker which had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances (para 70). That was the analysis of Fairchild advanced by Lord Rodger in Barker v Corus (paras 73 and 83) but rejected there by the majority. Lord Brown in Sienkiewicz spoke of a more relaxed approach to causation (para 178) and flexibility in the approach to causation (para 187). I referred to Fairchild and Barker as involving a special rule of causation (para 188), and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims (para 196) and to adjustments in the burden of proof (paras 198 and 200). Lord Rodger was, on the other hand, loyal to the majority view in Barker by referring to liability as based on materially increas[ing] the risk (para 113), and Lord Dyson was cautious in speaking of materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207). Lord Phillips has in para 123 set out a passage from an extra judicial commentary written by Lord Hoffmann in Perspectives on Causation (2011), p 8. In it, Lord Hoffmann describes the two ways in which the changes introduced by Fairchild and Barker could be characterised, one as changing the causal requirements for an action for damages for mesothelioma ; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent; the other as creat[ing], exceptionally, a cause of action for the increased risk of mesothelioma, rather than for the disease itself. Lord Hoffmann notes that the House in Barker (Lord Rodger dissenting) adopted the second explanation of what had happened in Fairchild. But in the next sentence, not quoted by Lord Phillips, Lord Hoffmann went on: Parliament almost immediately reversed this decision by a statute giving effect to the first explanation, which had been advocated by Lord Rodger in his dissenting speech. Lord Hoffmanns extra judicial (or judicial) words cannot by themselves alter the true effect of a statute, but his comments do again show that the suggested distinction is more fluid than might at first appear. It is relevant to look more closely at what Barker decides. In Barker, Lord Hoffmann spoke of Fairchild as applying an exceptional and less demanding test for the necessary causal link between the defendants conduct and the damage (para 1) and of the requirement of a sufficient causal link between the defendants conduct and the claimants injury (para 17). In his note in Perspectives on Causation, he picked up this language with references to the causal requirements of the relevant rule and to the issues in cases of mesothelioma and analogous situations as involving the causal requirements for an action for damages for mesothelioma. Lady Hale in Barker also viewed the common law rules governing the measure of recovery as closely linked to the common laws approach to causation, and said that there was no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations (para 122). In paras 123 and 124, she made clear that in her view the issue in Barker could be seen as arising from the expanded perceptions or developed concept of causation which the law had accepted. These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker v Corus as one concerned with the issue of the causal requirements or causal link, as between the defendants conduct and the disease, which the common law requires in order for there to be an action for mesothelioma. But analysis of the rule arrived at after Fairchild and Barker justifies further propositions. Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops. Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281; the House there decided that not even the emergence of pleural plaques marking the past exposure to asbestos constituted injury for the purpose of giving a cause of action. In order to fall within the principle in Fairchild and Barker, the development of mesothelioma is a pre condition: see Barker, per Lord Hoffmann (para 48) and Lord Scott (para 53). Lady Hale went further, stressing that she in fact agreed with Lord Rodgers view that the damage which is the gist of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma (para 120). In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply for the risk created by exposing someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically not the law: see Rothwell and the statements in Barker itself, cited above. The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim. As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma. In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised. What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim. The actual development of mesothelioma is an essential element of the cause of action. In ordinary language, the cause of action is for or in respect of the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild and Barker, held responsible for and in respect of both that exposure and the mesothelioma. This legal responsibility may be described in various ways. For reasons already indicated, it is over simple to describe it as being for the risk. Another way is to view a defendant responsible under the rule as an insurer, but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault. A third way is to view it as responsibility for the mesothelioma, based on a weak or broad view of the causal requirements or causal link appropriate in the particular context to ground liability for the mesothelioma. This third way is entirely natural. It was adopted by Lords Reid and Wilberforce in McGhee, by Lord Hoffmann, Lady Hale and (possibly) Lord Walker in Barker and by Lord Hoffmann in his extra judicial commentary. It seems to have received the perhaps instinctive endorsement of a number of members of this Court, including myself, in Sienkiewicz. Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear. They have the meanings assigned to them and understood in ordinary usage in their context. A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforces words in McGhee, p 6C F (cited in para 56 above). The present appeals concern the meanings we assign to the concept of causation, first in the context of considering employers liability to their employees and then in considering the scope of employers insurance cover with respect to such liability. It is instructive in this connection to look more closely at the Compensation Act 2006. Section 3(3) states that section 3(2) does not prevent (a) one responsible person from claiming a contribution from another, or (b) a finding of contributory negligence. Section 3(4) goes on to provide that [I]n determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible . Section 3(3) necessarily relates to the legal bases for claiming contribution or asserting contributory negligence, which are to be found in, respectively, the Civil Liability (Contribution) Act 1978 and the Law Reform (Contributory Negligence) Act 1945. The 1978 Act addresses the situation where two or more persons are liable in respect of the same damage (section 1(1)), while section 2(1) provides for contribution in such situations to be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage in question. Although under section 3(4) of the 2006 Act, the court must have regard to the relative lengths of the exposure for which each was responsible, the same damage which is a pre condition to the application of the 1978 Act must be the mesothelioma. It cannot be the risk created by the person by or from whom contribution is sought, because each person and exposure creates a separate risk, and no one person or exposure creates the total risk resulting from all exposures. The 2006 Act, by its reference to the 1978 Act, thus assumes that every person, who has exposed to asbestos a victim who later experiences mesothelioma, incurs responsibility for the mesothelioma. That language again fits an analysis whereby the rule in Fairchild and Barker identifies the appropriate weak or broad causal link between the exposure and the mesothelioma. A similar position applies under the 1945 Act. Under section 1(1), that Act applies [w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons. In that event, the damages recoverable are to be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage. The application of this section, as contemplated by the 2006 Act, is only possible on the basis that a mesothelioma sufferer may be said to have suffered the mesothelioma partly as the result . of the fault of anyone who has exposed him to asbestos. In other words, the rule in Fairchild and Barker must have been viewed by the drafters in my opinion entirely understandably as establishing a causal link, between the exposure and the mesothelioma, sufficient for it to be said that the mesothelioma was the result of each (and every) exposure. A similar view is also implicit in the provisions of the Act drafted on the basis that insurers who would commonly of course be employers liability insurers would be among the persons by or for whose benefit or against whom contribution would be sought in cases of multiple responsible persons: see section 3(7)(b) and (10)(a) of the 2006 Act. Those provisions necessarily assume that employers liability insurances, written generally on a causation basis, would respond to Fairchild/Barker type liability incurred by employers. Ultimately, the present appeals raise the questions how the present employers liability insurance policies respond as a matter of construction in circumstances within the rule in Fairchild and Barker. Where two contracts are linked, the law will try to read them consistently with each other. This is so with language in a bill of lading, incorporated from a charterparty: The Njegos [1936] P 90. A similar approach applies to language in a reinsurance incorporated from the insurance: Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852 and Groupama Navigation et Transports v Catatumbo CA Seguros [2000] 2 Lloyds Reports 350, even though there is no guarantee that a reinsurance will in every possible circumstance that may develop pick up every liability that may be held to exist under an insurance: see Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHC 40, [2010] 1 AC 180. The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured. Thus, as Scrutton and Greer LJJ accepted in the Ellerbeck Collieries case (paragraph 34 above), an employers liability insurance could have been expected to respond to the conventional and artificial definition in the WCAs as to what constituted an accident and when personal injury by accident or disease was sustained for the purposes of employers liability to employees. Furthermore, if the common law during or even after the currency of an insurance develops in a manner which increases employers liability, compared with previous perceptions as to what the common law was, that is a risk which the insurers must accept, within the limits of the relevant insurance and insurance period. Eady J correctly identified this in Phillips v Syndicate 992 Gunner [2003] EWHC 1084 (QB), [2004] Lloyds Insurance and Reinsurance Reports 426, 429 (left). The declaratory theory does not presume the existence of an ideal system of the common law, which the judges from time to time reveal in their decisions. But it does mean that, when judges state what the law is, their decisions do . have a retrospective effect in the sense that the law as stated will, generally speaking, be applicable not only to the case coming before [them] but, as part of the common law, to other comparable cases which come before the courts, whenever the events which are the subject of those cases: Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, 378G H, per Lord Goff. The declaratory theory is a pragmatic tool, essential when cases can only come before the court some time, perhaps some years after the relevant events occurred, and when the law [must] be applied equally to all, and yet be capable of organic change (p 379A). A similar principle must, generally speaking, apply in relation to a statute such as the Compensation Act 2006, which changes or corrects the common law to what Parliament perceives to be a more appropriate result for the purposes of all future cases coming before the courts, whenever the events giving rise to them. In the case of that Act, the result was one which the courts might as a matter of common law well have themselves accepted (and which indeed Lord Rodger in his powerful dissent in Barker v Corus believed that the common law had accepted) in Fairchild. Concluding, as I have done, that the present insurances covered employers liability for injuries or diseases caused during the relevant insurance periods, the question is whether they cover employers liability for mesothelioma arising under the rule in Fairchild and Barker from having exposed employees to asbestos during such periods. It is not in dispute that, if the rule is characterised as a rule of deemed causation, then the policies must respond. A parallel example, so familiar that it is easy to overlook, is the vicarious liability to an employee, A, which rests on any employer, B, who has not himself been negligent but must answer vicariously for the negligence of another employee, C. We have no hesitation in saying that the employer B has in such a case caused the injury or disease suffered by A. But this is so in reality only because a rule of law requires us to equate the acts or omissions of C with those of B. The argument, accepted by Lord Phillips, is that the rule in Fairchild and Barker is not one of deemed causation of or, therefore, liability for the disease, but one of liability for the risk created by the exposure. For reasons which I have set out, I regard this distinction as too simple. The liability arises only because of the incurring of the disease and is for the disease. A condition of such liability is that the employer (negligently) exposed the victim to asbestos. The insurance policies, read as operating on a causation basis, are aimed at covering liability generated by employers activities during their insurance periods: see paragraphs 18 28 and 41 above; unless liability for mesothelioma flowing from negligent exposure during an insurance period is covered by the policies, this aspect of employers activities will not in practice be covered at all. In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient weak or broad causal link for the disease to be regarded as caused within the insurance period. It would, I think, have been anomalous and unjust if the law by deeming there to have been causation of the disease could have created policy liability (which is common ground), but the law by insisting that the liability in respect of mesothelioma was for the risk of causation achieved a quite different result. As I have sought to show, it is not in any event accurate to treat the liability as being either solely or strictly for the risk. The risk is no more than an element or condition necessary to establish liability for the mesothelioma. The reality, reinforced by provisions in the 2006 Act, is that the employer is being held responsible for the mesothelioma. For this purpose, the law accepts a weak or broad causal link. The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease. But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond. The concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild and Barker. Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond. Conclusion I would therefore dismiss the appeals by insurers so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. ANNEX A The policy wordings (dates are approximate) (1) Excess First Wording (late 1940s): Whereas . (hereinafter called The Employer) carrying on the business of . has made a proposal . this Policy witnesseth that in consideration of the payment of . as premium to the Company on the estimated total amount, as set forth in the Schedule hereto, of the wages, salaries, and other earnings of Employees, a description of whom is set forth in the said Schedule (which premium is subject to adjustment as hereinafter provided) the Company agrees to indemnify the Employer in the manner following, namely That if at any time during the period commencing on theday of19 , and ending on theday of19 (both days inclusive) and for such further period or periods as may be mutually agreed upon, any employee in the Employer's immediate service shall sustain any personal injury by accident or disease while engaged in the service of the Employer in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands, in work forming part of or process in the business above mentioned, and in case the Employer shall be liable to damages for such injury, either under or by virtue of the Common Law, the Fatal Accidents Acts 1846 to 1908, or the Law Reform (Miscellaneous Provisions) Act 1934, the Company will indemnify the Employer The Schedule required a description of the insured companys employees and their estimated total wages, salary and other earnings. Condition 1 of the policy further provided that: the Employer shall truly record in a wages book the name of every employee and the amount of wages, salary and other earnings paid to him. Second Wording (late 1950s to 1960s): Whereas the Employer . carrying on the business described in the . Schedule has made . a written proposal and declaration, containing particulars and statements which it is hereby agreed are the basis of this Contract . and has paid the premium mentioned in the Schedule, which premium is subject to adjustment as hereinafter provided, this Policy witnesseth that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in work forming part of the process in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease The policy provided that the Company should not be liable under it in respect of accidents occurring elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands. The policy provided that premiums were to be regulated by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with a wages book being kept open to inspection for that purpose and the employer supplying the correct amounts within one month of the expiry of each insurance period. Condition 1 and the Schedule were in similar form to those in the first wording. Third Wording (1970 to 1976) After a recital in the same form as the second wording, this wording provided: that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease Under the third wording, there was the same territorial limitation as under the second wording in relation to accidents occurring elsewhere than in Great Britain, etc. Premiums were also regulated by reference to wages, salaries, etc. and condition 1 and the Schedule were in the same terms as in the second wording. (2) Independent Sole wording in Issue (1972 to 1987): This was a Contractors Combined Policy, covering Employers Liability (section 1), Public Liability (section 2) and Loss of or Damage to Contract Works (section 3). It provided: NOW THIS POLICY WITNESSETH that during the Period of Insurance or during any subsequent period for which the Company may accept payment for the continuance of this Policy and subject to the terms, exceptions and conditions contained herein and or endorsed hereon, the Company will indemnify the Insured as hereinafter specified. SECTION 1 EMPLOYERS' LIABILITY If any person who is under a contract of service or apprenticeship with the Insured shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule the Company will indemnify the Insured against all sums for which the Insured shall be liable at law for damages for such injury or disease The Policy provided that the Company was not to be liable for injury, illness, loss or damage caused elsewhere than in Great Britain, the Isle of Man or the Channel Islands. As a result of the ELCIA 1969 making insurance in respect of employers liability compulsory, the Independent wording also contained the further provision (the ELCIA extension provision): "AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY The indemnity granted by section 1 of this Policy is deemed to be in accordance with the provisions of any law relating to compulsory insurance of liability to employees in Great Britain. It is agreed the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the provisions of such law. " The policy Schedule contains spaces for entry of first, annual and minimum premium, as well as of the name of the Principal for whom the insured is undertaking work, the details of the contract or type of work covered by the policy and its situation. Condition 7 provides that the premium is based on estimates provided by the Insured, for record keeping, for the supply of updated information as required by the Company within one month of the expiry of each insurance period and for adjustment of the premium on that basis. (3) MMI First Wording (1949 to 1958) the Company hereby agrees that if at any time during the period of insurance specified in the schedule or thereafter during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified in the said schedule, or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any personal injury by accident or disease arising out of and in the course of his employment by the Insured in their activities described in the schedule and if the Insured shall be liable to pay damages for such injury or disease then, subject to the terms and conditions contained herein or endorsed hereon, the Company shall indemnify the Insured against all sums for which the Insured shall be so liable The policy was expressed not to apply to or include liability in respect of injury or disease caused elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands. Condition 5 regulated premiums by reference to wages, salaries, etc, and made provision for a wages book and adjustment to like effect to the Excess second wording. The policy Schedule provided for the classification of staff and employees according to departments and job description, with corresponding figures for estimated total remuneration. Second Wording (1958 to 1974) the Company hereby agrees that if at any time during the First Period of Insurance specified in the said Schedule or during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified as the Renewal Premium in the said Schedule or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any bodily injury or disease arising out of and in the course of his employment by the Insured in the Insured's activities described in the said Schedule and if the Insured shall be liable to pay damages for such injury or disease or for death resulting from such injury or disease then, subject to the terms, exceptions and conditions contained herein or endorsed hereon or set out in the Schedule to this Policythe Company will indemnity the Insured against all sums for which the Insured shall be so liable. Like the first wording, this wording contained a territorial exclusion of liability in respect of injury or disease caused elsewhere than in Great Britain, etc. The policy Schedule provided for the entry of the Estimates (if any) on which the premium is calculated, including in particular any such estimate of wages, salaries, etc. paid to staff, and cross referred to condition 7, which provided that, if the premium had been based on any estimates, an accurate record should be kept (of actual amounts), the insured should provide insurers with such particulars and information as might be required within one month of the expiry of the policy period and the premium adjusted accordingly. Third Wording (1974 to 1992) The Company agrees to indemnify the Insured in respect of all sums without limit as to amount which the Insured shall be legally liable to pay as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any person under a contract of service or apprenticeship with the Insured when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy. The policy Schedule contemplated a premium adjustable in accordance with condition 5, which in turn provided (in like manner to condition 7 of the second wording) for the adjustment of any premium so calculated by reference to actual amounts at the end of the policy period. (4) BAI First Wording (1953 to 1974) . the Company willindemnify the Insured against all sums of money which the Insured may become liable to pay to any Employee engaged in the direct service of the insured or any dependent of such Employee in respect of any claim for injury sustained or disease contracted by such Employee betweenandboth inclusive The policy carried the note: This policy does not cover the insureds liability for accidents to workmen arising outside the United Kingdom. Conditions 1 and 2 made elaborate provision for the regulation of premiums by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with pay sheets and books of account being kept open to inspection for that purpose and the employer making a return, and the premium being adjusted, subject to a minimum, at the end of each insurance period. Second Wording (1974 to 1983) the Company willindemnify the Insured against all sums of money which the Insured may become legally liable to pay in respect of any claim for injury sustained or disease contracted by any person engaged in and upon the service of the Insured and being in the Insured's direct employment under a Contract of Service or Apprenticeship between theday ofand theday ofboth inclusive This wording also excluded insurers from liability in respect of accidents to employees arising outside the United Kingdom. Like the Independent and third MMI wordings, the BAI second wording also included the ELCIA extension provision. Conditions 1 and 2 provided for the regulation and adjustment of premiums by reference to actual wages, salaries, etc. during each insurance period, in like terms to conditions 1 and 2 in the first wording. (5) Zurich The Municipal First Select wording (1993 to 1998) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury sustained during the Period of Insurance by any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits. The Municipal Second Select wording (1998 ) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury caused during the Period of Insurance to any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits. The tariff wording (1948 ) if any person under a contract of service or apprenticeship with the Insured shall sustain any personal injury by accident or disease caused during the period of insurance and arising out of and in the course of his employment by the Insured in the business above mentioned and if the Insured shall be liable to pay damages for such injury or disease the Association shall indemnify the Insured against all sums for which the Insured shall be so liable. LORD CLARKE Like other members of the Court, I agree with Lord Mance on the construction issue. Thus I agree that, for the purposes of the EL policies, mesothelioma is sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the asbestos fibre or fibres which cause the disease. I do not wish to add to Lord Mances reasoning on the construction issue. I do however wish to add some words of my own on the causation issue which sharply divides Lord Phillips and Lord Mance. I wish to say shortly why I prefer the conclusion of Lord Mance to that of Lord Phillips. As I see it, the effect of Fairchild, Barker and Sienkiewicz may be summarised in this way. An employer who, in breach of duty, has exposed an employee to asbestos is liable in damages if the employee subsequently suffers the disease. The employees cause of action is not that he was exposed to the risk of mesothelioma. He has no claim unless he in fact suffers the disease. It is the disease which represents the damage which completes the cause of action and it is only then that his cause of action accrues and the relevant time limit begins to run. It is axiomatic that, in order to succeed in tort, the employee must show a sufficient causal link between the breach of duty, namely the exposure to asbestos, and the disease which represents the damage, namely mesothelioma. The effect of the majority opinion in Barker is that, where there are two or more employers who have exposed the claimant to the risk of mesothelioma, they are not jointly and severally liable to the claimant for the whole of the consequences of the disease but only severally liable for an aliquot part. That decision was reversed by the Compensation Act 2006, so that such employers are jointly and severally liable for the whole of the consequences. The question in this appeal is whether the employers liability insurers are liable to indemnify the employers in respect of that liability. It would in my opinion be a remarkable result if they were not. Lord Phillips notes at para 109 that Mr Edelman QC accepted that, if the correct analysis of the special rule, which (using Lord Phillips definitions) was the result of the combined effect of the special approach in Fairchild and Barker and the Compensation Act 2006, was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust, the insurers would be liable. Lord Phillips accepts that that concession was correctly made. I agree, for the reasons he gives at paras 109 to 114. The question is therefore whether the correct analysis of the special rule is indeed that the employers were deemed to have caused the mesothelioma. I accept that in such a case the employee cannot show on the balance of probabilities that the employers negligence caused the disease. The effect of Fairchild and Sienkiewicz was however that the employer is liable where the exposure contributed to the risk that the employee would suffer the disease and where the employee in fact suffers the disease. That is not in dispute. Lord Phillips says at para 124 that the majority in Barker drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease. He quotes para 2 of Lord Hoffmanns speech as follows: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised. Lord Phillips further notes that at para 125 Lord Hoffmann advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance. See also the passages to like effect referred to by Lord Mance at para 61. I accept that Lord Hoffmann and others did indeed advance that view of Fairchild but it is I think important to note that it was in the context of the question whether, in a case of two or more employers, each was severally liable for a proportion of the consequences of the mesothelioma or whether each was jointly and severally liable for the whole. Lord Hoffmann cannot have intended to hold, without more, that the basis of liability was the wrongful creation of the risk or chance of causing the disease because there would be no liability at all but for the subsequent existence of the mesothelioma. It seems to me that, whether the majority in Barker were correct or not, there is no escape from the conclusion that, in all these cases, where it is not possible to show that the particular employer caused the claimant to suffer mesothelioma, the underlying question is who should be held responsible for causing the mesothelioma which in fact struck down the employee. None of the cases is authority for the proposition that causation is irrelevant. On the contrary, the quest is for the employer who can fairly be held liable for the consequences of the disease and therefore for the employer who can fairly be said to have caused the disease. The courts have embarked on similar quests over the years. Lord Mance has given a number of examples. As Lord Mance shows at para 56, they include Bonnington and McGhee, where Lord Reid was prepared to take a broad view of causation and Lord Wilberforce rejected a traditional approach for policy or evidential reasons. In my opinion the reasoning in Sienkiewicz is of some significance in this context. Lord Mance has given the relevant references in para 61. Thus, as Lord Mance observes, at para 61 Lord Phillips said that Fairchild and Barker had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances. Lord Mance further refers to Lord Brown speaking of a more relaxed approach to causation and flexibility in the approach to causation at paras 178 and 187. Lord Mance had himself referred to Fairchild and Barker as involving a special rule of causation at para 188, and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims at para 196 and to adjustments in the burden of proof at paras 198 and 200. Again, as Lord Mance observes at para 61 above, Lord Dyson referred (at para 207) to materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207). Both Mr Beloff QC and Mr Stuart Smith QC addressed these issues in their oral submissions. They both in effect submitted that the effect of Fairchild, Barker and Sienkiewicz was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust. They both recognised that the ordinary rule of causation could not apply and that some element of policy or doctrine was required in order to explain Fairchild. Mr Stuart Smith submitted that the effect of Fairchild was that each material exposure to asbestos dust is doctrinally held responsible for the mesothelioma. Mr Beloffs submission was to much the same effect. He relied upon a dictum of Lord Walker in Barker at para 109: A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury entails the possibility that an employer may be held liable for an injury which was not in fact caused by that exposure (though in the present state of medical science, that fact can be neither proved nor disproved). The injury is of course the mesothelioma, which is necessary to complete the cause of action. On that basis it seems to me that Lord Walkers statement that the risk of injury is equated with legal responsibility for the injury is in effect to say that, by creating the risk of mesothelioma in the future, the employer is deemed to have caused the mesothelioma, if it should develop in the future. It appears to me that these conclusions are supported by Lord Mances analysis of section 3 of the Compensation 2006 at paras 67 and 68, with which I agree and to which I do not wish to add anything. Given Mr Edelmans concession that, if that is correct, the employers are liable under the policies (and this Courts acceptance of it) I would hold that the causation point does not assist the insurers. I would only add this. It appears to me that, once it is held that, on these facts, the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies. Rather as in AXA, the whole purpose of the policies was to insure the employers against liability to their employees. That purpose would be frustrated if the insurers submissions on this point were accepted. I agree with Lord Mance, for the reasons he gives at paras 69 73 that these policies respond to these claims. For these reasons, I too would dismiss the appeals by insurers so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. LORD DYSON I too agree with Lord Mance on the construction issue. As to the causation issue, I agree with the reasoning of Lord Mance and Lord Clarke. Accordingly, I would dismiss the appeals by insurers in so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. LORD PHILLIPS Introduction So called long tail industrial diseases have raised peculiar difficulties in the field of tort. These diseases result from the effect on the body of exposure to noxious substances. The effect can be long, drawn out and mysterious, in as much as medical science has not yet identified the precise mechanism, or chain of causation, by which the noxious substance causes the disease. Mesothelioma is a long tail disease in which the problems raised have been particularly acute. The problems arise in the application of principles of law that do not ordinarily give rise to difficulty. An employer will be liable in damages if by an act or omission that is negligent or in breach of statutory duty he causes physical harm to an employee. In the vast majority of cases there will be no difficulty in identifying the moment at which the negligence or breach of duty causes the physical harm, for the harm will take the form of an obvious injury. This is not the position in respect of mesothelioma. Asbestos dust, inhaled into the lungs, is the agency that causes mesothelioma, but as long as forty or fifty years may elapse before the effects on the body of dust inhaled culminate in symptoms of mesothelioma. Once the symptoms are felt, the disease will develop swiftly to bring about an inevitable and extremely unpleasant death. Where a victim of mesothelioma was exposed to asbestos dust over a period of years it is impossible, even with hindsight, to determine on balance of probabilities whether dust inhaled in a particular year caused or contributed to the development of the mesothelioma. It follows that, where the victim worked for a series of employers, each of whom exposed him to asbestos dust, it is impossible to prove on balance of probability that any particular employer caused or contributed to the victims mesothelioma. This means that the normal principles of the law of tort provide no remedy to the employee or his dependants. The manifest injustice of this position led the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572 to create what I shall describe as a special approach to causation in respect of mesothelioma, whose effect was immediately varied by Parliament by section 3 of the Compensation Act 2006. I shall describe the composite result achieved by the House of Lords and Parliament as the special rule. I shall examine the nature of this special rule in due course. Its effect was, however, to place each employer in the same position as that employer would have been under at common law if it were proved, on balance of probability, that its negligence or breach of duty in exposing the employee to asbestos dust had contributed to causing the employees mesothelioma. These developments of the law of tort have formed the backdrop to the issue that has occupied almost all of the eight days that this Court has devoted to this appeal. I shall call this issue the construction issue. The construction issue relates to the true construction of a number of policies of insurance against employers liabilities (EL policies) with similar, but not identical, provisions as to the cover provided. The EL policies provided cover by reference to specific periods usually of a year. The central issue relates to the event or events that, on true construction of each policy, had to occur within the period of the policy in order to render the insurer liable to indemnify the employer in respect of liability for causing an employees mesothelioma. The policies provided cover in respect of diseases sustained or contracted during the period of the policy. The meaning of each of those words, in its context, lies at the heart of the construction issue. It does not seem that the construction issue initially received a great deal of consideration. Insurers treated the policies as if they covered an employer whose breach of duty within the period of the policy had contributed to causing the disease and regarded this requirement as satisfied if the employer was held liable because he had exposed the employee to asbestos dust during that period. Where more than one insurer was liable on this basis, they apportioned liability according to the period of exposure covered by each. The attitude of four of the five insurers party to this appeal changed as a result of the decision of the Court of Appeal in Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50; [2006] 1 WLR 1492. Those insurers are MMI, Excess, BAI and Independent, each of which is in run off. I shall describe them collectively as the insurers. Their opponents I shall describe collectively as the employers, although they embrace solvent employers, individuals claiming under the Third Party (Rights against Insurers) Act 1930, and Zurich, which has a community of interest with these. Bolton concerned the scope of cover of a public liability policy (PL policy) in relation to liability for causing mesothelioma. The policy provided cover in respect of an injury that occurs during the currency of the policy. The argument proceeded on the premise that the chain of causation of mesothelioma, once it was diagnosed, could be traced back to the initial inhalation of asbestos dust. The issue was whether the mesothelioma could properly be said to have occurred at the time of the initial inhalation. The Court of Appeal held that it could not. The injury only occurred, at earliest, at the stage of development of the disease at which malignancy occurred. This was, on the evidence, ten years, give or take a year, from the date on which it became possible to diagnose the existence of the tumour but very many years after the initial inhalation of asbestos dust. This decision led the insurers to take the point that a similar approach should be taken to the interpretation of the cover afforded by the EL policies. Mesothelioma was not, on true construction of the policies, sustained or contracted at the time of the initial inhalation of asbestos dust. It was only sustained or contracted at the much later stage when, as a consequence of the process initiated by asbestos dust, an actionable injury in the form of malignancy, developed. Before Burton J, the Court of Appeal and this Court the construction issue has been argued at great length and in great detail. I agree, as do the other members of the Court, with the conclusions reached by Lord Mance on the construction issue. These conclusions have application not merely to mesothelioma but to employers liabilities in relation to other long tail industrial diseases such as asbestosis and pneumoconiosis. For the purpose of EL policies, these diseases are sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the noxious substance that causes, or contributes to the cause or the extent of, the disease. Throughout the hearing of this appeal there has lurked a second issue. It has not been the subject of argument below, nor does it feature in the agreed Statement of Facts and Issues. This is, perhaps, because it relates to a point that does not arise out of Bolton. It has always been there for the taking, but insurers have not hitherto chosen to raise it, perhaps because its consequences are unattractive. It arises out of a problem that is similar to that which led the House of Lords to formulate the special approach in Fairchild and Barker. It is not possible for an employer to prove that an employees mesothelioma was, in fact, caused in whole or in part by any particular period of exposure to asbestos dust. Thus the employer cannot prove, on balance of probability, that the mesothelioma for which he has been held liable under the special rule was, in fact, initiated in any particular policy year. How, then, can he prove that his liability falls within the scope of the cover, even if the policy bears the construction contended for by the employers and upheld by this Court? How can he prove that his liability arises out of disease sustained or contracted within the policy period, giving these words the same meaning as initiated? I shall call this issue the causation issue. The causation issue and the judgments below Although the causation issue was not raised in argument below, it was dealt with, at least implicitly, in the judgments of both courts. Burton J at first instance, and Rix and Stanley Burnton LJJ in the Court of Appeal proceeded on the basis that, in the case of a mesothelioma victim, exposing the victim to asbestos dust could be treated as equivalent to causing his disease. This approach was based on the special rule. Thus Burton J at paras 42 to 58 summarised, without significant comment, what he described as the special mesothelioma jurisprudence as it was at the time of his judgment. This included Fairchild, Barker and the 2006 Compensation Act. He thereafter proceeded on the basis that exposing a mesothelioma victim to asbestos dust could be treated as having been equivalent to causing the victim to contract the disease. Thus, when summarising his conclusions at para 243 he said: I conclude, in relation to the policies in issue before me, that they respond, just as would policies with caused wording, to claims against insurers where employers are liable on the basis of inhalation by employees during the policy period. They respond, consistently with other EL policies, in respect of mesothelioma claims, on an exposure basis. For the purposes of these policies, injury is sustained when it is caused and disease is contracted when it is caused, and the policies fall to be so construed. Rix LJ drew a distinction between the meaning of contracted and sustained. Contracted referred to the time of the diseases causal origins para 245. He felt constrained by Bolton, however, to hold that no injury was sustained until the disease reached the malignant stage. Implicit in his judgment was the premise that exposure to asbestos dust during the period of the policy could be treated as the causal origin of the disease see for example his comments at para 244. A difficult passage in his judgment at paras 280 283, when considering the meaning of injury, suggests that this premise was founded on the special rule. Thus he was able to conclude that the disease was contracted at the time that the victim was exposed to asbestos dust albeit that injury was not sustained at that point. In a short judgment Stanley Burnton LJ adopted similar reasoning. He stated, at para 338: We are agreed that in any year in which there was substantial exposure to asbestos, mesothelioma was caused by that exposure during that year. The fact that the disease did not develop for some years does not break the chain of causation. Submissions on the causation issue The causation issue was not raised by the insurers as a discrete issue. It none the less surfaced in a passage of the written case for Excess that was addressing the employers case that personal injury by disease was sustained at the moment of inhalation of asbestos dust that triggered the process of sustaining personal injury by disease. One of the arguments advanced by Excess in answer to this submission read as follows: Medically and empirically, one cannot be said to have suffered an injury on a particular day because it cannot be known in (say) a 10 year occupational exposure period on which of the 3652 days the fatal dose was inhaled (and it may be on more than one). It is likely that any ingestion on a particular day was irrelevant to the development of the final condition. There has been a tendency on the part of the claimants to treat inhalation as a single event from which an unbroken line can be drawn to malignancy. It is not. Inhalation (and hence on this theory) injury may occur over several thousands of days. Each day does not bring injury. Any particular day cannot therefore be selected as injury day. To overcome problems of medical causation in a personal injury action against an employer, the House of Lords extended the McGhee principle to mesothelioma in Fairchild. However this was a rule of causation and not definition. There is no such rule in insurance policies which defines what amounts to an injury. The Supreme Court in Sienkiewicz stressed the limits of the Fairchild exception in no uncertain terms, and it is submitted that it would be quite wrong for it now to invade the law of contract. A liability policy responds only to indemnify against a liability (i.e. actionable injury). There is no such liability on inhalation. Injury occurs when the claimant has a personal injury by disease. Thus Excess took the point that the special rule could not properly be invoked to establish that, on true construction of the contracts of insurance, injury was sustained upon inhalation of asbestos dust. This passage appeared after a submission at para 209 that it was only possible to equate the inhalation of a culpable quantity of asbestos dust with sustaining personal injury by disease by, inter alia, creating a special rule governing the response of EL policies in respect of mesothelioma, and possibly other long tail diseases. This proved to be what counsel for the employers sought to do when invited by the Court to address the causation issue. They did so in short oral submissions that cannot, when taken together, have occupied more than half an hour of the eight day hearing. The relevant submissions made by Mr Beloff QC for Akzo and AMEC and the Local Authorities are reported at pp 120 122 of the transcript for 15 December 2011. He started by observing that we had to cut the Gordian knot. He suggested that we should do so by equating creation of a risk with causing bodily injury. This he submitted was permissible because the object of the policy was to provide cover to an employer who, in breach of duty to employees, caused them compensatable damage. Were this approach not adopted, it would be impossible to show that any of a number of insurers providing cover over a period of years was liable. The law should rebel against such a result. In support of this submission Mr Beloff cited a statement by Lord Walker of Gestingthorpe in Barker at para 109 suggesting that the special approach to mesothelioma equated the exposure to the risk of injury with legal liability for the injury. Mr Stuart Smith QC for Zurich dealt with the causation issue at rather greater length in a passage reported at pp 126 to 131 of the same transcript. He started by accepting that it was impossible to know when the metabolic changes that led to the development of mesothelioma in fact occurred. Fairchild dealt with this problem by creating a doctrinal rule under which each significant exposure to asbestos dust was held to be responsible for the mesothelioma. Thus doctrinally the process of developing mesothelioma started upon inhalation. This doctrinal framework for the application of the law of tort was that within which policies of insurance against tortious liability had to operate. Mr Stuart Smith agreed with this summary of his argument advanced by Lord Mance: If the law of tort treats someone, an employee, as having sustained a personal injury and treats the employer as liable to pay damages for such personal injury, then the policy answers. These submissions on behalf of the employers raise the following questions: i) Will the policies respond to fictional or doctrinal events that are deemed to have occurred under the special rule? If so: ii) Does the special rule deem that events have occurred to which the policies should respond? If not: iii) Can this Court properly reformulate the special rule in such a way as to require the policies to respond? Will the policies respond to fictional or doctrinal events? On the premise that he failed on the construction issue, Mr Edelman accepted that, if the correct analysis of the special rule was that the employers were deemed to have caused the mesothelioma by exposing the victims to asbestos dust, then the policies should properly respond. Because of the view that I take of the next two questions I do not need to decide whether the concession was properly made. I have, however, concluded that it was. The policies exist to provide protection against employers liability in tort. If the law of tort, whether laid down by the courts or by Parliament, resorts to legal or doctrinal fictions, it seems logical that the policies should respond as if the fictions were facts. A purposive approach to construction of the policies would lead to this result. Two examples illustrate this approach. Ellerbeck Collieries Ltd v Cornhill Insurance Co Ltd [1932] 1 KB 401 involved a policy of insurance against liability under the Workmens Compensation Act 1925. The terms of the policy entitled the employer to indemnity if at any time during the currency of the insurance any employee sustained any personal injury by accident or disease. The 1925 Act imposed a fictitious test for identifying when an industrial disease was sustained, namely the date on which a certifying surgeon issued a certificate that the employee was suffering from the disease. On the strength of a certificate issued within the currency of a policy of insurance an employer was held liable to two workmen who had, in fact, sustained the relevant disease before the period of the insurance began. The Court of Appeal held that this liability fell within the cover of the policy. The argument for applying the fictional date was a strong one because, as Greer LJ observed at p 417, the policy was intended to cover the employers liability under the Act. The parallel between Ellerbeck and the present case would have been stronger had the relevant policies been taken out after the special rule had been created. In Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 the House of Lords held that pleural plaques caused by exposure to asbestos dust did not constitute actionable injury because they produced no adverse physical effects. The Scottish Parliament responded to this decision by introducing the Damages (Asbestos related Conditions) (Scotland) Act 2009 (the Scottish Act). That Act provides by section 1 that asbestos related pleural plaques constitute a personal injury which is not negligible and that accordingly they constitute actionable harm for the purpose of an action for damages for personal injury. In AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2011] 3 WLR 871 the Supreme Court rejected a challenge by insurers to the lawfulness of this Act. The Scottish Act effected a limited alteration to the common law in decreeing that asymptomatic pleural plaques constituted non negligible personal injury and thus actionable damage. Lord Mance at para 88 suggested that the main target of the legislation was employers insurers. He went on at para 89 to consider whether the Act would, in fact, alter the meaning to be given to bodily injury under a policy of insurance: A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland. However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world. Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury. I say no more about the answer, which may be elicited in another context or suit. While Lord Mance left open the effect of the Scottish Act on the construction of policies of liability insurance, Lord Brown was in no doubt that the effect of the Scottish Act was to subject insurers to liabilities to which they would not have been subject prior to that Act. He referred at para 80 to the undoubted, and deliberate, impact of the legislation upon pending claims. Earlier, at para 77, he drew an analogy with the effect of the decision in Fairchild on EL insurers liability: Had the House of Lords in Rothwell decided that asymptomatic pleural plaques of themselves constitute a non negligible personal injury and thus actionable damage decided in other words that in this particular context the common law should develop in this admittedly novel way the appellants would doubtless have deplored the decision but they could certainly not have questioned its legitimacy. No doubt they would have resented the fact that, as a consequence of the decision, they would unexpectedly have had to pay out on claims resulting from the employees exposure to asbestos upwards of 20 years (quite likely up to 40 years) previously. But they could no more have advanced an [article 1, Protocol 1] challenge to this development of the law than they could have challenged the House of Lords decision some four years earlier in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 to adopt a less stringent than the usual but for test for establishing the necessary causal connection between an employers negligence and a claimants condition in, most notably, mesothelioma cases. Employers (and their liability insurers) necessarily take the risk of the common law developing in ways which may adversely affect them with regard to personal injury claims. In this passage Lord Brown assumed that the effect of Fairchild was to bring employers liabilities in respect of mesothelioma within the scope of the cover afforded by EL policies. I am about to consider whether he was correct in this. I agree, however, with the general principle expressed in the last sentence of the extract from his judgment that I have just cited. It is for this reason that I would give an affirmative answer to the first of the three questions posed at para 108 above. I turn to the second. What is the special rule? The employers submissions on the causation issue proceed on the premise that the special rule deems exposure to asbestos dust of an employee who is subsequently diagnosed with mesothelioma to have been a cause of the mesothelioma. I have reached the conclusion that that premise is unsound. In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229 I summarised the special rule as follows at para 1: When a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease. This is certainly the effect of the special rule, but in order to discover the juridical basis of the rule it is necessary first to identify the basis of the special approach adopted by the House of Lords in Fairchild and Barker and then to consider the effect of section 3 of the Compensation Act, which adapted the special approach into the special rule. The special approach In Sienkiewicz, at para 70, I stated that Fairchild and Barker developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances, which include ignorance of how causation in fact occurs. As I shall show, this was not an accurate summary of the special approach adopted in those cases. In Fairchild the House of Lords confronted the position where a mesothelioma victim had worked consecutively for a number of employers, each of which had exposed him to asbestos dust. One or more of these had caused his mesothelioma, but because of the limits of medical knowledge it was not possible, on balance of probability, to identify which. In these circumstances their Lordships adopted a special approach that enabled them to find that each of the employers was jointly and severally liable for the mesothelioma. In doing so they purported to be following a similar approach adopted by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1. They were not, however, all agreed as to the basis of that approach. Lord Hutton, at para 109, held that it was based on the drawing of a factual or legal inference leading to the conclusion that the breach of duty [in exposing the employee to asbestos dust] was a cause of the disease. The majority of the House did not agree. Lord Bingham said, at para 35: I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts. Lord Nicholls of Birkenhead said, at para 42: So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established." Lord Hoffmann at para 65 rejected the suggestion that the House in McGhee held that materially increasing the risk of the disease should be treated as equivalent to material contributing to the injury. He concluded: I would respectfully prefer not to resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability. Lord Rodger of Earlsferry did not agree. His reasoning was close to that of Lord Hutton. He held, at para 168: Following the approach in McGhee I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness. What then happened has been summarised by Lord Hoffmann in Perspectives on Causation (2011) at p 8: There are two ways in which one could characterise this change in the substantive law of negligence. One is to say that the causal requirements for an action for damages for mesothelioma have been changed; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent. The other is to say that the House created, exceptionally, a cause of action for the increased risk of mesothelioma rather than for the disease itself. In the former case, satisfying the new causal requirement would entitle the claimant to sue for the whole injury caused by contracting the disease. In the latter case, he would be able to sue only for the loss caused by the risk of his contracting the disease having been increased. That would be a proportion of the injury caused by the disease, depending on the extent to which the risk had also been created by other causes. In Barker v Corus the House of Lords (Lord Rodger of Earlsferry dissenting) adopted the second explanation of what had happened in Fairchild. I believe that this summary of the position is essentially correct. The majority in Barker were persuaded that justice would best be served if the special approach adopted in Fairchild were applied in such a way as to render each defendant who had wrongfully exposed the claimant to asbestos dust severally liable for that proportion of the mesothelioma that represented the proportion of the wrongful exposure attributable to that defendant. This was achieved by holding that the liability of each defendant resulted from adding to the risk that the employee would contract mesothelioma. It did not result from an implication that each defendant had actually contributed to the cause of the disease. At the start of his speech at para 2 Lord Hoffmann drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised. Lord Hoffmann went on to adopt the latter analysis as the basis of liability in Fairchild. At para 31 he held that the majority in Fairchild had not proceeded upon the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease. The creation of a material risk of mesothelioma was sufficient for liability. At para 35 he advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance. Liability for the mesothelioma that developed should be apportioned according to the contribution that each defendant made to the risk that mesothelioma would be contracted. Lord Scott of Foscote and Lord Walker of Gestingthorpe expressly agreed with both Lord Hoffmanns conclusion that liability for the mesothelioma fell to be apportioned and with his reasons for so concluding. Lord Scott held at para 53 that it was essential to keep firmly in mind that liability in Fairchild was not imposed on any of the defendant employers on the ground that the employers breach of contract had caused the mesothelioma. That causative link had not been proved against any of them. It was imposed because each, by its breach of duty, had materially contributed to the risk that the employee would contract mesothelioma. At para 61 he emphasised that the Fairchild principle was not based on the fiction that each defendant had actually caused the eventual outcome. It was based on subjecting the victim to a material risk. Lord Walker, having stated that he was in full agreement with Lord Hoffmanns reasons went on at para 104 to make a statement that was inconsistent with them, this being to the same effect as the statement relied on by Mr Beloff see para 106 above. Lord Walker stated that the decision in Fairchild equated exposing the victim to the risk of injury with causing his injury. This was the same mistake as I made in Sienkiewicz see para 117 above. Had this been the case, each defendant would have been jointly and severally liable for the injury. Lord Walker went on to say, however, that the result in Fairchild was achieved, not by some fiction, but as an explicit variation of the ordinary requirement as to causation. At para 113 he stated that Fairchild was decided by the majority, not on the fictional basis that the defendants should be treated as having caused the victims damage, but on the factual basis that they had wrongfully exposed him to the risk of damage. Lady Hale did not adopt Lord Hoffmanns thesis that the creation of risk constituted the damage for which each defendant was liable. In general, however, she agreed with the majority. She held that in Fairchild, for the first time in our legal history defendants were made liable for damage even though they might not have caused it at all. It was not said that the defendants had caused or materially contributed to the harm. All that could be said was that each had contributed to the risk of harm. In these circumstances it was sensible and fair to apportion liability for the harm in proportion to the contribution that each had made to the risk of harm. Lord Rodger of Earlsferry vigorously dissented from the reasoning of the majority and from the result in so far as it apportioned liability. He observed at para 71 that the majority were not so much reinterpreting as rewriting the key decisions in McGhee and Fairchild. At para 85 he stated that the new analysis that the House was adopting would tend to maximise the inconsistencies in the law. I have some sympathy with the observations of Lord Rodger. It would, I think, have been possible for the House in Barker to have defined the special approach in Fairchild as one that treated contribution to risk as contribution to the causation of damage. The important fact is, however, that the majority did not do so. They were at pains to emphasise that the special approach was not based on the fiction that the defendants had contributed to causing the mesothelioma. Liability for a proportion of the mesothelioma resulted from contribution to the risk that mesothelioma would be caused and reflected the possibility that a defendant might have caused or contributed to the cause of the disease. This was no obiter expression of opinion. It formed the basis of the substantive decision that liability was severable and not joint. The special rule The special approach rendered each employer who had wrongfully exposed a mesothelioma victim to asbestos dust liable for a proportion of the mesothelioma without creating any inference or legal fiction that the employer in question had actually contributed to causing the disease. Section 3 of the Compensation Act altered the position by imposing joint and several liability on those who were only severally liable under the special approach. Did the special rule that resulted involve a different basis of liability to that which formed the basis of the special approach? This question is considered by Jonathan Morgan in his interesting Chapter 4 of Perspectives on Causation headed Causation, Politics and Law: The English and Scottish Asbestos Saga. At p 79 he poses the following question: Has Parliament, by implication, therefore also reversed Lord Hoffmanns principled reinterpretation of Fairchild? Is the nature of Fairchild liability now after all for causing mesothelioma and not increasing risk? Mr Morgan gives a negative answer to this question, expressing the view that Barker has altered the jurisprudential basis of the Fairchild liability irrevocably. I agree that section 3 of the Compensation Act did not alter the jurisprudential basis of the special approach laid down by the House of Lords in Fairchild and Barker. All that it did was to alter the effect of the special approach by making each defendant jointly and severally liable for the whole of the injury sustained. Section 3(1) provides that the section applies where (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure [for which the defendant was responsible]or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort(whether by reason of having materially increased a risk or for any other reason). It is not possible to read section 3 as imposing a different basis of liability to that identified by the majority in Barker. The consequence of the special rule Having regard to its jurisprudential basis I cannot see how the employers can found upon the special rule as identifying the policy year or years in which a victims mesothelioma is initiated. The position is that it is impossible to prove on balance of probability when mesothelioma is initiated, or contracted, or sustained, giving each of those words the same meaning. The special rule does not fill the gap for it raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. Should this Court redefine the special rule in order to engage the EL policies? The special approach of the majority in Barker had the object of ensuring that employers who had wrongfully subjected their employees to asbestos dust should bear what the majority considered to be a fair share of responsibility for their wrongdoing. It does not seem likely that the majority gave consideration to the implications for the responsibility of EL insurers of the manner in which this object was achieved. Should this Court now redefine the special rule with the object of enabling claims to be brought under the EL policies? This would, I think, involve holding that the majority in Barker erred in their analysis and that the true basis of the special approach in Fairchild was that contribution to risk should be deemed to be contribution to causation. I would give a firm No to this question. The adoption of the special approach in Fairchild has provoked considerable criticism, both judicial and academic. An example of the former is to be found in the judgment of Lord Brown in Sienkiewicz. An example of the latter is Mr Morgans closely reasoned Chapter 4 of Perspectives on Causation. But the object of the special approach in Fairchild and Barker was at least to ensure that those who had breached the duties that they owed to their employees did not escape liability because of scientific uncertainty. It would be judicial law making of a different dimension to create a legal fiction as to the policy years in which cases of mesothelioma were initiated in order to render liable insurers who could not otherwise be shown to be liable. The Secretary of State has intervened in this appeal and has submitted that, should the claims of employees or their dependants not be met by insurers, they are likely to be a burden on the public purse. It is open to question whether this is a proper consideration, even when considering whether the special rule should be redefined for what are essentially reasons of policy. In any event it seems to me that the position is somewhat more complex than the Secretary of State suggests. The burden of claims in respect of mesothelioma on a scale that was never anticipated is reducing both employers and insurers to insolvency. If this Court were to redefine the special rule so as to impose liability for mesothelioma claims on EL insurers where it could not otherwise be made out, this would in many cases be at the expense of others with claims on the same insurers founded on facts and not legal fictions. The liabilities in respect of mesothelioma will increase the overall shortfall on the part of insurers and this is also likely to have implications for the public purse. So far as I am concerned, however, these considerations have little relevance. Even if there were a compelling case for contending that a means should be found to render EL insurers liable, my reaction would be that this was a matter for Parliament not the courts. It would be wrong in principle for this Court to depart from the reasoning of the majority in Barker for the sole purpose of imposing liability on EL insurers. |
The fundamental issue in this case is a simple one. Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non British mother simply because they were not married to one another at the time of his birth or at any time thereafter? If the parents had been married to one another, their child would have been a British citizen. If the mother had been British and the father non British, their child would have been a British citizen. If the child had been born after 1 July 2006 he would have been a British citizen. The child is not responsible for the marital status of his parents or the date of his birth, yet it is he who suffers the consequences. There are many benefits to being a British citizen, among them the right to vote, the right to live and to work here without needing permission to do so, and everything that comes along with those rights. This case is about the right not to be deported on the ground that one is a foreign criminal whose presence here is not conducive to the public good. But the unsympathetic context in which the issue arises should not distract us from the importance of the issue to anyone who was born to unmarried parents at the relevant time. The facts The appellant was born on 18 March 1985 in Jamaica. His mother was Jamaican and his father British. His paternity is not in doubt. His parents were not married to one another. Under the law then in force the appellant became a citizen of Jamaica but not a British citizen. His father brought him to the United Kingdom in 1989, when he was aged four, and he has lived here ever since. He or his father might have made an application for him to be registered as a British citizen while he was still a child and it would have been the policy of the UK government to grant such an application provided that, if the child was 16 or over, he was of good character. But no such application was made. He was, however, granted indefinite leave to remain here in 1992, just before his seventh birthday. Neither has the appellant since applied to be registered as a British citizen. It is accepted that such an application would not succeed, because the appellant cannot demonstrate that he is of good character. He has a very serious criminal record and has been convicted of offences from 2003, the year in which he reached the age of 18, until 2008, when he was convicted of manslaughter and sentenced to nine years imprisonment. In March 2011, the Secretary of State served notice upon him that he was liable to automatic deportation as a foreign criminal under section 32(5) of the UK Borders Act 2007. A deportation order was made in August that same year. On appeal, the First tier Tribunal held that he had both a private and a family life in this country but that his deportation was a proportionate and lawful interference with them. The tribunal remitted to the Secretary of State the question whether his deportation was unlawfully discriminatory, given that he would not have been liable to deportation had his parents been married to one another. One year later, in August 2012, the Secretary of State set removal directions for his removal on 16 September 2012 and these judicial review proceedings were launched to challenge them, principally on the ground that he still had an extant appeal. The removal directions were stayed by the court and on 19 November 2012 the Secretary of State accepted that they should not have been issued given the tribunals decision to remit. On 23 November 2012, she reconsidered her deportation decision but decided that it was not unlawfully discriminatory and refused to revoke it. She also certified that the appellants claim was clearly unfounded and thus that he had no right of appeal within this country against the decision. These proceedings were amended to challenge that decision and its certification. In July 2014, Dingemans J held that the discrimination against a child of unmarried parents was not justified at the time of his birth and continued to be unjustified; that there had been a violation of article 14 of the Convention read with article 8; and that the certification of the claim as clearly unfounded was unlawful. He quashed the certificate, but declined either to read the relevant legislative provisions so as to entitle the appellant to British citizenship under section 3(1) of the Human Rights Act 1998 or to make a declaration of incompatibility under section 4: [2014] EWHC 2386 (Admin). In January 2016, the Court of Appeal allowed the Secretary of States appeal, finding that there had been no violation of the Convention rights at the time of the appellants birth in 1985 and no wrong for which the UK courts could have given a remedy then. The matter had to be judged at that time rather than as a continuing act. Any violation had taken effect before the Human Rights Act came into force. Hence there was no violation of the Convention rights and thus the claim could be certified as clearly unfounded: [2016] EWCA Civ 22. The appellant now appeals to this court. British Nationality Law At all material times, section 2(1)(a) of the British Nationality Act 1981 provided (and still provides): A person born outside the United Kingdom shall be a British citizen if at the time of the birth his father or mother is a British citizen otherwise than by descent . (a) However, until amended by the Nationality, Immigration and Asylum Act 2002, section 50(9) of the 1981 Act provided the following definition of a persons mother and father: For the purposes of this Act (a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but (b) the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him; and the expressions mother, father, parent, child and descended shall be construed accordingly. Nevertheless, section 47 of the 1981 Act, until its repeal by section 9(4) of the 2002 Act, provided that a person born out of wedlock but legitimated by the subsequent marriage of his parents (if their marriage operated to legitimate him by the law of the place where the father was domiciled when the marriage took place) was to be treated as from the date of the marriage as if he had been born legitimate. Section 50(9) of the 1981 Act was amended, and a new section 50(9A) added, by section 9(1) of the 2002 Act, with effect from 1 July 2006, as follows: (9) For the purposes of this Act a childs mother is the woman who gives birth to the child. (9A) For the purposes of this Act a childs father is (c) a person who satisfies prescribed requirements as to proof of paternity. Section 162(5) of the 2002 Act made it clear that section 9 would have effect only in relation to a child born on or after the date appointed by the Secretary of State, which was 1 July 2006. Thus persons born before that date can still take advantage of the legitimation provision in section 47. These provisions define people who are automatically entitled to British citizenship, whether they want it or not. Other people can apply to be registered as British citizens. Section 3(1) of the 1981 Act provides that applications may be made while a person is a minor for him to be registered as a British citizen; and from 1987 onwards it was the policy of the Secretary of State to grant, on satisfactory proof of paternity, applications made by or on behalf of minors whose unmarried fathers were British citizens, who were living in the United Kingdom, and who, if aged 16 or over, were of good character. Section 65 of the Immigration Act 2014 has now introduced sections 4E to 4I into the 1981 Act, giving a specific right to be registered to people who were unable to acquire citizenship automatically because their father was not married to their mother. But this is subject to the general provision governing applications for registration, under section 41A of the 1981 Act, that such an application must not be granted unless the Secretary of State is satisfied that the adult or young person is of good character. The progressive removal of discrimination against children of unmarried parents At common law, a child of parents who were not married to one another at the time of his birth was filius nullius or nobodys child. The law scarcely recognised his relationship with his mother, let alone with his father. Relationships traced otherwise than through marriage were ignored for the purpose of succession and other dispositions of property. References to children or other relationships in legislation or other legal instruments were presumed to refer only to those born within or traced through marriage. Case law and statute gradually accorded limited recognition to the relationship between mother and child but scarcely any to the relationship between father and child. The first major reform came with the Family Law Reform Act 1969, which implemented the recommendations of the Report of the Russell Committee on The Law of Succession in relation to Illegitimate Persons (1966, Cmnd 3051). As the Committee observed, in the archaic language of the time (pp 4 5): At the root of any suggestion for the improvement of the lot of bastards in relation to the law of succession to property is, of course, that in one sense they start level with legitimate children, in that no child is created of its own volition. Whatever may be said of the parents, the bastard is innocent of any wrongdoing. To allot him an inferior, or indeed an unrecognised, status in succession is to punish him for a wrong of which he is not guilty. Accordingly, the 1969 Act gave children of unmarried parents rights of intestate succession from both their parents, and vice versa, and enacted a presumption that references to children and other relatives in dispositions of property included references to, and to persons related through, illegitimate children. The next major reform came with the Family Law Reform Act 1987, which implemented the Law Commissions Report on Illegitimacy (1982, Law Com No 118) with modifications recommended in its Illegitimacy: Second Report (1986, Law Com No 157). The object was to remove all discrimination in family law against children whose parents were not married to one another and against relationships traced otherwise than through marriage (while preserving some distinction between the parents in relation to their upbringing). The drafting technique, borrowed from the Law Reform (Parent and Child) (Scotland) Act 1986, was to avoid using adjectives such as legitimate and illegitimate to describe the child and to refer instead to the relationship between the parents. Section 1(1) of the 1987 Act provides: In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time. But that, of course, does not apply to the 1981 Act, which was passed before the 1987 Act came into force. The Law Commission had considered the law of citizenship in its first Report and concluded that, as a matter of policy, a non marital child should be entitled to British citizenship on the same terms as a marital child (Law Com No 118, para 11.20). But no clauses relating to this were included in the draft Bill annexed to that Report, or in the draft Bill annexed to the second Report, because citizenship is a United Kingdom matter affecting each part of the United Kingdom as well as England and Wales. It may well be as a result of the enactment of the 1987 Act that the Secretary of State adopted the policy in relation to the registration of minor children of unmarried parents referred to above (para 13). But the law itself was not changed until the 2002 Act came into force. Deportation law British citizens cannot be deported. Non citizens may be deported if the Secretary of State deems this conducive to the public good (Immigration Act 1971, section 3(5)(a)). Section 32(4) of the UK Borders Act 2007 provides that, for this purpose, the deportation of a foreign criminal is conducive to the public good. Under section 32(1) a non citizen convicted in the United Kingdom of an offence for which he was sentenced to at least 12 months imprisonment is a foreign criminal. Section 32(5) provides that the Secretary of State must make a deportation order in respect of a foreign criminal, but this is subject to section 33. Section 33(1) provides that section 32(4) and (5) do not apply where an exception applies. By section 33(2), Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach (a) a persons Convention rights By section 33(7) the application of an exception does not prevent the making of a deportation order and section 32(4) applies despite the application of Exception 1. The net effect is that if Exception 1 applies, section 32(5) does not, and the person is not liable to automatic deportation. Deportation is nevertheless still deemed conducive to the public good and the Secretary of State may still make a deportation order, but it would be contrary to the persons Convention rights actually to deport him. Immigration appeals At the relevant time, in 2012, immigration appeals were governed by sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 as they then stood. Section 82(1) gave a right of appeal to the First tier Tribunal against an immigration decision, an expression which included a decision that section 32(5) of the 2007 Act applied to a person, but did not include the making of a deportation order which stated that it was made in accordance with section 32(5). Under section 84 of the 2002 Act, the grounds of appeal included, at (a), that the decision was not in accordance with the Immigration Rules; at (c), that the decision was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights; and at (e), that the decision was not otherwise in accordance with the law. Under section 92, only certain appeals might be brought within the United Kingdom. These included human rights claims. But section 94 gave the Secretary of State power to prevent an in country appeal by certifying that the claim was clearly unfounded. The issues Much of the argument in the courts below focussed upon (1) whether the denial of automatic citizenship at birth was a one off act, which took place before the Human Rights Act came into force, or whether it had continuing consequences which could amount to a violation of the Convention rights; and (2) even if it were not a one off act, whether the appellants liability to deportation was caused by the initial discrimination or whether that was only one of a number of contributory factors, not least his failure to apply for citizenship when he could have done and his commission of serious crimes. However, the subject matter of these proceedings is the Secretary of States certificate that an appeal under section 82 of the 2002 Act is clearly unfounded. It is argued that the Secretary of State has no alternative but to treat the appellant as a foreign criminal to whom section 32(5) of the 2007 Act applies and is therefore required to make a deportation order. This is because, by virtue of the statutory provisions described above, he is not a British citizen. Thus, it is argued, her action is not unlawful within the meaning of section 6(1) of the Human Rights Act 1998, even if it is incompatible with his Convention rights, because section 6(2)(a) provides that it is not unlawful to act incompatibly with the Convention rights if, as a result of one or more provisions of primary legislation, she could not have acted differently. However, as we have already seen (para 18 above), Exception 1 does not require that there be a breach of section 6 of the 1998 Act, merely that the deportation be a breach of the Convention rights. If Exception 1 applies, then section 32(5) of the 2007 Act does not apply and a deportation order cannot lawfully be made under that provision. To similar effect is rule 397 of the Immigration Rules, which provides that A deportation order will not be made if the persons removal pursuant to the order would be contrary to the UKs obligations under the Human Rights Convention. The grounds of appeal under section 84(1), as it stood at the relevant time, included, not only, at (a), that the decision was not in accordance with the Immigration Rules, but also, at (e), that it was not in accordance with the law. Thus it matters not that ground (c) is limited to decisions that are contrary to section 6 of the 1998 Act, provided that there is a breach of the Convention rights. Section 6(2)(a) of that Act is a red herring. The issue, therefore, is whether an appeal against the decision that section 32(5) of the 2007 Act applies to the appellant, on the basis that to deport the appellant now would be a breach of the UKs obligations under the Human Rights Convention, is clearly unfounded. That depends upon (1) whether it is sufficiently within the ambit of article 8 of the Convention to bring into play the prohibition of discrimination in the enjoyment of the Convention rights in article 14; (2) whether the discrimination had a one off effect at birth or whether it has continuing consequences which may amount to a present violation of the Convention rights; and (3) whether such discriminatory effect can be justified. The discrimination complained of in this case is that he is liable to deportation whereas he would not be if (a) his mother and father had been married to one another at the time of his birth; (b) his mother and father had been married to one another at any time after his birth; (c) his mother had been British and his father Jamaican; or (d) an application had been made to register him as a citizen before he was 18. Article 8 Although article 15.1 of the Universal Declaration of Human Rights says that Everyone has the right to a nationality, the European Convention says nothing about the right to a nationality. In K and W v The Netherlands (1985) 43 D & R 216, the European Commission on Human Rights declared inadmissible a complaint about Dutch citizenship law: a woman married to a Dutch man could obtain citizenship simply by writing to the local mayor; a man married to a Dutch woman could not. The Commission found that the right to acquire a particular nationality was not covered by, or sufficiently related to, article 8 or any other provision of the Convention, for article 14 to come into play. In Karassev v Finland (1999) 28 EHRR CD132, the Commission repeated that the Convention did not guarantee the right to acquire a particular nationality. Nevertheless, it did not exclude that an arbitrary denial of citizenship might in certain circumstances raise an issue under article 8 of the Convention because of the impact of such a denial on the private life of the individual. In Genovese v Malta (2011) 58 EHRR 25, the complaint was that the denial of Maltese citizenship to the son of a British mother and a Maltese father who were not married to one another was in breach of article 14 read with article 8. The Court held (para 33) that While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of article 8, the Court considers that its impact on the applicants social identity was such as to bring it within the general scope and ambit of that article. Malta was not obliged to recognise the right to citizenship by descent, but as it did so, it had to ensure that the right was secured without discrimination. The discrimination could not be justified by the argument that motherhood is certain, whereas fatherhood is not: in that case, paternity had been established scientifically and in legal proceedings. To similar effect is Kuric v Slovenia (2013) 56 EHRR 688, where the discriminatory erasure of the applicants residence rights was held to be a breach of article 14 read with article 8 even though their residence had not in fact been affected. It is well established that a persons social identity is an important component of his private life, which is entitled to respect under article 8. This includes the recognition of his biological relationships, even if the refusal of recognition has no noticeable impact upon his family life. Thus, for example, in Menneson v France, Labassee v France, App Nos 65192/11 and 65941/11, Judgment of 26 June 2014, it was a violation of the right to respect for private life for French law to deny the existence of the relationship between the biological father and the children born as a result of surrogacy arrangements in the United States. It is clear, therefore, that the denial of citizenship, having such an important effect upon a persons social identity, is sufficiently within the ambit of article 8 to trigger the application of the prohibition of discrimination in article 14. A continuing effect? The Court of Appeal held that the denial of automatic citizenship was a one off event that happened at birth and had no continuing effect capable of being a violation of the Convention rights. For example, in Posti and Rahko v Finland (2002) 37 EHRR 158, the restriction on the applicants right to fish in state owned waters, imposed by a decree in 1994, obviously continued to limit their fishing, but was a single event and their complaint was out of time. However, the court reiterated that the concept of a continuing situation refers to a state of affairs which operates by continuous activities by or on the part of the state to render the applicants victims (para 39). Thus, in Norris v Ireland (1988) 13 EHRR 186, it was held that the very existence of legislation penalising homosexual acts continuously and directly affected the applicants private life, despite the fact that he had neither been prosecuted nor threatened with prosecution. In this case, the denial of citizenship has a current and direct effect upon the appellant who is currently liable to action by the state, in the shape of deportation, as a result. Article 14 It is not in dispute that birth outside wedlock is a status for the purpose of article 14. It has been so regarded at the very least since the landmark case of Marckx v Belgium (1979) 2 EHRR 330. It is no co incidence that the laws of both Scotland and England and Wales were changed within a few years of that decision. Nor can it be seriously disputed that there is here a difference in treatment between people who are otherwise in an analogous situation on the ground of that birth status: had the appellants parents been married to one another he would automatically have become a British citizen and not been liable to deportation no matter how badly he had behaved. As has been said many times, For the purpose of article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, eg, Inze v Austria (1987) 10 EHRR 394, para 41; Genovese v Malta, para 43). It is also clear that birth outside wedlock falls within the class of suspect grounds, where very weighty reasons are required to justify discrimination. This was held as long ago as Inze v Austria, at para 41, where children born in wedlock were given priority over children born outside wedlock in the inheritance of a family farm: The question of equality between children born in and children born out of wedlock as regards their civil rights is today given importance in the member states of the Council of Europe. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which is presently in force in respect of nine member states of the Council of Europe [including Austria]. Very weighty reasons would accordingly have to be advanced before a difference in treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention. The likelihood that a child born outside wedlock would have had less to do with the family farm, and the attitudes of the rural population, were not regarded as weighty reasons. The need for very weighty reasons has been repeated many times since, for example, in Fabris v France (2013) 57 EHRR 563, at paras 58 and 59, where reference was made to the principle of equality eliminating the very concepts of legitimate children and children born outside marriage, and in Genovese v Malta, at para 44, where it was noted that 22 member states were now parties to the 1975 Convention and it was irrelevant that Malta was not. The United Kingdom signed the Convention in 1975 and ratified it in 1981. This case has, however, been bedevilled by arguments about precisely what has to be justified. If it is the initial denial of automatic citizenship in 1985, the Secretary of State can argue that it was not even recognised as within the ambit of article 8 at the time and so does not need justification. If it is the continued denial of citizenship in 2012, the Secretary of State can argue that steps have now been taken to put right the historic injustice, but that it is justifiable for these steps only to operate prospectively: it is reasonable to have a citizenship law which assigns citizenship to certain people automatically at birth and grants it later only on application. Citizenship should not be imposed upon people unless they have asked for it: it may bring disadvantages if they are also citizens of a state which does not recognise dual nationality. The problem with that argument is that citizenship is imposed automatically at birth upon certain people, whether they want it or not and whether or not it gives rise to dual nationality problems. Furthermore it is also imposed automatically if a person is legitimated by the subsequent marriage of his parents. The appellants problems would be over if his mother could be found and his father persuaded to marry her. If what needs to be justified is the liability of non citizens to deportation while citizens cannot be deported, the Secretary of State would have a comparatively simple task. It has always been justifiable to distinguish between citizens and aliens in matters relating to entering, remaining in and removal from the country. The right to live in ones own country is the principal right of citizenship. Further, if what needs to be justified is the liability of foreign criminals to be deported when other foreigners are not similarly liable (although their presence here may be controlled in other ways), again the Secretary of State might have a comparatively easy task. But in this case what needs to be justified is the current liability of the appellant, and others whose parents were not married to one another when they were born or at any time thereafter, to be deported when they would not be so liable had their parents been married to one another at any time after their birth. That is a present distinction which is based solely on the accident of birth outside wedlock, for which the appellant is not responsible, and no justification has been suggested for it. It is impossible to say that his claim that Exception 1 applies, based on article 14 read with article 8, is clearly unfounded. Conclusion It follows that I would allow this appeal and quash the Secretary of States certificate. The consequence, as I understand it, is that his appeal against the Secretary of States decision of 23 November 2012 must be allowed to proceed and, for the reasons given earlier, is certain to succeed. Declaration of incompatibility? Allowing this appeal is the consequence of the particular provisions relating to deportation which are relevant here. However, there are bound to be other people in the appellants situation that is, who are denied the automatic right to citizenship by reason of the fact that their British father was not married to their non British mother at the time of their birth. There are all sorts of current consequences which might flow from that situation. An example is the right to vote, which is an aspect of citizenship and also a Convention right under article 3 of the First Protocol. People born before 1 July 2006 are denied that right unless they are first registered as citizens. In order to do this they must pass the good character test in section 41A of the 1981 Act. Had their parents been married to one another at or at any time after their birth they would not have to do this. While of course all babies arrive in the world with a good character the same cannot be said of those legitimated by the subsequent marriage of their parents. The distinction is based solely on birth status and for the reasons given earlier cannot be justified. Mr Hugh Southey QC, for the appellant, argued that it followed that the Nationality, Immigration and Asylum Act 2002 (Commencement No 11) Order 2006, SI 2006/1498, bringing into force the 2002 amendments to section 50(9) of the 1981 Act was incompatible with the Convention rights. It should have operated retrospectively so as to grant automatic citizenship to all people previously denied it because of their parents marital status. Mr Tim Eicke QC, for the Secretary of State, argues that it is contrary to principle for legislation to have retrospective effect, in particular where it effects an automatic change of status. Citizenship should not be imposed upon people unless they have asked for it. As already mentioned, Mr Eickes argument cannot be taken too far: there are many people who are entitled at birth to the citizenship of more than one country whether they like it or not: they may be born in a country, such as the United States of America, which still recognises the ius soli, the right to citizenship of all persons born within the territory; and they may be entitled to citizenship by descent from either or both of their parents, as is the case under the 1981 Act. But where a person has not automatically acquired citizenship at birth, it is reasonable to expect him to apply for it, even if he is entitled to be registered if he does so. This avoids the risk of inconvenient results and provides everyone with clarity and certainty. But it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his. The incompatible provision, therefore, is paragraph 70 of Schedule 9 to the Immigration Act 2014, which inserts into section 41A of the 1981 Act (the requirement to be of good character) a reference to sections 4F, 4G, 4H and 4I, which relate to various categories of people who would automatically have become UK citizens had their parents been married to one another at their birth. The court will make a declaration to that effect, although it is not necessary to do so in order to dispose of this case. |
Private Jason Smith joined the Territorial Army in 1992, when he was 21 years old. In June 2003 he was mobilised for service in Iraq. On 26 June 2003, after a brief spell in Kuwait for purposes of acclimatisation, he arrived at Camp Abu Naji, which was to be his base in Iraq. From there he was moved to an old athletics stadium some 12 kilometres away, where about 120 men were billeted. By August temperatures in the shade were exceeding 50 degrees centigrade. On 9 August he reported sick, saying that he could not stand the heat. Over the next few days he was employed on various duties off the base. On the evening of 13 August he was found collapsed outside the door of a room at the stadium. He was rushed by ambulance to the medical centre at Camp Abu Naji but died almost immediately of hyperthermia, or heat stroke. Private Smiths body was brought back to this country and an inquest was held. The inquest suffered from procedural shortcomings. His mother commenced judicial proceedings in which she sought an order quashing the coroners inquisition. In bringing her claim Mrs Smith relied upon the Human Rights Act 1998. She contended that throughout the time that her son was in Iraq the United Kingdom owed him a duty to respect his right to life under article 2 of the European Convention on Human Rights and that the inquest also had to satisfy the procedural requirements of article 2. On more narrow grounds than these the Secretary of State conceded that Mrs Smith was entitled to the relief that she sought, and a new inquest is to be held. Two issues of public importance have been raised by her claim. Is a soldier on military service abroad in Iraq subject to the protection of the Human Rights Act 1998 (the HRA) when outside his base? I shall call this the jurisdiction issue. If so, must the death of such a soldier be the subject of an inquest that satisfies the procedures that article 2 of the European Convention on Human Rights (the Convention) implicitly requires where there is reason to believe that a death may be attributable to default on the part of a public authority? I shall call this the inquest issue. These issues are largely academic inasmuch as the Secretary of State has conceded that a fresh inquest must be held in relation to Private Smiths death that satisfies those Convention requirements a concession which does not, of course, bind the Coroner. The courts below have nonetheless been prepared to entertain them because of their importance and this court has done the same. The jurisdiction issue Mrs Smith succeeded on this issue, both at first instance and before the Court of Appeal. Section 6(1) of the HRA provides: It is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 1 defines the Convention rights as including articles 2 to 12 and 14 of the Convention. It is common ground that the HRA is capable of applying outside the territorial jurisdiction of the United Kingdom, but that section 6(1) will only be infringed by conduct that the Strasbourg Court would hold to have violated a Convention right. This was determined by the House of Lords in R (Al Skeini) v Secretary of State for Defence [2008] AC 153. It follows that, in order to decide whether conduct has infringed section 6(1) of the HRA it is necessary to consider the ambit of application of the Convention. More particularly, no claim can succeed under the HRA unless there has been a breach of a Convention right of a person within the jurisdiction of the United Kingdom that should have been secured pursuant to article 1. Article 1 of the Convention provides: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. The jurisdiction issue is whether, on the true interpretation of article 1, British troops operating on foreign soil fall within the jurisdiction of the United Kingdom. There has recently grown a small body of authority, both in this country and at Strasbourg, dealing with the application of the Convention to the activities of armed forces on foreign soil. The Grand Chamber sat to consider this question in Bankovic v United Kingdom (2001) 11 BHRC 435, which has been recognised both in this country and at Strasbourg as a leading case on the scope of jurisdiction under article 1. I propose to start by considering that case. Bankovic Five of the applicants in Bankovic were close relatives of civilians killed by air strikes carried out on a radio and television centre in Belgrade by members of NATO, when intervening in the Kosovo conflict in 1999. The sixth applicant had himself been injured in the raids. The critical issue in relation to admissibility was whether the applicants and their deceased relatives came within the jurisdiction of the respondent States within the meaning of article 1 of the Convention. The applicants founded their case on the reasoning of the Court in Loizidou v Turkey (1995) 20 EHRR 99. The Court held in that case that a Greek Cypriot, who claimed in relation to the dispossession of her property in Northern Cyprus, was potentially within the jurisdiction of Turkey for the purposes of article 1 by reason of the fact that Turkey exercised effective control of Northern Cyprus. The applicants in Bankovic accepted that they could not contend that the action of the member States in bombing Belgrade put them under an obligation in relation to the observance of all of the Convention rights in the area bombed, but argued that they should be held accountable for those rights that did fall within their control, and in particular the right to life of those whom they bombed. The Court applied the principles agreed in the Vienna Convention on the Law of Treaties 1969 (the Vienna Convention) to the task of interpreting article 1. Thus it paid primary regard to the natural meaning of the words used, but also took into consideration the travaux prparatoires (the travaux) and State practice. This approach contrasted with the approach that the Strasbourg Court has adopted of treating the Convention as a living instrument when considering the manner in which it operates. The Court recognised this at paras 64 and 65 but commented that the scope of article 1 was determinative of the scope and reach of the entire Convention system of human rights protection. The Court was indicating that the meaning of article 1, and thus the scope of application of the Convention, could not change over time, and this seems plainly correct as a matter of principle. I shall describe this as the original meaning principle. The Court approached the natural meaning of jurisdiction on the premise that this had to be consonant with the meaning of that word under principles of public international law. Under these principles the jurisdictional competence of a State was primarily territorial. Thus: article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each caseIn keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention. (paras 61 and 67) Thus the Court held that jurisdiction in article 1 was not limited to the territory over which a State exercises lawful authority. It extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty in delineating article 1 jurisdiction arises in identifying and defining the exceptions to territorial jurisdiction. The Court recognised that one such exception arose where a member State had taken effective control of part of the territory of another member State. I shall call this the principle of effective territorial control. Loizidou v Turkey exemplified this jurisdiction. The Court justified this exception by remarking at para 80 that the inhabitants of Northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed by Turkeys effective control of the territory and by the accompanying inability of the Cypriot Government, as a contracting State, to fulfil the obligations that it had undertaken under the Convention. Thus the Court appeared to restrict the principle of effective territorial control to the territories of the contracting States. The Court made the following comments about this head of jurisdiction: 71. In sum, the case law of the Court demonstrates that its recognition of the exercise of extra territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government. 80. In short, the Convention is a multi lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the contracting states. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states. Accordingly, the desirability of avoiding a gap or vacuum in human rights protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention. Article 56 enables a Contracting State to declare that the Convention shall extend to all or any of the territories for whose international relations the State is responsible. Thus, implicitly and paradoxically, the principle of effective territorial control does not appear to apply automatically to such territories see also Bui van Thanh v United Kingdom (1990) 33 Yearbook of the European Convention on Human Rights 59 at p 61; Loizidou v Turkey at paras 86 87; Yonghong v Portugal Reports of Judgments and Decisions 1999 IX, pp 385, 391 392. The Court rejected the suggestion that extra territorial acts could bring individuals within the jurisdiction for the purposes of some Convention rights but not others. It said at para 75: the court is of the view that the wording of article 1 does not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in Section I of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question and, it considers its view in this respect supported by the text of article 19 of the Convention. Indeed the applicants approach does not explain the application of the words within their jurisdiction in article 1 and it even goes so far as to render those words superfluous and devoid of any purpose. Had the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous articles 1 of the four Geneva Conventions of 1949. I shall describe this as the whole package principle. The Court singled out for special mention as an example of an exceptional case of extra territorial jurisdiction that fell within article 1, the case of Drozd and Janousek v France and Spain (1992) 14 EHRR 745. I shall consider this decision in due course. The Court noted a number of other examples of States exercising extra territorial jurisdiction, implying, I believe, that those affected would be within the jurisdiction of the State in question within the meaning of article 1: Additionally, the Court notes that other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state. The applicants in Bankovic also relied on two admissibility decisions that proceeded on a different basis of article 1 jurisdiction that has been described as state agent authority, namely de facto control by state agents of persons as opposed to territory, Issa v Turkey (Application No 31821/96) (unreported) 30 May 2000 and calan v Turkey (Application No 46221/99) (unreported) 14 December 2000. The Grand Chamber swept these aside with the comment that in neither case was the issue of jurisdiction raised by the respondent Government, adding that the merits of those cases had yet to be decided. The respondent Governments in Bankovic, including the United Kingdom, had in fact accepted the existence of jurisdiction in those cases on the basis that it was the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or who have been brought within that states control. Mr Eadie QC, for the Secretary of State, has not in this Court accepted any general principle whereby article 1 jurisdiction can be based on the exercise of control by State agents over individuals as opposed to territory. It is convenient at this point to consider the treatment by the Strasbourg Court of the question of jurisdiction on the substantive hearings in those two cases. calan and Issa In calan (2005) 41 EHRR 985 the applicant, a Turk, was handed over to Turkish officials aboard a Turkish aircraft at Nairobi. At the substantive hearing, following that before the Court (2003) 37 EHRR 238, the Grand Chamber recorded at para 91 that it was common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that state for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey. The substantive hearing in Issa (2004) 41 EHRR 567 took place before the Second Section, three members of which had been party to the decision in Bankovic. The applicants, Iraqi nationals, alleged that their relatives had been unlawfully arrested, detained, ill treated and killed by Turkish troops in the course of a military operation in Northern Iraq. The claim failed because they were unable to prove this. The Court had, however, permitted Turkey to challenge the existence of article 1 jurisdiction, albeit that no challenge on this ground had been made at the admissibility hearing. The Court at paras 68 69 referred to the substantive decision in Loizidou v Turkey (1996) 23 EHRR 513, para 52 for the proposition that: According to the relevant principles of international law, a States responsibility may be engaged where, as a consequence of military action whether lawful or unlawful that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration. The Court went on to say, at para 71: Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State.(Citations omitted). This clearly advances state agent authority as an alternative to effective territorial control as a basis of article 1 jurisdiction. Al Skeini The implications of the Strasbourg Courts decision in Bankovic received detailed analysis in Al Skeini in the Divisional Court, the Court of Appeal and the House of Lords. This Court ought to consider the conclusions of the House of Lords to be definitive unless these have plainly been invalidated by subsequent decisions of the Strasbourg Court. The claimants were relatives of six Iraqi civilians who had been killed by or in the course of operations by British soldiers in the period following completion of major combat operations in Iraq and before the assumption of authority by the Iraqi Interim Government. Five of these were shot in separate incidents in Basra. The sixth, Mr Baha Mousa, was beaten to death by British troops while detained in a British military detention unit. The claimants sought independent enquiries into these deaths, relying upon the HRA. Two preliminary issues were before the Court. Did the HRA apply outside the territorial jurisdiction and were the six Iraqi citizens within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention? The House, Lord Bingham dissenting, answered the first question in the affirmative. So far as concerns the second question, the ambit of article 1 had been exhaustively considered by the Divisional Court [2004] EWHC 2911 (Admin); [2007] QB 140 which had analysed chronologically all the relevant Strasbourg authorities, including Bankovic. The court concluded that these established that the primary meaning of within their jurisdiction in article 1 was within the territorial jurisdiction of the contracting States, subject to a number of exceptions. There was no general exception whereby those subject to the exercise of state agent authority fell within the article 1 jurisdiction of the State. Insofar as Issa had held to the contrary, it should be disregarded as inconsistent with the decision in Bankovic. The Court of Appeal [2005] EWCA Civ 1609; [2007] QB 140 differed on the last point, holding that Issa was authoritative and demonstrated that article 1 jurisdiction was established by the exercise of control over individuals by State agents, both within and outside the jurisdiction of contracting States. The House of Lords preferred the reasoning of the Divisional Court. The majority approached the issue of article 1 jurisdiction on the footing that this was essentially a matter for the Strasbourg court and the House should not construe article 1 as having any further reach than that established by that Court. As to that pre eminence should be given to the decision of the Grand Chamber in Bankovic. The House was, however, faced with the fact that, so far as Mr Baha Mousa was concerned, the Secretary of State had accepted that, because he died as a result of misconduct that took place at a detention centre within a British military base, he met his death within the jurisdiction of the United Kingdom for the purposes of article 1. The claimants sought to rely on a principle of state agent authority, arguing that if such authority was exercised over individuals, this brought them within the jurisdiction for purposes of article 1. The majority was troubled by the fact that some statements of the Court in Issa were hard to reconcile with Bankovic, and particularly with the whole package principle. Insofar as Issa could not be reconciled with Bankovic, the majority held that it should be disregarded. Thus Lord Rodger held, at para 79: the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in section 1 of the Convention. Lord Brown carried out a detailed analysis of the Strasbourg jurisprudence. He recognised some narrow categories where the Strasbourg Court had found article 1 jurisdiction in circumstances where the State had not got territorial control irregular extradition such as calan and activities of embassies and consulates. These exceptions apart, Lord Brown considered the whole package principle to be of importance: 128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric control and authority, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Bankovic (and later Assanidze) stands, as stated, for the indivisible nature of article 1 jurisdiction: it cannot be divided and tailored. As Bankovic had earlier pointed out, at para 40: the applicants interpretation of jurisdiction would invert and divide the positive obligation on contracting states to secure the substantive rights in a manner never contemplated by article 1 of the Convention. When, moreover, the Convention applies, it operates as a living instrument. calan provides an example of this, a recognition that the interpretation of article 2 has been modified consequent on the territories encompassed by the member states of the Council of Europe [having] become a zone free of capital punishment: para 195. (Paras 64 and 65 of Bankovic, I may note, contrast on the one hand the Conventions substantive provisions and the competence of the Convention organs, to both of which the living instrument approach applies and, on the other hand, the scope of article 1 the scope and reach of the entire Convention to which it does not.) Bear in mind too the rigour with which the court applies the Convention, well exemplified by the series of cases from the conflict zone of south eastern Turkey in which, the states difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under articles 2 and 3. 129. The point is this: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Applying Bankovic, the majority held that the five Iraqi citizens who had been killed in Basra were not within the jurisdiction of the United Kingdom for the purposes of article 1. Lord Brown indicated that he would recognise the United Kingdoms jurisdiction over Mr Baha Mousa only on the basis of an analogy with the extra territorial exception made for embassies. However, in a subsequent admissibility decision in Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 the Strasbourg Court has held that detainees in British detention centres in Iraq fell within United Kingdom jurisdiction by reason of the total and exclusive de facto, and subsequently de jure, control exercised by the United Kingdom authorities over the premises in question. (para 88) A more recent example of where the Strasbourg Court has equated control over individuals with article 1 jurisdiction is the decision of the Grand Chamber in Medvedyev and others v France (Application No 3394/03) judgment delivered on 29 March 2010. On the high seas a French warship boarded a merchant vessel, crewed by the applicants who were suspected of being engaged in drug smuggling and compulsorily escorted it on a 13 day voyage into Brest. The court held at para 67 that as the vessel and its crew were, at least de facto, under the control of France, they were effectively under Frances jurisdiction for the purposes of article 1. This decision, when added to that in Issa suggests that the Strasbourg Court may be prepared to found article 1 jurisdiction on state agent authority, even though this principle does not seem consistent with the approach in Bankovic. Gentle The possibility that British soldiers serving abroad were within the article 1 jurisdiction of the United Kingdom because they were under the authority of the United Kingdom was shortly dismissed by Lord Bingham in R (Gentle) v Prime Minister [2008] AC 1356. He said, at para 8: (3) The obligation of member states under article 1 of the Convention is to secure to everyone within their jurisdiction the rights and freedoms in the Convention. Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al Skeini) v Secretary of State for Defence [2008] AC 153, paras 79, 129. The other members of the House expressed general agreement with Lord Bingham. Article 1 jurisdiction was not, however, at the heart of the case, to the extent that the Court of Appeal, whose decision was upheld, had not found it necessary to decide the point. Gentle nonetheless lends support to the analysis of the House of Lords in Al Skeini. The claimants in Al Skeini have taken their case to Strasbourg and this will give the Strasbourg Court a further opportunity to clarify this difficult area of its jurisprudence. Submissions For the Secretary of State, Mr Eadie submitted that Private Smith was only within the jurisdiction of the United Kingdom when he was within territory that was under the effective control of the United Kingdom. On this basis he conceded that article 2 had applied during those periods when Private Smith was within the military base, which included the time of his death. When, however, he was not within territory controlled by the United Kingdom, he was not within article 1 jurisdiction. His position in those circumstances did not fall within any of the recognised exceptions to the general principle that article 1 jurisdiction was territorial. In so submitting he relied in particular on Bankovic, Al Skeini and Gentle. For Mrs Smith Miss Dinah Rose QC made it clear that her case was not based on Private Smith having been on territory under the de facto control of the United Kingdom, nor upon Private Smith himself having been under the de facto control of the Army, as a State agent, but upon the fact that Private Smith was subject to the jurisdiction of the United Kingdom as a matter of both domestic and international law. He was so subject by reason of his status as a member of the Armed Forces. Miss Rose submitted that soldiers were in the same position as other State agents, such as diplomats, consular agents and judges. When exercising State powers outside the territory of the State they themselves remained subject to the jurisdiction of the State. Mr Beloff QC appeared for the Intervener, the Equality and Human Rights Commission. He supported Miss Roses submissions. He submitted that the authorities dealing with control of territory, or control of persons, did not touch on the basis of jurisdiction asserted in this case. That was personal jurisdiction, which, to quote from para 17 of his written case, does not depend on a persons location. It is founded on the reciprocal rights and obligations of nationals and their state, wherever they may be. Mr Beloff accepted that the precise question of whether article 1 jurisdiction could be founded on this basis had not arisen before the Strasbourg Court. The decision of the Court of Appeal. The Court of Appeal held that article 1 required the existence of a jurisdictional link and that this requirement was satisfied in the case of Private Smith, for the reasons set out in para 29 of its judgment. Members of the armed forces were: subject to United Kingdom military law without territorial limit and may be tried by court martial whether the offence is committed in England or elsewhere. They are also subject to the general criminal and civil law. Soldiers serve abroad as a result of and pursuant to the exercise of United Kingdom jurisdiction over them. Thus the legality of their presence and of their actions depends on their being subject to United Kingdom jurisdiction and complying with United Kingdom law. As a matter of international law, no infringement of the sovereignty of the host state is involved in the United Kingdom exercising jurisdiction over its soldiers serving abroad. The Court was also influenced by what it perceived as the illogicality of holding that Private Smith was within the jurisdiction when on military premises, but not when outside them: it is accepted that a British soldier is protected by the 1998 Act and the Convention when he is at a military base. In our judgment, it makes no sense to hold that he is not so protected when in an ambulance or in a truck or in the street or in the desert. There is no sensible reason for not holding that there is a sufficient link between the solider as victim and the United Kingdom whether he is at a base or not. So too, if he is court martialled for an act committed in Iraq, he should be entitled to the protection of article 6 of the Convention wherever the court martial takes place. The meaning of jurisdiction interpretation. The first is that: Article 31 of the Vienna Treaty lays down a number of general rules of A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Jurisdiction has more than one ordinary meaning. The meanings given by the Shorter Oxford Dictionary include the following: 1. Exercise of judicial authority, or of the functions of a judge or legal tribunal; power of administering law or justice. Also, power or authority in general. 2. The extent or range of judicial or administrative power; the territory over which such power extends. Jowetts Dictionary of English Law, 2nd ed (1977), after giving the primary meaning of legal authority goes on to state: Jurisdiction also signifies the district or geographical limits within which the judgments or orders of a court can be enforced or executed. This is sometimes called territorial jurisdiction. Thus the phrase within the jurisdiction can bear the natural meaning subject to the authority of but can equally bear the natural meaning within the territory over which authority is exercised. There are different varieties of authority that can be described as jurisdiction. Oppenheims International Law, 9th ed (1992), vol 1, describes these and their relationship to territorial jurisdiction: 136 State jurisdiction in general State jurisdiction concerns essentially the extent of each states right to regulate conduct or the consequences of events. In practice jurisdiction is not a single concept. A states jurisdiction may take various forms. Thus a state may regulate conduct by legislation; or it may, through its courts, regulate those differences which come before them, whether arising out of the civil or criminal law; or it may regulate conduct by taking executive or administrative action which impinges more directly on the course of events, as by enforcing its laws or the decisions of its courts. The extent of a states jurisdiction may differ in each of these contexts. The jurisdiction concerns both international law and the internal law of each state. The former determines the permissible limits of a states jurisdiction in the various forms it may take, while the latter prescribes the extent to which, and manner in which, the state in fact asserts its jurisdiction. 137 Territorial jurisdiction As all persons and things within the territory of a state fall under its territorial authority, each state normally has jurisdiction legislative, curial and executive over them. Territoriality is the primary basis for jurisdiction; 138 Jurisdiction over citizens abroad International law does not prevent a state from exercising jurisdiction, within its own territory, over its nationals travelling or residing abroad, since they remain under its personal authority. Accordingly, it may legislate with regard to their conduct when abroad, levy taxes in respect of their assets or earnings abroad, or legislate in respect of their foreign property. In all such cases, however, the states power to enforce its laws depends upon its national being in, or returning to, its territory or having there property against which they can be enforced. Most human rights can only be the subject of protection, or interference, by the State if the individual who enjoys them is within the administrative, or executive, authority of the State. This is obviously true of the rights that protect the person, namely those protected by articles 2, 3 4 and 5 and is also true of articles 8, 9, 10, 11 and 12. Save in exceptional circumstances those requiring State protection of these rights will be within the territorial jurisdiction of the State in question. In respect of these rights it produces a perfectly sensible result to interpret within their jurisdiction in article 1 as meaning within the territorial jurisdiction of the Member States. Public international law recognises that both legislative and judicial authority can be exercised over individuals whether they are inside or outside the territorial jurisdiction of the State. The exercise of these types of jurisdiction may well have potential impact on some human rights, but not on others. The Strasbourg Court appears to have recognised, at least implicitly, that the exercise of these types of jurisdiction can bring those who are subject to them within the jurisdiction for purposes of article 1, whether or not they are within the territorial jurisdiction of the State, in relation to those rights that are affected. In such circumstances there can be no question of the whole package principle applying. I shall give a number of examples. Article 6 protects the right to a fair trial. The English court exercises extra territorial jurisdiction in defined circumstances in relation to civil claims. If a foreigner resident abroad is impleaded by a resident of this country in the English court, it is hard to believe that the Strasbourg Court would hold the English claimant entitled to the benefit of article 6 but the foreign defendant not so entitled. Both would be within the judicial jurisdiction of the English court and there would seem a strong case for equating that with article 1 jurisdiction in the context of the application of article 6. Such an approach would seem implicitly to have been accepted by the Strasbourg Court in plenary session in Drozd and Janousek v France and Spain (1992) 14 EHRR 745. The applicants in that case had been tried in criminal proceedings in Andorra by a Tribunal, presided over by a French judge. Andorra was not party to the Convention. The applicants complained, none the less, of violation of their article 6 rights to a fair trial. The Court held that the judge had not been sitting in his capacity as a French judge, but as an Andorran judge, but appears to have accepted that had this not been so the applicants would have fallen within the jurisdiction of France for the purposes of article 1 in relation to their article 6 rights. This would not, however, have entitled them to claim against France the benefit of protection of the rest of the Convention rights. What of the property rights protected by article 1 of the First Protocol? Many foreign residents own property in this country. Are they within the jurisdiction for the purposes of article 1? In Carson v United Kingdom (Application No 42184/05) judgment 16 March 2010 the Grand Chamber ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had earned pensions by working in Britain, but had emigrated to South Africa, Australia or Canada on retirement. The report states, in para 1 that they were all British nationals, but para 21 states that one of them remained an Australian national. The basis of the claim was discrimination against the claimants in that their pensions were not linked to United Kingdom inflation, in contrast to the position of pensioners resident within the United Kingdom. Neither before the English courts nor before the Strasbourg Court was there any discussion of the basis upon which the claimants were treated as within the jurisdiction of the United Kingdom for the purposes of article 1. One possible answer is that because their pension rights were governed by legislation, they fell within the legislative jurisdiction of the United Kingdom in relation to those rights. There could be no question, however, of the United Kingdom having to afford them protection in relation to the whole package of Convention rights. In X v United Kingdom (1979) 15 DR 137, the Commission ruled inadmissible on the merits a claim by a British citizen, who was employed by the European Commission and resident in Brussels, for violation of article 1 of the Convention in combination with article 3 of the First Protocol. She complained that she had no right to vote in United Kingdom elections whereas members of the diplomatic service and the Armed Forces stationed outside the United Kingdom retained their right to vote. The Commission held that the discrimination was justified in that these persons were not voluntarily abroad but had been sent abroad to serve their country. They fell to be regarded as resident citizens, in contrast to the applicant who was living abroad voluntarily. It was not, however, suggested that the applicant did not fall within the article 1 jurisdiction of the United Kingdom. The basis for this jurisdiction was perhaps that, in relation to voting rights, nationals fall within the jurisdiction of their own State, whether or not they are within the territorial jurisdiction. There are other cases that suggest that where one State delegates to another State authority to control a particular area of government that engages one of the Convention rights, those subject to the exercise of the latter States authority will be deemed to be within the jurisdiction of the latter State for the purposes of article 1 in relation to that right: Drozd; X and Y v Switzerland (1977) 9 DR 57; Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99, 48209/99) (unreported) 14 May 2002. A recent decision of the Strasbourg Court provides a variation on this theme. In Stephen v Malta (No 1) (2009) 50 EHRR 144 the applicant was a British subject who had been arrested and detained in Spain pursuant to an arrest warrant that had been issued by a Maltese Court that had not been competent to issue it. The Strasbourg Court, of its own motion, considered article 1 jurisdiction. It remarked at para 45: the question to be decided is whether the facts complained of by the applicant can be attributed to Malta The Court gave an affirmative answer to this question and held that the applicants complaints under article 5 engaged the responsibility of Malta under the Convention. No principled explanation was given for this departure from the territorial approach to article 1 jurisdiction other than the passage quoted above which, if applied generally, would render that approach nugatory. These cases might be thought to support a general principle that there will be jurisdiction under article 1 whenever a State exercises authority, be it legislative, judicial or executive, which affects a Convention right of a person, whether that person is within the territory of that State or not. So far as the exercise of executive authority is concerned, one can postulate that this requires effective control, either of territory or of individuals, before article 1 jurisdiction is established. The fact remains, however, that the Strasbourg Court has not propounded any such general principle. Nor can such a principle readily be reconciled with the proposition, approved in Bankovic, that article 1 jurisdiction is essentially territorial in nature and that other bases of jurisdiction are exceptional and require special justification in the particular circumstances of each case. There are compelling reasons for following the approach of the Grand Chamber in Bankovic, quite apart from the reasons that led the House of Lords to treat it as a landmark decision. The travaux to which the Court referred demonstrate that the contracting States were concerned with the manner in which those within their territories were treated. It is not credible that the change to the phrase within their jurisdiction was intended to effect a fundamental extension to the scope of the Convention without this being clearly reflected in the travaux. The question then is whether, applying the original meaning principle, it is right to include a States armed forces abroad as falling within the jurisdiction of the State for purposes of article 1 by reason of the special status that they enjoy. That is the proposition that Miss Rose advances and it is one that is, as the Grand Chamber pointed out in Bankovic, not reflected by State practice. It is, furthermore, almost wholly unsupported by Strasbourg jurisprudence. decision of the Commission in Cyprus v Turkey (1975) 2 DR 125: I say almost having regard to the following passage in the admissibility 8The Commission further observes that nationals of a State, including registered ships and aircrafts, are partly within its jurisdiction wherever they may be, and that authorised agents of a State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property within the jurisdiction of that State, to the extent that they exercise authority over such persons or property. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged. I am not aware of any other Strasbourg jurisprudence that suggests that armed forces remain under the jurisdiction of a State when abroad and the reasoning of the Commission in this case was far wider than that of the Court when dealing with Turkeys jurisdiction in Northern Cyprus in Loizidou v Turkey (1995) 20 EHRR 99. Miss Rose drew attention to Strasbourg jurisprudence that holds that those affected by the conduct of a States diplomatic and consular officials abroad can fall within the jurisdiction of the State, which was applied by the Court of Appeal in R (B and others) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344; [2005] QB 643. She submitted that it followed from this that such officials were themselves within the jurisdiction of their States and that the same principle should apply to the armed forces. I have some difficulty with the logic of the proposition that State agents whose acts bring those affected by them within article 1 jurisdiction must, in consequence, themselves also be within the article 1 jurisdiction of the State whose agents they are but, more fundamentally, it does not seem to me that the analogy between diplomatic and consular officials and members of the armed forces is compelling. More compelling were the points made by Miss Rose in relation to the unique status of members of the armed forces. When the Convention was agreed men who were British citizens were liable to conscription under the National Service (Armed Forces) Act 1948 and, in consequence of conscription, rendered subject to the executive authority of the armed forces and to the legislative and judicial regimes that applied to the armed forces. A similar situation no doubt existed in the case of other contracting States. Today the same is true of those who volunteer to serve in the armed forces see the description of the relevant legislation set out by Lord Mance in his judgment at para 190. Under domestic law and in accordance with public international law, members of the armed forces remain under the legislative, judicial and executive authority of the United Kingdom, whether serving within or outside United Kingdom territory. From the viewpoint of domestic law they can thus be said to be within the jurisdiction of the United Kingdom wherever they are. It is not attractive to postulate that, when they are outside the territorial jurisdiction in the service of their country they lose the protection afforded by the Convention and the HRA. That, however, is not the question. The question is whether, in concluding the Convention, the contracting States agreed that article 1 jurisdiction should extend to armed forces when serving abroad as an exception to the essentially territorial nature of that jurisdiction. What were the practical implications of so doing? It is not wholly realistic to consider the perceived implications of the application of the Convention in 1953 by reference to the requirements of the Convention, that have been identified by the Strasbourg Court since 1953. In particular, it is perhaps not realistic to apply to conditions in 1953 the positive obligations in relation to article 2 that have quite recently been laid down by the Strasbourg Court. It is nonetheless instructive to consider the implications of applying the Convention to armed forces serving abroad. It is not practicable for a State to secure many of the Convention rights and freedoms for troops in active service abroad. Article 2 is, however, plainly capable of being engaged. The safety of the lives of those fighting abroad can depend critically on the acts or omissions of State agents, covering the equipment with which they are supplied, the missions on which they are sent, and strategic and tactical decisions taken by commanders in the field. If the troops are within the article 1 jurisdiction of the State the question arises of how far these matters fall within the substantive obligations imposed by article 2. Insofar as they do, the question then arises of whether the procedural obligation arises every time a serviceman is killed in circumstances which may involve a shortcoming in the performance of those substantive obligations. These are questions that I shall explore when addressing the Inquest Issue. The Convention was agreed in the aftermath of a global conflict in which millions of troops had been deployed. In 1944 the United Kingdom had over 4.5 million troops serving. British casualties in the war numbered about 330,000. By 1950 the number of British troops in service had reduced to about 700,000, many of whom were conscripts. While the Convention was being negotiated the Korean War was in progress. British casualties in that war numbered about 700. Derogation is permitted under article 15 in time of war or other public emergency threatening the life of the nation, although there can be no derogation from article 2 except in respect of deaths resulting from lawful acts of war. No derogation was made, and troops were deployed abroad in circumstances falling short of those permitting derogation under article 15. The contracting States might well not have contemplated that the application of article 2 to troop operations abroad would have involved obligations such as those I have discussed above, but whatever the implications might have seemed, it is unlikely that they would have appeared a desirable consequence of the Convention. So far as this country is concerned, it is significant that when the Crown Proceedings Act 1947 rendered the Crown susceptible to civil suit an exception was made in relation to the armed forces. Only in 1987 did the Crown Proceedings (Armed Forces) Act remove that exception. This does not lie happily with the proposition that the United Kingdom bound itself to the observance of the Convention obligations toward its armed forces abroad when it ratified the Convention in 1951. Today the size of the forces maintained by contracting States is a fraction of those that they maintained when the Convention was agreed. Every death of a British serviceman abroad is now reported in the British press. The bodies of British servicemen who die on active service are flown back and buried in this country, and it is this fact which makes it mandatory to hold an inquest in each case. The care that is taken to avoid casualties and the procedures that are followed when casualties occur are to be commended, but they would not have seemed practicable in 1953. In Al Skeini at para 107 Lord Brown expressed the view that the House should not construe article 1 as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. I endorse that comment. We are here dealing with the scope of the Convention and exploring principles that apply to all contracting States. The contention that a States armed forces, by reason of their personal status, fall within the jurisdiction of the State for the purposes of article 1 is novel. I do not believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as some of them are, clearly demonstrate that the contention is correct. The proper tribunal to resolve this issue is the Strasbourg Court itself, and it will have the opportunity to do so when it considers Al Skeini. For these reasons I would hold that the Court of Appeal should not have held that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at times when he was not within premises under the effective control of the army. This conclusion, and the reasoning that has led to it, accords with the comprehensive analysis of the relevant jurisprudence in the judgment of Lord Collins. For these reasons I would allow the appeal against the Court of Appeals order on the jurisdiction issue. The Inquest Issue The nature of the issue The Inquest Issue arises on the premise that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at the time of the events that led to his death, so that he was entitled to the protection of article 2 of the Convention. Article 2 of the Convention provides: 1. Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. In R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 the Appellate Committee of the House of Lords, in a considered opinion, summarised the Strasbourg jurisprudence as to the effect of this provision: 2. The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. 3. The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated (references omitted). The Inquest Issue is concerned with the procedural obligation. The procedural obligation requires a State, of its own motion, to carry out an investigation into a death that has the following features: i) It must have a sufficient element of public scrutiny of the investigation or its results. ii) It must be conducted by a tribunal that is independent of the state agents who may bear some responsibility for the death. iii) The relatives of the deceased must be able to play an appropriate part in it. iv) It must be prompt and effective. This means that it must perform its essential purposes. These are to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of state agents or bodies for deaths occurring under their responsibility. These features are derived from the Strasbourg jurisprudence, as analysed in Middleton and R (L (A Patient)) v Secretary of State for Justice [2008] UKHL 68; [2009] AC 588. I shall describe an investigation that has these features as an article 2 investigation. The procedural obligation implicit in article 2 was first recognised by the Strasbourg Court in McCann v United Kingdom (1995) 21 EHRR 97. Since then the Court has repeatedly found such an obligation to have existed, but always in the context of a case in which the respondent State has been held to have been in breach of a substantive obligation imposed by article 2. This is no doubt because complaints of violation of the procedural obligation of article 2 are only likely to be brought by relatives before the Strasbourg Court where these are ancillary to complaints of substantive breaches of article 2. It has been stated on a number of occasions that the procedural obligation under article 2 is parasitic upon the existence of the article 2 substantive right and cannot exist independently see, for example, Lord Binghams observations at para 6 of Gentle. The Inquest Issue has been formulated in the agreed Statement of Facts and Issues as follows: Whether the fresh inquest into Private Smiths death must conform with the procedural obligation implied into Article 2 of the Convention. In the first inquest the Coroner gave a narrative verdict which included the finding that Private Smiths death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate. Subsequently, on 5 January 2007 the Coroner gave a ruling holding that the requirements of article 2 did not apply to the inquest because any shortcomings related to a failure to follow the procedures that should have applied and not to any defects in those procedures, so that there was no question of any substantive breach of article 2. The basis upon which Mrs Smith has successfully challenged this ruling has raised an important issue of principle. Both Miss Rose and Mr Beloff have contended that an article 2 investigation must be held whenever a member of the armed services dies on active service and the Court of Appeal has so found. The argument has proceeded on the following basis. There are two different types of inquest. The first has the features that the Court of Appeal identified in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1 (a Jamieson inquest). The second has the features that the House of Lords identified in R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 (a Middleton inquest). If the requirements of article 2 apply, the coroner must conduct a Middleton inquest. The Middleton inquest will address any alleged failures on the part of the State to comply with the substantive obligations imposed by article 2. Before addressing the Inquest Issue directly I propose to explain a number of reservations that I have in relation to the procedural obligation: i) I do not see how the procedural obligation can work if it is limited to an obligation to hold an article 2 investigation if, and only if, there are grounds for suspecting a breach by the State of a substantive article 2 obligation. ii) I question the extent of the distinction between a Jamieson inquest and a Middleton inquest. iii) There is a major difficulty in identifying the substantive obligations that article 2 imposes on a State in relation to the safety of its armed forces. iv) I question the extent to which an inquest, even a Middleton inquest, will necessarily be an appropriate process for discharging the procedural obligation. The duty to investigate death The duty to hold an article 2 investigation arises where there are grounds for suspecting that a death may involve breach by the State of one of the substantive obligations imposed by article 2. This raises the question of how the State is to identify that there are grounds for such suspicion. Any effective scheme for protecting the right to life must surely require a staged system of investigation of deaths, under which the first stage takes place automatically in relation to every death, whether or not there are grounds for suspecting that there is anything untoward about the death. Where the first stage shows that the death has not, or may not have, resulted from natural causes, there will be a requirement for a further stage or stages of the investigation. The requirement for an article 2 investigation will only arise if the preceding stage of the investigation discloses that there is a possibility that the State has not complied with a substantive article 2 obligation. In the United Kingdom such a staged system of investigating deaths exists. All deaths are required to be registered under the Births and Deaths Registration Act 1953. Registration requires a death certificate certifying the cause of death from a doctor or coroner. Where there is doubt as to whether the death is due to natural causes, it will be reported to a coroner. He then decides whether further enquiries need to be carried out. These may take the form of a post mortem examination or an inquest. Section 8 of the Coroners Act 1988 requires a coroner to hold an inquest where the body of a person is lying within his district and there is reasonable cause to suspect that the deceased has died a violent or an unnatural death, has died a sudden death of which the cause is unknown or has died in prison or in such place or in such circumstances as to require an inquest under any other Act. The inquest was designed to perform a fact finding role. It was not intended necessarily to be the final stage of the investigation. Its mandate expressly excludes determining civil or criminal liability. It is, however, being used as the appropriate process for determining whether there has been a violation of the States article 2 obligations. Jamieson and Middleton Inquests Jamieson involved an application for judicial review brought by the brother of a man who had hanged himself in his prison cell. The report of the case suggests that the evidence adduced at the inquest of the prisoner covered in detail the circumstances that led up to his suicide. It was the applicants case that the prison authorities were aware of the danger that his brother would commit suicide and failed to take the steps that they should have done to prevent this. He submitted to the coroner that he should direct the jury to consider whether the death of his brother was caused or contributed to by lack of care. The coroner refused to do so and it was this decision that was challenged by judicial review. The issue thus related, not to the scope of the investigation that had taken place, but as to the verdict that the jury were permitted to give. Sir Thomas Bingham MR, giving the judgment of the Court of Appeal, traced the statutory history of the coroners role and drew particular attention to the following statutory provisions, which are still in force. Under section 8(1) of the Coroners Act 1988 a coroner has to hold a inquest when a body is lying within his district and there is reason to think that the deceased has died a violent or unnatural death, or has died a sudden death of which the cause is unknown, or has died in prison or in such circumstances as to require an inquest under any other Act. Section 11(5)(b)(i) and (ii) requires the coroners jury to set out in an inquisition who the deceased was and how, when and where he came by his death. The Coroners Rules 1984 provide: 36(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely(a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the coroner nor the jury shall express any opinion on any other matters. 40. No person shall be allowed to address the coroner or the jury as to the facts. 41. Where the coroner sits with a jury, he shall sum up the evidence to the jury and direct them as to the law before they consider their verdict and shall draw their attention to rules 36(2) and 42. 42. No verdict shall be framed in such a way as to appear to determine any question of(a) criminal liability on the part of a named person, or (b) civil liability. 43. A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly. In upholding the coroners ruling, the Court of Appeal set out a number of general principles, which included the following: (1) An inquest is a fact finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter. (2) Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, how is to be understood as meaning by what means. It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far reaching issues, but howthe deceased came by his death, a more limited question directed to the means by which the deceased came by his death. (3) It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. Middleton also involved an inquest on a prisoner who had hanged himself in his cell. Similar allegations of neglect were made and once again the evidence covered the circumstances leading up to the deceaseds suicide. The jury handed the coroner a note stating that the Prison Service had failed in its duty of care to the deceased, but the coroner concluded that this could not be appended to the inquisition. The verdict was challenged on the ground (not open in Jamieson) that it did not comply with the procedural obligations of article 2. Lord Bingham, delivering the considered decision of the Committee, held that where article 2 was engaged it might be necessary, in accordance with section 3 of the Human Rights Act, to give the relevant statutory provisions a different meaning to that which the Court of Appeal had laid down in Jamieson. The change was not a big one: 35. Only one change is in our opinion needed: to interpret how in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply by what means but by what means and in what circumstances. 36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paras 30 31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues. The decision in Middleton has been given statutory effect by section 5 (2) of the Coroners and Justice Act 2009. That section provides: 5 Matters to be ascertained (1) The purpose of an investigation under this Part into a persons death is to ascertain (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a persons death nor the jury (if there is one) may express any opinion on any matter other than (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5. It seems to me that the only difference that the decision of the House in Middleton would have made to either the Jamieson inquest or the Middleton inquest would have been to the form of the verdict. In each case the Coroner appears to have permitted exploration of the relevant circumstances despite the fact that he did not permit these to be reflected in the verdict. I question whether there is, in truth, any difference in practice between a Jamieson and a Middleton inquest, other than the verdict. If there is, counsel were not in a position to explain it. Coroners appear frequently to have exercised considerable latitude as to the scope of the inquiry the inquest into the shootings in Gibraltar that were the subject of McCann v United Kingdom (1995) 21 EHRR 97 exemplifies this. The form of the verdict will, no doubt be dictated by the evidence that emerges at the inquest, but I have difficulty with the concept that the inquest itself may in midstream undergo a significant change in character from a Jamieson to a Middleton inquest. How far it is appropriate to widen the scope of an inquest in order to consider allegations of breach of obligations imposed by article 2 is a matter to which I shall revert. The substantive obligations of article 2 in relation to armed forces. If armed forces on active service abroad are within a States jurisdiction for purposes of article 1, the question arises of the scope of the substantive obligations imposed by article 2. Would the Strasbourg Court hold that they extend to the adequacy of the equipment with which the forces are provided; to the planning and execution of military manoeuvres? These questions are not easy to address, but an affirmative answer certainly cannot be excluded. McCann involved the shooting by an SAS unit of three members of the provisional IRA who were suspected of being about to detonate a bomb in Gibraltar. The Court held that article 2 imposed substantive duties in relation to the planning, execution and control of the operation, and a procedural obligation to investigate these matters in the light of the casualties. The Court adopted a similar approach to deaths that resulted from the operations of the Russian military when conducting substantial military operations against insurgents: Isayeva, Yusupova and Basayeva v Russia (Application Nos 57947 49/00) and Isayeva v Russia (Application No 57950/00), decisions of 24 February 2005. There would seem no reason why the Court might not adopt a similar approach to operations resulting in the death of a States own soldiers. The facts of this case do not require the Court to define the extent of the positive duty that article 2 imposes on a State in relation to its armed forces. How appropriate is an inquest for the discharge of article 2 procedural obligations? As I have pointed out, inquests were designed to perform a fact finding function as a stage in an overall scheme of investigation that would commence before the inquest and might continue after it. An inquest will not be the appropriate vehicle for all inquiries into State responsibility for loss of life. An inquest would not have been the appropriate means of determining whether the death of a victim of new variant CJD, contracted from eating BSE infected beef, involved government responsibility, nor for determining the issues of State responsibility for the Bloody Sunday killings. An inquest can properly conclude that a soldier died because a flack jacket was pierced by a snipers bullet. It does not seem to me, however, that it would be a satisfactory tribunal for investigating whether more effective flack jackets could and should have been supplied by the Ministry of Defence. If the article 2 obligation extends to considering the competence with which military manoeuvres have been executed, a coroners inquest cannot be the appropriate medium for the inquiry. Must an article 2 investigation be held whenever a member of the armed services dies on active service? Miss Rose argued that the State was under a positive obligation to take all reasonable steps to protect the lives of military recruits, who were subject to the authority and control of the State. It followed that any death of a serviceman on active service potentially engaged the responsibility of the State. All the evidence was likely to be under the control of the State. Where a soldier died on active service, whether he was a conscript, a regular or a reservist this triggered the obligation to hold an independent investigation. This was certainly the case where the circumstances of a soldiers death indicated the possibility of a systemic or operational failing by military personnel. The Court of Appeal considered a number of cases of deaths in the custody of the State, of one kind or another, where the article 2 procedural duty had been held to arise. It held at para 90: The question in the instant appeal is whether what may be called the custody principles apply to a case like this where the deceased lost his life while serving as a soldier in the Territorial Army. The Court went on to give an affirmative answer to this question, at least in the circumstances of a death from causes such as those that resulted in Private Smiths death. The obligation to hold an article 2 investigation is triggered by circumstances that give ground for suspicion that the State may have breached a substantive obligation imposed by article 2. That in its turn raises the question of the scope of the substantive obligations that a State owes in relation to its armed forces, which I have raised above. Whatever the scope of those obligations I do not consider that the death of a soldier on active service of itself raises a presumption that there has been a breach of those obligations. Troops on active service are at risk of being killed despite the exercise of due diligence by those responsible for doing their best to protect them. Death of a serviceman from illness no more raises an inference of breach of duty on the part of the State than the death of a civilian in hospital. For these reasons I reject the submission that the death of a serviceman on active service, assuming that this occurs within the article 1 jurisdiction of a State, automatically gives rise to an obligation to hold an article 2 investigation. Inquiries into the deaths of servicemen. I have already referred to the fact that, whatever the requirements of the Convention may be, the United Kingdom has a staged system of investigation into deaths. Where a death occurs in circumstances involving a public authority, an in house investigation will often precede the inquest and provide valuable information to assist the inquest. In the present case the Special Investigations Branch of the Military Police carried out an investigation into Private Smiths death and two Boards of Inquiry made reports. It was because the first of these was not disclosed to the coroner that a second inquest is to be held. I would expect that in the case of every military death in service some form of internal investigation is held. As the bodies of servicemen who die or are killed on active service abroad are brought back to this country, any internal investigation that has taken place will be followed by a public inquest that will satisfy many of the requirements of an article 2 investigation. It will often be only in the course of the inquest that it will become apparent that there is an issue as to whether there has been a breach by the State of its positive article 2 obligations. Only at that stage will it be appreciated that the exercise that is in progress is one called for by article 2 and one that must, if possible, satisfy the requirements of that article. Whether the inquest will be the appropriate medium to do this will depend on the nature of the obligation that is alleged to have been broken. The decision in Middleton, and section 5(2) of the 2009 Act that gives effect to it, requires the coroner to adapt the verdict, insofar as this is possible, in order to satisfy the requirements of article 2. Must the second inquest satisfy the procedural requirements of article 2? The Coroner ruled at the end of the first inquest that it was not necessary to satisfy the procedural requirements of article 2. Collins J and the Court of Appeal have held that the Coroner was mistaken. I agree. This is not, however, because Private Smiths death on active service, of itself, gave rise to a suspicion of breach by the State of its substantive article 2 obligations. It is because the evidence that was placed before the Coroner has raised the possibility that there was a failure in the system that should have been in place to protect soldiers from the risk posed by the extreme temperatures in which they had to serve. On the facts disclosed it was arguable that there was a breach of the States substantive obligations under article 2. This was enough to trigger the need to give a verdict that complied with the requirements of article 2. I am not convinced that the Coroners narrative verdict failed to do this. It summarised the facts leading to Private Smiths death and ended: Jason George Smiths death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate. The new inquest is likely to receive more detailed evidence of the circumstances surrounding Private Smiths death. In conducting that inquest the Coroner should certainly attempt to satisfy the requirements of an article 2 investigation. For these reasons I would dismiss the appeal on the second issue. LORD HOPE I agree with Lord Phillips that a member of the States armed forces is not, by reason of his or her personal status according to the military law and discipline of the United Kingdom, within the jurisdiction of the state for the purposes of article 1 of the European Convention on Human Rights. To hold otherwise would be to go beyond the categories that have hitherto been recognised by the Strasbourg Court in cases that do not arise from the effective control of territory within the Council of Europe area. But, as to the reasons for this view, I am in full and respectful agreement too with the judgment of Lord Collins. It is perhaps worth noting, in support of his conclusion that there are no policy grounds for extending the scope of the Convention to members of the armed services serving abroad simply because they are under the authority and control of the United Kingdom, that in an interview which he gave shortly after his retirement as President of the European Court of Human Rights, Luzius Wildhaber questioned how the Court could function effectively as a court when there was no prospect of it acquiring reliable evidence concerning the situation beyond the frontiers of Member States. He suggested that expecting the Court to act in such circumstances risked turning it into a campaigning organisation making allegations without solid evidence. He saw this as a compelling reason to be very careful about extending the notion of extra territoriality too far and to be wary about departing too much from the Bankovic judgment: Reflections of a Former President of the European Court of Human Rights [2010] EHRLR 169, 174. It is one thing, therefore, to recognise a Member States jurisdiction over persons within an area beyond the frontiers of the Member States over which their armed forces have established total and exclusive de facto control such as a military base, a military hospital or a detention centre, on the analogy with the extra territorial exception made for embassies: Al Saadoon and Mufdhi v United Kingdom (Application No 61498/08) (unreported) 30 June 2009, para 88. It is quite another to extend that jurisdiction to areas outside premises of that kind over which the armed forces may be operating but over which they do not have exclusive control, where the safeguarding of Convention rights cannot be guaranteed and where reliable evidence about the circumstances of alleged violations could be hard to come by because the state over whose territory these operations are being conducted is not a party to the Convention. A decision that the extra territorial jurisdiction should extend that far in this case would be likely to have profound consequences for other Member States and, it would seem from what Luzius Wildhaber has said, for the Court itself. A decision of that kind is best left to Strasbourg. I would in any event respectfully endorse the view expressed by Lord Brown of Eaton under Heywood in R (Al Skeini) v Secretary of State for Defence [2008] AC 153, para 107, for the further reasons he gives in this case, that article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. I also would hold that Private Smith was not within the jurisdiction of the United Kingdom within the meaning of article 1 when he was outside his base while serving in Iraq. There is nothing that I would wish to add on the first issue. The second issue in this appeal is whether the fresh inquest into Private Smiths death would have to comply with the procedural investigatory obligation guaranteed by article 2 of the Convention. At first sight this question is academic because the Secretary of State agrees that he will not submit to the new coroner in the fresh inquest that the scope of the investigation, or the nature of the verdict, should be less broad than would be appropriate if the inquest must satisfy the obligation of the United Kingdom under that article: see the Court of Appeals judgment [2009] 3 WLR 1099, para 62. This is on the assumption that, as Private Smith died on base, he was within the jurisdiction of the United Kingdom within the meaning of article 1 when he died and because the findings of the coroner at the first inquest indicate a possible breach of the positive obligation to establish processes to deal with the risk of heatstroke and hyperthermia. But, as Ms Rose QC for the respondent pointed out, a concession as to the scope of the inquest would not bind the coroner. The question whether the procedural obligation was triggered by Private Smiths death was argued before Collins J, in the Court of Appeal and before this Court on the basis that it raised an important issue of principle. Its importance is not limited to cases where members of the armed forces are serving in places such as Iraq and Afghanistan. It extends to cases where at the time of their death they were serving in the United Kingdom in Northern Ireland, for example or within the territory of another Council of Europe Member State. In the ideal world this would be an empty question. The coroner would have complete freedom to determine the scope of his own inquiry and to adapt the form and content of his verdict according to the needs of each case. That however is not how the scheme for the conduct of inquests has been designed in English law. As Lord Bingham of Cornhill explained in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, paras 34 35, the scheme which has been enacted by and under the authority of Parliament must be respected, save to the extent that a change of interpretation is required to honour the international obligations of the United Kingdom under the Convention: see also R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796, para 27. The crucial difference is to be found in the way the word how in section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36(1)(b) of the Coroners Rules 1984 is to be interpreted. Tempting though it may be to depart from Middleton by declaring that there is really no material difference between the functions of the coroner and the jury in the two types of inquest as Lord Phillips has indicated, I think for all the reasons that were given in that case we should not do so. The temptation to do this, adopting what the sheriff may do when he is making his determination according to the Scottish model, was confronted and resisted in Middleton, and I think that we must follow the decision that was taken in that case. On the other hand I would not wish to limit the scope that is available to the coroner under rule 43 of the Coroners Rules 1984. How far he may go in pursuing lines of inquiry in order to determine whether he should make a report under that rule with a view to preventing the recurrence of similar fatalities must depend on his judgment as to what is appropriate in the circumstances. It is only in cases where the article 2 procedural duty applies, therefore, that the Middleton approach is available to the coroner. It will then be necessary for him to conduct an inquiry which is effective, as that expression was explained by the Grand Chamber in Ramsahai v The Netherlands (2007) 46 EHRR 983, paras 324 325; see also R (L (A Patient)) v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2009] AC 588, para 78, per Lord Rodger of Earlsferry. But that approach is not available in all cases. It arises only in the comparatively few cases where the states responsibility for the death is or may be engaged: R (Hurst) v London Northern District Coroner [2007] 2 AC 189, para 48 Lord Brown of Eaton under Heywood. In all other cases the proceedings must be conducted according to the regime for conducting inquests in England and Wales as summarised in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1. Section 5 of the Coroners and Justice Act 2009 has retained the distinction between these two forms of inquest. It is only where necessary to avoid a breach of any of the Convention rights that it permits the Middleton approach: see section 5(2). The scheme which Parliament has enacted in section 5 of the 2009 Act is deceptively simple. In practice however it gives rise to a variety of problems to which the Courts attention was drawn by counsel. We cannot resolve them all in this case. But at the root of most, if not all, of them lies the problem of determining whether the case in hand is one which attracts the procedural obligation that is imposed by article 2. In broad terms, it is triggered by any death occurring in circumstances in which it appears that any one or more of the substantive obligations that article 2 imposes not to take life without justification, and to establish a framework of laws, precautions, procedures and means of enforcement which will to the greatest extent practicable protect life, has been, or may have been, violated in circumstances in which it appears that agents of the state are, or may be, in some way implicated: R (Middleton) v West Somerset Coroner [2004] 2 AC 182, paras 2 and 3. The procedural obligation depends on the existence of the substantive right. It cannot exist independently: R (Gentle) v Prime Minister [2008] AC 1356, para 6. Some situations in which the procedural obligation is triggered are now well recognised. The suicide of an individual while in the custody of the state is the prime example. It has been extended to the case where a prisoner attempted to commit suicide while in custody and suffered brain damage: R (L (A Patient)) v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2009] AC 588. This is because it has been recognised that prisoners as a class present a particular risk of suicide and because those who have custody of them, as agents of the state, are or may be in some way implicated. A Middleton inquest is required in all these cases, because it is at least possible that the prison authorities failed to take the steps to protect the prisoners life that the substantive right requires. As Lord Rodger of Earlsferry said in Ls case, para 59, suicide is in this respect like any other violent death in custody. The procedural obligation extends to prisoners as a class irrespective of the particular circumstances in which the death occurred. The fact that they are under the care and control of the authorities by whom they are held gives rise to an automatic obligation to investigate the circumstances. The same is true of suicides committed by others subject to compulsory detention by a public authority, such as patients suffering from mental illness who have been detained under the Mental Health Acts: Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2009] AC 681. This approach has the merit of clarity. Everyone knows from the outset that the inquest in these cases must follow the guidance that was given in Middleton, paras 36 38. The issue before the Court is whether it is possible to achieve equal clarity in the case of an inquest into the death of a soldier. Soldiers who die while in military custody are, of course, in the same position as any other prisoner. Their case has the benefit of the substantive obligation, so the procedural obligation applies. So too does the case of members of the other armed services who die in such circumstances. The question is how far, if at all, the detainees approach can be applied to other situations which servicemen and servicewomen encounter in the service of their country, at home or abroad. Death may occur from natural causes as well as a result of neglect or injury. And fatal injuries may occur due to the mishandling of equipment during training or in other situations when personnel are not engaged in combat as well as in the face of the enemy. The conflicts in Iraq and Afghanistan have brought the issue into greater prominence. But the situation that we face today is in principle no different from that which members of the armed forces serving both at home and abroad have faced for many years. The single characteristic which currently unites all our service personnel is that they have volunteered for the branch of the service to which they belong. This applies to those who have made their profession in the armed services as well as those, like Private Smith, who chose to serve part time in reserve forces such as the Territorial Army. Mandatory military service no longer exists in this country. For this reason I would be reluctant to follow the guidance of the Strasbourg Court that is to be found in cases such as Chember v Russia, (Application No 7188/03) (unreported) 3 July 2008. The applicant in that case was called up for two years mandatory military service in the course of which he was subjected to ill treatment and harassment. The court was careful to stress in para 49 that many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill treatment when they occur in the armed forces, provided they contribute to the specific mission of the armed forces in which they form part, for example training for battle field conditions: Engel v The Netherlands (No 1) (1976) 1 EHRR 647. But the description which it gave in para 50 of the duty that the State owes to persons performing military service was directed specifically to cases where it decides to call up ordinary citizens to perform military service. That description cannot be applied to those who serve in the armed forces as volunteers. It is true, of course, that those who join the armed services as volunteers accept the obligation to comply with military discipline. They are trained to obey orders, and they are subject to sanctions if they do not do so. Private Smith did not choose to go to Iraq. He received a notice of compulsory call up. But it was a condition of the service for which he volunteered that he would obey instructions of this kind. I do not think that his situation can be distinguished from that of any other member of the armed services who is deployed on active service. There is a close analogy with men and women who volunteer for service in the emergency services. Fire fighters, in particular, may face situations of great danger where their lives are at risk. But they follow instructions because that is a necessary part of the job they have chosen to do. It is tempting to select examples of cases where the cause of a soldiers death may be attributed to failures on the part of the State and to conclude that this fact in itself gives rise to the need for a Middleton inquest. But I would resist this temptation. The examples that Lord Rodger gives illustrate the difficulty. He says that he would apply the reasoning as to a prisoner committing suicide to a raw recruit to the armed forces who committed suicide during initial military training in barracks in this country: para 118. We have no evidence that raw recruits to the armed services are in this respect especially vulnerable, but this reference calls to mind the tragic cases of the four young soldiers who died at Deep Cut Barracks between 1995 and 2002 which according to the Ministry of Defence were all cases of suicide. Those soldiers were still in training, but they were not raw recruits. The training they were undergoing at Deep Cut was a course of further training, additional to the initial training which they had received in an Army Training Regiment. Where does one draw the line between the raw recruit and the more seasoned soldier who is still in training? And what about schoolchildren who commit suicide as a result of bullying from which, as they must attend school, there is no escape? Or students who do so because of the pressures they encounter in colleges or universities? To extend the substantive article 2 obligation to volunteers while they are undergoing basic or advanced training would go further than has so far been indicated as necessary by Strasbourg. Then there is the example that Lord Rodger gives of deaths as a result of friendly fire from other British forces: para 126. Trooper David Clarke, the son of the second claimant in R (Gentle) v Prime Minister [2008] AC 1356, was killed by friendly fire while on armed service with the Queens Royal Lancers in Iraq. He was driving a Challenger 2 tank when it was fired on by another Challenger 2 tank from a different unit whose crew had mistaken it for an enemy vehicle. That was an example of friendly fire by British forces. But a number of other servicemen, including several soldiers serving with the Queens Own Highlanders, were killed during the same campaign when their armoured vehicle was fired on by a US Black Hawk Helicopter. Are cases of accidental deaths due to friendly fire by allied forces to be distinguished from those which are due to accidents caused by British forces? And why should deaths due to friendly fire be distinguished from deaths due to injuries sustained as a result of the actions of opposing forces that could also have been avoided if mistakes had not been made by the soldiers themselves or by their commanders? The risk of death due to friendly fire in the confusion and heat of battle is one of the risks that a soldier must face as part of the mission for which he has volunteered. The same is true of the risk of death while in training due, for example, to mistakes made while handling weapons or other equipment or to exposure to the elements. The Court of Appeal applied the principle that extends the protection of article 2 to detained mental patients to the case of soldiers such as Private Smith who die of heatstroke while on active service in Iraq: [2009] 3 WLR 1099, paras 104 105. The essence of its reasoning is to be found in these sentences taken from para 105: [The soldiers] are under the control of and subject to army discipline. They must do what the army requires them to do. If the army sends them out into the desert they must go. In this respect they are in the same position as a conscript. Once they have signed up for a particular period they can no more disobey an order than a conscript can. On this basis it saw no reason why they should not have the same protection as is afforded by article 2 to a conscript. I think that this reasoning goes further than the Strasbourg Court has gone in the case of conscripts, as its reference in Chember v Russia (Application No 7188/03) 3 July 2008, para 49, to risks inherent in the specific mission of the armed forces shows. But it seems to me to be objectionable on other grounds. Members of our armed services are not conscripts. They have chosen to accept the demands of military discipline. Moreover, if the fact that they must obey orders is to be treated as the criterion, there is no logical stopping place. Every situation where death occurs in circumstances where they were obeying orders, from the training ground to battle conditions, would have to be treated in the same way. I would reject the analogy with those who are in the custody of the state. The volunteer soldiers duty to obey orders is not comparable with the state of the detainee who is held against his will in the States custody. In my opinion the substantive obligation under article 2 does not extend automatically to all service personnel in a volunteer army while they are on active service at home or within the article 1 jurisdiction overseas. Like Lord Mance, I regard the proposition that all deaths of military personnel on active service require to be investigated by a Middleton type inquiry as going too far: para 214. As I said in R (Gentle) v Prime Minister [2008] AC 1356, para 19, the guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do. But one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failing on the part of the State. These may range from a failure to provide them with the equipment which is needed to protect life to mistakes made in the way they were deployed due to bad planning or inadequate appreciation of the risks that had to be faced. These are cases where the investigator should, as article 2 requires, take all reasonable steps to secure the evidence relating to the incident, to find out, if possible, what caused the death, and to identify the defects in the system which brought it about and any other factors that may be relevant: see R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 36. Private Smiths death, which occurred on base, seems to me to fall into this category. This was a place over which the armed forces had exclusive control, so the jurisdictional requirement was satisfied. And all the signs are that this was a death which might have been prevented if proper precautions had been taken. There is a sufficient indication of a systemic breach in an area that was within its jurisdiction for the purposes of article 1 to engage the responsibility of the State to carry out an effective investigation into the circumstances. There is something that ought to be inquired into, if only to ensure that tragedies of this or a similar kind do not happen again. I would hold that this is enough to trigger the article 2 procedural obligation so as to require the coroner to conduct a Middleton inquiry in his case. I recognise that the case by case approach which I favour, coupled with the lack of definition in this area of the law, creates a very real problem for the parties as well as for coroners. It risks creating satellite litigation as decisions as to whether a case falls on one side of the boundary are opened up for challenge, resulting in delays and increased costs. The solution to this highly unsatisfactory situation lies in a reform of the law which restricts inquiries in England and Wales which are of that kind to cases where there are grounds for thinking that the substantive obligation under article 2 has been violated. It does not lie in extending the potential reach of article 2 to a broadly defined category of cases which may well deserve sympathy but which lie outside the well defined circumstances in which the positive obligation has hitherto been held to apply. The balance of advantage until the law is reformed lies, I would suggest, in holding the line at cases where there are grounds for thinking that there was a failure by the State in fulfilling its responsibility to protect life and not extending it to cases which, although involving the element of compulsion that is inherent in service life, are truly outside that category. I would allow the appeal against the Court of Appeals order on the first issue. I would dismiss the appeal on the second issue. LORD RODGER The present appeal arises out of the death of Private Jason Smith on 13 August 2003, while serving in Iraq. He died of heat stroke. On the day in question the effects were first noticed when Private Smith was seen lying on the floor in the Stadium at Al Amarah where his accommodation was. He was taken to the medical facility at Camp Abu Naji where he died shortly afterwards. Because he died at the Camp, which was the centre of British operations in the area, the Secretary of State concedes that he died within the jurisdiction of the United Kingdom for purposes of article 1 of the European Convention on Human Rights and Fundamental Freedoms (the Convention). The Secretary of State further concedes that the circumstances of his death are such as to call for an independent inquiry under article 2 of the Convention. Despite these concessions, the Secretary of State asks this Court to decide points relating to the United Kingdoms jurisdiction for purposes of article 1 and to the circumstances in which an inquest which complies with the requirements in R (Middleton) v West Somerset Coroner [2004] 2 AC 182 (a Middleton inquest) has to be held. The precise basis and extent of the Secretary of States concession on the first point are not altogether clear to me. So far as the second point is concerned, the parties appeared to agree that coroners and lawyers found it difficult to know whether, in a case involving the death of a soldier on active service overseas, any inquest should be a Middleton inquest, or whether it should start a Jamieson inquest (one whose more limited scope is described in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1), but evolve into a Middleton inquest if the coroners investigation seemed to require it. For the reasons given by Lord Collins, to which I could not possibly add anything of value, I would allow the appeal on the first issue. It follows that, leaving aside the position when they are on a United Kingdom base, soldiers on active service overseas are not within the jurisdiction of the United Kingdom for purposes of article 1 of the Convention. It follows also that their deaths will not give rise to any requirement to carry out an article 2 investigation. Nevertheless, the Secretary of State asks for a decision on the point. As counsel for the respondent pointed out, an issue could certainly arise in relation to a soldier who had been killed in combat in this country Northern Ireland providing recent examples. Unfortunately, counsels submissions left me, at least, unclear about how exactly a decision one way or the other, as to the form of the inquest, would affect such practical matters as how the coroner or parties prepared for the inquest or what would happen if the coroner decided, half way through, that it should become a Middleton inquest. There is, therefore, a limit to the guidance that this Court can usefully give in a case where the point is moot and in which we have not been told of any particular practical problems that have arisen. Ms Rose QC and Mr Beloff QC submitted, however, that the Court should lay down and it would have to be a matter of law that all inquests into the death of a soldier on active service should be Middleton inquests. Then everyone would know where they stood and such matters as legal aid, representation of relatives and the form of any eventual verdict would be clear from the outset. The submission is superficially attractive and, doubtless for that reason, a somewhat similar argument has been tried before. In R (Hurst) v London Northern District Coroner [2007] 2 AC 189, 214, Lord Brown of Eaton under Heywood dealt with it in this way: Middleton clearly accepted that Jamieson was correctly decided. Were it otherwise, the House could simply have overruled it without recourse to the Human Rights Act 1998 at all, let alone section 3. It is plain that the House was not intending the Middleton approach thereafter to apply in all cases. In the first place, an article 2 investigative obligation only arises in the comparatively few cases where the states responsibility is or may be engaged. Secondly, even where the obligation does arise, it will often be satisfied without resort to a Middleton inquestin some cases by criminal proceedings, in particular where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death (para 30 of the committees opinion delivered by Lord Bingham of Cornhill); in others, like McCann, where short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest at para 31 of the opinion. All this is clear from the committee's opinion which in terms recognises at para 36 that only sometimes will a change of approach be called for. The key point is that the decision in Middleton involved using section 3 of the Human Rights Act 1998 to place an extended construction on section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36 of the Coroners Rules 1984 (SI 1984/552). This was justified only because the extended construction was necessary in order to meet the requirements of article 2. So counsels submission really implied that, as a class, the deaths of British soldiers on active service in, say, Iraq or Afghanistan, would trigger the article 2 investigative obligation. I would reject that approach. In R (L(A Patient)) v Secretary of State for Justice [2009] AC 588 a young man had tried to hang himself in Feltham Young Offender Institution. The Secretary of State argued that, since the obligation on the prison authorities to protect a prisoner from himself is not absolute and so only arises in particular circumstances, a suicide can occur without there having been any breach of the authorities article 2 obligation to protect him. So there did not need to be an independent investigation unless there was some positive reason to believe that the authorities had indeed been in breach of their obligation to protect the prisoner. I rejected that argument in these words, at p 619: 59. That argument is mistaken. Whenever a prisoner kills himself, it is at least possible that the prison authorities, who are responsible for the prisoner, have failed, either in their obligation to take general measures to diminish the opportunities for prisoners to harm themselves, or in their operational obligation to try to prevent the particular prisoner from committing suicide. Given the closed nature of the prison world, without an independent investigation you might never know. So there must be an investigation of that kind to find out whether something did indeed go wrong. In this respect a suicide is like any other violent death in custody. In affirming the need for an effective form of investigation in a case involving the suicide of a man in police custody, the European court held that such an investigation should be held when a resort to force has resulted in a persons death: Akdogdu v Turkey, para 52. 60. In R (Middleton) v West Somerset Coroner [2004] 2 AC 182, another case of a suicide in custody, at p 191, para 3, Lord Bingham of Cornhill summarised the jurisprudence of the European court as imposing an obligation to hold an independent investigation if it appears that one or other of the substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way, implicated. Mr Giffin suggested that Lord Binghams formulation was inconsistent with there being a requirement for an independent investigation in all cases of suicide in custody. I do not agree. In summarising the case law, Lord Bingham was recognising that, where the circumstances of a prisoners death in custody indicate that the substantive obligations of the state may have been violated, any violation, whether due to a systemic or operational failure, will necessarily have involved members of the prison service in one capacity or another. An independent investigation is therefore required to see whether there was, in fact, a violation. The starting point for the reasoning in this passage is that the prison authorities are under both an obligation to take general measures to diminish the opportunities for prisoners to harm themselves and an operational obligation, in certain limited circumstances, to try to prevent a particular prisoner from committing suicide. The authorities are under these obligations because persons in custody are in a vulnerable position and the authorities are under a duty to protect them: Edwards v United Kingdom (2002) 35 EHRR 487, 507, para 56. Therefore the mere fact that a prisoner has committed suicide indicates that there may have been a failure on the part of the prison authorities to perform their article 2 obligations to prevent those in custody from doing so. I would apply precisely the same reasoning if, say, a raw recruit to the armed forces committed suicide during initial military training. It is obvious and past experience shows that recruits, who are usually very young and away from their families and friends for the first time, may be unable to cope with the stresses of military discipline and training. In these circumstances I would regard such recruits as vulnerable individuals for whom the military authorities have undertaken responsibility. So the authorities must have staff trained, and structures in place, to deal with the potential problems which may, quite predictably, arise. Therefore, if a suicide occurred in such circumstances, this would suggest that there might have been a failure on the part of the authorities to discharge their obligation to protect the recruits. There would need to be an independent inquiry especially since recruits are trained in a closed environment. I would take much the same view of Private Smiths death in this case. It may well be that, in the circumstances in Iraq at the time, a soldier could die of heatstroke without there having been any violation of the Armys obligations under article 2. Nevertheless, the likelihood of extreme heat and its possible effects on soldiers were known to the military authorities. There was an obvious need to take appropriate precautions. So, where, as here, a soldier suffers so badly from heatstroke, while in his living accommodation, that he dies shortly afterwards, it is at least possible that the Army authorities failed in some aspect of their article 2 obligation to protect him. For that reason I am satisfied that, given his concession on jurisdiction, the Secretary of State was correct to concede the need for a Middleton inquest into Private Smiths death. I would, however, take an entirely different view of the death of a trained soldier in action e g, when a roadside bomb blows up the vehicle in which he is patrolling, or when his observation post is destroyed by a mortar bomb. The fact that the soldier was killed in these circumstances raises no prima facie case for saying that the United Kingdom army authorities have failed in their obligation to protect him and that there has, in consequence, been a breach of his article 2 Convention rights. In the first place, even if an active service unit is, in some ways a closed world, it would be quite wrong to construct any argument around the idea that ordinary members of the forces are vulnerable in the same way as prisoners or detained patients or, even, conscripts doing military national service in Russia or Turkey. I have already accepted that, in the initial stages of their training, recruits to the United Kingdom forces may indeed be vulnerable in this sense. But those who pass through training and are accepted into the forces are often the reverse of vulnerable: their training and discipline make them far more self reliant and resilient than most members of the population and, so far from being isolated, they form part of a group whose members are supportive of one another. Even more importantly, any suggestion that the death of a soldier in combat conditions points to some breach by the United Kingdom of his article 2 right to life is not only to mistake, but much worse to devalue, what our soldiers do. It is not just that their job involves being exposed to the risk of death or injury. That is true of many jobs, from steeplejacks to firemen, from test pilots to divers. Uniquely, the job of members of the armed forces involves them being deployed in situations where, as they well know, opposing forces will actually be making a determined effort, and using all their resources, to kill or injure them. While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable. Indeed it is precisely because, in combat, our troops are inevitably exposed to these great dangers that they deserve and enjoy the admiration of the community. The long established exemption from inheritance tax of the estates of those who die on active service is an acknowledgment of the fact that members of the armed forces can be called upon to risk death in this way in the defence of what the government perceives to be the national interest. I have deliberately referred to our soldiers and our troops because it may well be that not all Council of Europe countries look on their armed forces in the same way. For historical or cultural reasons, some may be reluctant to see their armed forces engage in combat or carry out dangerous peace keeping operations. So they may have a very different attitude to the risks to which their forces should be exposed. Correspondingly, members of their forces may not attract the level of public esteem that members of our forces, who are regularly expected to face very real threats of death or injury, enjoy. At present our troops are exposed to great dangers in Afghanistan. Inevitably, many have been killed and many more have been wounded. To suggest that these deaths and injuries can always, or even usually, be seen as the result of some failure to protect the soldiers, whether by their immediate companions or by more senior officers or generals or ministers, is to depreciate the bravery of the men and women who face these dangers. They are brave precisely because they do the job, knowing full well that, however much is done to protect them, they are going to be up against opposing forces who are intent on killing or injuring them and who are sometimes going to succeed. This is the background to any inquest into the death of a soldier on active service. In most cases the starting point is that the soldier died as a result of a deliberate attack by opposing forces by, say, a mortar bomb, or a roadside bomb, or by sniper fire. Usually, at least, that will also be the end point of the coroners investigation because it will be an adequate description not only of how the soldier was killed, but also of the circumstances in which he was killed. Of course, it will often perhaps even usually be possible to say that the death might well not have occurred if the soldier had not been ordered to carry out the particular patrol, or if he had been in a vehicle with thicker armour plating, or if the observation post had been better protected. But, even if that is correct, by itself, it does not point to any failure by the relevant authorities to do their best to protect the soldiers lives. It would only do so if contrary to the very essence of active military service the authorities could normally be expected to ensure that our troops would not be killed or injured by opposing forces. On the contrary, in order to achieve a legitimate peacekeeping objective, a commander may have to order his men to carry out an operation when he knows that they are exhausted or that their equipment is not in the best condition. Indeed the European Convention on Human Rights owes its very existence to countless individuals who carried out operations in just such circumstances. For these reasons, I am satisfied that, where a serviceman or woman has been killed by opposing forces in the course of military operations, the coroner will usually have no basis for considering, at the outset, that there has been a violation of any substantive obligation under article 2. So a Middleton inquest will not be called for and indeed it would not be lawful, in such circumstances, to return the wider verdict which is required where a potential violation of article 2 is under consideration. Of course, as his investigation proceeds, the coroner may uncover new information which does point to a possible violation of article 2. To take an extreme example, it may emerge from the evidence that the soldier actually died as a result of friendly fire from other British forces. At that point, the legal position will change because there will be reason to believe that the military authorities may indeed have failed in their article 2 duty to protect the soldiers life. So the coroner will conduct the inquest in the manner required to fulfil the United Kingdoms investigatory obligation under article 2. But the coroner is not concerned with broad political decisions which may seem to have a bearing, and may indeed actually have a bearing, on what happened. This is clear from Nachova v Bulgaria (2005) 42 EHRR 933, 957, para 110, where the Grand Chamber described the essential purpose of an article 2 investigation as being to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Once it is established, say, that a soldier died because the blast from a roadside bomb penetrated the armour plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger. And that simple fact may be worth pointing out as a possible guide for the future. But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal. That being so, a curious aspect of counsels submissions before this Court was the complete absence of any reference to Parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible. Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects. But we are concerned with the scope of a coroners inquest whose function is different. Many of the issues about the deaths of soldiers which are, understandably, of the greatest concern to their relatives are indeed of this much broader nature. In short, they raise questions of policy, not of legality, and so would fall outside the scope of any article 2 investigation which a coroner might be obliged to carry out. For these reasons I agree that the contentions advanced by Ms Rose and Mr Beloff should be rejected. LORD WALKER In common with other members of this Court I feel some disquiet about our engaging in protracted deliberation and the preparation of lengthy judgments on two issues which (as all parties agree) do not actually affect what is to happen in consequence of the tragic death of Pte Smith. It is not the function of this Court to deliver advisory opinions, and in this case we may be going some way beyond what would be regarded as a proper exercise of judicial power in a country with a written constitution providing for the separation of powers (for instance the position in Australia is very fully discussed in a paper A Human Rights Act, the Courts and the Constitution presented to the Australian Human Rights Commission by the Hon Michael McHugh AC on 5 March 2009). The fact that every death of a soldier in Afghanistan brings tragedy to his or her family, and sorrow to the whole nation, may not be a sufficient reason for stretching our jurisdiction to the limits. That is underlined by the second issue, as to coroners inquests, which has led to the submission of further detailed evidence which, informative as it is, has no possible bearing on the second inquest which is to be held on the death of Pte Smith. On the two issues argued before the Court I respectfully agree with Lord Collins on the first issue, and with Lord Phillips and Lord Rodger on the second issue. I would particularly associate myself with paras 118 127 of Lord Rodgers judgment. LADY HALE Mrs Smith must wonder why she is in this court. She did not ask to be here. All she wants is a proper inquiry, in which she can play a proper part, into how it was that her son Jason came to die of heatstroke while serving with the British army in Iraq. She wants to understand what happened to him, but she also wants others to understand it too, so that anything which reasonably can be done will be done to prevent other families suffering as hers has suffered. She had to begin these proceedings because of shortcomings in the first inquest, which are now conceded both by the Coroner and by the Ministry of Defence. The Ministry failed to produce the principal board of inquiry report into Private Smiths death, insisted upon wholesale redaction of the documents which were disclosed, and the coroner wrongly held that he had no power to order disclosure if the Ministry would not agree. As the judge commented, it has seemed to the family that the Army was concerned to cover up any shortcomings and to protect its reputation. That may not be a correct conclusion, but it is not surprising that it has been reached (para 5). But all that is now behind her. A new inquest is to be held and those points are conceded. More than that, Mrs Smith wished to establish that her son had died within the jurisdiction of the United Kingdom, so that he and she were covered by the guarantees in article 2 of the European Convention on Human Rights. This imposes upon the state a duty, not only to avoid taking life, but also to take positive steps to protect the right to life in a variety of ways. One of these is to hold a proper inquiry, in which the family of the deceased may play a proper part, if it appears that the state may have failed in its responsibility to protect life. But both of these points have also been conceded. The Ministry of Defence accept that Private Smith was within the jurisdiction of the United Kingdom when he died. They will also not object to an inquest which examines, not only the precise cause of his death, but also the circumstances in which it took place. This is as far as they or anyone else can go, because it will be for the coroner to decide, on the basis of that inquiry, what sort of verdict should be delivered. But if the evidence were to warrant it, the verdict could clearly be one which identified any breach that there may have been of the United Kingdoms obligations under article 2. That is all that is needed to decide this case. The Ministry of Defence have appealed to this court because both the trial judge and the Court of Appeal accepted the invitation of both parties to decide more than they needed to decide. Of course they meant to be helpful. But because the Ministry of Defence did not like what they said, Mrs Smith has had to wait for more than two years for the case to be over so that the fresh inquest can be arranged. Perhaps worse, it is not at all clear what this court is doing. The trial judge ordered that the first inquisition and verdict be quashed and a new inquest held that complies with the procedural obligations implicit in Article 2 of the European Convention on Human Rights, as set out in the Courts judgment. (He also dismissed a competing claim by the Ministry of Defence but there was no appeal against that.) The Court of Appeal dismissed the Ministrys appeal. So the judges order stands. As I understand it, the most we might be asked to do is to delete the words as set out in the Courts judgment. He made no declarations as to the rights of the parties so we are not asked to change those. So we are merely making observations on two extremely important and interesting questions but we are not deciding anything. In those circumstances I doubt whether any of the important and interesting things which are said about those questions in this court can be part of the essential grounds for our decision and thus binding upon other courts in future. In the words of Sir Frederick Pollock, cited by Lord Denning in Close v Steel Company of Wales Ltd [1962] AC 367, at 388 389: Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision. Lest it be thought that Lord Denning took an unusual view of the circumstances in which he was bound by previous authority, he also referred to Lord Selborne LC, in Caledonian Railway Company v Walkers Trustees (1882) 7 App Cas 259, at 275: A judgment which is right, and consistent with sound principles, upon the facts and circumstances of the case which the House had to decide, need not be construed as laying down a rule for a substantially different state of facts and circumstances, though some propositions, wider than the case itself required, may appear to have received countenance from those who then advised the House. Pithier still was the Earl of Halsbury LC in Quinn v Leathem [1901] AC 495, at 506: . a case is only an authority for what it actually decides. Technically, therefore, I believe that our views are not binding, but they are of course persuasive. So it is only polite to the powerful arguments advanced by counsel, and to the patience with which Mrs Smith has listened to them, to indicate where I currently stand on each of the two broader issues. On the jurisdiction issue, I remain of the view to which I was inclined in R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, that British soldiers serving in Iraq were within the jurisdiction of the United Kingdom when they were killed, in one case by friendly fire and in the other by a road side bomb. I am quite clear that this was not part of the principle, or essential ground, upon which the House of Lords decided the case: this was that taking care to discover whether or not the war was legal in international law had nothing to do with the duty in article 2 to protect life. This can easily be tested. It would have made no difference to the decision on the issue in the case where the soldiers deaths had taken place: whether they were clearly within the jurisdiction of the United Kingdom or whether they were not. The House did hear some argument on the point, but nothing as full as the argument which this court has heard. Although I am sorry to disagree with colleagues whose opinions are worthy of the deepest respect, I agree with the opinions of Lord Mance and Lord Kerr, and for the very full reasons which they give, and there is nothing which I can usefully add. On the second issue, I agree that this is a question for a coroner to determine on the evidence that emerges at the inquest, but I also agree with Lord Phillips and Lord Rodger that we already know enough to raise the serious possibility that the United Kingdom may in some way have been in breach of its obligations under article 2. So the scope of the inquiry must be wide enough to look into this and, depending on the conclusions drawn from the evidence, the verdict must be able to reflect this. I do not believe that we are either allowing or dismissing an appeal on either issue, but if we are I would dismiss it on both. LORD BROWN Are our armed services abroad, in Iraq, Afghanistan or wherever else they may be called upon to fight, within the United Kingdoms jurisdiction within the meaning of article 1 of the European Convention on Human Rights? That is the critical first issue for decision on this appeal. If they are, then the United Kingdom is required to secure to them all the Convention rights and freedoms. Some will say that this is no less than they deserve. They are brave men and women, undoubtedly entitled to these rights and freedoms whilst serving (sometimes, as recently in Northern Ireland, on active service) at home. Why should they not enjoy the same rights when, whether they like it or not, they are called upon to face dangers abroad? When abroad, they are, after all, still subject to UK military law and, indeed, remain generally under the legislative, judicial and executive authority of the UK. Others, however, will say that to accord Convention rights and freedoms to our services whilst engaged in armed combat with hostile forces abroad makes no sense at all. It could serve only to inhibit decision making in the field and to compromise our services fighting power. For my part I can readily see the force of both arguments and do not pretend to have found this an easy case to decide. In the end, however, I have concluded that, save in an exceptional case like that of Private Smith himself whose death resulted from his treatment on base, Convention rights do not generally attach to our armed forces serving abroad. Having regard to the number and length of other judgments in the case, my own reasoning will be brief. Sometimes less is more. I take as my starting point the decision of the House of Lords in R (Al Skeini) v Secretary of State for Defence [2008] AC 153 where I sought to analyse the existing Strasbourg jurisprudence on the reach of article 1. Nothing that I have since heard or read has persuaded me that that analysis is wrong. It was known, of course, at the time this case was argued before us, that the application in Al Skeini was to be heard in Strasbourg on 9 June 2010, with the judgment of the Grand Chamber expected some 3 6 months later, and, obviously, if the application succeeds, it is likely to transform our understanding of the scope of article 1 in cases of this sort. Meanwhile, however, Al Skeini must be assumed to be correct and, in turn, the decision of the Grand Chamber in Bankovic v Belgium (2001) 11 EHRC 435 must be regarded as Strasbourgs ruling judgment on the point. There has been some suggestion (see, for example, paras 29 and 30 of Lord Phillips judgment) that, since Bankovic, a wider concept of article 1 jurisdiction based upon state agent authority has been gaining ground in Strasbourg. In Al Skeini (at paras 124 131) I dealt at length with one post Bankovic Strasbourg decision said to support such an approach Issa v Turkey (Merits) (2004) 41 EHRR 567 and concluded that it should not be understood to detract in any way from the clearly restrictive approach to article 1 jurisdiction adopted in Bankovic. Reference is now made to more recent Strasbourg decisions, in particular Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 and Medvedyev v France (Application No 3394/03) (unreported) 29 March 2010. To my mind, however, neither casts any real doubt on the Bankovic/Al Skeini analysis. In Al Saadoon the Court at para 62 cited para 132 of my own judgment in Al Skeini recognising the UKs jurisdiction over Mr Mousa essentially by analogy with the extra territorial exception made for embassies (an analogy recognised too in Hess v United Kingdom (1975) 2 DR 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X v Federal Republic of Germany) and, at paras 88 89, concluded that: . given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicant, were within the United Kingdoms jurisdiction (see Hess v United Kingdom . ). This conclusion is, moreover, consistent with the dicta of the House of Lords in Al Skeini . (see para 62 above). In the Courts view, the applicants remained within the United Kingdoms jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008. It seems to me clear that the Court was there adopting, rather than doubting, the Al Skeini analysis. The decision of the Grand Chamber in Medvedyev is sufficiently described at para 30 of Lord Phillips judgment and paras 180 182 of Lord Mances judgment. I cannot see how it supports an argument for article 1 jurisdiction generally in respect of a states armed services abroad. All that said, I recognise that whilst there is nothing in Al Skeini (or, indeed, Bankovic) which supports the respondents argument on the present appeal, neither is there anything in the cases wholly inconsistent with it. True, as para 61 of Bankovic stated, article 1 reflects an essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. And true it is too that the particular basis of exceptional jurisdiction being contended for here has not previously been recognised by the Court, the Commissions express reference to armed forces remaining under a states article 1 jurisdiction when abroad (for example in their 1975 admissibility decision in Cyprus v Turkey 2 DR 125 cited at para 49 of Lord Phillips judgment) being conspicuously omitted from more recent such formulations. Nevertheless, as I recognised at the outset, our armed forces abroad are subject not only to UK military law but also to the UKs general criminal and civil law and (as the Court of Appeal [2009] 3 WLR 1099 pointed out at para 29 of its judgment): As a matter of international law, no infringement of the sovereignty of the host state is involved in the United Kingdom exercising jurisdiction over its soldiers serving abroad. Plainly, therefore, it can respectably be argued that special justification exists for accepting an extra territorial basis of article 1 jurisdiction in their particular case. Arguably, moreover, this would eliminate at a stroke various apparent anomalies otherwise resulting from the position contended for by the Secretary of State for example, Convention rights attaching to a soldier in, say, a tented desert base camp (or military ambulance) but not when out with a patrol group, or, indeed, to a soldier like Private Smith who dies on base but not perhaps if his hyperthermia had resulted from inadequate care and water off base. The two principal reasons why for my part I would reject the respondents argument are these. First, because, if our armed forces abroad are within the reach of the Convention but, as Al Skeini decides, the local population are not, those responsible for the planning, control and execution of military operations will owe article 2 (and article 3) duties to our servicemen but not to the civilians whose safety is also imperilled by such operations. That would seem to me an odd and unsatisfactory situation (not to mention a situation unlikely to win the hearts and minds of the local population) and to sit uneasily with the growing Strasbourg case law on internal armed conflict which, it should be noted, has not hitherto been suggested to extend also to international armed conflict situations. Cases like Ergi v Turkey) (1998) 32 EHRR 388 (extending the principles established in McCann v United Kingdom (1995) 21 EHRR 97 to situations of armed conflict), Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00) (Isayeva I) and Isayeva v Russia (Application No 57950/00) (Isayeva II) (decisions of 24 February 2005) show, in the context respectively of Turkish army operations against the PKK in Turkey and Russian army operations against Chechnyan separatist fighters in Chechnya, the ECtHR closely scrutinising the planning, control and execution of military operations and asking whether all this has been done in such a way as to minimise, to the greatest extent possible, recourse to lethal force. The exigencies of armed conflict notwithstanding, Strasbourg requires the state to have taken all feasible precautions to avoid or at least minimise incidental loss of life. In all three cases substantive breaches of article 2 were found established. In Isayeva I, for instance, the Court criticised the failure of the operational command to timeously communicate the fact that civilians may have been in the vicinity of the forces on active deployment, the absence of provision of forward air controllers to direct the military aircraft participating in the attack, and the deployment of missiles with a blast radius of between 300 to 800 metres which the Court regarded as disproportionate weaponry; in Isayeva II it criticised the Russian militarys failure to adequately anticipate the arrival of Chechnyan fighters, the absence of any preemptive measures to warn or evacuate the populace, the failure to accurately quantify the operational risk of deploying aircraft armed with heavy combat weapons, and the decision to utilise what again the Court regarded as disproportionate and indiscriminate weaponry. As can be seen, Strasbourgs concern in these cases is essentially for the safety of civilians caught up in the conflict conflict, of course, occurring within the legal space (espace juridique) of the respective contracting states. Assuming Al Skeini is right, such civilians have no article 2 rights if they are outside the Council of Europe area. It is, however, the respondents case that the soldiers do. Is it really to be suggested that even outside the area of the Council of Europe Strasbourg will scrutinise a contracting states planning, control and execution of military operations to decide whether the states own forces have been subjected to excessive risk (risk, that is, which is disproportionate to the objective sought)? May Strasbourg say that a different strategy or tactic should have been adopted perhaps the use of airpower or longer range weaponry to minimise the risk to ground troops notwithstanding that this might lead to higher civilian casualties? Such problems would to my mind be inescapable were Strasbourg to find armed forces abroad within the reach of article 1 and then adopt with regard to their article 2 rights the approach hitherto taken in situations of internal armed conflict. My second principal reason for not holding the UKs armed forces abroad to be within the states article 1 jurisdiction is that this would be to go further than the ECtHR has yet gone, to construe article 1 as reaching further than the existing Strasbourg jurisprudence clearly shows it to reach. As the ECtHR itself pointed out in Bankovic (para 65), The scope of article 1 . is determinative of the very scope of the contracting parties positive obligations and, as such, of the scope and reach of the entire Convention system of human rights protection. Article 1 is in this respect to be contrasted with the Conventions substantive provisions and with the competence of the Convention organs, to both of which (as the Court had noted at para 64) the living instrument approach applies. It was for these reasons that all of us in Al Skeini decided that it was for the ECtHR to give the definitive interpretation of article 1 and that domestic courts should not construe it as having any wider reach than that established by Strasbourgs existing jurisprudence. The first five appellants there failed because, as Lady Hale put it (at para 91), she did not think that Strasbourg would inevitably hold that the deceased . were within the jurisdiction of the UK when they met their deaths. That is similarly my conclusion in the present case not, of course, with regard to Private Smith himself whose death, it is conceded, occurred in circumstances which did fall within the United Kingdoms jurisdiction, but rather with regard to our armed forces generally whilst serving abroad. For these reasons, together with those given by Lord Phillips and Lord Collins, I would accept the appellants argument upon the first issue. The second issue before us, although ostensibly raised with regard to Pte Smiths death, in reality invites our ruling as to which deaths amongst the UKs armed forces abroad require inquests that comply with the article 2 investigatory obligation. Plainly Pte Smiths does. Equally plainly, if the majority of us are right on the first issue, that would not be so in respect of most of our armed forces abroad (at any rate when not serving within the territory of another Council of Europe state). If, however, the majority of us are wrong on the jurisdiction issue in respect of our forces in, for example, Iraq and Afghanistan, and in any event with regard to our armed forces on, for example, active service in Northern Ireland, together with isolated cases such as that of Pte Smith, then I am in full agreement with Lord Phillips judgment on this issue and there is little that I wish to add. I agree that the obligation to hold an article 2 investigation arises only when there is ground for suspicion that the State may have breached a substantive obligation imposed by article 2 (Lord Phillips at para 84) which would certainly not ordinarily be the case where a soldier dies on active service abroad. I agree also with Lord Rodgers judgment on this point. As I earlier observed in R (Hurst) v London Northern District Coroner [2007] 2 AC 189, 214 (para 48): An article 2 investigative obligation only arises in the comparatively few cases where the states responsibility is or may be engaged. I agree also with Lord Phillips judgment at para 81 that an inquest will not always be the appropriate vehicle for discharging an article 2 investigatory obligation although I note what was said in the considered opinion of the Committee delivered by Lord Bingham in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, 206 (para 47) that: in the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2. I further agree with Lord Phillips that in practice the only real difference between a Jamieson inquest (R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1) and a Middleton inquest is likely to be with regard to its verdict and findings, rather than its inquisitorial scope. As I pointed out in Hurst (paras 27 and 51), the scope of the inquiry is essentially a matter for the coroner. Such indeed had been eloquently recognised in Jamieson itself in the Courts judgment given there by Sir Thomas Bingham MR (at para 14 of the Courts general conclusions, p 26): It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled. As, however, I also pointed out in Hurst (para 51), the verdict and findings are not a matter for the coroner. These are severely circumscribed when an inquest is confined to ascertaining by what means the deceased came by his death (a Jamieson inquest); not so where the inquest is to fulfil the article 2 investigatory obligation when it must also ascertain in what circumstances the deceased came by his death (a Middleton inquest). Sometimes, of course, as in McCann v United Kingdom (1995) 21 EHRR 97 (the Death on the Rock case), short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest (Hurst at para 48, citing Lord Bingham in Middleton at para 31). Other times, perhaps generally indeed, an article 2 obligation will require the coroner or jury to state conclusions upon the important underlying issues in a way that plainly goes beyond the sort of restricted verdict available in a Jamieson inquest and in such cases a Middleton inquest is required. Even then, however, as noted at para 37 of Middleton, the conclusions must be conclusions of fact as opposed to expressions of opinion. Nor must the verdict appear to determine any question of civil liability. Although, as I recognised in Hurst (para 51), the coroner may sometimes choose to widen the scope of the inquiry if he recognises that article 2 conclusions of fact (and thus a Middleton verdict and findings) are required, more probably (as Lord Hope envisages at para 95 of his judgment) the coroner is likely to decide the scope of inquiry with a view rather to the exercise of his rule 43 power to make a written report to a responsible authority aimed at avoiding similar fatalities in future. To my mind, guidance beyond these broad generalities is quite impossible. This is really not an area of the law in which advisory opinions are likely to prove especially helpful. LORD MANCE Issue 1 Jurisdiction: (a) general The first issue before the Supreme Court is whether a soldier on military service in Iraq is subject to the jurisdiction of the United Kingdom within the meaning of article 1 of the European Convention on Human Rights so as to benefit from the rights guaranteed by the Human Rights Act 1998 while operating in Iraq. If, or at least to the extent that, such a soldier is subject to United Kingdom jurisdiction within article 1, he will be entitled to rights guaranteed by the 1998 Act. During the period leading up to his death, Private Smith spent time both at locations (particularly the Al Amarah stadium) constituting part of the United Kingdom army bases in Iraq and elsewhere. He became ill on 13 August 2003 at the stadium after performing various duties off base (particularly supervising fuel distribution in circumstances where only coalition troops were acceptable to locals in that role and were, it appears, correspondingly stretched in terms of man power). He was taken then by ambulance to an United Kingdom accident and emergency medical centre at Abu Naji, where he sustained a cardiac arrest and died, the cause of death being heatstroke. The Secretary of State for Defence accepts that, in so far as the events leading to his death occurred on base, they occurred within United Kingdom jurisdiction for the purposes of article 1 of the Convention and that the conduct leading to them is subject to examination for compliance with article 2 of the Convention accordingly. But he submits that, in so far as they occurred elsewhere, the converse applies. This is because, in his submission, jurisdiction under article 1 is primarily territorial and the only relevant exception, covering United Kingdom bases in Iraq, arises from the analogy of United Kingdom embassies, consulates, vessels and aircraft and places of detention abroad. Some members of the Court describe this issue as academic. But it has a potential relevance in relation to the fresh inquest which has now to be held. Before the Court of Appeal, the Secretary of State noted that Mrs Smiths case regarding the circumstances leading to Private Smiths death had been extended to include circumstances that took place outside the British army base and hospital, and argued originally that, as these matters took place outside the jurisdiction of the UK, they can form no part of the consideration in this case of whether the UK is in arguable breach of its obligations under article 2 (skeleton, para 16). By the end of the hearing, the Secretary of State had conceded that he would not submit to the new coroner in the fresh inquest that the scope of that inquest is restricted in any way by any decision by him on the applicability (or not) of the enhanced article 2 investigative obligation (appellants note and Court of Appeal judgment, para 62.) However, by letters dated respectively 22 January and 12 February 2010 the coroner has (correctly) affirmed that it is not for the parties to agree the scope of the new inquest, but for the coroner to do this in the light of the judgment of this Court, and the Secretary of State has (correctly) accepted this to be so. For this reason, the scope and application of article 1 and article 2 are of potential relevance to the future conduct of the fresh inquest. It was on the analogy of embassies, consulates, vessels and aircraft and places of detention that the House of Lords held in R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] AC 153 that Mr Mousa (an Iraqi citizen who had died, allegedly as a result of torture, in United Kingdom custody in a United Kingdom base in Iraq) was within this countrys jurisdiction under article 1. The respondent, Private Smiths mother, supported by the Equality and Human Rights Commission, submits that the present case, concerning the relationship between a state and its own armed forces occupying Iraq, falls within another or a more general exception to the general principle of territoriality. (b) Gentle The Secretary of State submits that the House of Lords decision in R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356 is binding authority in his favour, negativing the application of any such exception in the present context. He refers, in particular, to Lord Binghams speech at para 8(3): Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: . Al Skeini . paras 79, 129. The claimants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom (1989) 11 EHRR 439, by stressing that their complaint relates to the decision making process (or lack of it) which occurred here, even though the ill effects were felt abroad. There is, I think, an obvious distinction between the present case and the Soering case, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection: that the claimants argument, necessary to meet the objection of extra territoriality, highlights the remoteness of their complaints from the true purview of article 2. Paras 79 and 129 in Al Skeini, to which Lord Bingham referred, concern jurisdiction based on effective control. Lord Bingham evidently considered that no other exceptional head of jurisdiction applied. However, in so far as argument was addressed to this point, it appears to have been extremely brief (see pp 1361B C and 1363G H). The passage quoted from Lord Binghams speech constituted the last of three reasons why article 2 could not embrace the process of deciding on the lawfulness of a resort to arms; and it is noticeable that, at its conclusion, in dismissing the submission based on Soering, Lord Bingham reverted to his previous two reasons. Other members of the House focused in their express reasoning on Lord Binghams first two reasons. But Lord Hoffmann, Lord Hope, Lord Scott, Lord Brown and I myself at paras 16, 28, 29, 71 and 74 all also agreed in general terms with Lord Binghams reasons. Lord Rodger said only that his reasons were essentially the same as Lord Binghams and Lord Hoffmanns (para 45), and Lady Hale regarded her reasons as being in substantial agreement with Lord Binghams (para 61), although she expressly disagreed with him on the question whether a British soldier serving under the command and control of his superiors was within the United Kingdoms jurisdiction within the meaning of article 1 (para 60). Lord Carswell left that point open (para 66), and decided the case on the basis (again part of Lord Binghams first two reasons) that article 2 did not involve a duty not to go to war contrary to the UN Charter or to investigate the lawfulness of an armed conflict. In the above circumstances, it is open to doubt whether the first part of the passage in para 8(3) quoted above from Lord Binghams speech was part of the ratio decidendi. But, even if it technically was, it was not the product of the detailed argument and citation which we have now had, and it would, in my view, be wrong to refuse to reconsider it de novo. (c) Bankovic and the concept of jurisdiction Leaving Gentle aside, the submissions of all parties have, realistically, taken as their general starting point the decisions of the European Court of Human Rights in Bankovic v United Kingdom (2001) 11 BHRC 435 and Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 and of the House of Lords in Al Skeini. Dicta in the House of Lords basing jurisdiction in Al Skeini on the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question were referred to with approval by the European Court of Human Rights in Al Saadoon. The decision in Al Skeini is shortly to be reviewed in that court. But for present purposes the Supreme Court can and should accept it. This starting point avoids the need for any entirely open review of the concept of jurisdiction under article 1. Just how vexed that concept and how controversial the decisions in Bankovic and Al Skeini are appears from extensive literature which they have generated: see e.g. Lawson, Life after Bankovic: on the Extraterritorial Application of the European Convention on Human Rights; OBoyle, The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on Life after Bankovic (both in F Coopman and M Kamminga, Extraterritorial Application of Human Rights Treaties; Antwerp Oxford 2004); Loucaides, Determining the Extra territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic case (2006) 4 EHRLR 391; Milanovic, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties (2008) HRLR 8(3), 411; and King, The Extraterritorial Human Rights Obligations of States (2009) HRLR 521. Arguments that the European Court of Human Rights was guilty of a non sequitur in assimilating the concept of jurisdiction in article 1 to the concept in general international law and in relying upon this to restrict the extra territorial application of the Convention to exceptional circumstances only (see Milanovic, p 435) do not arise for consideration. Nor do similar arguments that the Court in Bankovic was wrong in failing to recognise, as a separate and equal head of jurisdiction having extra territorial effect, the existence of effective authority over individuals or of actual authority or control over a given territory or person, whether lawfully or unlawfully exercised, (Lawson, p 120, Loucaides, p 399 and Milanovic, p 435). Whatever the merits of giving the Convention a wider reach might be de lege ferenda, we are (like, in fact more so than, the House of Lords in Al Skeini: see per Lord Rodger, para 69) only concerned with its reach de lege lata. Criticisms of the House of Lords approach in Al Skeini to jurisdiction based on territorial control (see King, pp 534 536 and 545 547) and suggestions that the House ought (in the light of cases such as Issa v Turkey (2004) 41 EHRR 567) to have recognised a cause and effect notion of jurisdiction (King, p 553) are also out of place in the light of the reasoning in Bankovic and Al Skeini. The argument on the present appeal assumes the correctness of the general principles stated in Bankovic and Al Saadoon and applied in Al Skeini. According to these jurisdiction in article 1 refers primarily to territorial jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (Bankovic, para 61). The Court in Bankovic explained this conclusion as follows: 59. As to the ordinary meaning of the relevant term in article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law does not exclude a states exercise of jurisdiction extra territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states (Mann, The Doctrine of Jurisdiction in International Law, RdC, 1964, vol 1; Mann, The Doctrine of Jurisdiction in International Law, Twenty Years Later, RdC, 1984, vol 1; Bernhardt, Encyclopaedia of Public International Law edition 1997, vol 3, pp 55 59 Jurisdiction of States and edition 1995, vol 2, pp 337 343 Extra territorial Effects of Administrative, Judicial and Legislative Acts; Oppenheims International Law, 9th ed 1992 (Jennings and Watts), vol 1, 137; Dupuy, Droit International Public, 4th ed 1998, p 61; and Brownlie, Principles of International Law, 5th ed 1998, pp 287, 301 and 312 314). 60. Accordingly, for example, a states competence to exercise jurisdiction over its own nationals abroad is subordinate to that states and other states territorial competence (Higgins, Problems and Process (1994), p 73; and Nguyen Quoc Dinh, Droit International Public, 6th ed 1999 (Daillier and Pellet), p 500). In addition, a state may not actually exercise jurisdiction on the territory of another without the latters consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt, cited above, vol 3 at p 59 and vol 2, pp 338 340; Oppenheim, cited above, at 137; Dupuy, cited above, at pp 64 65; Brownlie, cited above, at p 313; Cassese, International Law, 2001, p 89; and, most recently, the Report on the Preferential Treatment of National Minorities by their Kin States adopted by the Venice Commission at its 48th Plenary Meeting, Venice, 19 20 October 2001). The Court found support for a primarily territorial approach to article 1 not only in general international law and the works cited in paras 59 and 60, but also in the travaux prparatoires (Bankovic, paras 19 21 and 63). During the negotiation of the Convention, the words all persons residing within the territories of the signatory States in article 1 were replaced by all persons within their jurisdiction. The Court noted that this was expressly on the basis that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States. However, it is not without significance that the replacement phrase adopted the word jurisdiction, rather than territories; and also that the Court itself has recognised, by the exceptions which it has endorsed, that the Convention is not exclusively confined in its application to persons within the territories of the signatory States. Lawson (cited above) points out (p 88) that the original proposal was to replace residing in by living in, but that the drafting sub committee noting that the aim was to widen as far as possible the categories of persons who are to benefit by the guarantees contained in the Convention proposed the replacement of residing within by within the jurisdiction (or, in French, relevant de leur jurisdiction). The use of the more flexible notion within the jurisdiction, with its potentially wider jurisprudential connotations, was clearly deliberate, even if it is not unlikely that the drafters did not give much thought at all to any extraterritorial impact of the Convention (Lawson, p 90; and see also Loucaides, above, p 397). Jurisdiction in general international law exists in the form of (a) jurisdiction to prescribe or legislate (and, as a subsidiary aspect, adjudicate), which is primarily territorial but generally also regarded as extending to a states nationals wherever they are, and (b) jurisdiction to enforce what is prescribed, which is usually only territorial (and does not usually exist, for example, against the persons of a states nationals, while they remain abroad): see Dr F A Mann in the writings cited in Bankovic at para 59, particularly RdC, 1964, pp 13, 22 et seq. and 127 et seq, and RdC, 1984, Chaps I and II, the Reinstatement of the Law Third: Restatement of the Foreign Relations Law of the United States, para 401 and Alcom Ltd v Republic of Colombia [1984] AC 580, 600C, per Lord Diplock. In drawing on the conception of jurisdiction in general international law (while also reminding itself of the Conventions special character as a human rights treaty: para 57), the Court was (as Lord Rodger noted in Al Skeini, para 64) relating the scope of the Convention to the existence of a pre existing relationship between the relevant state and the victim. For the Convention to apply, the mutual relationship must be one under which the state possessed and was able to enforce lawful authority and power over the victim and the victim was in return under and entitled to the states protection. Jurisdiction in international law is, as Dr Mann said (RdC, 1964, p 13), concerned with the states right of regulation or, in the incomparably pithy language of Mr Justice Holmes, with the right to apply the law to the acts of men. This means that there must be, translated to the international legal sphere, a similar bond of reciprocal allegiance to that identified domestically as existing between sovereign and subject in Calvins Case (1608) 7 Co Rep 1a; 77 ER 377: duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem; merito igitur ligeantia dicitur ab ligando, quia continet in se duplex ligamen. A states international jurisdiction, based on this reciprocal bond, respects the matching jurisdiction of other states based on their mutual relationship with those within their territories and their nationals. In international law, each state owes duties to protect those within its jurisdiction. If state A infringes the fundamental human rights of a person subject to state Bs jurisdiction, then, although that person may have no direct right against state A, it may become state Bs duty to pursue the matter at the international level against state A. In the same vein, the Court in Bankovic noted that the Convention was designed to ensure the observance of the engagements undertaken by the Contracting Parties (para 80) engagements which cannot be regarded as having been undertaken to benefit everyone in the world at large. Consistently with the above, in Dr Manns writings, jurisdiction in international law is thus associated with sovereignty: it is an aspect of sovereignty, it is coextensive with and, indeed, incidental to, but also limited by the states sovereignty (RdC, 1964, pp 24 31, esp p 30; see also RdC, 1984, p 20). In Bankovic itself, the only connection with the United Kingdom consisted in the act of bombing Belgrade which was alleged to constitute a breach of the Convention (a pure cause and effect notion of jurisdiction). In that context, it is unsurprising that the Court should emphasise that the Convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states (para 80) and should underline the significance of a pre existing reciprocal relationship under which sovereignty of one sort or another was legitimately possessed and exercised. In Al Skeini (see paras 6, 61, 90, 97 and 132) the House of Lords decided that the United Kingdom as an occupying power did not, except within its military bases, have sufficient effective control over any territory of Iraq to bring such territory within its jurisdiction under article 1 of the European Convention on Human Rights. The present appeal raises a different question, whether the United Kingdom had sufficient authority under international law over its own forces in Iraq for them to be regarded as within its jurisdiction under article 1. (d) The respondents case For present purposes, the respondent accepts the approach taken by the Court in Bankovic and Al Saadoon and by the House in Al Skeini. But she relies on its underlying rationale the limitation of jurisdiction by reference to the limitations of sovereignty and the need to avoid conflicts of jurisdiction. This rationale appears with clarity in both paras 59 and 60 cited above. The suggested bases of extra territorial jurisdiction are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States. [A] States competence to exercise jurisdiction over its own nationals abroad is subordinate to that States and other States territorial competence; and in addition a State may not actually exercise jurisdiction on the territory of another without the latters consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects. In the respondents submission, the relationship between the United Kingdom and its armed forces in Iraq meets all these requirements for recognising that it involved in August 2003 the legitimate and effective exercise of jurisdiction, in the prescriptive, the adjudicatory and the enforcement senses. The United Kingdom was in August 2003 exercising its authority lawfully in Iraq, with the consent of the Coalition Provisional Authority (CPA), over United Kingdom troops including Private Smith, a United Kingdom citizen. By CPA Order No 17 issued in June 2003, the CPA formalised the status and arrangements governing the presence of the multinational force (MNF), which included the United Kingdoms armed forces, in Iraq. The MNF was given, inter alia, the right to enter into, remain in and depart from Iraq (section 13), freedom of movement without delay throughout Iraq (section 7), freedom of radio communications (section 6), the right to use without cost such areas for headquarters, camps or other premises as might be necessary as well as to use, free of cost or where this was not practicable at the most favourable rate, water, electricity and other public utilities and facilities (section 9). Importantly, by section 2 the MNF, its personnel, property, funds and assets were immune from Iraqi legal process and all MNF personnel were expressed to be subject to the exclusive jurisdiction of their Sending States. Further, the respondent submits, the CPA was in issuing CPA Order No 17 operating with the legal mandate of the Security Council, which by Resolution 1483 adopted on 22 May 2003 under Chapter VII of the UN Charter, had recognised the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the Authority), and called upon the Authority (in practice the CPA) consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory. The respondent therefore submits that there would be no interference with Iraqi sovereignty and no attempt to impose Convention standards on Iraq or anyone other than the British state, by recognising the existence of Convention obligations as between the United Kingdom and nationals like Private Smith serving in its armed forces in Iraq. There would be no question of Private Smith being brought within the Convention merely by virtue of the fact that he was a victim of an alleged breach of article 2. On the contrary, the relationship of command and control under which Private Smith served gave the United Kingdom a broad protective capability and responsibility, which meant that a wide range of Convention rights could be effectively secured for his benefit. Further, this being an exceptional head of jurisdiction, it was, in the respondents further submission, no objection if or that there might be some Convention rights which could not be secured; the objection, identified by the House in Al Skeini, to any application of the Convention based on tailoring and restricting Convention rights did not apply to the exceptional heads of jurisdiction. In this connection, the Secretary of State points to para 130 in Lord Browns speech in Al Skeini, to which I return below (para 193). These are forceful submissions, but they require closer analysis of the status of the United Kingdoms armed forces in Iraq. Paras 59 and 60 of the Courts judgment in Bankovic recognise that state A may exercise jurisdiction on or in the territory of state B either (a) with the consent, invitation or acquiescence of state B or (b) as an occupying state at least in certain respects. I will consider in turn these alternative bases of jurisdiction (a) and (b). But first I examine three specific cases of the exceptional extraterritorial jurisdiction contemplated in paras 59 and 60 of Bankovic. These were identified and analysed by Lord Brown in Al Skeini at paras 118 to 122. (e) Cases of exceptional extra territorial jurisdiction The first involves the forcible removal by state A from state B and with state Bs consent of a person wanted for trial in state A (Al Skeini, paras 118 119). Within this category, Lord Brown put calan v Turkey (2005) 41 EHRR 985, where the European Court of Human Rights said: 91. The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport. It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that state for the purposes of article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Snchez Ramirez v France (1996) 86 A DR 155 and Freda v Italy (1980) 21 DR 250, and, by converse implication, Bankovi v Belgium [(2001) 11 BHRC 435]. Lord Brown commented that, in circumstances where the forcible removal was effected with the full cooperation of the relevant foreign authorities and with a view to the applicants criminal trial in the respondent state, it was unsurprising that the Grand Chamber in calan had felt able to distinguish Bankovic by converse implication. The inference from para 91 in calan is that, if (a) state A exercises authority over an individual in state B by consent of state B, and (b) it does so in order to lead to exercise of state As ordinary domestic jurisdiction over that individual, then it is throughout exercising jurisdiction over that individual under article 1. The present case is not precisely on all fours (not least, because the United Kingdoms authority over its armed forces was to be exercised in Iraq), but, if the case could be analysed in terms of consent, that could hardly be critical in principle. A second exceptional category was considered by Lord Brown in para 121 with reference back to para 109(4)(iii), where he introduced the category in these terms: Certain other cases where a states responsibility could, in principle, be engaged because of acts which produced effects or were performed outside their own territory (para 69). Drozd and Janousek v France and Spain (1992) 14 EHRR 745, at para 91, is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within Frances jurisdiction. In para 121, Lord Brown further explained this category: Another category, similarly recognised in Bankovic, was Drozd (see para 109(4)(iii) above ) into which category can also be put cases like X and Y v Switzerland (1977) 9 DR 57 and Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99 and 48209/99) (unreported) 14 May 2002. In X and Y v Switzerland, Switzerland was held to be exercising jurisdiction where, pursuant to treaty provisions with Liechtenstein, it legislated for immigration matters in both states, prohibiting X from entering either. In Gentilhomme, France operated French state schools in Algeria, again pursuant to a treaty arrangement. Drozd concerned complaints brought by defendants tried in Andorra against France and Spain as being allegedly responsible for non observance of the Convention by persons from these countries nominated to sit as judges in Andorra. Its significance is that the European Court of Human Rights found it necessary to consider whether the judges acts could be attributed to France and Spain, even though they were not performed on the territory of those states (Drozd, para 91). As the Court explained in Bankovic (para 69) the impugned acts could not, in the circumstances, be attributed to the respondent states because the judges in question were not acting in their capacity as French or Spanish judges and as the Andorran courts functioned independently of the respondent states (para 69). Rix LJ in the Divisional Court in Al Skeini (paras 158 166 and 256 257) subjected Drozd to close scrutiny, and was puzzled by its reasoning. He noted that, if the judges sitting in Andorra had been acting in their capacities as French and Spanish judges, then in this most important legal sphere, in one sense the heart of what is meant by jurisdiction, there would have been a form of extension of French and Spanish jurisdiction into the territory of Andorra, and regarded Drozd as too much of a special case to provide any firm foundation for a submission that personal jurisdiction exercised extraterritorially by state agents or authorities is a broad principle of jurisdiction under article 1 (para 257). Special case though it was, Drozd points to the possibility that certain relationships, such as those between a national judge and those under his or her authority, may attract the operation of the Convention, irrespective of whether they take place within the territory of the judges state. Gentilhomme is of interest, not just because it recognises the operation by France in Algeria of French schools with the consent of Algeria as capable of amounting to an exercise of jurisdiction by France in Algeria within the scope of article 1, but also because, on the facts, France was held not responsible. The complainants children had, under French law, dual French and Algerian nationality but, under Algerian law, were only recognised as having Algerian nationality. The complaint related to the refusal to admit them to the French schools in Algeria. However, this was the result of a decision taken by Algeria unilaterally, with which France had no option but to comply although that decision was in breach of a declaration of cultural co operation which the two countries had signed on 19 March 1962. The Court held that the conduct complained of could not be attributed to France, and the complaint was accordingly incompatible with the Convention ratione personae. The possibility of exercising jurisdiction abroad by consent, invitation or acquiescence of the overseas state, to which the Court had referred in Bankovic, est subordonne la competence territoriale de cet autre Etat, et, en principe, un Etat ne peut concrtement exerciser sa jurisdiction sur le territoire dun autre Etat sans le consentement, linvitation ou lacquiescement de ce dernier (Bankovic, paras 59 60). This appears clearly to indicate that exceptional jurisdiction may be tailored, in extent and in the liability to which it is capable of giving rise, by reference to the scope of the authority for the exercise of which abroad consent is given. The third exceptional category involves the activities of [a states] diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state (Bankovic, para 73, Al Skeini, paras 109(4)(ii) and 122). As regards the activities of diplomatic or consular agents abroad, the critical feature is, again, the consent of the foreign state, in accordance with general principles of international law, to the exercise within its territory of the authority of the sending state by representatives of that state. As Lord Brown noted in para 122, jurisdiction within article 1 has been held to exist both in relation to nationals of the sending state and even in relation to foreigners. In relation to nationals, the existence of such jurisdiction is more obvious than it is, perhaps, in relation to foreigners. The present case is concerned with the existence of jurisdiction in Iraq in relation to British soldiers. As to a states activities on board craft and vessels registered in, or flying the flag of, that state, the relevant consideration is, once again, that the state has under international law recognised authority and control over such craft and vessels since the view that a ship is a floating part of state territory has long fallen into disrepute (Brownlies Principles of Public International Law, 7th ed (2008), p 318). The recent decision of a seventeen member Grand Chamber in Medvedyev v France (Application No 3394/03) (29 March 2010) is not without interest in this connection. The Winner, a Cambodian vessel was engaged on drug trafficking in the high seas (Cape Verde). Belying its name, it was detected and boarded by the French authorities, who detained the crew on board and took them on the vessel to France for trial. France was, but Cambodia was not, party to the relevant international drug trafficking conventions, which did not in the circumstances authorise the arrest by France of the Cambodian vessel. Nevertheless, Cambodia had given France specific ad hoc authorisation to intercept, inspect and take legal action against the ship. A majority of the Court considered that the crew were within the jurisdiction of France for the purposes of article 1 on the simple basis of France having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France (contrast Bankovic, cited above) (para 67). Bankovic was cited in para 64, where the Court noted that it was only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them for the purposes of article 1, and that This excluded situations, however, where as in the Bankovic case what was at issue was an instantaneous extraterritorial act, as the provisions of article 1 did not admit of a cause and effect notion of jurisdiction (Bankovic, para 75). Having accepted that France had jurisdiction under article 1, the majority in Medvedyev went on to hold the detention of the crew unjustified, on the basis that, although international as well as domestic law was capable of shaping a procedure prescribed by law within article 5.1 (para 79), Cambodias ad hoc authorisation did not meet the requirements under article 5.1 of clearly defined and foreseeable law (paras 99 100). Presumably foreshadowing that conclusion, the majority appear in para 67 to have endorsed the possibility of a purely factual (albeit unlawfully exercised) concept of jurisdiction under article 1. In contrast, seven judges, dissenting from the majoritys conclusion under article 5.1, accepted that article 1 applied on the simple basis that the Winner with the agreement of the flag state was undeniably within the jurisdiction of France for the purposes of article 1 (para 10). That state B may authorise state A to exercise jurisdiction which would otherwise belong to state B for the purposes of article 1 is on any view consistent with the principles in Bankovic, paras 59 60, as well as with the three specific categories of extraterritorial jurisdiction which I have been considering. (f) The present case The present case falls directly within none of these specific categories. But all three categories depend upon the exercise by state A abroad of state power and authority over individuals, particularly nationals of state A, by consent, invitation or acquiescence of the foreign state B. They exemplify in this respect one underlying theme of paras 59 and 60 in Bankovic. The first question is whether the present case represents an example of the exercise by state A (here the United Kingdom) of its lawful authority and power over its nationals in state B (Iraq) with the consent of state B. If it does not, then it will be necessary to consider the alternative possibility mentioned in Bankovic, para 60, namely that the United Kingdom had, as an occupying power, jurisdiction under international law over its armed forces wherever they were in Iraq. (g) Exercise of jurisdiction by consent The answer to the first question depends upon the position of the CPA. The CPAs origin, role and status were examined in Al Skeini, particularly by Rix LJ in the Divisional Court at [2004] EWHC 2911 (Admin); [2007] QB 140, paras 9 39. Following their invasion of Iraq, the United States and United Kingdom became occupying powers within and subject to the provisions of the Hague Convention 1907 and the Fourth Geneva Convention 1949 (Rix LJ, para 11). The CPA was the creation of a freedom message issued in that capacity by United States General Tommy Franks on 16 April 2003 (Rix LJ, para 14). The formation and purpose of the CPA (to exercise powers of government temporarily and to transfer responsibility for administration to representative Iraqi authorities as soon as possible) were reported by letter by the two governments permanent representatives to the Security Council, The Security Council on 22 May 2003 adopted Resolution 1483 under Chapter VII of the UN Charter, that is as a measure taken to maintain or restore international peace and security. Resolution 1483 noted the contents of the letter and, as stated in para 171 above, recognised the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the Authority) and called upon the Authority (in practice the CPA) consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory (para 4). But it also supported a transformative process in Iraq, through the formation, by the people of Iraq with the help of the Authority, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Administration (Resolution 1483, para 9). The CPA had by regulation R1 dated 16 May 2003 already declared that there were vested in the CPA all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions. (anticipating in this respect by some 6 days the effect of Resolution 1483, a draft of which was by then publicly available). In June 2003 the CPA issued CPA Order No 17, which formalised the status and arrangements covering the United Kingdoms occupying forces (para 171 above). To complete the picture, on 13 July 2003, following two national conferences and widespread consultation, the Iraqi Governing Council (IGC) announced its formation and was recognised formally by the CPA by regulation R6, in line with para 9 of Security Council Resolution 1483, as the principal body of an Iraqi interim administration, with which the CPA would consult and co ordinate on all matters involving the temporary governance of Iraq. The Security Council by Resolution 1500 on 14 August 2003 welcomed the establishment of the IGC as an important step towards the formation by the people of Iraq of an internationally recognized, representative government that will exercise the sovereignty of Iraq. In its later Resolution 1511 of 16 October 2003, the Security Council, again acting under Chapter VII, reaffirm[ed] the sovereignty and territorial integrity of Iraq, and underscore[ed] in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognized and set forth in resolution 1483 (2003) . The IGC eventually dissolved itself on 1 June 2004, and on 28 June 2008 the CPA transferred authority to the Iraqi Interim Government, which became the sole sovereign authority of Iraq (Rix LJ, para 38). The CPA was thus exercising, and was recognised by the Security Council as having under international law, responsibility for the temporary governance and administration of Iraq throughout the relevant period from the end of May to August 2003. In the Court of Appeal in Al Skeini [2005] EWCA Civ 1609; [2007] QB 140, para 123, Brooke LJ said that the CPA, which was not an instrument of the UK government, had the overall executive, legislative and judicial authority in Iraq whenever it deemed it necessary to exercise such authority to achieve its objectives. In the House of Lords (para 83) Lord Rodger expressed himself as being in agreement with paras 120 to 128 of Brooke LJs judgment when concluding that the United Kingdom lacked effective control of Basra and its surrounding areas. The CPA expressly endorsed and authorised the presence of the United Kingdoms armed forces in Iraq, and it had the support of Security Council Resolution 1483 in so acting. But that does not necessarily mean that the CPA equates with the state of Iraq for the purposes of consenting to the presence of foreign troops under international law. The CPA, although separate from the United Kingdom government, was the creature of the occupying forces, and Security Council Resolutions 1483 and 1511 were careful to refer to the CPA in terms consistent with this. An analysis which relies upon the Security Councils recognition of the CPAs role and upon CPA Order No 17 as a basis for saying that the state of Iraq consented to the presence and activities of United Kingdom forces in Iraq may be regarded as essentially circular: the CPA owed its existence, rights and responsibilities to the presence and activities of the occupying forces, and the Security Councils Resolution was drafted on a basis which can be said merely to recognise this truth. On the other hand, if that is so, then it is also true there was during the period May to August 2003 no other body which could claim to represent the state of Iraq, and a correspondingly reduced risk of any objectionable clash of sovereignty. (g) Exercise of jurisdiction over occupying forces This brings me to the other head of extra territorial jurisdiction mentioned in Bankovic, para 60, although not the subject of detailed analysis there or in Al Skeini: that is jurisdiction as an occupying force. The laws of war apply whatever the legitimacy or otherwise of the casus belli. They would not otherwise have much point. In the present case, the specific authorities, responsibilities, and obligations under applicable international law of the occupying forces, as well as the role of the CPA, were also endorsed by Security Council Resolution 1483. The European Court of Human Rights recognised in para 60 in Bankovic that occupation can give jurisdiction at least in certain respects, and referred to inter alia Oppenheims International Law (vol I Peace) (9th ed) (1992) para 137. This states that: International law, however, gives every state a right to claim exemption from local jurisdiction, chiefly for itself, its Head of State, its diplomatic envoys, its warships and its armed forces abroad. In relation to the words and its armed forces, footnote 19 refers to paras 556 558, which, in relation to belligerent occupation of foreign territory, refer in turn by footnote 4 to paras 166 172b of volume II Disputes,War and Neutrality of the same work (7th ed) (1952). Para 166 states that, in modern international law: although the occupant in no wise acquires sovereignty over such territory through the mere fact of having occupied it, he actually exercises for the time being military authority over it. As he thereby prevents the legitimate sovereign from exercising his authority, and claims obedience for himself from the inhabitants, he must administer the country, not only in the interest of his own military Para 169 continues: advantage, but also, at any rate so far as possible, for the public benefit of the inhabitants. As the occupant actually exercises authority, and as the legitimate Government is prevented from exercising its authority, the occupant acquires a temporary right of administration over the territory and its inhabitants; . In carrying out [the administration] the occupant is totally independent of the constitution and law of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces and the purpose of war, stand in the foreground of his interest, and must be promoted under all circumstances and conditions. But, although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, as he is not the sovereign of the territory he has no right to make changes in the laws, or in the administration, other than those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war. On the contrary, he has the duty of administering the country according to the existing laws and the existing rules of administration; he must ensure public order and safety, must respect family honour and rights, individual lives, private property, religious convictions and liberty. It has been observed that the transformative aspect of Resolution 1483 (para 184 above) and the transformation in Iraqi society and governance which the CPA actually implemented do not reconcile easily with the traditional principles governing occupation stated in Oppenheim: see Adam Roberts, The End of Occupation (2005) ICLQ 27 and Transformative Military Occupation: Applying the Laws of War and Human Rights (2006) 100 AJIL 580, 604 618 and Nehal Bhuta, The antimonies of transformative occupation (2005) EJIL 721. It seems clear that neither the occupying states nor the Security Council viewed the situation as one in which there was, after the overthrow of Saddam Hussein, any legitimate sovereign. It also seems improbable that the wide ranging and in certain respects fundamental measures introduced by the CPA for the temporary governance of Iraq (as described by Rix LJ in the Divisional Court in Al Skeini at paras 19 to 26) would fit with the traditional duty of administering the country according to the existing laws and the existing rules of administration to which Oppenheim refers in para 169. However, I think it unnecessary to consider how far and on what basis the occupation of Iraq may have had features going beyond that of traditional belligerent occupation. What is important for present purposes is that the status even of a traditional occupying state is recognised and regulated by international law, and that it is one in which as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, and in which the occupant has the right to claim immunity for its armed forces from local jurisdiction. In the context of Bankovic, the European Court may in para 60 have been thinking primarily of jurisdiction exercised by a state through occupying forces over local inhabitants. But to the extent that such jurisdiction exists, it does so only because of the states pre existing authority and control over its own armed forces. An occupying state cannot have any jurisdiction over local inhabitants without already having jurisdiction over its own armed forces, in each case in the sense of article 1 of the Convention. That is not of course to equate a states jurisdiction over third parties with its pre existing and more widely based jurisdiction over its own armed forces (see further para 191 below). In providing for the occupying forces to have immunity from Iraqi legal process, CPA Order No 17 reflected the general principle of state immunity, under international and common law, precluding civil suits in one state against a foreign state or its servants in respect of sovereign activities of that foreign state: see eg Littrell v United States of America (No 2) [1995] 1 WLR 82, Holland v Lampen Wolfe [2000] 1 WLR 1573 and Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270 (the position relating to torture not being relevant on this appeal) and, under general international law, para 137 of Oppenheim (para 187 above). No such general immunity today exists under English law as between the United Kingdom and those within its territory or having its nationality, whether the conduct occurs within or outside the United Kingdom. Soldiers can bring proceedings in England against the Ministry of Defence in respect of any breach of the states common law duty of care towards them: Crown Proceedings (Armed Forces) Act 1987, section 1. That such liability is capable of arising in respect of operations or activity anywhere in the world appears implicit in section 1 of the 1987 Act (read in the light of section 10 of the Crown Proceedings Act 1947 which it repealed) as well as in section 2 of the 1987 Act. The United Kingdom government is thus already liable to receive claims at common law by soldiers serving in Iraq based, for example, on allegations of failure to take proper care in relation to their safety, other than in the context of active operations against an enemy. A distinction between actual operations against an enemy (during the course of which no common law duty of care exists) and other activities of combatant services in time of war was drawn in Shaw Savill and Albion Co Ltd v Commonwealth of Australia (1940) CLR 344, Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, 110, per Lord Reid (using the term battle damage to describe the former category), Mulcahy v Minister of Defence [1996] QB 732 and Bici v Ministry of Defence [2004] EWHC 786 (QB), paras 90 100. It is unnecessary to examine it or its scope here. I can also leave undecided the question whether the doctrine of act of state might in limited circumstances make even a claim by a British subject non justiciable: see Nissan v Attorney General [1970] AC 179; Bici v Ministry of Defence (above), para 88. In providing for the United Kingdom to have exclusive jurisdiction, CPA Order No 17 also mirrored in effect the domestic position, whereby British soldiers are subject to United Kingdom military law wherever they serve. This was so under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 (the Service Acts), backed up by rules and regulations, including the Queens Regulations 1975, in force in 2003; and it remains so since their replacement from 31 October 2009 by the Armed Forces Act 2006. Although the Service Acts are largely silent on their territorial scope, it is not in dispute that their provisions governed service overseas as well as domestically: see Al Skeini, per Lord Bingham at paras 15(4) and 26. This is, for example, reflected in provisions for courts martial to have jurisdiction over offences committed abroad (Naval Discipline Act 1957, section 48(1)) and to sit abroad (Army Act, section 91): see also Halsburys Laws of England, Armed Forces, vol 2(2), para 303, footnote 4, noting that the jurisdiction of army and air force courts martial to try offences committed outside the United Kingdom is to be inferred from the fact that each of the offence creating provisions provides that the offence in question is committed by any person subject to military or air force law without any limiting words as to where the offence must be committed. Section 70(1) of the Army Act has made it an offence for any person subject to military law to commit a civil law offence anywhere in the world. Section 367 of the 2006 Act now provides expressly that Every member of the regular forces is subject to service law at all times. (h) Conclusion on issue of jurisdiction In the light of the above, it is in my view possible to give a clear answer to the question whether the United Kingdom had jurisdiction under international law over its armed forces wherever they were in Iraq. If the United Kingdom did not, then no state did. The invasion clearly and finally ousted any previous government. The United Kingdom was the only power exercising and having under international law authority over its soldiers. In so far as there was any civil administration in Iraq, it consented to this. If the CPAs consent is disregarded as coming from what was, in effect, an emanation of the two occupying powers, then the United Kingdom was, and was by Security Council Resolution 1483 recognised as, an occupying power in Iraq. Bankovic indicates that one basis on which the UK could be regarded as having had jurisdiction over its forces in Iraq would have been by consent of the state of Iraq. It would be strange if the position were different in the absence of any Iraqi government to give such consent, or therefore to object, to the exercise of such jurisdiction by the UK over its occupying forces. As an occupying power, the UK was necessarily in complete control of the armed forces by which it achieved such occupation, and had under international law an almost absolute power as regards their safety (Oppenheim, para 169, above), as well as duties regarding the effective administration of Iraq and the restoration of security and stability, to be performed through such forces. The United Kingdom did not have such effective control over the whole of the area of Southern Iraq or even Basra as could cause such area to be equated with territory of the United Kingdom, or therefore to require the United Kingdom to ensure the full range of Convention rights to all within it. It is, however, a different matter to suggest that the United Kingdom ceased to have jurisdiction over its armed forces (with the consequence that it ceased to owe them any further Convention duty) whenever they were out of base; and the United Kingdoms jurisdiction over its own armed forces within article 1 does not mean that it had jurisdiction within article 1 over all or any other persons with whom those armed forces came into contact off base. The actual feasibility of the United Kingdom assuring and providing protection for its armed forces in Iraq depends on the circumstances, including the circumstances and place in which such forces are serving. But to distinguish fundamentally between the existence of the protective duties on the part of the United Kingdom towards its armed forces at home and abroad also appears to me as unrealistic under the Convention as it is at common law. The relationship between the United Kingdom and its armed forces is effectively seamless. Members of the armed forces serve under the same discipline and conditions wherever they are, and they are required to go wherever they are ordered. The relationship is not territorial, it depends in every context and respect on a reciprocal bond, of authority and control on the one hand and allegiance and obedience on the other. The armed forces serve on that basis. The compact is that they will receive the support and protection of the country they serve. I recognise that these considerations could apply even in a case where the United Kingdom did not have under international law a recognised role, like that of an occupying power which it had in Iraq. That may, on another day, lead back to re examination of statements (such as that in Medvedyev: see para 182 above) which contemplate the possibility that article 1 may embrace purely factual, though unlawfully exercised, jurisdiction. That possibility does not however require consideration on this appeal. Where, as here, the United Kingdom was present in Iraq, both with the consent of the only civil administrative authority that existed and in any event as an occupying power recognised as such under international law by the Security Council, there is in my view an irresistible case for treating the United Kingdoms jurisdiction over its armed forces as extending to soldiers serving in Iraq for the purposes of article 1 of the Convention. In Al Skeini (para 53) Lord Rodger said, in the context of interpreting the scope of the Human Rights Act 1998, that where a public authority has power to operate outside of the United Kingdom and does so legitimately for example, with the consent of the other state in the absence of any indication to the contrary it would only be sensible to treat the public authority, so far as possible, in the same way as when it operates at home. Similar thinking applies to the scope of a states jurisdiction under article 1 of the Convention, and is not only consistent with, but positively supported by, the Courts reasoning in Bankovic. In the present case, Lord Collins, whose judgment I have read after formulating my own, identifies a number of cases where commonsense in his view justifies a recognition of extra territorial jurisdiction within article 1 albeit necessarily of a limited nature tailored to the context (see paras 281, 301 and 306). I agree, but in my view commonsense also suggests a similar analysis of the relationship between the United Kingdom and the British army. Is such a conclusion precluded on the basis that Convention rights cannot properly be tailored? I do not believe so. We are concerned with an exceptional head of jurisdiction. In Al Skeini, Lord Brown said this at para 130: Realistically the concept of the indivisibility of the Convention presents no problem in the categories of cases discussed in paras 119 126 above: those concern highly specific situations raising only a limited range of Convention rights. This passage might, on one view, be read as suggesting that there is something inherent in the exceptional categories of cases discussed in paras 119 to 126 which means that it could never realistically be suggested that the state was in such cases under any general Convention obligation to secure the Convention rights. But it is not obvious why. The true explanation must be that in circumstances falling within one of the exceptional categories the states Convention duties are limited to those falling within the scope of the relationship giving rise to the exception in question. The consul cannot be expected to guarantee the full range of Convention rights, any more than can a state exercising authority by consent in other circumstances, such as those existing where it takes someone into custody (calan), or operates a school (Gentilhomme) or mans a court (Drozd), abroad by consent of the foreign state. The United Kingdom could not guarantee the full range of Convention rights to foreign litigants using its courts. Yet, once a person brings a civil action in the courts or tribunals of a state, there indisputably exists a jurisdictional link for the purposes of article 1: Markovic v Italy (2006) 44 EHRR 1045, para 54. Thus the Convention was applied, unsurprisingly in my view without anyone suggesting that it might not, as the measure of the legitimacy of claims by such nationals against the United Kingdom for refusal to up rate their pensions to the same level as those of persons residing in the United Kingdom who had made equivalent National Insurance contributions: Carson v United Kingdom (Application No 42184/05), 16 March 2010, where the claims in fact failed on the basis that persons residing within and outside the territory of the United Kingdom were not in an analogous situation. I add, without needing to explore this further, that, even in relation to territorially based jurisdiction, factual inability to enforce all the Convention rights, due to temporary loss of control to rebel forces, may, it appears, qualify the extent of the jurisdiction enjoyed and of the duties attaching to it: Ilacu v Moldova and Russia (2005) 40 EHRR 1040 (GC), paras 332 333. The United Kingdoms jurisdiction over its armed forces is essentially personal. The United Kingdom cannot and cannot be expected to provide in Iraq the full social and protective framework and facilities which it would be expected to provide domestically. But the United Kingdom could be expected to take steps to provide proper facilities and proper protection against risks falling within its responsibility or its ability to control or influence when despatching and deploying armed forces overseas. Will there be consequences beyond or outside any that the framers of the Convention can have contemplated, if Convention rights, and in particular those under article 2, continue to apply as between the United Kingdom and members of its armed forces serving abroad? That the obligation on states under article 1 to secure the Convention rights to everyone within their jurisdiction is, in principle, capable of applying to members of the armed forces as it does to anyone else is clear: see Engel v The Netherlands (1976) 1 EHRR 647, paras 54, 59, and en v Turkey (Application No 45824/99), 8 July 2003, para 1. The factors which justify exposing soldiers to the risk of death differ fundamentally from those that apply where civilian lives are at risk. But there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations, in matters such as, for example, the adequacy of equipment, planning or training. See also on these points Gentle, per Lord Hope, para 19. Mr Eadie QC for the Secretary of State accepted in his submissions that it could be argued that to send a soldier out of the United Kingdom (or no doubt, in the light of Al Skeini, out of base) on a mission with inadequate equipment or training could involve a breach of the Convention, by analogy with the principle recognised in Soering v United Kingdom (1989) 11 EHRR 439 and referred to in Bankovic, para 68; and that coroners inquests in respect of deaths on active service in Iraq or Afghanistan have addressed such issues. The jurisprudence of the European Court of Human Rights includes cases where that court has examined closely and criticised the conduct of armed forces in domestic contexts. Such cases start with McCann v United Kingdom (1995) 21 EHRR 97, relating to the shooting by SAS officers of members of the Provisional IRA suspected of planning to attack the Royal Anglian Regiment in Gibraltar, and include Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00), 24 February 2005, and Isayeva v Russia (Application No 57950/00), 24 February 2005, relating to the conduct of military operations by the Russian armed forces against Chechen separatist fighters which led to the deaths of civilians. In such cases, it appears that the exigencies of military life go to the standard and performance, rather than the existence of, any Convention duty. Outside the sphere of combat operations or battle damage (para 34 above), this has been held also to be the position at common law, in which connection Elias J said in Bici v Ministry of Defence, para 104 that Troops frequently have to carry out difficult and sensitive peace keeping functions, such as in Northern Ireland, whilst still being subject to common law duties of care. The difficulties of their task are reflected in the standard of the duty rather than by denying its applicability. The European Court of Human Rights has (as Lord Hope noted in Gentle, paras 18 19) itself also acknowledged that when interpreting and applying the rules of the Convention it is necessary to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed services (Engel, para 54, and en, p 1(b)). Reluctance about accepting the application of article 2 to the armed forces serving abroad may be due to concerns on several scores: first, the improbability that the founding fathers of the Convention perceived that jurisdiction under article 1 would extend to such matters, second, the apparent absence from the Convention of any immunities paralleling those of combat operations or battle damage (or, perhaps, act of state) recognised at common law (para 189 above), and, third, the extent to which the Court has in practice shown itself ready to re examine and re assess minutely, after the event and in the cold light of day, the factual conduct and decision making of member states in difficult circumstances, as evidenced perhaps by some decisions already mentioned, including in particular McCann and, recently, Medvedyev. But none of these matters seem to me to justify giving to the concept of jurisdiction a different or more limited meaning to that which, in my view, follows from the guidance which the Court has already given, particularly in Bankovic. As to the first such matter, the scope and application of the Convention, as revealed over the years, would probably surprise its founding fathers in many respects, and it seems particularly unrealistic to measure the scope of article 1 (fixed though it is, rather than living) by reference to the now revealed positive meaning of article 2 (cf Lord Phillipss comment to like effect in para 54). As to the second and third matters, it would have been foreseeable when the Convention was concluded that combat operations against an enemy might take place in the territory of a Contracting State a context in which the Secretary of State accepts the application of the Convention. The armed forces have not infrequently also been involved in combat operations in bases under attack in Afghanistan or, previously, Iraq. On the approach accepted in Al Skeini and in Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE95, the United Kingdom is already required to ensure that its armed forces enjoy whatever protection the Convention, and in particular article 2, may require in such situations. The possible existence of Soering type liability for sending troops out from the United Kingdom with inadequate equipment or training is also acknowledged by the Secretary of State (para 196 above). If (as to which I express no view) the Convention contains no homologue of the common law immunity in respect of combat operations or battle damage, that is, therefore, a concern that already exists in contexts recognised as falling within Contracting States jurisdiction under article 1 of the Convention. It is not a guide to the scope of article 1. In fact, the Convention does contain at least one provision aimed at addressing this concern. Under article 15 of the Convention states are, in time of war or other public emergency, permitted, to the extent strictly required by the exigencies of the situation, to derogate from article 2 in respect of deaths resulting from lawful acts of war. By article 15 the Contracting States were catering for the natural concern that military operations against an enemy should not be unduly hampered. Finally, the Secretary of State submits, even if a soldier in Private Smiths position might be thought to be entitled to the protection of the Convention (and of article 2 in particular) at all times while serving overseas, whether or not he was on a British base, a domestic court should decline so to decide, but should leave the matter to be taken (whether in relation to this or another case) to Strasbourg. The principle here relied upon is that the role of United Kingdom courts, when interpreting the Convention, is to keep in step with Strasbourg neither lagging behind, nor leaping ahead: doing no more, but certainly no less (R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20, per Lord Bingham) or no less, but certainly no more (Al Skeini: paras 90 and 106, per Lady Hale and Lord Brown). However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention. But neither is the case here. Strasbourg has not decided any case directly in point, and both the messages contained in its existing jurisprudence and considerations of general principle seem to me to point in a clear direction. In my judgment the armed forces of a state are, and the European Court of Human Rights would hold that they are, within its jurisdiction, within the meaning of article 1 and for the purposes of article 2 wherever they may be. On that basis, it is incumbent on us under the Human Rights Act 1998, s.6, to give effect to that conclusion. I would dismiss the appeal on the first issue. Issue 2 article 2 The second issue is whether the fresh inquest into Private Smiths death must conform with the procedural obligation implied into article 2 of the Convention. In essence: what kind of inquest should the coroner hold, leading to what kind of verdict, in respect of Private Smiths death? Again, since questions of jurisdiction are involved, this issue cannot simply be answered by reference to the Secretary of States concession (para 159 above) that he will not object to the fullest type of inquest and (presumably) verdict. The reference to the procedural obligation implied into article 2 is significant. Article 2 has two aspects; one substantive, the other procedural. The latter is implied in order to make sure that [the former is] effective in practice; and is parasitic upon the existence of the substantive right, and cannot exist independently: R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356, paras 5 6, per Lord Bingham; and see Jordan v United Kingdom (2001) 37 EHRR 52, para 105 and Edwards v United Kingdom (2002) 35 EHRR 487, para 69. In its substantive aspect, article 2 requires states not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life: R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182, para 2 of the opinion of the Appellate Committee given by Lord Bingham. Where there is such an established and appropriate framework, casual errors of judgment or acts of negligence (or operational as opposed to systematic failures) by state servants or agents will not by themselves amount to breach of the substantive obligation inherent in article 2 (a principle established in the context of medical negligence): Powell v United Kingdom (2000) 30 EHRR CD 362, Takoushis v Inner North London Coroner [2005] EyWCA Civ 1440; [2006] 1 WLR 461, paras 51 to 58; Byrzykowski v Poland (2006) 46 EHRR 675, paras 104 106; and Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] AC 681. In its procedural aspect, article 2 requires member states to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated: Middleton, para 3. Thus to make good [a] procedural right to the inquiry which the respondent seeks, she must show at least an arguable case that the substantive right arises on the facts .: Gentle, para 6, per Lord Bingham. The framework of procedures and means of enforcement required under the substantive aspect of article 2 must include, where appropriate, means of civil redress and criminal prosecution. The present focus is however on the procedural aspect of article 2, and on its requirement (based clearly on the potential involvement of the state in the death) for an effective public investigation by an independent official body into certain types of death, that is those occurring in circumstances potentially engaging the substantive right which article 2 contains. English law has long required a coroners inquest in respect of certain types of death. Pending the coming into force of the relevant sections of the Coroners and Justice Act 2009, the position is governed by the Coroners Act 1988. Section 8(1) requires a coroner to hold an inquest in respect of any body lying within his district where there is reasonable cause to suspect that the deceased (a) has died a violent or an unnatural death, (b) has died a sudden death of which the cause is unknown or (c) has died in prison (or in a place or circumstances requiring an inquest under any other Act). Section 8(3) requires the coroner to summon a jury, in various cases, including where it appears that (c) applies, or the death occurred while the deceased was in police custody, or resulted from an injury caused by a police officer in the purported execution of his duty or was caused by an accident, poisoning or disease requiring notice under section 19 of the Health and Safety at Work etc Act 1974, or in circumstances the continuation or possible recurrence of which is prejudicial to public health or safety. Such an inquest is designed to lead to a verdict, certified by an inquisition setting out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death: section 11(3) to (5) and rule 36 of the Coroners Rules 1984. There is a clear overlap (particularly when sections 8(1)(c) and 8(3) apply) between the circumstances in which the 1988 Act requires a coroners inquest and those in which the procedural obligation inherent in article 2 arises. But the two do not necessarily coincide. The domestic duty to hold an inquest can quite often arise in circumstances not engaging the procedural obligation under article 2. The procedural obligation inherent in article 2 may be satisfied by other forms of investigation than an inquest, for example a public inquiry or even criminal proceedings. Where the domestic duty to hold an inquest and the procedural obligation inherent in article 2 coincide, the difficulty arose under English law that the coroners duty to seek to ascertain how the deceased came by his death was interpreted as limiting him to considering by what means the deceased died, rather than looking more widely at the circumstances in which this occurred: R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1. In Middleton, which concerned the suicide in prison of a long term prisoner, the House of Lords addressed this difficulty, by acknowledging that a broader inquiry was required under article 2, if the investigation was to ensure the proper accountability of state agents for deaths occurring under their responsibility. Accordingly, it held, pursuant to section 3(1) of the Human Rights Act 1998, that the word how must in such a context be given the expanded meaning of in what broad circumstances, so as to give effect to the requirements to be read into article 2 of the Convention. The House thus distinguished between a traditional Jamieson inquest and an article 2 compliant Middleton inquest. In R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, it was argued that Middleton had established the expanded meaning of how for all contexts, including those not engaging article 2, and that the traditional Jamieson inquest had therefore been entirely superseded. The House categorically rejected the argument. The question arose in Hurst was whether it would serve any useful purpose to reopen an inquest. Lady Hale and I took the view that the distinction between the scope of investigation, (rather than verdict) possible in a Jamieson as opposed to a Middleton inquest was not as stark as we understood Lord Brown (with whom Lord Bingham agreed) to be suggesting: compare paras 19 and 23, per Lady Hale and paras 74 76, per Lord Mance, with paras 51 and 56 57, per Lord Brown. I drew attention (para 74) to the possibility of a coroners report to a responsible person or authority under rule 43 of the Coroners Rules 1984. Lord Rodger (to whom I must have been mistaken in referring in para 74) was at pains to stress the distinction in scope at paras 6 7, noting that on the Jamieson approach the allegations of failure by the police to heed prior warnings of hostility on the part of the deceaseds killer towards the deceased would be outside the scope of the wider enquiry that would have been required on a Middleton approach. The potential limitations of the Jamieson approach on the scope of investigation were encapsulated by Sir Thomas Bingham MR in that case, [1995] QB 1, 23G, in a reference to rule 36 of the 1984 Rules as requiring that the proceedings and evidence shall be directed solely to ascertaining the deceaseds identity, the place and time of death and how the deceased came by his death. The Coroners and Justice Act 2009 (not yet in force) might appear to perpetuate the distinction by underlining that it is only when necessary under article 2 that the purpose of ascertaining how, when and where the deceased came by his or her death is expanded so as to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. It is in these circumstances of relevance that Lord Phillips questions the extent of the distinction, and in particular whether there is any difference in practice between a Jamieson and a Middleton inquest, other than the verdict (paras 69(ii) and 78), and to note that he has on this point the support of Lord Walker (though he also agrees with Lord Rodger on this point) as well as of Lord Collins and Lord Kerr. Lord Hope expressly (para 95) and, as I read him, Lord Rodger implicitly (paras 112 115) see a continuing distinction between the scope of investigation under a Jamieson and a Middleton inquest. For my part, I would have wished to be able to go as far as Lord Phillips, but I do feel some difficulty about questioning whether there is in practice any real distinction at all (save in the verdict expressed), having regard to Hurst and the 2009 Act and also having regard to my relative ignorance as to the extent to which such a distinction between the two types of inquest is in fact meaningful in day to day practice (as the courts in Jamieson, Middleton and Hurst must on the face of it have thought). However, it seems unnecessary on this appeal to pursue this aspect further. Everyone agrees that coroners have a considerable discretion as to the scope of their enquiry, although the verdict that they may deliver differs according to the type of inquest being held. The practical solution is no doubt for coroners to be alert to the possibility that a Middleton type verdict may be, or become, necessary, and to be ready to adapt the scope of their investigation accordingly. In the present case, the coroner (whose verdict has been set aside on different grounds) concluded that, on the facts as he saw them in the first inquest, a traditional Jamieson type of inquest was all that was required. Collins J and the Court of Appeal disagreed. They concluded that a Middleton type inquest was required. The Court of Appeals reasoning was that Private Smith was in a position analogous to that of a prisoner, a person detained on mental or other grounds or a conscript, and that a Middleton type inquest was required in respect of any death of such a person in prison or custody or while serving in the army. The Secretary of State appeals to the Supreme Court against the Court of Appeals reasoning and conclusion. The states procedural duty under article 2 to provide for or ensure an effective public investigation by an independent official body of certain deaths or near deaths has been developed in the case law of the European Court of Human Rights and explored in domestic case law, including that of the House of Lords in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653, Middleton (above) and R (L(A Patient)) v Secretary of State for Justice [2008] UKHL 68; [2009] AC 588. Certain categories of case in which the substantive right contained in article 2 has been held to be potentially engaged, with the result that the procedural obligation has been held to exist, are clearly recognisable: (i) Killings by state agents: McCann v United Kingdom (1995) 21 EHHR 97, para 161 (article 2 requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State") and Jordan v United Kingdom (2001) 37 EHRR 52; and see Amin, paras 20 and 25, per Lord Bingham. (ii) Deaths in custody: Salman v Turkey (2000) 34 EHHR 425, esp para 99 (unexplained death in custody, because persons in custody are in a vulnerable position and the authorities are under a duty to protect them); Edwards v United Kingdom (2002) 35 EHRR 487 (violent death of a prisoner at the hands of his cell mate); Akdogdu v Turkey (Application No 46747/99), 18 October 2005, (suicide in prison); R (D) v Secretary of State for the Home Department [2005] EWHC 728 (Admin); [2006] EWCA Civ 143, considered by the House of Lords in L (a case of suicide in prison). (iii) Conscripts: lvarez Ramn v Spain (Application No 51192/99), 3 July 2001; Kilin v Turkey (Application No 40145/98),7 June 2005; Savage v South East Essex NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] AC 681, paras 35 37, per Lord Rodger. (iv) Mental health detainees: Savage although concerned not with any duty to investigate under article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide highlights the analogy between the states duties (v) towards persons in custody and persons in detention for mental health reasons as well as conscripts. Other situations where the State has a positive substantive obligation to take steps to safeguard life. Such situations exist not only where the right to life is inherently at risk, but also where the State is on notice of a specific threat to someones life against which protective steps could be taken: Osman v United Kingdom (1998) 29 EHRR 245; neryildiz v Turkey (2004) 41 EHRR 325 (state allegedly tolerated and, for political reasons, encouraged slum settlements close to a huge uncontrolled rubbish tip, without making any effort to inform the settlers of dangers posed by the tip, which in the event exploded, killing some 39 residents). In neryildiz the Court said that, where lives had actually been lost in circumstances potentially engaging the responsibility of the State, the procedural aspect of article 2 entailed a further duty on the State to ensure an adequate response judicial or otherwise so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (para 91), and that the applicable principles are rather to be found in those the Court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases (para 93, italics added for emphasis). The Court explained that, just as in homicide cases the true circumstances of the death often in practice were, or might be, largely confined within the knowledge of state officials or authorities, so in its view such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents (para 93). It added that: the requirements of article 2 go beyond the state of official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law (para 95). In neryildiz itself, it was not the preliminary investigation following the tragedy that was at fault, but rather the operation of the judicial system in response to the tragedy and investigation: paras 96, 115, 117 118 and 150 155. The procedural obligation incumbent on the state to investigate deaths which, either of their inherent nature or in their particular circumstances, involve the states potential responsibility under article 2 may be distinguished from the general substantive obligation under article 2 to establish an appropriate regulatory, investigatory and judicial system. The distinction was drawn clearly in respect of a third party killing in Menson v United Kingdom (2003) 37 EHRR CD 220. The Court there said: The Court observes that the applicants have not laid any blame on the authorities of the respondent State for the actual death of Michael Menson; nor has it been suggested that the authorities knew or ought to have known that Michael Menson was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against that risk. The applicants case is therefore to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see, for example, McCann v United Kingdom (1995) [21 EHRR 97]; Jordan v United Kingdom (2001) [37 EHRR 52]; Shanaghan v United Kingdom, (Application No 37715/97), judgment of 4 May 2001, ECHR 2001 III (extracts), or in which the factual circumstances imposed an obligation on the authorities to protect an individuals life, for example where they have assumed responsibility for his welfare (see, for example, Edwards v United Kingdom (2002) [35 EHRR 487]), or where they knew or ought to have known that his life was at risk (see, for example, Osman v United Kingdom (1998) [29 EHRR 245]. The Court went on: However, the absence of any direct state responsibility for the death of Michael Menson does not exclude the applicability of article 2. It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see LCB v United Kingdom (1998) [27 EHRR 212], para 36), article 2 para 1 imposes a duty on that state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, para 115). With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in Michael Mensons case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see mutatis mutandis, the Edwards judgment, above cited, para 69). Analysis: Both the substantive and the procedural limbs of article 2 are therefore capable of giving rise to obligations of investigation on the part of state authorities, including the courts. The present appeal concerns the circumstances in which article 2 gives rise to a particular procedural obligation on the part of the state of its own motion to initiate an effective public investigation by an independent official body following a death or near death. This in turn depends upon whether the circumstances involve a potential breach of the substantive obligation which article 2 contains. The questions are how general is this obligation and whether it was potentially engaged by the circumstances giving rise to Private Smiths sad death. The present case: The Court of Appeal treated Private Smiths death as analogous to the killing or suicide of a prisoner, detainee or conscript. It said (para 105): The question is therefore whether the principles apply to soldiers on active service in Iraq. We conclude that they do. They are under the control of and subject to army discipline. They must do what the army requires them to do. If the army sends them out into the desert they must go. In this respect they are in the same position as a conscript. Once they have signed up for a particular period they can no more disobey an order than a conscript can. The army owes them the same duty of care at common law. We recognise that they may not be quite as vulnerable as conscripts but they may well be vulnerable in much the same way, both in stressful situations caused by conflict and in stressful situations caused, as in Private Smith's case, by extreme heat. We see no reason why they should not have the same protection as is afforded by article 2 to a conscript. The scope of this reasoning is uncertain. It is unclear in particular whether the Court of Appeal was suggesting that all deaths of military personnel in service require to be investigated by a Middleton type inquiry. Certainly, it was the respondents submission before the Supreme Court that all soldiers deaths on active service must be regarded as being potentially the states responsibility, because of the degree of control in a closed system, and, therefore, as requiring full investigation by a Middleton type inquiry. In my judgment, that submission goes too far. Death on military service was an everyday risk in the environment of Iraq, as it is today in Afghanistan. Military service against hostile forces in a harsh environment is a situation par excellence where soldiers lives are likely to be lost without their employing state having even potential responsibility. I do not think that courts should subscribe to a view that all military service involves lions led by donkeys (Alan Clarks words in his 1961 work, The Donkeys: a History of the British Expeditionary Force in 1915, the inspiration for Joan Littlewoods Oh, What a Lovely War!). That may or may not have been a fair description of Earl Haigs strategy in the First World War. But, whatever debate may arise about the adequacy of equipment or funding for the armed forces in todays world, I do not think that it should open on an assumption that modern generals or modern ministers of defence are necessarily or even potentially in breach of their article 2 duties. There needs to be something more than that. The European Court of Human Rights jurisprudence summarised in para 210 above, is focused on deaths where, because of the nature or context (whether general or specific) of the death, the state can, without more, be said realistically to have some form of responsibility and in particular where it may alone have sufficient relevant knowledge to identify and establish the cause of the death or near death. Whether it can be said that such responsibility potentially exists in other cases depends upon their particular circumstances. The significance of a state having exclusive knowledge of the relevant events appears to be that this tends to open up a possibility of state involvement and a corresponding need for public investigation to exclude or establish that possibility. Nothing in the case law, and nothing in principle, establishes or indicates that the duty extends to every death of every soldier on active service. There are two particular differences between the present case and any situation previously considered. First, the present case concerns a volunteer Territorial Army soldier, who, the Supreme Court was told, would also have volunteered to go to Iraq (before, then, being served with compulsory call up papers to protect his position, presumably in respect of such matters as employment). I accept that a person who volunteers for active service puts himself or herself in a position where he or she is under extreme discipline, bound to obey orders in a harsh physical environment, the concomitant being that the army authorities must protect him or her against risks potentially arising from obeying such orders. But it does not follow that every death by heatstroke engages, without more, the states potential responsibility. Second, the case concerns death, not by killing, suicide or violence, but by heat associated with the admittedly harsh physical environment in which Private Smith was placed. It was incumbent on the army authorities to address the risks of heat in active service in Iraq, and put adequate systems in place to meet them. But, again, not every death by heat on active service in Iraq can or should be treated without more as involving a potential failure by the state to fulfil that responsibility or a defective system of protection, or therefore, in my view, as requiring the same level of scrutiny and investigation as a death by killing or suicide of a person in custody or a conscript. Some further examination of the particular facts is called for, before such a conclusion. Conclusion on issue 2 In my view, therefore, the coroners general approach was correct. Only if there were sufficient indicia of such a failure or deficiency was it incumbent on the state of its own motion to ensure an effective public investigation by an independent official body, and incumbent therefore on the coroner to expand the inquest to become a Middleton type inquest. The coroner in the first inquest (whose inquisition has now been set aside) concluded that there were insufficient indicia. Death resulting from negligence by members of the armed forces in the application of an established and appropriate system of protection is not axiomatically to be equated with state responsibility for the death under article 2: see para 215 above. But the sequence of events set out in Mrs Smiths case (paras 4 to 35), including the coroners own recommendations after giving judgment, are suggestive of systematic rather than simply operational errors and persuade me that there is here a sufficient case of state responsibility for Private Smiths death for us to be able to rule now that the fresh inquest should be of the Middleton type. The Secretary of States agreement serves merely to confirm the appropriateness of this on the particular facts. I would therefore answer the second issue (identified in para 200 above) affirmatively. It also follows that I would maintain the declaration contained in para 1 of Collins Js Order dated 12 May 2008 (deleting only its final words as set out in the Courts judgment, since it is the judgments in this Court that will now be determinative). LORD COLLINS Preliminary The academic nature of the debate on the first issue As the Court of Appeal recognised, the question of jurisdiction under article 1 on this appeal is academic. After Private Smith collapsed in the stadium where he was billeted, he was taken by ambulance to the medical centre at the camp, where he died of heatstroke. The Secretary of State conceded that the relevant circumstances leading to Private Smiths death took place within the geographical area of a British army camp and a British army hospital, and that a soldier who dies on a United Kingdom base dies within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention: [2008] 3 WLR 1284, at [7] (Collins J); [2009] 3 WLR 1099, at [8], [14] (CA). These concessions flowed from the decision of the House of Lords in R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153 (see [6], [61], [132] for the concessions) that the Secretary of State was right to concede the correctness of the Divisional Courts reasoning that Mr Mousas death in a British military detention centre in Iraq was within the scope of the Convention because the camp was to be assimilated to exceptional cases of extraterritoriality such as embassies and consulates: [2007] QB 140, at [287] (Div Ct). Nevertheless the Court of Appeal decided to hear argument on, and rule upon, the question whether a British soldier in the Territorial Army, who is on military service in Iraq, is subject to the jurisdiction of the United Kingdom within the meaning of article 1 of the Convention, so as to benefit from the rights guaranteed by the Human Rights Act 1998, while operating in Iraq, or whether he is only subject to the jurisdiction for those purposes when he is on a British military base or in a British hospital. The reason why the Court of Appeal took this course is that Collins J had decided the broader question, and because both the Secretary of State and the Equality and Human Rights Commission had characterised the question as being of great general significance or importance. The question is plainly one of importance, but it is unfortunate that it has been decided in the courts below, and will be decided in this court, in a case in which the point does not arise for decision and in which it is conceded to be academic. There is an obvious danger in giving what are in substance advisory opinions on hypothetical facts divorced from any concrete factual situation: see R (Weaver) v London and Quadrant Housing Trust (Equality and Human Rights Commission intervening) [2009] EWCA Civ 587, [2010] 1 WLR 363, at [90]. That is particularly so in the present case. In some of the cases on article 1 the Strasbourg court has considered relevant the degree of control or authority exercised by the respondent state in the foreign territory and the existence of the consent of the territorial state to the exercise of authority by the respondent state: see eg Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, at [62]; Bankovi v Belgium (2001) 11 BHRC 435, at [60], [71]; calan v Turkey (2003) 37 EHRR 238, at [93]; (2005) 41 EHRR 985, at [91]; Issa v Turkey (2004) 41 EHRR 567, at [69]; Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95, at [85]. The degree of authority and control exercised by United Kingdom forces in Iraq, and the legal authority under which they operated, have varied from time to time over a lengthy period which is still continuing. The invasion of Iraq by coalition forces led by the United States of America (with a substantial force from the United Kingdom and smaller contingents from Australia and Poland) began on 20 March 2003. Major combat operations ceased at the beginning of May 2003. Private Smith was in Iraq from 18 June 2003 and died on 13 August 2003. It was accepted by the Secretary of State that between 1 May 2003 and 28 June 2004 (when the occupation formally ended) the United Kingdom was an occupying power for the purposes of the Hague Regulations on the Laws and Customs of War on Land, 1949, and the Fourth Geneva Convention on the Protection of Civilians in Time of War, 1949, in those areas of Southern Iraq where British troops exercised sufficient authority. On the relationship between international human rights law and international humanitarian law (such as the Geneva Conventions) contrast Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation (2005) 99 AJIL 119, 141 with Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights (2006) 100 AJIL 580, 594. The Coalition Provisional Authority (CPA) was established on 16 April 2003 by the United States Government as a caretaker administration until an Iraqi government could be established. On 13 May 2003 the United States Secretary for Defense appointed Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. The CPA administration was divided into regional areas. CPA South remained under United Kingdom responsibility and control. It covered the southernmost four of Iraq's eighteen provinces, and United Kingdom troops were deployed in the area. The CPA was not a subordinate organ or authority of the United Kingdom. The United Kingdom was represented at CPA headquarters through the office of the United Kingdom Special Representative, who had no formal decision making power within the CPA. All the CPAs administrative and legislative decisions were taken by Ambassador Bremer. By CPA Order No 17, issued in June 2003, all coalition personnel were expressed to be subject to the exclusive jurisdiction of their Sending States (section 2(3)) and immune from legal process and arrest or detention (section 2(1), (3)), and coalition facilities were to be inviolable (section 9(1)): While any areas on which such headquarters, camps or other premises are located remain Iraqi territory, they shall be inviolable and subject to the exclusive control and authority of the MNF, including with respect to entry and exit of all personnel. The MNF shall be guaranteed unimpeded access to such MNF premises. Where MNF Personnel are co located with military personnel of Iraq, permanent, direct and immediate access for the MNF to those premises shall be guaranteed. On 22 May 2003 the UN Security Council adopted Resolution 1483 under Chapter VII of the UN Charter. The Security Council re affirmed the sovereignty and territorial integrity of Iraq and recognised the specific authorities, responsibilities, and obligations under applicable international law of [the United States and the United Kingdom] as occupying powers under unified command. The Resolution supported the formation of an Iraqi interim administration as a transitional administration run by Iraqis until an internationally recognised, responsible government was established to assume the responsibilities of the CPA (article 9). In July 2003 the Governing Council of Iraq was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq. UN Security Council Resolution 1500 (2003) of 14 August 2003 welcomed the establishment of the Governing Council of Iraq, and Resolution 1511 (2003) of 16 October 2003 determined that the Governing Council of Iraq and its ministers were the principal bodies of the Iraqi interim administration which embodied the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government was established and assumed the responsibilities of the CPA; called upon the CPA to return governing responsibilities and authorities to the people of Iraq as soon as practicable; and invited the Governing Council of Iraq to produce a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution. It authorised the coalition to take all necessary measures to contribute to the maintenance of security and stability in Iraq and provided that the requirements and mission of the coalition would be reviewed within one year of the date of the Resolution and that in any case the mandate of the coalition was to expire upon the completion of the political process to which the resolution referred. On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period, which provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government. Security Council Resolution 1546 (2004) was adopted on 8 June 2004. It endorsed the formation of a sovereign Interim Government of Iraq to assume full responsibility and authority by 30 June 2004 for governing Iraq, and welcomed that, also by 30 June 2004, the occupation will end and [the CPA] will cease to exist, and that Iraq will reassert its full sovereignty (article 2). It noted that the presence of the coalition force was at the request of the incoming Interim Government (as set out in correspondence between the Iraqi Prime Minister and the United States Secretary of State annexed to the resolution) and reaffirmed the authorisation for the force to remain in Iraq, with authority to take all necessary measures to contribute to the maintenance of security and stability there. Provision was again made for the mandate to be reviewed within 12 months and to expire upon completion of the political process previously referred to. On 28 June 2004 the occupation came to an end when full authority was transferred from the CPA to the Interim Government and the CPA ceased to exist. Subsequently the coalition forces, including the United Kingdom force, remained in Iraq pursuant to the request and consent of the Iraqi Government and authorisations from the Security Council. All of the relevant Security Council resolutions from 1483 (2003) onwards reaffirmed the sovereignty of Iraq. Consequently the legal position of the United Kingdom forces has changed over the period since the invasion. Between March 2003 and June 2004 the United Kingdom was a belligerent occupant. The effective government of Iraq from April 2003 until June 2004 was the CPA, together with (from July 2003) the Governing Council of Iraq. From June 2004 the United Kingdom forces have been present at the request of, and with the consent of, the Iraqi Government. The consequence of the way in which these proceedings have been dealt with is that the court is being asked to determine whether the article 2 obligation existed in relation to a British soldier who died in Iraq in August 2003, when the United Kingdom forces were belligerent occupants in part of Iraq with a very small force. In 2003, in the area of Southern Iraq for which the United Kingdom had responsibility there were about 8,000 British troops for a population of 2,760,000: R (Al Skeini) v Secretary of State for Defence [2004] EWHC 2911 (Admin), [2007] QB 140, at [42] (Div Ct). The United Kingdom was not in effective control of Basra and surrounding areas: [2007] UKHL 26, [2008] AC 153, [83], per Lord Rodger, approving Brooke LJ [2005] EWCA Civ 1609, [2007] QB 140, [124] (CA). The Court of Appeal recognised in the present case that at the time of Private Smiths death the army was neither in effective control of Iraqi territory nor acting through the consent, invitation or acquiescence of the local sovereign or its government: [2009] 3 WLR 1099 [37] [38]. The case for Mrs Smith and for the Equality and Human Rights Commission on Private Smith was not put on the basis of Private Smith having been on territory under the control of the United Kingdom, or of the army as a State agent. Their case was that Private Smith was subject to the jurisdiction of the United Kingdom as a member of the armed forces. But the question whether the elements of authority and control by the United Kingdom and/or consent of the territorial sovereign are relevant cannot be avoided, and it is regrettable that the issues fall to be decided either without any relevant factual background, or on the hypothesis that the death occurred (as Private Smiths death did) in 2003, when United Kingdom forces were not in effective control, and when they were there as belligerent occupants without the consent of the territorial sovereign, and that the only issue is whether jurisdiction over armed forces is sufficient for article 1 purposes. R (Gentle) v Prime Minister The next preliminary matter is that the first question raised on this appeal has already been the subject of a decision of the House of Lords. In R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, the appellants submitted that all British servicemen on active service overseas fall within the article 1 jurisdiction of the United Kingdom. The appellants specifically relied upon the fact that the soldiers were United Kingdom nationals under the command and control of the United Kingdom and that they were under the authority of British law when in Iraq. The argument was firmly rejected by Lord Bingham, who said at [8(3)]: Here the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted [citing Al Skeini [79] and [129]]. Lady Hale took a different view ([60]), and Lord Carswell left the point open ([66]), but Lords Hoffmann ([16]), Hope ([28]), Scott ([29]), Rodger ([45]), Brown ([71]) (but perhaps with a reservation at [70]) and Mance ([74]) agreed generally with Lord Binghams opinion. It would be a sterile exercise to consider whether this holding was part of the ratio, since on any view this important question was not subject to extensive argument, and it would be wrong for this court to dispose of the matter simply on the basis that the issue was covered by precedent. But it has to be said that the views of Lord Bingham in this area (as in many others) are entitled to the greatest possible respect. The application of the Convention and the meaning of jurisdiction The problem presented on this appeal is not a problem unique to the application of modern human rights instruments. In the United States there are many decisions on the application of constitutional rights to United States citizens and aliens abroad. See (among many others) Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at our Gates, 27 Wm & Mary L Rev 11, 17 24 (1985); Lowenfeld, US Law Enforcement Abroad: The Constitution and International Law 83 AJIL 880 (1989) and 84 AJIL 444 (1990); Brilmayer and Norchi, Federal Extraterrioriality and Fifth Amendment Due Process, 105 Harv L Rev 1217 (1992). The trend in the United States is to extend the protection of the Constitution to United States citizens abroad (but not, generally, aliens) whose rights are violated by United States authorities. It has been said that when the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land: Reid v Covert, 354 US 1, 6 (1957), per Black J, for a plurality of four justices (military court tried and convicted the wife of a US air force sergeant for the murder of her husband at an air base in England: entitled to a jury trial as required by the Sixth Amendment). Thus in relation to the Iraq conflict, United States citizens have been held entitled to make constitutional claims arising out of detention or alleged torture by US military officials: Kar v Rumsfeld, 580 F Supp 2d 80 (DDC 2008); Vance v Rumsfeld, 5 March 2010, WL 850173 (ND Ill 2010) (American citizens do not forfeit their core constitutional rights when they leave the United States, even when their destination is a foreign war zone[T]he right of American citizens to be free from torture is a well established part of our constitutional fabric.) But as the court said in the latter case, the cases establish the importance of citizenship in circumstances in which federal agents outside the United States carry out constitutional violations (at 13). The position is different where non citizens are involved. In United States v Verdugo Urquidez, 494 US 259 (1990) it was held that the Fourth Amendment did not apply to the joint search by Mexican and United States authorities of a Mexican suspects home in Mexico while he was in custody in the United States. This is because the people means the American people. Rehnquist CJ said that aliens should not have extra territorial Fourth Amendment rights, because grave uncertainties would be created for the US employment of armed forces abroad: at 273. See also Rasul v Myers, 563 F 3d 527, 532 (DC Cir 2009) (British citizens detained at Guantanamo Bay); Re Iraq and Afghanistan Detainees Litigation, 479 F Supp 2d 85, 108 (DDC 2007) (alleged torture of Afghani and Iraqi citizens); Arar v Ashcroft, 585 F 3d 559 (2d Cir 2009) (no action against government officials allegedly responsible for aliens extraordinary rendition to Syria). But the application of constitutional protection to activities abroad does not mean that the conduct of military operations is justiciable. In the United States the conduct of military operations is so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference: Harisiades v Shaughnessy, 342 US 580, 589 (1952). See Arar v Ashcroft, 585 F 3d 559, 590 (2d Cir 2009) On this appeal the question arises in the context of the meaning and application of the expression within their jurisdiction. The expression jurisdiction is used in many senses in international law. The doctrine of jurisdiction in international law has given rise to an enormous literature, of which it is useful to mention, in particular, Mann, The Doctrine of Jurisdiction in International Law, in Studies in International Law (1973), p 1; Oppenheim, International Law, 8th ed Sir Hersch Lauterpacht, 1955, pp 235 et seq; Akehurst, Jurisdiction in International Law (1972 73) 46 BYIL 145; Meessen, Extraterritorial Jurisdiction in International Law (1996); Higgins, Themes and Theories: Selected Essays, Speeches and Writings in International Law, 2009, Vol 2, pp 799 et seq. Not every use of the expression jurisdiction in international law is co terminous with that in article 1. For example, a state may exercise jurisdiction over its nationals abroad in the sense that it may prescribe rules of law in relation to its nationals abroad: Restatement (Third), Foreign Relations Law of the United States, 1987, section 402; Oppenheim, International Law, 9th ed Jennings and Watts, 1992, vol 1, para 138; Higgins, ante, vol 2, p 802. But that does not mean that all United Kingdom nationals wherever they may be are within the jurisdiction of the United Kingdom for the purposes of article 1. Armed forces of the United Kingdom serving abroad are subject to military law and discipline, they owe allegiance to the Crown, and where they are stationed abroad with the consent of the local sovereign, the arrangements with that sovereign will normally provide for immunity (at least in certain respects) from the civil and criminal jurisdiction of the host state: for the immunity of United States armed forces in the United Kingdom see Littrell v United States of America (No 2) [1995] 1 WLR 82 (CA); Holland v Lampen Wolfe [2000] 1 WLR 1573 (HL). In that sense there can be no doubt that armed forces serving abroad are subject to the jurisdiction of the United Kingdom, or as Lord Bingham put it in R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, [8(3)], subject to the authority of the United Kingdom. The international practice is confirmed by CPA Order No 17, under which all coalition personnel were expressed to be subject to the exclusive jurisdiction of their Sending States(section 2(3)) and immune from legal process and arrest or detention (section 2(1), (3)). Nor is there any doubt that members of the armed forces have, apart from the Convention, rights to enforce the Crowns duties to them: Mulcahy v Ministry of Defence [1996] QB 732 (subject to a possible exception for active operations: Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 and cf Burmah Oil Co Ltd v Lord Advocate [1965] AC 75). The Crown Proceedings Act 1947, section 10 excluded armed forces from the benefit of remedies against the Crown, but its operation was suspended by the Crown Proceedings (Armed Forces) Act 1987, section 2 of which gave the Secretary of State for Defence the power (which has not yet been exercised) to revive section 10 of the 1947 Act. What is jurisdiction in international law? According to Oppenheim, International Law, 9th ed Jennings and Watts, 1992, vol 1, p 456: State jurisdiction concerns essentially the extent of each states right to regulate conduct or the consequences of events. In practice jurisdiction is not a single concept. A states jurisdiction may take various forms. Thus a state may regulate conduct by legislation; or it may, through its courts, regulate those differences which come before them, whether arising out of the civil or criminal law; or it may regulate conduct by taking executive or administrative action which impinges more directly on the course of events, as by enforcing its laws or the decisions of its courts. The extent of the states jurisdiction may differ in each of these contexts. The Restatement (Third), Foreign Relations Law of the United States (1987) vol 1, p 230, uses jurisdiction to mean the authority of states to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and non judicially. These different aspects of jurisdiction are sometimes said to be curial or judicial jurisdiction, legislative jurisdiction, and enforcement jurisdiction. Curial jurisdiction is essentially concerned with the ability of courts to exercise jurisdiction in civil matters over foreigners. Legislative jurisdiction is about the ability of states to use their own laws to regulate or punish acts in foreign countries. The question in international law is whether states have a legitimate interest in, or sufficient connection with, acts committed abroad so as to justify the application of their laws to them. In the famous Lotus case (France v Turkey), (1927) PCIJ, Series A, No.10, p 4, the Permanent Court of International Justice said (at 19): Far from laying down a general prohibition to the effect that states may not extend the application of their laws . to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules International controversies over the extra territorial application of criminal or penal laws, such as anti trust or securities laws, are about the limits of legislative jurisdiction: see Morrison v National Australia Bank Ltd, United States Supreme Court, June 24, 2010. That is no doubt why, as will appear below, the Strasbourg court referred in Bankovi v Belgium (2001) 11 BHRC 435, [59], in the context of the words within their jurisdiction in article 1 of the Convention to the bases of jurisdiction to prescribe criminal offences for conduct abroad. As for enforcement jurisdiction, in the Lotus case (France v Turkey), the Permanent Court said (at 18 19): Now the first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. That is a statement about enforcement jurisdiction, namely the limits of the right of a state to act on the territory of another state or to take measures on its own territory which require compliance in another state. Thus a state cannot, without the consent of the territorial sovereign, perform official acts in a foreign state or carry out official investigations in the foreign state. The inability of a foreign state to claim, directly or indirectly, its taxes in England is sometimes put on the basis that it is an illegitimate extension of its territorial jurisdiction: see Government of India v Taylor [1955] AC 491. The issue on this part of the appeal On this part of the appeal the issue is whether the undoubted jurisdiction which states has over their armed forces abroad means that their soldiers are within their jurisdiction for the purposes of article 1 of the Convention. The obvious starting point is that the operation of the Convention is territorial, and that its extra territorial application is exceptional. The Strasbourg court has recognised few exceptions, and it is not easy to extract a common principled basis for them. The main questions which arise are (1) whether armed forces can be brought within article 1 simply on the basis that in international law they are subject to the jurisdiction of the state which they serve; or (2) whether they are within article 1 because of the authority and control which the state exercises over them; (3) whether they are within article 1 because there is a jurisdictional link between them and the state. In order that these questions may be considered it is necessary to consider Bankovi v Belgium (2001) 11 BHRC 435 and its antecedents, and some of the subsequent Strasbourg cases considered in Al Skeini, and finally cases decided in Strasbourg after Al Skeini. Early cases At the risk of repeating some of what has been said in other cases about the antecedents of Bankovi v Belgium (2001) 11 BHRC 435, it is important to consider what was decided by the Strasbourg court in Bankovi in December 2001 against the background of decisions of the Commission and the Court on the scope of jurisdiction under article 1 stretching over 35 years. In Soering v United Kingdom (1989) 11 EHRR 439, at [86], the Court, in plenary session, had referred to the limit on the reach of the Convention under article 1 as being notably territorial. One line of decisions suggested that a state would be responsible for acts of its officials (especially diplomatic and consular officials) performed abroad in performance of their duties to nationals: X v Germany (1965) 8 Yb ECHR 158 (Commission). Similar statements in Cyprus v Turkey (1975) 2 DR 125, at [8] and Hess v United Kingdom (1975) 2 DR 72 fall within this category also, and are not based, as they could have been (and, in the case of Cyprus, later were), on control of territory in Northern Cyprus in the former decision, or on Spandau prison being an extension of the territory of the occupying powers. It is likely that the emphasis on diplomats and consuls in the early decisions reflected the fiction of the extra territoriality of diplomatic premises. There is, however, no actual decision (as distinct from dicta) either of the Commission or of the Court which assimilates diplomatic or consular premises to the territory of the sending state. So also Cyprus v Turkey (1975) 2 DR 125, at [8] assumed an extended notion of territoriality in relation to ships and aircraft registered in a Convention state. Another line of Commission decisions expressed the thought that the expression within their jurisdiction was not equivalent to or limited to the national territory of the contracting state concerned, and extended to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad : Cyprus v Turkey (1975) 2 DR 125, at [8]. See also X & Y v Switzerland (1977) 2 DR 57; M v Denmark (1992) 73 DR 193. These strands, acts by officials affecting persons, or officials exercising authority over persons, were brought together in X v United Kingdom, (Application No 7547/76) (1977) 12 DR 73. This was a child abduction case in which a Jordanian married to a British woman took their daughter to Jordan. The complaint was that the British consulate in Amman had not done enough to obtain the custody of her daughter following a custody order by the English court. The Commission was satisfied that the consular authorities had done all that could be reasonably expected of them. The Commission said, on jurisdiction, that it was clear from the constant jurisprudence of the Commission that authorised agents of a state, including diplomatic or consular agents, brought other persons or property within the jurisdiction of that state to the extent that they exercised authority over such persons or property. Insofar as they affected such persons or property by their acts or omissions, the responsibility of the state was engaged. Therefore even though the alleged failure of the consular authorities to do all in their power to help the applicant occurred outside the territory of the United Kingdom, it was still within [the] jurisdiction within the meaning of article 1. It should be noted that this formulation by the Commission is inconsistent with the text of article 1, which is about persons within the jurisdiction, and not about acts or omissions within the jurisdiction. The decision of the Court in plenary session in Drozd and Janousek v France and Spain (1992) 14 EHRR 745 must be read against the background of the previous cases. French and Spanish judges acted as judges in Andorra which was ruled by two co princes, the President of the French Republic and the Bishop of Urgel (in Spain). The applicants were Spanish and Czech citizens, who had been convicted of armed robbery and complained that they had not had a fair trial. The Court agreed with the respondent states that the judges did not sit in their capacity as French or Spanish judges, and their judgments were not subject to supervision by the authorities of France or Spain. It does not seem to have been disputed by France and Spain that, if the judges had sat in their capacity as French or Spanish judges, the jurisdictional test of article 1 would have been satisfied. The way in which the Court put it was that France and Spain would be responsible because of acts of their authorities producing effects outside their own territory. (at [91], citing most of the cases mentioned above). See also Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, at [62]. The final strand in the authorities prior to Bankovi is represented by the notion that effective control of territory abroad is equivalent to jurisdiction over that territory. In Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, the Court (reflecting Cyprus v Turkey (1975) 2 DR 125, at [8]) held (at [62]) that the responsibility of a Contracting Party may also arise when as a consequence of military action whether lawful or unlawful it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. The concept of control is also taken up in other Northern Cyprus cases: e.g. Loizidou v Turkey (Merits) (1996) 23 EHRR 513, at [52]; Cyprus v Turkey (2001) 35 EHRR 731, at [77]. Prior to Bankovi, the Court had also declared admissible complaints against Turkey (a) arising out of operations of its armed forces in Northern Iraq which were alleged to have resulted in violations of the Convention, including the death and torture of some villagers (Issa v Turkey, Application No 31821/96, 30 May 2000, unreported); and (b) arising out of the arrest by Turkish security officers of the applicant, the leader of the PKK, at Nairobi airport with the consent of the Kenyan authorities, and his subsequent removal to, and trial in Turkey (calan v Turkey, (Application No 46221/99), 14 December 2000, unreported). In neither of these admissibility decisions was there any discussion of jurisdiction under article 1. Bankovi v Belgium The concessions by the respondent states The prior decisions go some way to explaining why the respondent states made a number of concessions in Bankovi, not all of which found their way into the reasoning of the Court. They accepted that (a) the exercise of jurisdiction involved the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to the state or who had been brought within that states control, and that the term jurisdiction generally entailed some form of structured relationship normally existing over a period of time (judgment of the Court at [36]); (b) the Court had applied that notion of jurisdiction to confirm that individuals affected by acts of a state outside its territory could be considered to fall within its jurisdiction because there was an exercise of some form of legal authority by the state over them (at [37]); (c) the arrest and detention of the applicants in Issa v Turkey and calan v Turkey constituted a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil (ibid). The issue The issue in Bankovi, stated in para [54] of the decision of the Grand Chamber by reference to the decisions in Drozd and the cases involving Northern Cyprus, was whether the fact that the acts of the respondent states were performed or had effects outside the territory of the contracting states meant that the applicants were capable of falling within the jurisdiction of the respondent states. The concept of jurisdiction in the Courts decision For present purposes, the relevant points which emerge from Bankovi are these: (1) the jurisdictional competence of a state is primarily territorial; (2) international law does not exclude a states exercise of jurisdiction extra territorially, but the bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are as a general rule defined and limited by the sovereign territorial rights of other states; (3) the competence of a state to exercise jurisdiction over its own nationals abroad is subordinate to the territorial competence of that state and other states; (4) a state may not exercise jurisdiction on the territory of another without the consent of the latter unless it is an occupying state, in which case it may exercise jurisdiction in certain respects; (5) article 1 of the Convention reflects the ordinary and essentially territorial notion of jurisdiction; (6) other bases of jurisdiction are exceptional and require special justification in the particular circumstances of each case; (7) article 1 is not to be treated as part of the living instruments provisions, and the travaux confirmed the ordinary meaning of article 1. It should be noted that the Court nowhere explains what it understands by the expression jurisdiction in the context of article 1. The reference in para [59] to extraterritorial jurisdiction as including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality is a mixture of two entirely different concepts of extra territoriality. The first (nationality, flag, diplomatic and consular relations) reflects the fiction of the extra territoriality of ships and aircraft and diplomatic and consular premises. The second (effect, protection, passive personality and universality) represents the generally accepted exceptions to the territorial nature of criminal jurisdiction, that is, the exceptions to the principle that a state cannot use its criminal courts to punish persons for acts committed abroad. The first aspect can be illustrated by the way it is put in the last edition of Oppenheim edited by Sir Hersch Lauterpacht, 8th ed (1955), pp 461, 793): In contradistinction to these real parts of State territory there are some things that are either in every respect or for some purposes treated as though they were territorial parts of a State. They are fictional and in a sense only parts of the territory. Thus men of war and other public vessels on the high seas as well as in foreign territorial waters are essentially in every point treated as though they were floating parts of their home State. The premises in which foreign diplomatic envoys have their official residence are in many respects treated as though they were parts of the home States of the envoys concerned. Again merchantmen on the high seas are in certain respects treated as though they were floating parts of the territory of the State under whose flag they legitimately sail. Extraterritoriality, in this as in every other case, is a fiction only, for diplomatic envoys are in reality not without, but within, the territories of the receiving States. The term extraterritoriality is nevertheless valuable because it demonstrates clearly the fact that envoys must, in most respects, be treated as though they were not within the territory of the receiving States. The so called extraterritoriality of envoys takes practical form in a body of privileges which must be severally discussed. The second aspect of jurisdiction, reflected in the Courts reference to effect, protection, passive personality and universality is that which has much exercised international lawyers (but which has nothing to do with the issue under article 1), namely the extent to which states can exercise criminal jurisdiction in respect of acts committed outside their national territory. In the Lotus case the Permanent Court said (at 20): Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty. Consequently it is well accepted that there are well established exceptions to the territorial principle, and they are reflected in the reference in Bankovi at [59] to effect (normally referred to as effects), protection, passive personality and universality. The exceptions normally articulated are these: first, the nationality principle by which a state has jurisdiction over crimes committed by its nationals abroad; second, the so called protective principle under which states claim jurisdiction over acts committed by aliens abroad which threaten the state; third, the passive personality basis of jurisdiction under which a state may exercise jurisdiction over crimes committed abroad by aliens if the victim is a national of the state claiming jurisdiction; fourth, the controversial effects doctrine where jurisdiction is taken over an offence which is committed abroad, but which has economic effects in the forum state (such as violations of anti trust laws or securities laws), and which is sometimes said to be an aspect of the so called objective territorial principle, jurisdiction over an offence committed outside the state but concluded or consummated within the territory; fifth, the principle of universal jurisdiction, the oldest example being jurisdiction to try pirates, and now frequently invoked in relation to jurisdiction over war crimes. See Jennings, Extraterritorial Jurisdiction and United States Anti Trust Laws (1957) 32 BYIL 146. It has to be said that neither Bankovi nor a case such as the present has anything to do with extra territorial jurisdiction in these two senses. The question here is whether armed forces serving abroad are within the jurisdiction of the contracting states in a quite different sense, namely whether the fact that they are subject to the military law and discipline of the United Kingdom, and generally not subject to the local law, results in their being within the jurisdiction of the United Kingdom for article 1 purposes. The exceptional cases The Court went out of its way in Bankovi to emphasise the exceptional nature of the cases in which a state could be responsible for acts or omissions outside its national territory. First, it expressed the view that article 1 of the Convention must be considered to reflect [the] ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (at [61]). Second, it said (at [67]): In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention. Third, it emphasised (at [71]): In sum, the case law of the Court demonstrates that its recognition of the exercise of extra territorial jurisdiction by a contracting state is exceptional The Courts treatment of the exceptional cases where acts of contracting states performed, or producing effects, outside their territories could constitute an exercise of jurisdiction within the meaning of article 1 may be summarised in this way. The Soering v United Kingdom line of cases is not concerned with the extra territorial exercise of jurisdiction, because liability is incurred in such cases by the action of a state concerning a person while he or she was on its territory and clearly within its jurisdiction: [68]. The exceptions which the Court recognises are these. First, the responsibility of contracting states could in principle be engaged because of acts of their authorities which produced effects or were performed outside their own territory, at [69], citing the Drozd case. Second, the responsibility of a contracting state is capable of being engaged when as a consequence of military action (lawful or unlawful) it exercises effective control of an area outside its national territory as a consequence of military operation or through the consent, invitation or acquiescence of the Government of that territory, and exercises all or some of the public powers normally to be exercised by that Government: at [70], citing Loizidou v Turkey (Preliminary Objections) and Cyprus v Turkey (2001) 35 EHRR 731. These cases were explained on this basis that the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government (at [71]). Third (reflecting the fictional extra territoriality of diplomatic and consular premises and of ships and aircraft) other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state and in these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state (at [73]). In applying these principles to the facts the Court rejected the suggestion that anyone adversely affected by an act imputable to a contracting state, wherever in the world that act may have been committed or its consequences felt, was thereby brought within the jurisdiction of that state for the purpose of article 1 of the Convention. The applicants had accepted that jurisdiction, and any consequent state Convention responsibility, would be limited in the circumstances to the commission and consequences of that particular act. But the Court was of the view that the wording of article 1 [did] not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in Section I of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question (at [75]). In answer to the argument that failure to recognise the claim of the applicants would leave a vacuum in the Convention system, the Court said (at [80]): The Courts obligation, in this respect, is to have regard to the special character of the Convention as a constitutional instrument of European public order for the protection of individual human beings and its role, as set out in article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties It is therefore difficult to contend that a failure to accept the extra territorial jurisdiction of the respondent States would fall foul of the Conventions ordre public objective, which itself underlines the essentially regional vocation of the Convention system In short, the Convention is a multi lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.[Emphasis in original text]. The Court said (at [80]) that Cyprus v Turkey (2001) 35 EHRR 731 related to an entirely different situation: the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed, by Turkeys effective control of the territory and by the accompanying inability of the Cypriot Government, as a contracting state, to fulfil the obligations it had undertaken under the Convention. The Court did not deal expressly with the applicability of the exception it had identified by reference to Drozd, namely that the responsibility of contracting states could in principle be engaged because of acts of their authorities which produced effects or were performed outside their own territory. But it did deal with the applicants reliance on the admissibility decisions in Issa v Turkey and calan v Turkey. In each of those cases the Court had held admissible complaints relating to Turkeys conduct in non contracting states, Iraq in the former case and Kenya in the latter case. All that the Court said about those cases was this (at [81]): It is true that the Court has declared both of these cases admissible and that they include certain complaints about alleged actions by Turkish agents outside Turkish territory. However, in neither of those cases was the issue of jurisdiction raised by the respondent Government or addressed in the admissibility decisions and in any event the merits of those cases remain to be decided. The conclusion of the Court (at [82]) was that there was no jurisdictional link between the persons who were victims of the act complained of and the respondent states. The subsequent decisions The exceptional nature of any liability for extra territorial acts or omissions articulated in Bankovi has been repeatedly quoted or re stated by the Court: calan v Turkey (2003) 37 EHRR 238, at [93]; Assanidze v Georgia (2004) 39 EHRR 653, at [137]; Ilacu v Moldova and Russia (2005) 40 EHRR 1030, at [314]; Issa v Turkey (2004) 41 EHRR 567, at [68]; Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95, at [85]; Stephens v Malta (No 1)(2009) 50 EHRR 144, at [49]; Medvedyev v France, Grand Chamber, 29 March 2010, at [64]. In particular the concept of jurisdiction based on effective control has been applied in Assanidze v Georgia and Ilacu v Moldova and Russia, ante. The decisions subsequent to Bankovi in Strasbourg up to the time of Al Skeini were fully discussed by the Divisional Court, the Court of Appeal, and the House of Lords, and it is not necessary to go over the same ground. It is useful only to consider the relevance of the decisions in calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) and Issa v Turkey (2004) 41 EHRR 567, and of the decisions subsequent to Al Skeini in Markovic v Italy (2006) 44 EHRR 1045 (Grand Chamber); Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95; and Medvedyev v France, Grand Chamber, 29 March 2010. Authority and control and State agents The decisions in calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) and Issa v Turkey (2004) 41 EHRR 567, both of which were extensively discussed in Al Skeini, are relevant on this appeal because of what is said to be their support for the argument that armed forces abroad are subject to the jurisdiction of the sending state because they are under the authority and control of the sending state. calan v Turkey In calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) the applicant was arrested by members of the Turkish security forces inside a Turkish aircraft in the international zone of Nairobi airport. His complaint related both to his treatment in Nairobi and subsequently in Turkey. As regards his treatment in Kenya, he complained under articles 3 and 5 about handcuffing and blindfolding, alleged sedation and unlawful arrest. There was also a complaint that the abduction overseas on account of his political opinions constituted inhuman or degrading treatment within the meaning of article 3. It was held that the complaints about the arrest in Kenya fell within article 1. In the first decision the Court said (at [93]): the applicant was arrested by members of the Turkish security forces inside an aircraft in the international zone of Nairobi Airport. Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the jurisdiction of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. The Court considers that the circumstances of the present case are distinguishable from those in the aforementioned Bankovi case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey The Grand Chamber said (at [91]): The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport. It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in the cases of Illich Ramirez Snchez v France and Freda v Italy; and, by converse implication, the Bankovi v Belgium . There are four features about this decision which should be noted. First, the Turkish Government conceded that the case fell within article 1. Second, it involved, at least in part, acts committed on a Turkish aircraft. Third, the Turkish activities were authorised by Kenya. Fourth (as Lord Brown pointed out in Al Skeini at [118] [119]), it involved the forcible removal by state A from state B with state Bs consent of a person wanted for trial in state A. Cf Illich Ramirez Snchez v France (Application No 28780/95) (1996) 86 A DR 155 (Commission); see also Lpez Burgos v Uruguay (1981) 68 ILR 29 and Celiberti de Casariego v Uruguay (1981) 68 ILR 41(UN Human Rights Committee). In Stephens v Malta (No 1) (2009) 50 EHRR 144, at [52], [54], in a section dealing with jurisdiction under article 1, it was held that the arrest of a British citizen in Spain pursuant to an unlawful request for extradition by Malta was attributable to, and engaged the responsibility of, Malta, but the Court did not explain why the applicant was within the jurisdiction of Malta. It is entirely consistent with common sense for the Convention to apply (even to that part of the operation which occurs abroad) when agents of a state go abroad and forcibly remove one of its citizens for trial at home. The decision is not authority for a generalised basis of jurisdiction based on authority and control by state agents. Issa v Turkey Issa v Turkey (2004) 41 EHRR 567 has been subject to close analysis and criticism at all levels in Al Skeini. It arose out of an incursion by Turkish troops into Northern Iraq in 1995 to pursue and eliminate Turkish terrorists who were seeking shelter in Iraq. The applicants were Iraqi villagers who alleged that in contravention of their Convention rights and those of their relatives, Turkish troops had (among other things) detained, tortured, and killed villagers and caused distress to others. The Court decided that the applicants relatives did not come within the jurisdiction of Turkey within the meaning of article 1. Citing Loizidou v Turkey (Merits) (1996) 23 EHRR 513, at [52], the Court re stated (but for the first time in relation to territory outside the Convention states) that the responsibility of a state could be engaged where as a consequence of military action, whether lawful or unlawful, the state in practice exercised effective control of an area situated outside its national territory: [68] [69]. That deals with jurisdiction based on control of territory, and not jurisdiction based on authority and control of the victim by state agents outside the territory of the state. In a much discussed passage, the Court said (at [71]) Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid). Consequently, jurisdiction could have been based on either effective control of the area or (although the formulation is by no means clear) on the activities of state agents against local inhabitants. But the applicants were not within the jurisdiction of Turkey because Turkey did not exercise effective control over the relevant area, and also because it had not been proved that Turkish forces had conducted operations in the area in question: [75], [81]. It is implicit in the reasoning in this decision that there would have been jurisdiction if the Turkish troops had been guilty of atrocities even without overall control of the area. If that is so, it is inconsistent with Bankovi. It is impossible to see how an attack on villagers in a cross border incursion into a non contracting state could make the villagers within the jurisdiction of Turkey, when a bombing raid on Belgrade did not make the victims within the jurisdiction of the NATO States involved. The notion of authority and control through State agents operating abroad derives from the report of the Inter American Commission of Human Rights in Coard v United States (Report No 109/99, 29 September 1999) (1999) 9 BHRC 150, which was cited by the Strasbourg court in Issa v Turkey at [71] in support of that notion. The Commission was examining complaints about the applicants detention and treatment by United States forces in the military operation in Grenada. The American Declaration on the Rights and Duties of Man 1948 contains no express provision on its territorial limits. The Commission said: While the extraterritorial application of the Declaration has not been placed at issue by the parties Given that individual rights inhere simply by virtue of a persons humanity, each American state is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a states territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state usually through the acts of the latters agents abroad. In principle, the inquiry turns not on the presumed victims nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the state observed the rights of a person subject to its authority and control. The Coard report was referred to in Bankovi at [23] and [78], but the Grand Chamber (at [78]) specifically indicated that it derived no assistance from it because the American Declaration on the Rights and Duties of Man 1948 contained no explicit limitation of jurisdiction. Jurisdiction on the basis of authority and control (especially outside the Convention states) as a separate head was firmly rejected by the House of Lords in Al Skeini: see especially Lord Brown at [116] [127], and Lord Rodger at [73] [77]; and see also Rix LJ speaking for the Administrative Court at [216], and Brooke LJ in the Court of Appeal at [103]. Not only is there no firm basis in authority for the notion of authority and control as a basis of jurisdiction under article 1, Issa is also inconsistent with the notion of the regional nature of the Convention. As Lord Rodger said in Al Skeini (at [78]): The essentially regional nature of the Convention is relevant to the way that the court operates. It has judges elected from all the contracting states, not from anywhere else. The judges purport to interpret and apply the various rights in the Convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states. This is obvious from the court's jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals. The result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world. So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovi, 11 BHRC 435, 453 454, para 80, the court had so far recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism. See also Mactavish J in the Federal Court of Canada: Amnesty International Canada v Canada (Chief of Defence Staff), 2008 FC 336, [2008] FCR 546, [235]. Medvedyev v France In Medvedyev v France, Grand Chamber, 29 March 2010, the applicants alleged that they had been arbitrarily deprived of their liberty contrary to article 5(1) following the boarding of the ship on which they were crewmen by French authorities and complained that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power. The ship was registered in Cambodia. Cambodia had given France authorisation to intercept the ship. The Court held unanimously (although it was divided on the merits of the claim) that because France exercised full and exclusive control over the ship and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within Frances jurisdiction for the purposes of article 1: at [67]. This case bears some resemblance to calan v Turkey (2003) 37 EHRR 238, except that the aircraft in calan was registered in Turkey, the respondent state, whereas the ship in Medvedyev v France was registered in Cambodia, and the applicant in calan had the nationality of the respondent state, whereas the applicants in Medvedyev had a variety of non French nationalities, Ukrainian, Romanian, Greek and Chilean. The differences are not crucial, since although an aircraft is for some purposes regarded as part of the territory of the country of registration, while it is in an airport it is no sense exempt from the criminal and public law of the territorial state, and non nationals within the jurisdiction are equally entitled to the protection of Convention rights. Al Saadoon and Mufdhi v United Kingdom (admissibility) Nor is Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95 authority for any concept of extra territoriality going beyond Bankovi as recognised in Al Skeini. The applicants complained that their transfer by British forces to the custody of the Iraqi High Tribunal exposed them to a real risk of the death penalty in breach of articles 2 and 3. The United Kingdoms argument on jurisdiction was that the transfer of the applicants into the custody of the Iraqi authorities took place in circumstances where the United Kingdom forces had the power to detain Iraqi nationals only at the request of the Iraqi courts; the United Kingdom forces were not to retain any power to detain Iraqi nationals after 31 December 2008 and, within hours of the actual transfer, the base would have ceased to be inviolable and the Iraqi authorities would have had the right to come physically to the base where the applicants were detained and remove them. Consequently, it was argued, the United Kingdom was not exercising any public powers through the effective control of any part of the territory or the inhabitants of Iraq, The Court recognised that, during the first months of the detention of the applicants, the United Kingdom was an occupying power in Iraq. The United Kingdom exercised control and authority over the individuals detained in the British run detention facilities initially solely as a result of the use of military force. Subsequently its de facto control over the premises was reflected by the CPA order which provided that all premises used by the multi national force should be inviolable and subject to the exclusive control and authority of the multi national force: [87]. Given the total and exclusive de facto and subsequently also de jure control exercised by United Kingdom authorities over the premises, the individuals detained there, including the applicants, were within the United Kingdoms jurisdiction: Hess v United Kingdom. That conclusion, the Court said (at [88]), was consistent with the decision of the House of Lords in Al Skeini and the position adopted by the United Kingdom in that case before the Court of Appeal and the House of Lords (where it had been conceded that the jurisdiction under article 1 extended to a military prison occupied and controlled by the United Kingdom). The Court referred to Rasul v Bush, 542 US 466 (2004) where the United States Supreme Court decided (6 3) that United States courts had jurisdiction to consider challenges to the legality of the detention of foreign nationals incarcerated in Guantanamo Bay, since by the express terms of the agreements with Cuba, the United States exercised complete jurisdiction and control over the Guantanamo Bay. See also Al Saadoon and Mufdhi v United Kingdom (Merits), 2 March 2010, with many references to the United Kingdoms jurisdiction over the applicants: [137], [140], [164], [165]. The decisions in Al Saadoon are consistent with, and do not take the matter any further than, Al Skeini. The concept of a jurisdictional link and Markovic v Italy The conclusion of the Court in Bankovi (at [82]) was that there was no jurisdictional link between the persons who were victims of the act complained of and the respondent states. There was no elucidation of that expression, and the only other decision of the Strasbourg court in the article 1 context which makes use of the notion of jurisdictional link is Markovic v Italy (2006) 44 EHRR 1045 (Grand Chamber), in which the Court said that once a person brings a civil action in the courts or tribunals of a state, there indisputably exists, without prejudice to the outcome of the proceedings, a jurisdictional link for the purposes of article 1 ([54]). Markovic v Italy is a decision which shows that the victim of a breach of the Convention need not necessarily be present in the contracting state. The applicants were nationals of Serbia and Montenegro, who had brought claims in the Italian courts for compensation for damage caused by an airstrike by NATO forces. The Italian Court of Cassation ruled that the Italian courts had no jurisdiction because the claim was a political one. The applicants claimed that this was a refusal to grant them access to a court in breach of article 6. The Court held that there was no breach of article 6 because the inability to sue the state was not the result of an immunity but of the principles governing the substantive right of action in domestic law. The Court held that the applicants were within the jurisdiction of Italy for the purposes of article 1. The Italian and British Governments argued that there was no jurisdiction for the purposes of article 1 because (for reasons which are hard to follow) the underlying claim related to NATO airstrikes outside the Convention countries. But, apart from that, they both accepted that a claimant from outside the contracting states who brings a claim in the courts of the contracting state is within its jurisdiction for article 1 purposes. The Italian Government accepted that the applicants had brought themselves within the ambit of the states jurisdiction by lodging a claim with the authorities: see [38]. The British Government seemed (somewhat artificially) to treat the bringing of the claim as a notional entry into the territory in order to bring proceedings: see [48]. As regards jurisdiction for the purposes of article 1, the Court three times used the expression jurisdictional link in these passages: 54. Even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of Article 6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned. If civil proceedings are brought in the domestic courts, the State is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6. The Court considers that once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a jurisdictional link for the purposes of Article 1. 55. The Court notes that the applicants in the instant case brought an action in the Italian civil courts. Consequently, it finds that a jurisdictional link existed between them and the Italian State. The expression jurisdictional link in the conclusion in Bankovi (at [82]) is plainly not intended to state or represent a separate and independent test of jurisdiction, and the same must be so of the passages in Markovic v Italy. Consequently, neither of those decisions suggests that there is a separate free standing head of jurisdiction based on a jurisdictional link, and (contrary to the respondents position on this appeal) there is nothing in the opinion of Lord Rodger in Al Skeini which supports such a suggestion. He said (at [64]) It is important therefore to recognise that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting state [F]or the purposes of deciding whether the Convention applies outside the territory of the United Kingdom, the key question is whether the deceased were linked to the United Kingdom when they were killed. However reprehensible, however contrary to any common understanding of respect for human rights, the alleged conduct of the British forces might have been, it had no legal consequences under the Convention, unless there was that link and the deceased were within the jurisdiction of the United Kingdom at the time. For, only then would the United Kingdom have owed them any obligation in international law to secure their rights under article 2 of the Convention and only then would their relatives have had any rights under the 1998 Act. All that Lord Rodger was saying was that there must be a relevant link, not that a link, or any link, is a sufficient basis for the existence of jurisdiction under article 1. It should be added in relation to Markovic v Italy that it makes complete sense for the Convention to apply to parties to litigation in contracting states irrespective of where they are. It could not be seriously suggested, for example, that a Japanese defendant in English proceedings who is served out of the jurisdiction is not entitled to article 6 rights. In Lubbe v Cape plc [2000] 1 WLR 1545 the South African asbestosis victims suing in England submitted that to stay the proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non Convention ground that, because of the lack of funding and legal representation in South Africa, they would be denied a fair trial on terms of equality with the defendant. Lord Bingham said (at p 1561) that article 6 did not support any conclusion which was not already reached on application of the stay principles Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460. There was no suggestion, nor could there have been, that the claimants could not rely on article 6 because they were South Africans without any connection with the United Kingdom. In Bankovi the Court said [75] that the obligation in article 1 could not be divided and tailored in accordance with the particular circumstances of the extra territorial act in question, and the Court has said that in territory which is subject to the effective control of a contracting state the obligation of the State is to secure the entire range of substantive Convention rights Bankovi at [70], citing Cyprus v Turkey (2001) 35 EHRR 731 at [77]. But cases such as Markovic v Italy suggest that some qualification is necessary to the principle of indivisibility of Convention rights, and that there may be cases in which a person may be within the jurisdiction of a contracting state for limited purposes only. Another possible example is suggested by Carson v United Kingdom, Grand Chamber, 16 March 2010 (in which there was no issue under article 1). The applicants were persons who had worked in the United Kingdom and paid national insurance contributions and then emigrated to South Africa, Canada or Australia. State pensions to persons abroad were not up rated to take account of inflation with the result that they received less (far less in some cases). They failed in their claim under article 14 of the Convention and article 1 of the First Protocol, but rightly it was never suggested that because they were permanently abroad they were not within the jurisdiction of the United Kingdom for article 1 purposes in relation to interference with property situate in the United Kingdom (as the pension rights were). Consequently there may be cases in which persons abroad may not be entitled to the whole package of Convention rights. Conclusions Bankovi made it clear that article 1 was not to be interpreted as a living instrument in accordance with changing conditions: [64] [65]. It is hardly conceivable that in 1950 the framers of the Convention would have intended the Convention to apply to the armed forces of Council of Europe states engaged in operations in the Middle East or elsewhere outside the contracting states. Even the limited exceptions to territoriality recognised by the Strasbourg court were plainly not contemplated in the drafting process. The original draft prepared by the Committee of the Consultative Assembly of the Council of Europe on legal and administrative questions referred to all persons residing within their territories. Following a suggestion that residing within be replaced by living in, the Expert Intergovernmental Committee decided instead on persons within their jurisdiction. The reason was that the term residing might be considered too restrictive, and there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory states, even those who could not be considered as residing there in the legal sense of the word: Collected Edition of the Travaux Prparatoires of the European Convention on Human Rights, vol III, p 260. Apart from a comment by M Rolin, the eminent Belgian representative to the Consultative Assembly, that the protections would extend to all individuals of whatever nationality, who on the territory of any one of the states, might have had reason to complain that their rights were violated, article 1 did not give rise to any further discussion on this aspect and that text was adopted by the Consultative Assembly on 25 August 1950 without further amendment: Collected Edition, vol VI, pp 132, 148. See Bankovi at [19] [21] and also Lawson, Life After Bankovic: On the Extraterritorial Application of the European Convention on Human Rights, in Extraterritorial Application of Human Rights Treaties, ed Coomans and Kamminga, 2004, 83, at 89 90. There is nothing in the drafting history to give the slightest credence to the proposition that the Convention was to apply to the relations of the state with its armed forces abroad. It is noteworthy that, writing in the same year, Professor Hersch Lauterpacht (as he then was) produced a draft of the International Bill of the Rights of Man which provided (article 18): The obligations of this Bill of Rights shall be binding upon States in relation both to their metropolitan territory and to any other territory under their control and jurisdiction. See Lauterpacht, International Law and Human Rights, 1950, p 317. Bankovi (as applied in Al Skeini) confirms that article 1 reflects the territorial notion of jurisdiction, and that other bases of jurisdiction are exceptional and require special justification. In practice the exceptions recognised by the Court have either consisted of (1) territorial jurisdiction by a state over the territory of another contracting state; (2) extensions of territorial jurisdiction by analogy; and (3) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the Convention. The Northern Cyprus cases such as Loizidou v Turkey (Merits) and Cyprus v Turkey, and also Ilacu v Moldova and Russia and Assanidze v Georgia are all illustrations of the extension or application of territoriality to cases of effective control (or lack of control) by contracting states of Council of Europe territory. The extension of the Convention to military bases and hospitals (ultimately based on concession by the Secretary of State) in Al Skeini and Al Saadoon and Mufdhi v United Kingdom (admissibility) is consistent with the treatment in dicta of the Commission and the Court of fixed premises abroad as territorial extensions of the state. If the judges in Drozd v France and Spain had been acting as French or Spanish judges commonsense would have recognised them as extensions of the state judiciary acting abroad. So also in cases such as calan v Turkey and Medvedyev v France, where a states officials detain a person abroad for trial in its territory, it would be odd if there could be no complaint under the Convention in respect of the acts which took place outside the territory. Similarly, the application of article 6 rights to foreign claimants in Markovic v Italy makes complete sense: it would be a travesty of the Convention to deny them the right to access to a court because they were outside the Convention states. This case comes within none of the exceptions recognised by the Strasbourg court, and there is no basis in its case law, or in principle, for the proposition that the jurisdiction which states undoubtedly have over their armed forces abroad both in national law and international law means that they are within their jurisdiction for the purposes of article 1. For the reasons given in the preceding sections of this judgment, jurisdiction cannot be established simply on the basis that the United Kingdoms armed forces abroad are under the authority and control of the United Kingdom, or that there is a jurisdictional link between the United Kingdom and those armed forces. To the extent that Issa v Turkey states a principle of jurisdiction based solely on authority and control by state agents over individuals abroad, it is inconsistent with Bankovi, and with Al Skeini, where it was comprehensively criticised by the House of Lords. Nor is there anything in Markovic v Italy or in Lord Rodgers opinion in Al Skeini to support a jurisdictional link as a free standing basis for jurisdiction under article 1. Nor are there policy grounds for extending the scope of the Convention to armed forces abroad. On the contrary, to extend the Convention in this way would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non justiciable. I would therefore allow the appeal on the first issue. On the second issue, I agree with the judgment of Lord Phillips and would dismiss the appeal. LORD KERR Article 1 of the European Convention on Human Rights and Fundamental Freedoms provides that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. The first issue in this appeal is concerned with the question of what is meant by the phrase, within their jurisdiction. I have read the judgment of Lord Mance and am in complete agreement with what he has said on the first issue. For the reasons that he has given, I too would dismiss the appeal on the first ground. The first issue It has been accepted in a series of decisions, both domestic and European, that the primary and essential basis for jurisdiction under article 1 is territorial. It has also been accepted that this important principle is subject to exceptions. A central issue on the first ground of appeal is whether the admissible exceptions are confined to those specific examples that have been expressly recognised by the decisions in this field, particularly those reached in Strasbourg, or whether further exceptions may be recognised by the application of principles already established by the European Court of Human Rights. In R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356, Lord Bingham clearly contemplated that any exceptions to or extensions of the principle of territoriality should be specific and limited see para 8(3) of his opinion. That case of course involved a claim that the lawfulness of the war in Iraq should be investigated in order to test whether the United Kingdom had fulfilled what were said to be its article 2 obligations to soldiers who were exposed to the risk of death in that war. It was not concerned with the question that arises here whether a soldier who is within the control of the state, in the form of the army authorities, remains within the jurisdiction of the state for the purposes of article 1 of the Convention when he is outside the states national territory. As Lord Mance has pointed out, Lord Bingham outlined three reasons that article 2 had never been held to apply to the process of deciding on the lawfulness of a resort to arms. The first was that the lawfulness of military action has no immediate bearing on the risk of fatalities. The second was that the draftsmen of the European Convention had not envisaged that it could provide a suitable framework or machinery for resolving questions about the resort to war. The final reason related to the territoriality issue. On this point, Lord Bingham said: Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al Skeini) v Secretary of State for Defence [2008] AC 153, paras 79, 129. The Al Skeini case involved the deaths of six Iraqi civilians at the hands of British troops. Five of the deceased were shot in the course of security operations; the sixth, Mr Mousa, died following gross ill treatment while in custody in a UK military detention facility. The appellants, who were relatives of the deceased, asked the Secretary of State to hold a public inquiry into their relatives' deaths. The Secretary of State indicated that he would not hold such an inquiry. The appellants sought judicial review of that decision. In order to promote that application the appellants had to establish (among other things) that their complaint fell within the scope of ECHR and that a Convention right had been violated. The violation alleged by the appellants consisted primarily of a failure to investigate, as required by article 2, a violent death alleged to have been caused by agents of the state. The House of Lords held that the Convention operated in an essentially regional context, most notably in the legal space of the contracting states (ie within the area of the Council of Europe countries). The jurisdiction under article 1 was primarily territorial. The House of Lords recognised, however, that exceptions to that principle existed. These included circumstances where the state had effective control of a foreign territory and its inhabitants through military occupation or by the consent, invitation or acquiescence of the government of that territory and it exercised all or some of the public powers that would normally have been exercised by the local government. This was the context in which the observations in paras 79 and 129 of Al Skeini (on which Lord Bingham relied in Gentle) were made. The statements of Lord Rodger in para 79 of Al Skeini were based largely on his consideration of the decision of the European Court of Human Rights in Bankovic v Belgium (2001) 11 BHRC 435. That case has been extensively discussed in the judgment of Lord Phillips and it is therefore unnecessary for me to rehearse its details. It should be noted, however, that in para 80 the court observed that Strasbourg had so far recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. From this one can safely assume that it was not contemplated that the exceptions would be confined solely to this situation and, indeed, further extensions to the exceptional category have been recognised in later decisions of ECtHR. The observation in para 80 of Bankovic provided the backdrop for what Lord Rodger said at para 79 of Al Skeini: The essentially regional nature of the Convention has a bearing on another aspect of the decision in Bankovic v Belgium (2001) 11 BHRC 435. In the circumstances of that case the respondent states were plainly in no position to secure to everyone in the RTS station or even in Belgrade all the rights and freedoms defined in Section I of the Convention. So the applicants had to argue that it was enough that the respondents were in a position to secure the victims rights under articles 2, 10 and 13 of the Convention. In effect, the applicants were arguing that it was not an answer to say that, because a state was unable to guarantee everything, it was required to guarantee nothingto adopt the words of Sedley LJ, [2007] QB 140, 300, para 197. The European Court quite specifically rejected that line of argument. The court held, (2001) 11 BHRC 435, 452, para 75, that the obligation in article 1 could not be divided and tailored in accordance with the particular circumstances of the extra territorial act in question. In other words, the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under art 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in Section I of the Convention. It is important, I believe, to note that these comments were made in the context of jurisdiction based on territorial control. This is clear from para 75 of Bankovic, on which they are founded. But the present case is not one of territorial control. It is, rather, a case of control of personnel. Soldiers serving in Iraq were under the complete control of the United Kingdom authorities. They were subject to UK law. They were not amenable to the law of Iraq. The only legal system to which they were answerable or to which they might have recourse was that of the United Kingdom. In these circumstances, one may ask, if they were not within the jurisdiction of the UK, in whose jurisdiction were they? The answer that the appellant impliedly gives to this question is that the soldiers were within the jurisdiction of the UK for all purposes except for those of article 1 of the Convention but that response merely prompts the further question, why and, for reasons that I shall touch on below, to that second query I can find no satisfactory reply. Para 129 of Al Skeini (the other passage on which Lord Bingham relied in Gentle) is equally concerned with the question of territorial control. There Lord Brown said: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an occupying power in southern Iraq and bound as such by Geneva IV and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants' obligation is to respect the laws in force, not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied. It is immediately evident that Lord Brown was discussing the nature and degree of control that was required before the territorial control exception could arise. The principal message as it seems to me to emerge from this passage is that the extent of the occupants actual control over the territory in question was very far from complete and therefore entirely incompatible with a capacity to enforce compliance with the Convention. On that account, the extra territorial exception could not be held to apply. When one approaches the matter from the perspective of power over military personnel, however, the level of control of the UK occupying forces is of an altogether different order from that which they could exert over the territory. The control that the UK had over Private Smith was as complete as it is possible in todays world to be. Moreover, for the reasons given by Lord Mance in paras 185 188 of his judgment, no other agency or state was entitled to or could exercise any authority over him. In plain terms, he did not come within any legal order or jurisdiction other than that of the United Kingdom. I therefore respectfully agree with Lord Mance that Lord Binghams statement in Gentle that the soldiers, although subject to the authority of the United Kingdom government, were clearly not within the jurisdiction of the UK must be treated with some reservation. Neither Lord Rodger nor Lord Brown (in the paragraphs of their opinions in Al Skeini that Lord Bingham relied on) had addressed the question whether serving soldiers came within the states jurisdiction for the purposes of article 1 of the Convention. Although a number of other members of the House of Lords in Gentle agreed in general terms with Lord Bingham, like Lord Mance, I doubt that his statement that the soldiers were not within the jurisdiction of the UK forms part of the ratio decidendi of that case. Even if it does, in light of the much fuller argument that this court has received on the topic than was presented to the House of Lords in Gentle, it is right that the matter should be considered again. Lord Brown discussed in Al Skeini the exceptions that had been already identified to the strict territorial basis for jurisdiction and Lord Mance has analysed these in paras 172 to 179 of his judgment. I agree with his analysis and with his conclusion that underpinning each of the exceptions is the exercise by a state in a country other than its national territory of power over individuals by the consent, invitation or acquiescence of the foreign state. The exclusion of extra territorial jurisdiction of one state in the territory of another rests primarily on the sovereign territorial rights of the latter state. As the court in Bankovic said, a States competence to exercise jurisdiction over its own nationals abroad is subordinate to that States and other States territorial competence para 60. Where, however, a state yields authority to a foreign state to exercise power in its sovereign territory, this principle does not apply. Likewise, if the sovereignty of the original state is ousted by an occupying force, the occupiers jurisdiction replaces that of the original state. In the present case both these situations so far as they involved UK military personnel tend to blend into each other. The UK was certainly permitted to exercise power over its soldiers, although this could not be said to be a permission granted by the state having original sovereignty over Iraq since that states sovereignty had been ousted by the invading forces. In so far as the UKs authority to exercise power over its own forces depended on the grant of permission, however, that was certainly constituted by CPA Order No 17 and Security Council Resolution No 1483. For the reasons given by Lord Mance in paras 184 to 186 of his judgment, I also consider that the UK exercised exclusive jurisdiction over its forces by reason of its being an occupying power. The situation can be described simply in the following way: the United Kingdom brought its soldiers into Iraq; it not only asserted complete authority over them while they remained there, it explicitly excluded the exercise of authority over those soldiers by any other agency or state; and it has always been clear that soldiers remain subject to the laws of the UK during their service abroad. In those circumstances it would be, to my mind, wholly anomalous to say that soldiers did not remain within the jurisdiction of the UK while serving in Iraq especially since it has been accepted in Al Skeini and not disputed by the appellant in the present case that all persons while on premises under the control of the army are within the UKs jurisdiction for the purposes of article 1 of the Convention. In Bankovic there were no fewer than 17 respondent states: Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom. It is interesting and significant that all seventeen subscribed to an argument described in this way in para 36 of the courts judgment: As to the precise meaning of 'jurisdiction', [the respondent governments] suggest that it should be interpreted in accordance with the ordinary and well established meaning of that term in public international law. The exercise of 'jurisdiction' therefore involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or who have been brought within that state's control. They also suggest that the term 'jurisdiction' generally entails some form of structured relationship normally existing over a period of time. Of course, most soldiers serving on behalf of a member state in a foreign country would come clearly within the first of these formulations since they are subject to the legal authority of the government of their native country and they owe allegiance to that state. The court in Bankovic did not comment adversely on the argument that a states exercise abroad of legal authority over persons owing allegiance to that state would satisfy the requirements of article 1. Indeed, the courts treatment of the arguments of the parties is not at all inconsistent with that submission. It is to be noted that the final conclusions expressed by the court in paras 67 to 71 are preceded by the cross heading Extra territorial acts recognised as constituting an exercise of jurisdiction (emphasis added). By making its soldiers subject to its sole authority while abroad a state is not engaging in an extra territorial act so much as creating a state of affairs. There may not be much in this point but it is, I think, worth remarking that the focus of the court in Bankovic was whether the actions of the respondent governments might be a sufficient foundation for concluding that the applicants came within their jurisdiction whereas here the essential issue is whether soldiers who are subject to the exclusive legal control of the UK authorities remain within its jurisdiction. There is nothing in Bankovic which speaks directly to the question whether a member state that takes its soldiers abroad, asserts that it has sole authority over them and expressly excludes all other possible forms of control over them can nevertheless claim that those soldiers are not within its jurisdiction for the purposes of article 1 of the Convention. To suggest, as the Secretary of State must, that soldiers are within the jurisdiction of the United Kingdom for every conceivable legal purpose other than article 1 seems to me to involve the acceptance of one anomaly too many. In this appeal the Secretary of State has argued that, because it is impossible to secure the whole package of Convention rights for soldiers serving abroad, it should be concluded that they cannot be within the UKs jurisdiction for article 1 purposes. Expressed in this unvarnished way, the argument appears circular or, at least, intensely pragmatic. But a similar argument found favour with ECtHR in Bankovic and with the House of Lords in Al Skeini. One must consider, therefore, whether this is a universally required prerequisite in order to bring an applicant within the jurisdiction. As Lord Phillips has pointed out (in para 43 of his judgment), the European Court in Drozd and Janousek v France and Spain (1992) 14 EHRR 745 accepted that if the applicants had appeared before a French judge sitting in that capacity in Andorra they would have been within the jurisdiction of France for the purposes of article 1 in relation to their article 6 rights. They would not have been entitled to claim against France the benefit of protection of the other Convention rights, however. It is implicit in that judgment that there are certain settings in which the whole package principle does not apply. In other words, there is not an invariable pre condition that one must be able to have access to the entire panoply of Convention rights in order to be able to claim that one is within the jurisdiction of the member state for the purposes of article 1. Likewise in Carson v United Kingdom (Application No 42184/05) (unreported) 16 March 2010, the decision of the Grand Chamber on the admissibility of claims against the United Kingdom by persons who were resident abroad must have proceeded on the basis that they were within the jurisdiction for the purposes of pursuing a claim of violation of article 14 of the Convention in combination with article 1 of the First Protocol. There was no question of the applicants being entitled to the benefit of other Convention rights. It follows that the whole package of rights principle is not an indispensable requirement in every case. It is not necessary in every instance that it be shown that an applicant, in order to be entitled to claim that he is within the jurisdiction for article 1 purposes, must also show that he is entitled to the benefit of all the Convention rights. It appears to me that this principle is primarily relevant in the territorial control context. One can understand that an applicant who claims that he is entitled to be regarded as within the jurisdiction of a member state on the basis that he was, at the material time, within the territory controlled by that state should be able to demonstrate that the state was in a position to deliver all the protections secured by the Convention. In that instance the capacity of the state (or its lack of capacity) to deliver that breadth of protection can be seen as a measure of the extent of its control of the territory. Having examined the cases of Drozd; X and Y v Switzerland (1977) 9 DR 57; Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99, 48209/99) (unreported) 14 May 2002, Lord Phillips suggests that they might be thought to support a general principle that there will be jurisdiction under article 1 whenever a state exercises legislative, judicial or executive authority which affects a Convention right of a person, whether or not he is within the territory of that state. He points out, however, that the Strasbourg court had not yet propounded such a principle. I agree that no principle in these precise terms has been articulated by the ECtHR but where the exercise of such authority is combined with control over the individual affected, it appears to me that the extra territorial extension of jurisdiction is undeniable. The essence of the decisions in Bankovic and Al Skeini is that an exception to the territorial basis for jurisdiction will be recognised where there is effective control of the relevant territory and its inhabitants by an occupying force. The rationale for the decision is surely the element of control. Where the occupying force supplants and replaces the power which had been wielded by the national authority, it provides, indeed imposes, its own jurisdiction. No particular magic attaches to the geographical dimension of this exercise of power it is the comprehensive nature of the power rather than the area where it is exerted that matters. Obviously, in those areas where the occupying force is unable to exert a measure of power that might be regarded as effective, its jurisdiction will not be established but that is a reflection of the restriction on the power rather than of geography. And so, where the control of an individual is of a sufficiently comprehensive nature as to qualify for the description, effective power, there is no reason in logic or principle that he should not be regarded as being within the jurisdiction of the state which wields that power over him. If a state can export its jurisdiction by taking control of an area abroad, why should it not equally be able to export the jurisdiction when it takes control of an individual? I agree with Lord Phillips that, despite some indications to the contrary, the case law of Strasbourg has not yet developed to the point of recognising a general principle that there will be jurisdiction under article 1 whenever a State exercises legislative, judicial or executive authority in a way that affects an individuals Convention right, whether that person is within the territory of that State or not. But where an individual is under the complete control of his native state while in foreign territory, I cannot see any reason that he should be regarded as being any less within its jurisdiction than individuals who happen to find themselves in a location in that territory which is under the effective control of the same state. And it appears to me that this position has already been recognised, albeit somewhat obliquely, by the ECtHR. In Issa v Turkey (2004) 41 EHRR 567 the court said at para 71: a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State. Lord Phillips suggests that this passage clearly advances state agent authority as an alternative to effective territorial control as a basis of article 1 jurisdiction. I agree. But, more significantly, it emphasises the importance of control (whether of territory or individuals) as the essential ingredient in extra territorial jurisdiction. That theme featured again in the recent decision of the Grand Chamber in Medvedyev v France (Application No 3394/03) judgment delivered on 29 March 2010. In that case a special forces team from a French warship boarded a merchant vessel which, it was suspected, was carrying drugs. After boarding the vessel, the French commando team kept the crew members of the merchant ship under their exclusive guard and confined them to their cabins during the rerouting of the ship to France. At para 67 the court said: the court considers that, as this was a case of France having exercised full and exclusive control (my emphasis) over the [merchant vessel] and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within Frances jurisdiction for the purposes of article 1 of the Convention. The exercise of control was obviously pivotal to the finding that the merchant ships crew were within the jurisdiction of France. That control had no geographical dimension, at least not before the vessel was returned to France. But the very fact that the crew members were under the control of the French authorities, even before they arrived in France, was sufficient to bring them within French jurisdiction for the purposes of article 1 of the Convention. If taking control of the crew members on the high seas is sufficient to bring them within the jurisdiction of France, it appears to me that where a state asserts and exercises exclusive control over the members of its own armed forces while they are in foreign territory, this must be an a fortiori instance of the extra territorial reach of the Convention. The prospect of the state owing article 2 obligations to its soldiers serving overseas is not the daunting one that the appellant in this case has portrayed. For the reasons explained by Lord Rodger in his judgment, the article 2 investigation conducted by means of a coroners inquest is not concerned with matters of policy or broad political decisions. The primary function of a coroners inquest is, as Lord Phillips has put it, to find facts rather than review policy. Lord Brown expresses concern that, if it is held that soldiers operating outside the espace juridique are within the jurisdiction for the purposes of article 1, Strasbourg will scrutinise a contracting states planning, control and execution of military operations to decide whether the states own forces have been subjected to excessive risk. I am afraid that, with great respect, I must disagree. The cases which prompted Lord Browns apprehension were Ergi v Turkey (1998) 32 EHRR 388, Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00) [2005] ECHR 129 and Isayeva v Russia (Application No 57950/00) [2005] ECHR 128. In the first of these cases, the Turkish security forces had set up an ambush in the vicinity of the village where the applicants sister lived, purportedly to capture members of the PKK. The applicant alleged that his sister had been killed by a bullet fired by members of the security forces in the course of an indiscriminate, retaliatory attack on the village, apparently carried out because the inhabitants had in the past harboured members of the PKK. Although the court felt unable to conclude that the applicants sister had been killed by a bullet fired by a member of the security forces or that the firing on the village was carried out in retaliation, as alleged, it decided that, even on the governments account of having laid an ambush for the PKK and having been involved in a fire fight with them, a violation of article 2 had been established. This was because insufficient precautions had been taken to protect the lives of the civilian population. It was also held that the investigation into the death was insufficient to satisfy the procedural requirements of article 2. Judgment in the second and third cases referred to by Lord Brown was delivered on the same day, 24 February 2005. In the earlier of these two cases the applicants alleged that they had been the victims of indiscriminate bombing by Russian military planes of a civilian convoy near Grozny. The attack took place while the applicants were on what had been designated a humanitarian corridor. It was found that a large number of civilian vehicles were in the convoy when the attack took place. It was found that, even assuming that the military were pursuing a legitimate aim, the operation had not been planned and executed with sufficient care for the civilian population. In the final case the applicant claimed that she and her family were the victims of an air bombardment by Russian forces while trying to flee their village in Chechnya. It was established that heavy free falling, high explosive bombs and other non guided heavy combat weapons were used in the centre and on the edges of the applicants village. The avowed justification for this was that the civilian population was being held hostage by a large group of Chechen fighters. No attempt had been made to evacuate the village in advance and no steps had been taken to minimise the risk of injury to the civilian population. A breach of article 2 was found. The facts of these three cases are very far removed from the hypothetical example given by Lord Brown of courts embarking on scrutiny of planning, control and execution of military operations to decide whether a states own forces have been exposed to excessive risk. Lord Brown acknowledges that Strasbourgs concern in these cases was essentially for the safety of civilians caught up in conflict. That is a very different matter from the safety of combatants in the course of a war. As Lord Rodger has said, deaths and injuries of soldiers in a combat situation are inevitable. There is no reason, in my view, to anticipate that a similar level of scrutiny to that suitable to the death of a civilian will be required or appropriate where a soldier has been killed in the course of military operations. In this context, I should say that I agree entirely with Lord Rodgers observations in para 126 of his judgment. It will often be possible to suggest, after an event, measures that could have been taken that might have reduced the risk to a particular soldier but that type of retrospective analysis is surely inapposite (and will be recognised by courts as such) to address the question whether a states obligations to its soldiers under article 2 have been discharged. The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations. I do not believe that the fear of tactical decisions taken in the field by military commanders being subject to painstaking dissection by the courts is justified or that it should deter this court from declaring that when our government commits our armed forces to wars in foreign territories, it cannot deny them the protection that the Convention affords. The second issue I have read and agree with the judgment of Lord Phillips in relation to the second issue. For the reasons that he has given, I would dismiss the appeal on this ground also. |
Any responsible organisation aims to combat discrimination on the grounds of disability or indeed any other characteristic protected by the Equality Act 2010 and will do so for the benefit of persons serving or wishing to serve as volunteers in the organisation no less than anyone else. But the present appeal is not about this moral imperative. It is about whether, under European and domestic law, discrimination against volunteers, or some categories of volunteer, on the grounds of disability is currently unlawful and if so how the relevant volunteers are to be defined. The appellant has both academic and practical qualifications in law. From 12th May 2006 she became a volunteer adviser for the respondent, the Mid Sussex Citizens Advice Bureau (the CAB). She did this after an interview in which it was explained that there would be no binding legal contract between her and the CAB. This was confirmed in her case by her signature of a volunteer agreement headed: This agreement is binding in honour only and is not a contract of employment or legally binding. The Employment Tribunal concluded that no legally binding contract came into existence, and the contrary is no longer suggested. The volunteer agreement stated it was hoped that you can give at least one and half days during basic training which can last up to nine months, following which the CAB would like you to offer at least 94 duty sessions per year, each session being usually three and a half hours. It recognised that due to changing personal circumstances this might not always be possible. It contained provisions relating to equal opportunities (stating that volunteers were expected not to discriminate against clients and colleagues and should feel that [they] are being treated by colleagues and the Bureau fairly and with respect), bureau practices, holidays, reimbursable expenses, retirement (stated to be normally at 70), and outside activities (asking that the manager be informed if a volunteer wished to stand for any elected public office and stating that campaign literature must not refer to experience as a CAB volunteer, but might merely state that he or she worked with an unspecified advice agency). The appellant completed her training period by November 2006. As a voluntary adviser she thereafter carried out a wide range of advice work duties, writing appeal submissions and case notes, undertaking specialist research, writing letters to third parties and giving legal advice to CAB clients. The CAB was deferential to her . expertise and she was given considerable autonomy in welfare advice work (see para 20 of the Employment Tribunal decision). She indicated her availability to volunteer on Tuesdays, Thursdays and Fridays, but because of health problems did not always attend and sometimes changed days. No objection was taken to this, and the CAB did not seek to control her hours or discuss her reliability. She was absent about 25% to 30% of the proposed times, and in practice attended between one and three days a week. The appellant claims that on 21st May 2007 she was asked to cease to act as a volunteer in circumstances amounting to discrimination against her on the grounds of disability. The CAB denies this claim, and there has been no adjudication upon its substance. The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal have held that the Employment Tribunal had no jurisdiction to hear her case, on the ground that she is, as a volunteer, outside the scope of the protection against discrimination on the grounds of disability intended to be provided under (at the relevant time) the Disability Discrimination Act 1995 and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (the Framework Directive). The appellant now appeals with permission of the Supreme Court. Her appeal is supported by the Equality and Human Rights Commission as first intervener. It is resisted by the CAB, which is supported in this by the Secretary of State for Culture, Media and Sport, as second intervener, as well as by the Christian Institute, as third intervener. In addition to the third intervener, other organisations associated with volunteering have written to the respondents solicitors to support the CABs case that volunteers are outside the scope of protection under the Act and Framework Directive, namely the Association of Chief Executives of Voluntary Organisations, Groundwork UK and Volunteering England. Their objections are that an opposite conclusion would undermine the nature of volunteering, create practical barriers and additional costs for charities and other organisations in which volunteering occurs, and result in a formalisation they believe is unwanted by most volunteers. The legislation The Disability Discrimination Act 1995 provided: in the arrangements which he makes for the purpose of 4 (1) It is unlawful for an employer to discriminate against a disabled person (a) determining to whom he should offer employment. (2) It is unlawful for an employer to discriminate against a disabled person whom he employs (a) in the terms of employment which he affords him; (b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit; (c) by refusing to afford him, or deliberately not affording him, any such opportunity; or (d) by dismissing him, or subjecting him to any other detriment. Before the Employment Tribunal and Employment Appeal Tribunal, the appellant placed some reliance upon section 4(1)(a). This failed because there was no particular link between volunteering and employment with the CAB, and, more fundamentally, it was not the purpose of the appellants volunteering with the CAB to determine whether it might offer her employment. Her principal case rested however on section 4(2)(d), which is the relevant clause for present purposes. Under section 68(1), employment means subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly. Accordingly, since the appellant did not have a contract, she does not on the face of it fall within the scope of the 1995 Act. In 2003 the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) were made under section 2 of the European Communities Act 1972, to give effect to the Framework Directive by adding various sections to the 1995 Act. These included sections 4D, covering certain categories of office holders some of whom would not have contracts or remuneration, and sections 6A and 7A, covering partners and barristers. The appellant does not fall within any of these categories either. The appellants case is that the analysis changes once regard is had to the Framework Directive. The Directive shows, she submits, that volunteers, at least volunteers in her position, were intended to be covered by the protection against discrimination on the grounds of disability required by European Union law. In these circumstances, the 1995 Act can and should be read as affording her the requisite protection, pursuant to the principle in Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135, by inserting the words an occupation, into section 68 of the 1995 Act (e.g. after the words subject to any prescribed provision in the definition of employment). Alternatively, the general principle of equality contained in article 13(1) of the Treaty establishing the European Community (TEC) (now replaced by article 19(1) of the Treaty on the Functioning of the European Union (TFEU)), taken in combination with the Framework Directive which was enacted to crystallise it, gives her a direct claim. In support of this alternative, she invokes the Court of Justices decisions in Mangold v Helm (Case C 144/04) [2005] ECR I 9981 and Kckdeveci v Swedex GmbH & Co KG (Case C 555/07) [2010] All ER (EC) 867. Article 13(1) TEC read: Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 19(1) TFEU is in similar terms (with the difference that the Council now acts unanimously in accordance with a special legislative procedure and after obtaining the consent of the Parliament). The Framework Directive commences with recitals, which include: (4) . Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation. (6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people. (7) The EC Treaty includes among its objectives the promotion of coordination between employment policies of the Member States. To this end, a new employment chapter was incorporated in the EC Treaty as a means of developing a coordinated European strategy for employment to promote a skilled, trained and adaptable workforce. (9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential. (11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. (12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. (16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability. (17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities. (20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources. (23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission. (27) In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons. (37) In accordance with the principle of subsidiarity set out in Article 5 of the EC Treaty, the objective of this Directive, namely the creation within the Community of a level playing field as regards equality in employment and occupation, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. In the light of these recitals, the Framework Directive provides: Article 1 Purpose The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. Article 2 Concept of discrimination [Defines the concept] Article 3 Scope 1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (a) conditions for access to employment, to self employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations. Article 16 Compliance Member States shall take the necessary measures to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished; (b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers and employers organisations are, or may be, declared null and void or are amended. Employment and occupation The appellant focuses on the Directives references to occupation in article 3(1)(a). This, she submits, is wide enough to cover her voluntary activity. She also argues that the reference to working conditions in article 3(1)(c) is wide enough to embrace both self employment and occupation. There is no single definition of worker under European law: Martnez Sala v Freistaat Bayern (Case C 85/96). But the Directive was intended to afford under article 13 TEC protection against discrimination on grounds paralleling that already provided on the ground of sex by directives made under article 141 TEC (now article 157 TFEU). That intention is stated in the Commissions original proposal for the Framework Directive (COM(1999) 565 final), fifth para of the introduction: The discriminatory grounds covered by this proposal coincide with those laid down by Article 13 of the Treaty with the exception of the ground of sex. Such an exclusion has a twofold justification. First, the appropriate legal basis for Community legislation on equal opportunities and equal treatment of men and women in matters of occupation and employment is Article 141 of the Treaty. Secondly, Council Directives 76/207/EEC and 86/613/EEC have already established the principle of equality of treatment between men and women in this field. It is therefore relevant to see how the concepts of worker and employment have been understood in the parallel context of the right to equal pay of male and female workers. In Allonby v Accrington & Rossendale College (Case C 256/01) [2004] ICR 1328, the Court of Justice said (para 66) that the concept of worker has a Community meaning and cannot be interpreted restrictively: But, it went on: 67. For the purposes of that provision, there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (see, in relation to free movement of workers, in particular Lawrie Blum v Land Baden Wrttemberg (Case 66/85) [1987] ICR 483, 488, para 17, and Martnez Sala, para 32). In Lawrie Blum v Land Baden Wrttemberg (Case 66/85) [1987] ICR 483 the Court said: 16. The concept of a 'worker' must be interpreted broadly: Levin v Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035). 17. That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. In later case law repeating the final sentence, the Court of Justice has expanded its explanation of the concept. As it said in Franca Ninni Orasche v Bundesminister fr Wissenschaft, Verkehr und Kunst Case 413/01, para 26: In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory (see, in particular, Levin Case 53/81, paragraph 17, and Meeusen Case 337/97, paragraph 13). The concept of self employment used in the Directive clearly refers to the rendering of services for remuneration in circumstances not involving or constituting employment. The concept of occupation has not however been examined in European law in the present or any other material context. The appellant submits that it embraces her position as a volunteer. She does not contend that all volunteers can or should be said to be in or have an occupation. Occupation is a protean word, which can, depending on context, cover a wide variety of activities associated with work or leisure. Volunteers also come in many forms, including the cheerful guide at the London Olympics, the charity shop attendant, the intern hoping to learn and impress and the present appellant who provided specialist legal services. The intern might well fall within article 3(1)(b), but, for like reasons to those which I have pointed out in para 8 above, the appellant did not. Hence, her invocation of article 3(1)(a). Before the Court of Appeal, the appellant advanced as a working definition of occupation that Occupation is the carrying out of a real and genuine activity which is more than marginal in its impact upon the person or entity for whom such activity is carried out and which is not carried out for remuneration or under any contract. Before the Supreme Court, she submitted in her Case that a pursuit or activity on which a person is habitually engaged can constitute an occupation, and to be occupied simply means to be busy or engaged on a pursuit or an activity and that the scope of the Directive includes persons who have an occupation which is not remunerated, so long as that activity is not merely marginal or simply the following of a hobby or lending of an occasional kindly hand, and/or (b) comes within the scope of the policy of the EU and UK legislation as something which, if excluded from protection, would create an unacceptable lacuna in the protection intended for workers. The Equality and Human Rights Commission adopted an analysis of the concept of occupation modelled on the analogy of remunerated work: the more obviously voluntary work is a substitute for or supplementary to paid work or creates opportunities for a business to develop and grow, the more its economic value and the more likely it should be seen as functionally isomorphic with or analogous to employment or self employment. Both the appellant and the Commission ultimately argued for a multi factorial assessment. They submitted that the factors pointing to a conclusion that the appellant had or was in an occupation included the training requirements, the regulation of her activity by the non binding agreement and its general supervision by the CAB, her expertise, the purpose of her activity (to give free high quality legal advice) and its key role in the operations of the CAB, the number of hours and days she gave, the potential advantages of her activity in equipping her for remunerative employment and the fact that she was providing her services alongside and, save for her unremunerated volunteer status, in large measure indistinguishably from others who were providing services on an employed basis. Analysis The common starting point is that the Framework Directive does not cover all activities. Its scope is defined in article 3, although this falls to be read against the background of the recitals. The Framework Directive sits within a complex of measures relating to discrimination, some with wider scope. In certain areas, notably colour, race or ethnic or national origins and sex discrimination, three sets of initiatives came at the United Kingdom level, two of them well before its membership of the European Union: first, the Race Relations Acts 1965 and 1968, relating to the provision of goods and services, employment, trade union membership and housing; second, the Equal Pay Act 1970; and, third, the Sex Discrimination Act 1975, relating to employment, education and the provision of goods, services and premises. The Race Relations Act 1976 replacing the 1965 Act extended to the same fields as the Sex Discrimination Act 1975. At the European level, Council Directive 76/207/EEC then addressed sex discrimination in the specific fields of access to employment, including promotion, and to vocational training and as regards working conditions and in principle (but subject to further Council legislation) social security (article 1). Article 3 explained the application of the principle of equal treatment as meaning that there should be no discrimination . on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts. Article 4 addressed the same principle with regard to access to vocational guidance and training, while article 5 addressed equal treatment with regard to working conditions. Council Directive 86/613/EEC extended the principle of equal treatment to those engaged in an activity in a self employed capacity, or contributing to the pursuit of such an activity (article 1). The Directive was thus stated (article 2) to cover self employed workers, i.e. all persons pursuing a gainful activity for their own account and their spouses, not being employees or partners, where they habitually . participate in the activities of the self employed worker and perform the same tasks or ancillary tasks. In 2000 the Framework Directive was issued, and in the same year article 3(1) of Council Directive 2000/43/EC (the Race Directive) prohibited discrimination on the grounds of racial or ethnic origin in relation to the same four fields, (a) to (d), as appear in article 3(1) of the Framework Directive. But in the Race Directive these were followed by four additional fields: (e) social protection, including social security and healthcare; (f) social advantages; (g) education; (h) access to and supply of goods and services which are available to the public, including housing. Council Directive 2002/73/EC replaced articles 3, 4 and 5 of Directive 76/207/EEC with a single reformulated article 3 applying the principle of equal treatment on grounds of sex in relation to the same four fields, (a) to (d), as appear in article 3 of the Framework Directive (with minor amendment of (c)). The four additional fields included in the Race Directive were not included in the newly formulated article 3 of Directive 76/207/EEC. The reformulated article 3 was explained by the Commission of the European Union in its report on the application of Directive 2002/73/EC (COM(2009) 409 final) as a limited expansion of the previous scope of Directive 76/207/EEC: Directive 2002/73/EC broadened the scope of Directive 76/207/EEC, in particular by prohibiting discrimination in the conditions governing access to self employment and membership of and involvement in workers or employers organisations or any organisations whose members carry on a particular profession, including access to the benefits such organisations provide (Article 3(l)(a) and (d)). The problems in transposing those provisions in some Member States have consisted mainly in a failure to include self employment and membership of and involvement in workers or employers organisations among the areas covered by the prohibition on discrimination. The Commission clearly did not have in mind voluntary activities as falling within the scope of the reformulated article 3, and the same must apply to the (for all material purposes) identically worded article 3 of the parallel Framework Directive. Finally, Directive 76/207/EEC was replaced in its entirety by Directive 2006/54/EC, article 14 of which prohibited discrimination on the grounds of sex in identical terms to the reformulated article 3 which had been inserted into its predecessor Directive 76/207/EC by Directive 2002/73/EC. The conclusion to be drawn from this series of measures is that their scope was carefully defined, differing according to context and being reconsidered and amended from time to time. A further illustration of this is the Commissions proposal in 2008 (COM(2008) 426 final) for a new Directive extending the principle of equal treatment in the context of religion or belief, disability, age or sexual orientation to areas other than in the field of employment and occupation (Article 1) and in particular to cover the four additional fields, (e) to (h), covered by the Race Directive (para 25 above) but not presently covered by the Framework Directive. This proposal has not at least yet been acted on. Secondly, it is an important strand of the case advanced by the appellant and the Equality and Human Rights Commission that the concept of occupation must be understood as operating alongside and at the same level as employment and self employment; and that, accordingly, it must envisage voluntary work. But the reference to occupation must be viewed in context. It is part of a clause, article 3(1)(a) of the Framework Directive, dealing with conditions for access to employment, self employment or occupation whatever the branch of activity and at all levels of the professional hierarchy, including promotion. There are many areas in which a professional qualification of some nature or other is either required or advantageous, or a restrictive condition requires to be satisfied, if a worker is to undertake particular work or to advance in a particular sphere, whether as an employee or on a self employed basis. They range from, for example, qualification as a doctor or lawyer to possession of a heavy goods vehicle licence. In Hashwani v Jivraj [2011] UKSC 40, [2011] 1 WLR 1872, para 49, Lord Clarke accepted a submission that the expression access . to self employment or to occupation means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator. It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business. That would not be denying them access. to self employment or to occupation. That analysis remains in my view correct. The reference to access . to occupation contemplates as in the present case Burton J (para 33) and Elias LJ (paras 61 62) also thought access to a sector of the market, rather than to particular employment or self employment; in that sense, it covers at a higher level the latter two concepts. The word occupational in recital 23 is also used in an umbrella sense, as covering differences in treatment justified in relation to either employment or self employment. Once the word occupation is understood in this sense, there is no imperative, and it would indeed be contradictory, to treat the concept of occupation as operating at the same level as employment and self employment, or as envisaging voluntary activity. It is true that there is, on this basis, a degree of overlap with article 3(1)(d), dealing with membership of and involvement in an organisation of workers or employers or whose members carry on a particular profession, but this clause by no means covers the whole area of qualifications for or restrictions of access to employment or self employment. The appellant and the Equality and Human Rights Commission submit that a different picture emerges when regard is had to other original and equally authoritative language versions of the Framework Directive, particularly the French, article 3(1)(a) of which reads: les conditions daccs lemploi, aux activits non salaries ou au travail, y compris les critres de slection et les conditions de recrutement, quelle que soit la branche dactivit et tous les niveaux de la hirarchie professionnelle, y compris en matire de promotion; This uses the phrase ou au travail for or to occupation. I do not regard that as in any way suggesting that voluntary activity was to be covered. On the contrary, in the French version of the Commission of the European Communitys proposal for the Framework Directive (COM(1999) 565 final), the explanation given of the scope of draft article 1 (en ce qui concerne laccs lemploi et au travail, y compris la promotion, la formation professionnelle, les conditions demploi, et laffiliation certaines organisations) is that Cet article identifie les domaines rgis par la proposition, savoir laccs un emploi ou profession, la promotion, la formation professionnelle, les conditions de travail et laffiliation certains organismes. Travail and profession are thus equated. In the Spanish and Dutch versions, the phrase or to occupation appears as y al ejercicio profesional and en tot een beroep, referring to a profession or professional activity. In the German, article 3(1)(a) reads simply (and inconsistently with the suggestion that voluntary activity was contemplated): die Bedingungen einschliesslich Auswahlkriterien und Einstellungsbedingungen fr den Zugang zu unselbstndiger und selbstndiger Erwerbsttigkeit, unabhngig von Ttigkeitsfeld und beruflicher Position, einschliesslich des beruflichen Aufstiegs. This translates as The conditions including selection criteria and recruitment conditions for access to dependant [employed] as well as independent remunerative activity, whatever the branch of activity and professional position, including promotion. A third point, linked with the second, is that, if there had been any intention that the Framework Directive should apply to voluntary activity, one would have expected the concept of occupation to have been carried through expressly into article 3(1)(c), dealing with employment and working conditions, including dismissals and pay. Similarly, a number of the Directives further recitals focus on employment without reference to occupation or to any other term apt in context to cover voluntary activity: see e.g. recitals (7), (11) and (17). It is true that article 3(1)(c) also omits any reference to self employment, but the Directive may well not have envisaged that there could be discrimination in relation to working conditions, including dismissals and pay with regard to a self employed person. The omission of any reference to voluntary workers, if they were intended to be protected against dismissal on discriminatory grounds, is however quite striking. This is notwithstanding the fact that in Meyers v Adjudication Officer (Case C 116/94) [1995] ECR I 2131 the Court of Justice held that a social security benefit designed to keep low income workers in employment or to encourage them into employment was within the scope of Directive 76/207/EC, not only as being directly related to access to employment, but also on the basis that the claimants working conditions were affected. The Court said (para 24) that: To confine the latter concept solely to those working conditions which are set out in the contract of employment or applied by the employer in respect of a worker's employment would remove situations directly covered by an employment relationship from the scope of the directive. However, this was said in a context where there was a contract of employment for reward, and does not suggest that the words employment and working conditions in article 3(1)(c) cover situations of purely voluntary activity. Fourthly, the phrase employment and occupation is carried through into article 1 of the Framework Directive from the title to the Directive and then from various recitals, starting with recital 4 which refers to Convention no. 111 of the International Labour Organisation prohibiting discrimination in that context. The preamble to Convention no. 111 refers in turn to a meeting of the General Conference of the ILO in Geneva at its 42nd Session on 4 June 1958. That meeting addressed such discrimination and it led to Report IV(1). An appendix to the Report discussed the internationally accepted meanings of certain terms, including employment and occupation, and the need to refer to occupation at all, in the following terms: It has been argued that there is an overlap in this title in that occupation is only a specific aspect of employment. However, it is clear that the intention of the [UN] Subcommission was to direct special attention to an important aspect of the subject, namely discrimination affecting the individuals free choice of occupation. For this reason there appears to be value in retaining the words and occupation and the Conference Committee rejected an amendment to delete these words. Considerable attention to terminological concepts such as employment and occupation has been given by successive International Conferences of Labour Statisticians and the summary of their more recent conclusions on these points may be of guidance to governments. At the Eighth International Conference of Labour Statisticians it was decided that persons in employment included all persons above a specified age who were at work and that the phrase at work included not only persons whose status was that of employee but also those whose status was that of worker on own account, employer or unpaid family worker. The meaning attached by the Seventh International Conference of Labour Statisticians to the word occupation was the trade, profession or type of work performed by the individual, irrespective of the branch of economic activity to which he is attached or of his industrial status. It will be seen, therefore, that at the international level both words have a comprehensive meaning and that they apply to all persons at work. It appears in connection with this subject that this would coincide with the original views of the [UN] Subcommission when the ILO was invited to deal with the subject. The reference in the third of these paragraphs to the unpaid family worker derived from an expanded definition of employment which specifically included unpaid family workers currently assisting in the operation of a business or farm if they worked for at least one third of the normal working time during the specified period (see ILO: Eighth International Conference of Labour Statisticians (1954), p 43). This specific, but very limited, extension to unpaid workers, and the language of the appendix as a whole, demonstrate a clear intention not to embrace volunteers generally. The main text of Report IV(1) addressed a proposal to delete any reference to occupation, by recording that The Representative of the Secretary General explained that the purpose of the use of the two words employment and occupation in the description of the subject was to stress that it was not enough to ensure non discrimination in access to employment but was also necessary to ensure the individual a free choice of occupation; it had been the intention of the Office to include self employed workers since it would hardly seem right for a Convention to deal solely with the elimination of discrimination in access to wage earning employment and not give to workers wishing to be self employed any protection against laws, regulations or practices arbitrarily preventing them from doing so. Fifthly, the Commissions original proposal and the annexed impact assessment (COM(1999) 565 final) which led ultimately to the Framework Directive were focused exclusively on situations of employment or self employment, and did not consider or address voluntary activity in any shape or form. The Commission, at para 4, in explaining that the legal base was Article 13 TEC, added: The fact that the material scope of the provisions planned covers not only salaried employment but also self employment and the liberal professions and that its scope rationae [sic] personae is not limited to persons excluded from the labour market, excludes recourse to Article 137 (2) of the Treaty. Under the Commissions original proposal, article 3(1)(a) (Material scope) would have read: This Directive shall apply to: (a) conditions for access to employment, self employment and occupation, including selection criteria and recruitment conditions, whatever the sector or branch or activity and at all levels of the professional hierarchy, including promotion; In the impact assessment, the proposals impact was analysed under only three heads: (a) on employment? (b) on investment and the creation of new businesses? and (c) on the competitive position of companies? Under the second head, the response was that The Directive will ease the conditions for access to employment and occupation, salaried employment, self employment and liberal professions. Consultation was with the representative organisations of the European level social partners and the European Platform of social non governmental organisations. All these are recorded as having recognised the importance of the issue and the need for a legislative approach, with different points of view being recognised on some elements. Only European Platform members regretted the limitation to employment and occupation, and it seems improbable that even they had in mind voluntary activity. Had the consultation or assessment covered voluntary activity, the particular concerns which voluntary organisations have expressed before us about the impact of legislation in this field would no doubt have been identified and the subject of close attention. Sixthly, however, the European Parliament did during the consultation process which preceded the making of the Framework Directive propose amendments to article 3(1)(a), to make it refer to: (a) conditions for access to employment, unpaid and voluntary work, official duties, self employment and occupation, including selection criteria and recruitment conditions, finding of employment by public and private employment agencies and authorities, whatever the sector or branch of activity and at all levels of the It gave as the justification that: professional hierarchy, including promotion; (added words italicised) Official duties, unpaid and voluntary work should likewise fall within the scope of this directive. It would not be right for official (i.e. public) duties to become a separate field of application: they should be covered by the definition of the term employment. (A5 0264/2000 final, p 20) The Commission decided to amend its proposal to take up the Parliaments suggestion (COM/2000/652 final), though with slight differences, in a form according to which article 3 would have read: This Directive shall apply to all persons in both the public and private sectors, including public authorities, with regard to: conditions for access to employment, self employment and (a) occupation, unpaid or voluntary work including selection criteria and recruitment conditions, whatever the sector or branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (added words italicised) In an Explanatory Memorandum, the Commission described such amendments as involving: Clarification of the material scope of the proposal, indicating that it covers both the public and private sectors, including public authorities. It is also stated that the proposal also applies to unpaid or voluntary work and practical training . In the event, however, the Council, while substantially accepting (with a qualification and some verbal reformulation) the amendment to the opening words and while accepting the addition to article 3(1)(b), notably did not accept the addition to cover unpaid or voluntary work. The Equality and Human Rights Commission suggests that was because that addition was a mere unnecessary clarification. That is a misreading of the Commissions Explanatory Memorandum, where clarification is a word used only in relation to the proposed amendment of the opening words of article 3. Further, it is not credible to suggest that the reason for the Councils failure to adopt the one proposed alteration in this area which it did not adopt is that it regarded the addition of the words unpaid or voluntary work as unnecessary and intended that, without them, the Directive would cover voluntary activity. The appellants and the Equality and Human Rights Commissions current case thus runs contrary to a deliberate choice made by the relevant European legislator. Seventhly, and linking with the sixth point, the Commission has kept the implementation in national legal systems of the Framework Directive under review, but never suggested that the United Kingdom or any Member State has failed properly to implement this by failing to include voluntary activity. As regards the United Kingdom, the only points identified in the Commissions reasoned opinion of 20 November 2009 (IP/09/1778) relate to the absences of any clear ban on instruction to discriminate and of a clear appeals procedure in the case of disabled people and to the breadth of exceptions to the principle of non discrimination on the basis of sexual orientation for religious employers. The general significance of volunteering is however a matter of which any European institution must be well aware. The years 2001 and 2011 were International Years of Volunteers; the Opinion of the Economic and Social Committee on Hospice work an example of voluntary activities in Europe (2002/C 125/07) contained extensive general references to voluntary work, described as a major force in shaping social solidarity and participative democracy; the same Committees Opinion on the European Year of Volunteering 2011 (2010/C 128/150) suggested (para 4.1.1) a need for a legal framework . to secure the infrastructure required for voluntary work at local, regional, national and European level and to make it easier for people to get involved, without any suggestion that such a framework already existed in the field of discrimination; and in para 4.5 it added that The European Year of Volunteering 2011 should not blur the difference between paid employment and unpaid voluntary activity, but rather seek to show how both are mutually reinforcing. Eighthly, as I have indicated, neither the appellant nor the Equality and Human Rights Commission suggests that all voluntary activity is covered by the Framework Directive. A multi factorial test would lead to uncertainty and disputes, and, had some but not all voluntary activity been intended to be covered, the Directive would surely have given some indication as to where the line should be drawn. The bare term occupation was not only used for a different purpose, as I have indicated; it would have been inadequate for the purpose of distinguishing between voluntary activities within and outside the grasp of the Directive. Finally, I must address a submission made by the Human Rights Commission praying in aid the Court of Justices bold interpretative approach to Regulation (EC) No 261/2004 of 11 February 2004 in Sturgeon v Condor Flugdienst GmbH (Joined cases C 402/07 and C 432/07) [2009] ECR I 10923 and in Nelson v Deutsche Lufthansa AG and TUI Travel plc v Civil Aviation Authority (Joined cases C 581/10 and C 629/10) (unreported) 23 October 2012. Those cases concerned the position of air passengers whose flights were delayed for long periods, rather than cancelled. The Regulation provided in terms for financial compensation only in relation to cancellation (and then only if any re routing offered involved a delayed arrival at destination of more than two to four hours, depending on the length of scheduled flight): see article 5 read with article 7. Delay in terms only entitled passengers to certain assistance: see article 6 read with articles 8 and 9. Notwithstanding this, the Court of Justice said that passengers subject to delays involving arrival at destination more than two to four hours late, depending on the length of the scheduled flight, were in a comparable position to passengers whose flights were cancelled, and must be given equivalent financial compensation. It did this however with reference to the Regulations explanatory recitals and as a matter of interpretation, and on the express basis that such an interpretation does not disregard the EU legislatures intentions: Nelson and Tui, para 65. In the present case, those in remunerated work and volunteers are not in comparable positions, and it would contradict the European Union legislatures intention to treat the Directive as intended to cover volunteers. All these considerations, and particularly the first seven, combine in my opinion to lead to a conclusion that the Framework Directive does not cover voluntary activity. A reference to the Court of Justice? The appellant and the Equality and Human Rights Commission submit that the correctness of any such conclusion is at the least open to reasonable doubt, and that it is incumbent on this Court, as the final United Kingdom court, to make a reference to the Court of Justice for a ruling, pursuant to the principles stated in CILFIT Srl v Ministry of Health (Case 283/81) [1982] ECR 3415 and reiterated in Junk v Khnel (Case C 188/03) [2005] ECR I 885. We were reminded that the only relevant exception to making a reference contemplated under these principles was identified in CILFIT in these cautionary terms: 16 Finally, the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it. 17 However, the existence of such a possibility must be assessed on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise. 18 To begin with, it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions. The question is however whether there is scope for reasonable doubt, and, when the possibility is suggested that other national courts or tribunals may not find a particular conclusion obvious, the starting point, consistent with the principle of mutual trust between different national jurisdictions which is fundamental in European law, is that other national courts will not entertain unreasonable doubts or arrive at an unreasonable conclusion. Whether a conclusion is open to reasonable doubt must, however, be assessed having regard not only to all relevant characteristic features of European law, but also to the different and equally authoritative language versions in which the relevant measure has been enacted. In my opinion, there is no scope for reasonable doubt about the conclusion that the Framework Directive does not cover voluntary activity. The position having regard to the English language material is clear. None of the other language versions to which the Court was referred throw any doubt on this conclusion. On the contrary, they reinforce it. Reference was made to two recommendations of the French equivalent of the Equality and Human Rights Commission, the Haute Autorit de Lutte contre les Discriminations et pour lEgalit (HALDE). Both were issued by HALDEs president, M Louis Schweitzer. In the first, Ruling 2007/117, HALDE treated the exclusion of eight mothers from taking part in educational and/or school trips because they wore the hijab as covered by the Framework Directive. It based this firstly on article 9(2) of the European Convention on Human Rights but, secondly, also on a statement (in translation) that: . EC directive 2000/78 covers the conditions governing access to employment, non salaried activities or work. By means of this expression the Community legislator sought to prohibit any discrimination based on religion or convictions, and in particular with regard to access to unpaid or voluntary activities. In the second, Ruling 2009/24, HALDE addressed the situation of a 41 year old member of the public, who was refused permission to appear as a contestant in a TV singing contest to identify new young talent on the grounds that the competition rules restricted entrants to those under 34. According to the Ruling the French legislator had by means of law no. 2008 496 of 27 May 2008 given effect to the requirement under the Framework Directive to combat discrimination by providing that any discrimination, direct or indirect, based on . age .is forbidden . in the area . of work, including casual/self employed or non salaried work . . HALDE, after saying that this law must be interpreted in light of the Framework Directive, continued (in translation): Now, according to the preparatory work [travaux prparatoires], the Community legislator understood the term work [travail] in a broad sense, in order to cover salaried activities, non salaried and casual/self employed activities and voluntary activities. HALDEs two Rulings are not reasoned beyond this brief explanation. As I have indicated (paras 37 to 41 above), the travaux prparatoires in fact lead to an opposite conclusion to that which HALDE suggested. We were told by Mr Robin Allen QC on behalf of the Equality and Human Rights Commission that HALDEs recommendations that there had been unlawful discrimination were in each case accepted by the relevant Ministers to whom they were addressed. But any steps which may have been taken in that respect, about which we have no information, cannot inform the true meaning of the Directive. HALDEs two Rulings cannot carry any greater weight in the construction of the Directive than the Equality and Human Rights Commissions submissions before us. Both are entitled to serious consideration, but for the reasons given I am not persuaded that either demonstrates any scope for reasonable doubt about the true meaning and effect of the Directive. The appellant also referred to Belgian Laws aimed at combating discrimination, one dated 25 February 2003 (Moniteur belge, 17 March 2003, p 12844) and the other replacing it dated 10 May 2007 (Moniteur belge, 30 May 2007, p 29031). The former was stated to cover: les conditions daccs au travail salari, non salari ou indpendant, y compris les critres de slection et les conditions de recrutement, quelle que soit la branche dactivit et tous les niveaux de la hirarchie professionnelle, y compris en matire de promotion, les conditions demploi et de travail, y compris les conditions de licenciement et de rmunration, tant dans le secteur priv que public; la nomination ou la promotion dun fonctionnaire ou laffectation dun fonctionnaire un service; la mention dans un pice officielle ou dans un procs verbal; laccs, la participation et tout autre exercice dune activit conomique, sociale, culturelle ou politique accessible au public. The provision relating to access does not on its face cover volunteers. Neither the appellant nor the Equality and Human Rights Commission suggests on the present appeal that voluntary activities are covered by the words in the French version of the Framework Directive daccs . aux activits non salaries . However, an informal English translation on the website of the Centre pour lgalit des Chances et la Lutte contre le Racisme, the Belgian equivalent of the Equality and Human Rights Commission, translates conditions daccs au travail salari, non salari ou independent as conditions for access to gainful, unpaid or self employment. We were not shown any authority substantiating this translation, but, whatever the position in that regard, it is also clear from the extract above that the law of 2003 goes in some respects wider than the Framework Directive. Despite this, the Belgian law of 2003 attracted some adverse comment from the European Commission and was replaced by the law of 2007 which had the overt aim of both transposing as well as going substantially wider than the Directive in various respects. The relevant Projet de loi of 26 October 2006 (Doc 51 2722/001) stated that Belgium a affich de grandes ambitions en matire de lutte contre la discrimination et sest place lavant garde des tats europens en la matire. Article 5.2 of the 2007 law identifies its scope as being: En ce qui concerne la relation de travail, la prsente loi s'applique, entre autres, mais pas exclusivement, aux : 1conditions pour l'accs l'emploi, y compris entre autres, mais pas exclusivement : les offres d'emploi ou les annonces d'emploi et de possibilits de promotion, et ceci indpendamment de la faon dont celles ci sont publies ou diffuses; la fixation et l'application des critres de slection et des voies de slection utiliss dans le processus de recrutement; la fixation et l'application des critres de recrutement utiliss lors du recrutement ou de la nomination; la fixation et l'application des critres utiliss lors de la promotion; l'affiliation en tant qu'associ des socits ou associations de professions indpendantes. Nothing in this text expressly covers voluntary activity, but the Projet de loi stated that: Le champ dapplication ne vise pas seulement le travail salari, mais galement le travail indpendant et le bnvolat. The appellant is therefore correct in submitting that, in the context of the law of 2007, the word travail appears to have been considered sufficiently broad to apply to volunteers. However, bearing in mind that the Belgian legislation goes substantially wider than the Framework Directive, this sheds no real light on the actual scope of the Framework Directive or on the attitude which a Belgian court, if the point could ever arise before one, would take to this. It was also suggested that the United Kingdom had regarded the scope of the Directive as extending to certain voluntary activities, by virtue of the amendments which were made by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 introduced under the European Communities Act 1972 to cover office holders generally and practical training. The latter (practical training) is however explained (as the governments explanatory notes at the consultation process explained it: para 128) by article 3(1)(b) of the Directive. But the former (office holders) does include persons not working for remuneration or under contract, and so goes beyond the scope of the Directive as I have interpreted it. Section 2(2)(b) of the 1972 Act permits provision for the purpose of dealing with matters arising out of or related to any such obligation or rights [i.e. European Union obligations of the United Kingdom and rights to be enjoyed under or by virtue of the European Union Treaties] . It is unnecessary to go into the question how far this justifies regulations generally or the present regulation regarding office holders which go beyond the strict scope of European legal requirements. Suffice it to say that it is certainly not unusual for regulations to go beyond such requirements, and that it is in any event clear that no inference can be drawn that the United Kingdom thought that the Directive applies generally to voluntary activity. The regulations were, on the contrary, accompanied by an explanatory booklet, issued by the Minister for Women, Barbara Roche, stating (para 24) that Unpaid volunteers will not be covered. Conclusions It follows that I do not regard this as a case in which a reference to the Court of Justice is either required or appropriate, and I would dismiss this appeal from the concurrent decisions below on the ground that, leaving aside the subject matter of guidance, training and work experience covered by article 3(1)(b), article 3 is not directed to voluntary activity. It is in these circumstances unnecessary to go into the interesting questions which would have arisen, had I concluded that article 3(1) did generally cover voluntary activity. Assuming (without expressing any view) that the principle in Marleasing would not have assisted the appellant, because of the unequivocal stance taken by Parliament in section 68 of the Disability Discrimination Act 1995, the question would still have arisen whether the principle in Mangold might not have been extended to protect the appellant (see para 11 above). That question might well have required to be referred to the Court of Justice. That need does not however, in the event, arise. The appeal falls accordingly to be dismissed as stated in para 57 above. |
This challenge to the making of a care order, made with a view to the childs adoption, requires the court to consider (a) (b) (c) aspects of the threshold to the making of a care order set by section 31(2) of the Children Act 1989; the application to the decision whether to make a care order of the requirement under article 8 of the European Convention on Human Rights 1950, the Convention, that the nature of any interference with the exercise of the right to respect for family life should be proportionate legitimate aim, the proportionality requirement; and, perhaps in particular, the boundaries beyond which it is wrong for this court, or any other appellate court, to set aside the grant or dismissal by a trial judge of a local authoritys application for a care order. The mother, M, supported by the father, F, with whom she lives, appeals against an order of the Court of Appeal (Rix, Black and Lewison LJJ) dated 14 November 2012. By its order, the Court of Appeal dismissed Ms appeal against an order made by HHJ Cryan in the Principal Registry of the Family Division dated 14 June 2012. By his order, the judge made a care order in relation to the daughter of M and F upon the basis of a care plan that she should be placed for adoption. Amelia (being the name which Lady Hale proposes that we should attribute to the daughter) was born in April 2010 so is now aged three. At birth she was placed with a foster mother on what was intended to be a short term basis; she remains living with her pending the determination of this appeal. M is aged 42 and F is aged 45. The applicants for the care order are the London Borough of Barnet, where the parents were living when Amelia was born. Since then they have moved to Islington. M and F each have other children. M has another daughter, aged 14, whom, in accordance with Lady Hales proposal, I will call Teresa and with whom M has no contact. F has four other daughters aged between 17 and six. They live with their mother; F has an amiable relationship with them but, for reasons which I will explain in para 15 below, his has not been a stable or responsible presence in their lives and, on a practical level, his involvement with them has been marginal. Teresas father is Ms step father, Mr E, with whom M lived for many years. In 2010, following her separation from him, M applied for a residence order in relation to Teresa. It was in that application that Judge Cryan first became acquainted with the family. He conducted a fact finding hearing over 20 days which led in April 2011 to his handing down a judgment of 180 paragraphs. The relevant local authority, West Sussex, thereupon issued care proceedings in relation to Teresa, in which the judge conducted three further substantial hearings. With Ms support, he ordered the removal of Teresa from the home of Mr E into foster care, where she remains. The hearing which led to the making of the care order in relation to Amelia also proceeded for 20 days and led to the judgment under challenge, which extends to 203 paragraphs. It follows that, in arriving at his conclusion that it was not safe for Amelia to be placed with the parents and that it was necessary in her interests that she should be adopted, Judge Cryan drew on extensive exposure to the problems of the family. Indeed the extent of it is beyond my own experience of service for 12 years in the Family Division. M scarcely challenged the judges findings of fact in the Court of Appeal; and her challenge to them in this court is, inevitably, so faint that there is no need to add to the reasons which Black LJ gave for rejecting them in her judgment in the Court of Appeal, [2012] EWCA Civ 1475, at paras 133 to 136. What follows represents as brief a summary as possible of the facts found by Judge Cryan. Greater detail is to be found in the judgment of Black LJ. THE FACTS M is the victim of grave misfortune. Her life has been hugely dysfunctional. In 1975, when she was aged four, the marriage of her parents broke down and, with her sisters, she moved to live with her grandparents. Several years after her mothers marriage to Mr E in 1977, M and her sisters moved to live with them. The family was enlarged by the birth of two sons born to Ms mother by Mr E in 1985 and 1986. Mr Es influence on the family in general, and on M in particular, was malign in almost every sense. He is egocentric; aggressive; domineering and dishonest. By 1986, although married to her mother, Mr E was having sexual relations with M, then aged 15; in that year she became pregnant by him and had an abortion. Prior to 1999, when she gave birth to Teresa, M was to have six further abortions consequent upon her relationship with him. Mr E also inflicted grave and protracted physical abuse on one of Ms sisters. When in 1989 the family went to live in Greece, of which Mr E was a citizen, they left the sister behind. In due course the sister was taken permanently into care. Meanwhile the family had returned from Greece. In 1990 Ms mother left Mr E. For the following 19 years the family in effect comprised Mr E, M, her two half brothers and, once born, Teresa. On numerous occasions until 2002, when they settled in West Sussex, the family moved home. In the early years, when the half brothers were still minors and prior to the birth of Teresa, local authorities and police forces became concerned about their safety at the hands of Mr E; and for a month in 1997 they were taken into care. In 2003 M was found guilty of a series of frauds, which had yielded 30,000 and for which she was sentenced to imprisonment for two years. Her defence had been that the prosecuting officer had conspired with a man who had allegedly raped one of her half brothers to present a false case against her. In this regard she was later found guilty of attempting to pervert the course of justice and sentenced to a further term of 27 months. Judge Cryan found that, in perpetrating the frauds and concocting the false defence, she had been heavily influenced by Mr E. Nevertheless the convictions, the gravity of which was reflected in the sentences passed upon her in respect of them, represent the first example of conduct on the part of M which, taken together, was to lead the judge to describe her as an habitual and purposeful liar. For the purposes of her second criminal trial Ms solicitors invited a consultant psychiatrist, Dr Taylor, to assess her fitness to plead. His conclusion was that she was fit to do so; but, following examination of her extensive medical records, he concluded that she suffered from a somatisation disorder. This is a chronic psychiatric disorder, of which the main features are multiple complaints about physical symptoms and requests for medical investigations in circumstances in which, if organic disorder is present at all, it fails to account for the symptoms or for the extent of the sufferers pre occupations. In short it is a condition which drives the sufferer to misuse physical symptoms in order to elicit care from others or for other purposes. For use in the proceedings before Judge Cryan, another consultant psychiatrist, Dr Bass, was instructed to appraise Ms psychological condition in the light of her more recent medical records. Dr Bass, who has considerable expertise in this area, confirmed Dr Taylors diagnosis that M suffers a somatisation disorder; and in effect it became an agreed fact. But, as I will explain in para 17 below, Dr Bass went further. While investigating the allegations of fraud against M, the police discovered paedophilic images in a computer in the family home. Mr E contended that the police had planted them there. In 2004 Mr E complained to the General Medical Council that the family GP had sexually assaulted one of the half brothers, then aged 18. The complaint was dismissed. Following her ultimate release from prison in 2004, M made various complaints to probation officers, hospitals and social workers that Mr E was abusing her physically and sexually. By June 2009 her life in the home had become intolerable and she left. She did not take Teresa with her; no doubt Mr E would not have allowed her to do so. In effect it marked the end of her relationship with Teresa who, under Mr Es influence, has refused to have any further dealings with her. Judge Cryans conclusion was that, within her long relationship with Mr E, M could fairly be regarded as his victim but that her role had not been entirely inert and that she had actively conspired with him in the many lies, deceptions and false accusations which had been generated in the household. In the summer of 2009 M met F. They began a relationship which continued following Ms move to Barnet late in 2009; but they did not fully cohabit until late in 2011. F has a long criminal history and has spent about 15 years of his adult life in prison. He was convicted of 52 offences between 1980 and 2008. Some related to drugs; some included violence but most were offences of dishonesty. In the 1990s he sustained three convictions for robbery, for each of which he received sentences of imprisonment of between two and three and a half years. In 2001 he was sentenced to four years for burglary. In 2007 he was sentenced to three years for further burglary; and the pre sentence report recorded his admission of a crack cocaine habit and of the occasional use of heroin. But, following his release on licence in May 2009, F has sustained no further convictions. For the first year following his release he was subjected to regular drug tests, of which two proved positive. At a hearing in June 2010 into whether an interim care order in relation to Amelia should be continued, F refused a judges invitation to submit strands of his hair to drug testing; and he later announced that Barnet could kiss [his] arse when they next wanted to test him. Ultimately, in July 2011, he underwent a test which showed use of cannabis but not of Class A drugs; and there was no evidence before Judge Cryan that, although admitting to the continued use of cannabis, F was then also using Class A drugs. I turn to an important part of the history which, it is clear, made Judge Cryans decision particularly difficult. It relates to the amount and quality of the contact which M and F have had with Amelia following her removal, at birth, into care. From May 2010 until the judges decision in June 2012, contact took place under supervision for one and a half hours on five days a week; since the decision it has taken place for the same duration on three days a week. M and F have been assiduous in attending, in effect, all the periods of contact; and the supervisors reports of its quality have been uniformly positive. The judge found that: (a) The most striking feature of the relationship between the parents was the strength of their united wish that Amelia should be placed in their care. (b) They had put a massive effort into making a success of the periods of contact. (c) They were devoted to Amelia. (d) They each had a warm and loving relationship with her. (e) During contact periods they had not put a foot wrong and had given her child centred love and affection in spades. It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond abnormal personality traits and in addition to, and more significantly than, her somatisation disorder, M suffers a factitious disorder of mild to moderate intensity. This is a related psychiatric disorder in which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories. There is therefore a deceptive dimension to the disorder which was replicated in a mass of other evidence before the judge, unrelated to Ms medical condition, which raised questions about her ability, and for that matter also the ability of F, to behave honestly with professionals. Dr Bass stressed that Ms psychiatric disorders required psychotherapy which might last for a year and which could be undertaken only if she were to acknowledge the problems and to engage honestly with the therapist. THE JUDGES CONCLUSIONS There was debate before Judge Cryan about the effect on Amelia of being placed in the care of M in the event that she was to continue to suffer somatisation and factitious disorders. In the event the judge found that there were risks that she would suffer harm in that regard. They were that M might present Amelia for medical treatment, and, worse, that she might receive medical treatment which was unnecessary; and that in any event Amelia might grow up to believe that the way in which M presented herself for treatment was appropriate and might model herself on it. But Judge Cryans concerns went far wider than that. It was his wider concerns which drove him to the key conclusion that it was not safe for Amelia to be placed with the parents. The wider concerns related to the mass of evidence that each of the parents was fundamentally dishonest, manipulative and antagonistic towards professionals. The expert evidence before the judge as to whether Amelia could safely be placed with the parents was in conflict: Ms Summer, of Marlborough Family Service, and Dr Bass both agreed with Barnet that she could not safely be so placed. Dr Dale, who has a background in social work and is not a medical doctor, suggested otherwise; and the Childrens Guardian, whose contribution, constrained by lack of resources at CAFCASS, was described by the judge as superficial and who sadly died within weeks of the hand down of his judgment, agreed with Dr Dale. But, importantly if inevitably, all the experts agreed that Amelia could not conceivably be placed in the care of the parents other than pursuant to a programme of multi disciplinary monitoring and support, which could be implemented only in the event of honest cooperation on the part of the parents. It was, in particular, their cooperation with the local authority which was described by Dr Taylor as very important and by Dr Bass as critical. The judges key conclusion was that their honest co operation with professionals would not be forthcoming; and his subsidiary conclusion was that it might in any event be damaging for a child to grow up in a household permeated by dishonesty and animosity towards professionals in that she would find such attitudes confusing even assuming that she did not find them attractive. It would not be usual, at this level, to descend into the mass of evidence by reference to which Judge Cryan sought to justify his key conclusion. But I consider that I need to cite 16 examples of it: Later M successfully claimed housing benefit and child benefit When late in 2009 she moved to London, M told a local authority (i) housing department that her violent step father was responsible for her pregnancy and that he was a solicitor. (ii) on the basis that Amelia was living with her. (iii) In April 2010, when Barnet first became involved with the family, M obstructed their attempts to find out about Teresa by lying about where she lived. (iv) (v) She also falsely told them that her mother was dead. F, for his part, refused to provide them with his surname. In November 2010 F told a social worker that, if Amelia died, it In 2011 M falsely told an officer of the Lucy Faithfull Each parent refused to provide them with a genogram. In August 2010 F refused further to participate in Barnets (vi) (vii) intended assessment of the capacity of the parents to care for Amelia. (viii) would be on her head and he would go to prison. (ix) Foundation that her father had raped her when she was aged 12. F told Ms Summer that, if he was concerned about Amelia, there (x) was no way in which he would call social services but that he might call the police. Ultimately both parents withdrew their cooperation with Ms (xi) Summer in the production of a viability assessment; during the final session with Ms Summer M played a game on her mobile telephone. (xii) When he learnt that his half sister had told Barnet that she would try to explain their concerns to him, Fs response was to threaten to punch her. (xiii) When later M learnt that the half sister had withdrawn her candidacy to care for Amelia, she was so angry that she made an anonymous call designed to obstruct the half sisters adoption of a child whom she was fostering. (xiv) 2002. It was the practice of the parents to wash Amelias laundry but, (xv) when Barnet told her that cigarette butts had been found in the laundry returned to the foster mother, M responded that Barnet had planted them there. (xvi) Between April 2010 and December 2011 M made 23 complaints about professionals attempting to work with her (and about the foster F falsely told Dr Dale that he had ceased to take hard drugs in mother) including to the General Social Care Council, to the Local Authority Ombudsman, to the Patient Advice and Liaison Service of the NHS and to her MP. In relation to her habitual making of false complaints of a highly unpleasant character about professionals, Judge Cryan described M as an accomplished pupil of Mr E. He accepted the following evidence of Dr Bass: I have major concerns about the capacity of [M] to protect any child in her care because of ongoing concerns about her capacity for deception because it is such a dominant feature of her personality, allied to this lack of insight and this lack of acknowledgment and evasiveness and inconsistency. The judge observed: Provided whoever [M] is dealing with appears to be going along with her without challenge, she will cooperate to achieve her ends. If she is questioned, challenged or thwarted, cooperation is abandoned and entirely unacceptable hostility begins. The judge concluded: Ultimately, I find that I am persuaded. that what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe. In short I cannot see that there is any sufficiently reliable way that I can fulfil my duty to [Amelia] to protect her from harm and still place her with her parents. I appreciate that in so saying I am depriving her of a relationship which, young though she is, is important to her and depriving her and her parents of that family life which this court strives to promote. The judge ended by stating that in those circumstances adoption was the only viable option for Amelias future care. THE THRESHOLD SET BY SECTION 31(2) Judge Cryan was well aware that, before he could even consider whether to make a care order, section 31(2) of the 1989 Act required him to be satisfied (a) that, when she was first taken into care, namely at birth, Amelia had been likely to suffer significant harm and (b) that the likelihood was attributable to the care likely to be given to her if the order were not made not being what it would be reasonable to expect a parent to give to her. But little separate attention was paid to these threshold requirements in submissions to the judge. Mr Feehan QC, on behalf of the mother, submitted to him that the evidence barely crosses the threshold. The guardian presumably considered that the threshold was crossed because at one stage she was advocating a supervision order. But counsel for the father disputed that it was crossed. In the event the judge expressed himself satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. And, following brief explanation, he turned to the welfare stage of the inquiry. But in the Court of Appeal, and in particular in this court, much greater attention has been paid to what the threshold requires. It is common ground that, as recently reaffirmed by this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649, a likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. In the context of the present case it is also noteworthy that, by section 31(9), harm means ill treatment or the impairment of health or development. and development includes emotional. development. Beyond this, however, the debate surrounds two matters. The first matter is the meaning of the word significant. In this regard Parliament chose to help the court to a limited extent by providing in section 31(10) as follows: Where the question of whether harm suffered by a child is significant turns on the childs health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. When we read this subsection together with the definition of harm in the preceding subsection, we conclude that, whereas the concept of ill treatment is absolute, the concept of impairment of health or development is relative to the health or development which could reasonably be expected of a similar child. This is helpful but little more than common sense. In my view this court should avoid attempting to explain the word significant. It would be a gloss; attention might then turn to the meaning of the gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from the word itself. Nevertheless it might be worthwhile to note that in the White Paper which preceded the 1989 Act, namely The Law on Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60: It is intended that likely harm should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does occur. It follows that when, in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Hale LJ (as my Lady then was) said, at para 28, that a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not, she was faithfully expressing the intention behind the subsection. But the other interesting feature of the sentence in the White Paper is the word unacceptable. I suggest that it was later realised that whether the risk was unacceptable was a judgement which fell to be made at the welfare stage of the inquiry; and so a different adjective was chosen. In Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282, [2007] 1 FLR 1068, the Court of Appeal allowed an appeal by parents against a judges conclusion that their children had suffered and were likely to suffer significant harm and it remitted the issue for re hearing. The professional evidence had been that the parents deficiencies had had subtle and ambiguous consequences for the children; and it was not difficult for me, at para 31(a) of my judgment in that court, to conclude that such consequences could not amount to significant harm. The rehearing was conducted by Hedley J and, by his judgment reported as Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, he declined to hold that the threshold was crossed. He observed, at para 50, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent; and, at para 51, that significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it but that it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy. submits that: In the present case Mr Feehan seeks to develop Hedley Js point. He many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or model them in their own lives but those children could not be removed for those reasons. I agree with Mr Feehans submission; but the question arises whether, in the light of the judges key conclusion, it misses the point. Mr Feehan proceeds to submit that the proportionality requirement under article 8 of the Convention applies, albeit perhaps only very obliquely, to whether harm is significant for the purposes of the subsection; and he cites observations by Ward LJ in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, at para 54, that, although it has more relevance to the welfare stage of the inquiry, article 8 does, none the less, inform the meaning of significant and serves to emphasise that there must be a relevant and sufficient reason for crossing the threshold. I consider that, with respect to him, Ward LJ there introduced an inappropriate layer of complexity to the inquiry whether harm is significant. It is the interference with the exercise of the right to respect for family life which article 8 addresses. No interference occurs when a judge concludes that the threshold is crossed. The interference occurs only if, at the welfare stage, the judge proceeds to make a care or supervision order; and it is that order which must therefore not fall foul of article 8. I regard section 31(2) as an admirable domestic provision which, by setting a threshold, may make it more likely, although far from inevitable, that any care or supervision order will not fall foul of article 8. But I conclude that the crossing of the threshold does not, of itself, engage the article; and I am fortified in my conclusion by the fact that Lord Neuberger, at para 62, Lady Hale, at para 186, and Lord Clarke at para 134, agree with it and that Lord Kerr, at para 129, tends to agree with it. The second matter relates to Mr Feehans submission that the threshold set by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if, in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty, animosities and obstructionism of the parents represent deficits only of character and that, if and insofar as they might cause harm to Amelia, whom they love, the harm is neither deliberate nor intentional. The first of these alternative submissions represents a false dichotomy: for the character of the parents is relevant to each stage of the inquiry whether to make a care order only to the extent that it affects the quality of their parenting. The second of them is misconceived: for there is no requisite mental element to accompany the actions or inactions which have caused, or are likely to cause, significant harm to the child. Section 31(2)(b)(i) requires only that the harm or likelihood of harm should be attributable to the care given or likely to be given to the child not being what it would be reasonable to expect a parent to give to him. Such is a requirement only of causation as between the care and the harm. The provision was prefigured in the White Paper, Cm 62, cited above, also at para 60: The court will also have to make a decision as to whether the harm was caused or will in future be caused by the child not receiving a reasonable standard of care or by the absence of adequate parental control. This is not intended to imply a judgment on the parent who may be doing his best but is still unable to provide a reasonable standard of care. ARTICLE 8 Judge Cryans care order in relation to Amelia with a view to her adoption represented an interference with the exercise by Amelia, by M and by F of their rights to respect for their family life. It was therefore lawful only if, within the meaning of article 8(2) of the Convention, it was not only in accordance with the law but also necessary in a democratic society for the protection of the right of A to grow up free from harm. In Johansen v Norway (1996) 23 EHRR 33 the European Commission of Human Rights observed, at para 83, that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportional to the legitimate aim pursued. In a number of its judgments the European Court of Human Rights, the ECtHR, has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. Only a year ago, in YC v United Kingdom (2012) 55 EHRR 967, it said: 134 The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the childs best interests in a particular case, two considerations must be borne in mind: first, it is in the childs best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the childs best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to rebuild the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the childs health and development, a parent is not entitled under article 8 to insist that such ties be maintained. Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them. In my view it is important not to take any one particular sentence out of its context in the whole of para 134 of the YC case: for each of its propositions is interwoven with the others. But the paragraph well demonstrates the high degree of justification which article 8 demands of a determination that a child should be adopted or placed in care with a view to adoption. Yet, while in every such case the trial judge should, as Judge Cryan expressly did, consider the proportionality of adoption to the identified risks, he is likely to find that domestic law runs broadly in parallel with the demands of article 8. Thus domestic law makes clear that: (a) it is not enough that it would be better for the child to be adopted than to live with his natural family (In re S B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7); and (b) a parents consent to the making of an adoption order can be dispensed with only if the childs welfare so requires (section 52(1)(b) of the Adoption and Children Act 2002); there is therefore no point in making a care order with a view to adoption unless there are good grounds for considering that this statutory test will be satisfied. The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word requires in section 52(1)(b) was plainly chosen as best conveying. the essence of the Strasbourg jurisprudence (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125). What is the proper approach of an appellate court to a challenge to the proportionality of a care order made with a view to adoption? Section 6(1) of the Human Rights Act 1998 makes it unlawful for public authorities, which include appellate courts, to act in a way which is incompatible with a Convention right. So the question becomes whether, as the mother submits, section 6(1) dictates that an appellate court should depart from its normal function of secondary review and instead should make a fresh determination of its own when the allegation is that the order made below has violated a Convention right. An analogous submission was made in MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, in which two Algerian nationals and a Jordanian national appealed to the Court of Appeal, and from there to the House of Lords, against the dismissal by the Special Immigration Appeals Commission of their appeals against orders for deportation. Their case was that deportation would infringe their rights under article 3 of the Convention; and, by reference to section 6 of the 1998 Act, they claimed to be entitled to a fresh determination of their case both in the Court of Appeal and in the House of Lords. The appellate committee rejected their claim. Lord Phillips pointed out, at paras 67 and 69, that, by section 7 of the Special Immigration Appeals Commission Act 1997, appeal lay from the Commission to the Court of Appeal only on a point of law and that, for the purposes of section 6(2)(a) of the 1998 Act, Parliament had therefore precluded the Court of Appeal from conducting any such fresh determination as the appellants sought. More broadly, however, Lord Hoffmann observed: 190. There is nothing in the Convention which prevents the United Kingdom from according only a limited right of appeal, even if the issue involves a Convention right. There is no Convention obligation to have a right of appeal at all. If there is a right of appeal, then of course it must offer a fair hearing before an independent and impartial tribunal in accordance with article 6. But there is no obligation to provide an appeal against the determination of a Convention right. The only concern of the European court with the court structure of the member state is that it should provide a remedy for breach of a Convention right in accordance with article 13. If a SIAC hearing does so, that is an end of the matter and the extent of the right of appeal, if any, is irrelevant. It is therefore clear that the Convention itself does not require appellate courts to address issues arising under it with any particular degree of intensity. Appellate courts must discharge their domestic duty under section 6(1); but the manner in which they seek to do so is a matter for Parliament or for rules made under its authority. No one suggests, for example, that the appellate court should itself rehear all the evidence relevant to a Convention issue. On any view it will adopt much of the relevant material from the survey conducted by the trial judge. Civil appellate courts other than the Supreme Court operate in accordance with rule 52.11 of the Civil Procedure Rules 1998, made pursuant to the Civil Procedure Act 1997. Paragraph 1 of the rule provides that every appeal will be limited to a review of the decision of the lower court unless. (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re hearing. Such courts should in my view seek to discharge their duty under section 6 of the 1998 Act by determining a Convention issue in accordance with this paragraph. In paras 83 to 90 of his judgment Lord Neuberger provides fuller reasons for concluding that section 6 of the 1998 Act does not mandate fresh appellate determination of a Convention related issue. Like Lord Clarke, at para 136 of his judgment, I agree with Lord Neubergers reasons as well as with his conclusion; it follows that, with respect, I do not agree with the contrary opinions expressed by Lady Hale at para 205 and by Lord Kerr at paras 116 to 127 of their judgments. Although the view of the majority is therefore that the requisite appellate exercise is that of conventional review, a question still remains about the criterion for review apt to appeals against determinations made in care proceedings. APPELLATE REVIEW OF DETERMINATIONS MADE IN CARE PROCEEDINGS G v G [1985] 1 WLR 647 was a dispute between parents as to which of them should have residence of the children. Lord Fraser gave the classic exposition of the role of the appellate court in reviewing a trial judges order in a dispute between members of a family about arrangements for a child. He described the order, at p 649, as having been made in the exercise of the judges discretion. This classification, which was not controversial, is hard wired into the mind set of family lawyers in England and Wales; and, although in Kacem v Bashir, [2011] 2 NZLR 1, the Supreme Court of New Zealand made an interesting suggestion, at para 32, that the decision in such a case was evaluative as opposed to discretionary, this is not the moment to consider whether subject to para 45 below to depart from the conventional classification or the consequences, if any, of doing so. Lord Fraser said at p 651: The Jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judges decision was wrong, and unless it can say so, it will leave his decision undisturbed. He added, at p 652: Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as blatant error used by the President in the present case, and words such as clearly wrong, plainly wrong, or simply wrong used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. The concept of the generous ambit of reasonable disagreement was derived from the judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, at p 345, which Lord Fraser had already quoted. Lord Fraser proceeded, at p 653, to quote with approval from the judgment of Bridge LJ in In re F (A Minor)(Wardship: Appeal) [1976] Fam 238. This was a dispute between a father and a grandmother about the residence of a child. Bridge LJ, at p 266, reminded himself that, in granting residence to the grandmother, the trial judge had been exercising a discretion. He observed that none of the factors which often vitiate the exercise of a discretion and so require it to be re exercised namely that the judge had considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle was present. The judges error, according to Bridge LJ, was in the balancing exercise, in other words that he had given too little weight to the factors favourable to the fathers case or too much weight to those adverse to them. Bridge LJ went on to hold that, where a judges conclusion was not justified by his advantage in seeing and hearing the witnesses and was vitiated by an error in the balancing exercise, an appellate court could set it aside. It is clear, however, that, in quoting with approval the proposition of Bridge LJ that even only an error in the balancing exercise might justify appellate intervention, Lord Fraser was not intending to redraw any part of his earlier delineation of the boundaries of intervention. Thus an error in the balancing exercise justifies intervention only if it gives rise to a conclusion that the judges determination was outside the generous ambit of reasonable disagreement or wrong within the meaning of the various expressions to which he had referred. Into its review of a trial judges determination of a child case an appellate court needs to factor the advantages which the judge had over it in appraising the case. In Piglowska v Piglowski [1999] 1 WLR 1360 Lord Hoffmann said, at p 1372: The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judges evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1, 45: The need for appellate caution in reversing the trial judges evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. of which time and language do not permit exact expression, but which may play an important part in the judges overall evaluation. Lord Hoffmanns remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact finder who has seen and heard the witnesses of fact. In a child case the judge develops a face to face, bench to witness box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just is this true? or is this sincere? but what does this evidence tell me about any future parenting of the child by this witness? and, in a public law case, when always hoping to be able to answer his question negatively, to ask are the local authoritys concerns about the future parenting of the child by this witness justified? The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judges decision about the future arrangements for a child. In In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258, Lord Nicholls said: 16. There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child. 19. Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judges decision. In this appeal M challenges both Judge Cryans determination that the threshold set by section 31(2) was crossed and, alternatively, his ultimate determination that Amelias welfare demanded that he should make the care order. The time has come for me to address the criterion for appellate review of each of these determinations; but, whatever the criterion, the appellate court will factor into its review the trial judges enjoyment of the advantages to which I have referred. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been open to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been plainly wrong to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJs reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judges determination had been open to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been plainly wrong. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does plainly add to wrong? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong. I turn to the criterion for appellate review of the ultimate determination of whether to make a care order. This is an order which the court may make (section 31(1) of the 1989 Act), albeit that the determination is governed by the paramountcy of the childs welfare (section 1(1)) and can be made only following regard to specified factors (section 1(3) and (4) (b)). The courts apparent discretion whether to make a care order has led family practitioners readily to assume that the criterion for appellate review is identical to that applicable to review of what are taken to be discretionary determinations relating to children in private law, namely that explained by Lord Fraser in G v G cited above; and it was not controversial when Sir Mark Potter P formally so ruled in Re C (Adoption: Best Interests of Child) [2009] EWHC 499 (Fam), [2009] 2 FLR 1293, at para 33. But, by contrast with the issue between the members of this court as to the impact of section 6(1) of the 1998 Act upon the role of the appellate judge, there is no issue that, since that Act came into force, the task of the trial judge in applications for care (or supervision) orders and indeed in such applications for private law orders as can sensibly be said to represent a suggested interference with a persons right to respect for his or her family life is more than to exercise a discretion. His task is to comply with an obligation under the subsection not to determine the application in a way which is incompatible with that right. It follows therefore that the review which, according to the majority, falls to be conducted by the appellate court must focus not just on the judges exercise of a discretion but on his compliance or otherwise with an obligation. The criterion enunciated in G v G, in particular the concept of the generous ambit of reasonable disagreement, is in my view inapt to that review (as opposed, for example, to a review of a case management decision made within care proceedings: see Re TG (A Child) [2013] EWCA Civ 5, at para 38). Lord Neuberger, at paras 90 and 91, and Lord Clarke, at para 139, suggest that the criterion for appellate review of an ultimate determination to make (or to refuse to make) a care order should, as in respect of the threshold, be whether it was wrong (or vitiated by serious irregularity). Just as in my view rule 52.11(1) of the Civil Procedure Rules helps to identify the role of an appellate court in a challenge to the determination of a Convention related issue, so, as Lord Clarke there suggests, rule 52.11(3) helps to identify the criterion which it should adopt in that it provides: The appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity. I agree. To be driven to jettison the principles in G v G in this context is not to say that the factors which often vitiate the exercise of a discretion namely that the judge considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle become irrelevant. On the contrary they may well generate a conclusion that the determination was wrong and should be set aside and either that it should be reversed or that the application should be remitted for consideration afresh. By contrast a judges failure to give adequate reasons for his determination is likely to lead to its being set aside as unjust within the meaning of rule 52.11(3) (b). There is therefore an attractive symmetry between the criterion for review of a determination of whether the threshold is crossed and that for review of a determination of whether a care order should be made. In each case it is no more and no less than whether the determination is wrong. But the simplicity of the criterion should not disguise the difficulty, in some cases, of its application. CONCLUSION As Mr Verdan QC on behalf of the new Childrens Guardian submits (in the course of a series of submissions of a quality which partly compensates for the deficiencies of the previous Guardian), Judge Cryan was not wrong to determine that the threshold to the making of a care order in relation to Amelia, set by section 31 of the 1989 Act, was crossed. Nor in my view was he wrong to proceed to make a care order in relation to her with a view to her adoption. In the present case the reasons for each of the two determinations can be summarised together. There were a number of features relative to the personalities of the parents and to the psychiatric conditions of the mother which raised a real possibility that, in their care, Amelia would suffer impairment of her emotional development. Nor is there anything to suggest that, in principle, emotional harm is less serious than physical harm. But Barnet realistically concede that, in the absence of one particular feature, the court might not have concluded that the likely harm was significant nor, alternatively, have felt driven to make the care order with a view to adoption. That one feature relates to the judges key conclusion that the characters of the parents disabled them from offering the elementary cooperation with professionals which Amelias safety in their home would require. Family courts regularly make allowance for the negative attitude of parents towards the social workers who personify their employers applications for care orders. But the level of the dishonest, manipulative, antagonistic obstructionism of the parents in this case was of a different order. Such attributes of course betokened a lack of insight into the needs of Amelia which raised wider concerns; but more immediately, they precluded the success of any rehabilitative programme, whatever its precise composition. It would have been risking enough in terms of Amelias welfare for the judge to have countenanced any further delay in her long term placement following what by then had already been two years in foster care; but, had there been evidence that a way might be found of lowering the barriers erected by the parents, he might have directed an adjournment, to be measured surely in no more than a few months, in order to explore it. It might have been the proportionate response to the positive features of the parents case and loyal to the decision of the ECtHR in Kutzner v Germany (2002) 35 EHRR 653, at para 75, that it was questionable whether the domestic administrative and judicial authorities [had] given sufficient consideration to additional measures of support as an alternative to what is by far the most extreme measure, namely separating the children from their parents. In the present case, however, that avenue was not open to the judge. In a concluding sentence which correctly reflected both domestic law and the Conventions proportionality requirement, he described adoption as the only viable option for Amelias future care. There was no halfway house, said Lewison LJ in his reluctant concurrence in the Court of Appeals dismissal of the appeal. Its dismissal was in my view the disposal which accorded with principle. This court should uphold it. LORD NEUBERGER Introductory The point which His Honour Judge Cryan ultimately had to decide in this case was whether to make a care order in respect of a child, Amelia, with a view to her being adopted, against the wishes of her natural parents. To determine this point, the Judge had to resolve two main issues. The first issue was whether, in the light of the evidence, the threshold in section 31(2) of the Children Act 1989 (the 1989 Act) was satisfied. If he decided (as he did) that that threshold was crossed, the second main issue for the Judge was whether it was appropriate to make a care order. The first main issue: the crossing of the section 31(2) threshold Section 31(2) of the 1989 Act (section 31(2)) is set out in para 177 of Lady Hales judgment. In order to determine whether it was crossed in this case, the task the Judge faced can be analysed as involving three steps. He was required (i) to determine the factual issues, which involved resolving a substantial amount of disputed evidence, (ii) to identify the nature of the threshold, which involved construing section 31(2), and (iii) to decide whether on the primary facts he had found and the assessments he had made, that threshold was crossed. Having resolved the disputed primary facts, he decided that, in the light of those facts and the assessments he had made of the various witnesses (including Amelias mother and father, and a number of other factual and expert witnesses), the threshold had been crossed, without expressly discussing its nature. The threshold: findings of primary fact As to the first step, Lady Hale, in paras 146 175, and Lord Wilson, in paras 2 22, have set out the unusual and troubling facts as agreed or as found by the Judge, as well as the procedural history. There is no question of this court interfering with, or indeed being asked to interfere with, the findings of primary fact made by the Judge. Bearing in mind that it is a second appeal tribunal, the Supreme Court is virtually never even asked to reconsider findings of primary fact made by the trial judge. The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judges findings of primary fact. As Lady Hale and Lord Kerr explain in para 200 and para 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first). The second and third steps involved in the threshold issue can be combined into the single question of whether the primary facts found and assessments made by the Judge were capable of justifying the conclusion he reached that the threshold contained in section 31(2) was satisfied. The threshold: the meaning of section 31(2) The second step is to determine the meaning of section 31(2), which is an issue of pure law. In relation to such an issue, the function of this Court (like that of the Court of Appeal) is uninhibited by the fact that it is an appellate tribunal. That is because there is a single right or wrong answer, which an appellate court has to determine for itself, although it often derives assistance from the reasoning of the court or courts below. As to the meaning of section 31(2), and in particular the meaning of likely to suffer significant harm and care likely to be given, Lord Wilson is rightly anxious not to encumber the comparatively simple wording of section 31(2), as expanded somewhat by section 31(10), with too much judicial encrustation. However, it seems to me that some authoritative guidance for judges and lawyers in this very important and difficult area is appropriate, in order to ensure as much predictability as possible and to minimise the likelihood of appeals. In my view, such guidance may be found in the analyses of Lady Hale at paras 179193, Lord Wilson at paras 23 31, and Lord Kerr at para 108. I would not think it helpful to expand on what constitutes significant harm save to emphasise that it is interrelated with the likelihood of it being suffered, so that, as Lady Hale explains in para 188 and as she said in In re S B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678, para 9, the more significant the harm, the less the required level of likelihood, and vice versa. The threshold: the Judges decision that it was crossed The final step in relation to the section 31(2) threshold issue required the Judge to address the question whether, on the primary facts he had found and assessments he had made, the threshold was crossed in this case. The decision on that question is certainly not one of law, but it is not one of primary fact either. It is a type of decision which is often described as involving the exercise of judgement, but it may fairly be said that this is not a very illuminating characterisation, because the determination of an issue of law or of an issue of fact also involves the exercise of judgement. As Lady Hale at para 199 and Lord Wilson at para 44 each say, it can be categorised as a value judgment (as Ward LJ said in In re MA (Care: Threshold) [2010] 1 FLR 431, para 56, and Black LJ said below, [2012] EWCA Civ 1475, para 9). It can also be said to be an appraisal, as Lord Kerr describes it in para 109, or an evaluation, to use Clarke LJs characterisation in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, paras 16 and 17, cited with approval by the House of Lords in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, para 46. In many cases, reversing the trial judges evaluation on an issue such as whether the section 31(2) threshold has been crossed, would involve an appellate court effectively disagreeing with (i) primary findings of fact made by the judge, or (ii) the impressions he obtained from seeing the witnesses (eg in terms of trustworthiness as to future conduct). In such cases, depending on the precise basis on which the appeal is mounted, the reasons for giving primacy to the trial judges conclusion (good sense, policy, cost, delay, and practicality) will either apply in the same way as, or will apply with somewhat less force than, they do in relation to findings of primary fact. This point is tellingly made by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372 (citing his earlier remarks in Biogen Inc v Medeva plc [1997] RPC 1, 45), in a passage quoted by Lord Wilson at para 41. It is perhaps worth adding that, immediately after that passage, Lord Hoffmann observed: The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment but also of a reserved judgment based upon notes. In the following paragraph of his judgment, para 42, Lord Wilson suggests that Lord Hoffmanns remarks apply all the more strongly to an appeal against a decision involving the future of a child, and that is supported by an observation of Lord Nicholls quoted at the end of the paragraph. I agree: in a case such as this, the court is concentrating its focus on future multi factorial possibilities, as opposed to present or past questions, such as the present needs of divorcing spouses (as in Piglowska) or past likely opinions which would have been formed by skilled people as in (Biogen). When it comes to an evaluation, the extent to which the benefit of hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal will vary from case to case. Accordingly, it is not possible to lay down any single clear general rule as to the proper approach for an appeal court to take where the appeal is against an evaluation (see also in this connection Robert Walker LJ in Bessant v South Cone Inc [2002] EWCA Civ 763, para 26, May LJ in EI du Pont de Nemours & Co v ST Dupont [2003] EWCA Civ 1368, para 94, and Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56, para 44). Accordingly, as already explained, even where the issue raised is not one of law, the reasons which justify a very high hurdle for an appeal on an issue of primary fact apply, often with somewhat less force, in relation to an appeal on an issue of evaluation. I therefore agree with what Lord Wilson and Lord Kerr say about the right approach of an appellate court in relation to a question of evaluation in para 44 and in paras 110 and 113 respectively. Whether article 8 of the European Convention on Human Rights (the Convention) has a part to play in relation to the threshold seems to me to be rather an arid issue: the important point is that the court acknowledges that no substantive order is made without all Convention rights being taken into account. Having said that, I consider that article 8 of the Convention (article 8) has no part to play in deciding whether the threshold is crossed, although it obviously comes very much into play when considering the issue of whether to make a care order. The threshold merely represents a hurdle which has to be crossed before the court can go on to consider whether to make a substantive order i.e. an order which actually has an effect on a child and her parents (and sometimes on others). It is, of course, common ground that the court must consider any Convention rights before deciding whether to make a substantive order. In this case, Lady Hale in paras 206 214 considers the evidence and findings in relation to this third step involved in this issue and concludes, albeit, with some hesitation, that the Judge was entitled to reach the conclusion that, on the primary factual findings and assessments of the parties which he had made, the threshold had been crossed. Lord Wilson in para 48 has less hesitation in reaching the same conclusion, as does Lord Kerr for the reasons he gives at paras 131 132. In agreement with Lord Wilson and Lord Kerr, I consider that the Judge was fully justified in coming to the conclusion that the threshold was crossed on the primary facts as he had found them, and in the light of his assessment of the witnesses and of the risks facing Amelia if she remained with her parents. I have in mind in particular the ultimate views he formed (based on the primary facts he had found and the opportunity he had had to assess the witnesses) which are identified by Lady Hale at paras 169 170 and by Lord Wilson at paras 20 22. The nature of the harm which concerned Judge Cryan was (i) the emotional harm to [Amelia] likely to be caused by (a) the Mothers somatisation disorder and factitious illness disorder, (b) concerns about the parents personality traits, (c) her mothers lying, (d) her fathers active, but less chronic, tendency to dishonesty and vulnerability to the misuse of drugs, and (ii) physical harm to [Amelia] which cannot be discounted, for example, by over treatment or inappropriate treatment by doctors. As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelias parents did not have the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe. He explained that the result of this was that he could think of no sufficiently reliable way in which he could fulfil [his] duty to Amelia to protect her from harm and still place her with her parents. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are evaluations which are also plainly dependant on the Judges overall assessment of the witnesses, and in particular on his opinion as to the character and dependability of Amelias mother and father, and as to the reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong. I understand the concern which Lady Hale expresses in her judgment at paras 208 222, which in many respects reflect the very wise remarks made by Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, 2063. Although they have been referred to by Lady Hale at paras 181 182 and Lord Wilson at para 27 and were set out in full by Black LJ in the Court of Appeal, [2012] EWCA Civ 1475, para 116, those remarks merit repetition, not least because they have resonance in relation to both main issues in this case: 50. What about the court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in In re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, 812, said this: The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done. 51. That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the courts and social services powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in section 31(2) is made out. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in In re H [1996] AC 563 that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy. It is true that much of the harm which the Judge considered could befall Amelia in this case might be said to flow from eccentric, barely adequate [or] inconsistent parenting, and that it can also be said that the harm would result, to an extent at any rate, from her mothers and fathers characteristics rather than from their parenting. There are, however, two answers to that. The first is that it is a question of fact and degree whether the defective parenting which Amelia would undergo if she remained with her parents fell outside the wide spectrum of the acceptable very diverse standards (to quote Hedley J) such as would justify the state stepping in. I agree with Black LJ when she said at para 128 in her judgment in the Court of Appeal, that that was an issue which the Judge was particularly well placed to assess, and, while he could have discussed the issue more fully than he did, it seems to me that, particularly bearing in mind the very unusual facts, the expert evidence, the combination of risks, and the value of seeing the witnesses over a long hearing, it is impossible to fault the Judges conclusion. The importance of a trial judge giving clear and coherent reasons for his decision carries particular force where the judgment is very likely to result in a child being adopted against her parents wishes. However, even in such a case, an appellate court must be careful of placing an unrealistically high burden on the trial judge. As Lord Hoffmann acknowledged in the passage quoted by Lord Wilson from Piglowska (quoting from an earlier judgment he gave), specific findings of fact, even by the most meticulous judge are inherently an incomplete statement of the impression which was made upon him by the primary evidence. In her recent judgment in In re L and B (Preliminary Findings: Power to Reverse) [2013] 1 WLR 634, para 46, Lady Hale, while emphasising the importance of a fully and properly reasoned judgment, as a means of achieving finality, recognised the vicissitudes which can beset any judge. Secondly, in so far as it is said that the threatened harm was attributable to the character of Amelias parents rather than to their parenting activities, the parents characteristics which concerned the Judge would inevitably be reflected in the way they looked after, or parented, Amelia. In particular, it was not merely the potential emotional (and even physical) harm to Amelia owing to her parents deficiencies which worried the Judge. It is of central importance to understanding his conclusion that he was also concerned by the fact that the parents (especially the mother) would, or at least appeared very likely to, impede the professional people who would need access to Amelia in order to mitigate the risk or effect of any harm she might suffer. That not only served to reinforce the degree of risk (or at least to remove a way of mitigating the risk); it also amounted to a finding that, by their activities the parents would actively impede an important and beneficial source of mitigating and monitoring the harm which Amelia would face. That, on any view, must amount to defective parenting, and, in the circumstances of this case in the light of the risks which the Judge thought that Amelia would face, I consider that it amounted to defective parenting which a judge could reasonably conclude satisfied the section 31(2) threshold. The second main issue: the Judges decision to make a care order I turn, then, to the second main issue which the Judge had to decide, namely, given his finding that the threshold had been crossed, whether he should make a care order in respect of Amelia. He decided that he should do so, and, in that connection, it seems to me that three potential questions arise on an appeal against such a decision. Those questions are: (i) whether the judge applied the right legal test when resolving to make the care order; (ii) if he applied the right test, the correct approach of an appellate court on an appeal against the decision to make a care order; and (iii) whether the judges decision can stand, if the appellate tribunal subjects it to that test. The care order: the correct legal test I turn to consider the first question, which involves first identifying the correct test. The effect of section 1(1) of the 1989 Act is that, when considering whether to make a care order, the court must treat the welfare of the child as the paramount consideration, and this involves taking into account in particular the factors identified in section 1(3), which includes, in para (g), the range of powers available to the court As Lady Hale (who knows more about this than anybody) says in para 194, the 1989 Act was drafted with the Convention in mind; in any event, with the coming into force of the Human Rights Act 1998 (the 1998 Act), the 1989 Act must now, if possible, be construed and applied so as to comply with the Convention. So too the Adoption and Children Act 2002 (the 2002 Act) must, if possible, be construed and applied so as to comply with the Convention. It also appears to me that the 2002 Act must be construed and applied bearing in mind the provisions of the UN Convention on the Rights of the Child 1989 (UNCRC). A care order in a case such as this is a very extreme thing, a last resort, as it would be very likely to result in Amelia being adopted against the wishes of both her parents. As already mentioned, it is clear that a judge cannot properly decide that a care order should be made in such circumstances, unless the order is proportionate bearing in mind the requirements of article 8. It appears to me that, given that the Judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By necessary, I mean, to use Lady Hales phrase in para 198, where nothing else will do. I consider that this conclusion is clear under the 1989 Act, interpreted in the absence of the Convention, but it is put beyond doubt by article 8. The conclusion is also consistent with UNCRC. It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195 198 make it clear that such an order can only be made in exceptional circumstances, and that it could only be justified by overriding requirements pertaining to the childs welfare, or, putting the same point in slightly different words, by the overriding necessity of the interests of the child. I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in Re C and B [2001] 1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore that point further. The high threshold to be crossed before a court should make an adoption order against the natural parents wishes is also clear from UNCRC. Thus, Hodgkin and Newell, Implementation Handbook for the Convention on the Rights of the Child, Unicef, 3rd ed (2007), p 296, state that there is a presumption within the Convention that childrens best interests are served by being with their parents wherever possible. This is reflected in UNCRC, which provides in article 7 that a child has as far as possible, the right to know and be cared for by his or her parents, and in article 9, which requires states to ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Having identified the test, the other aspect of the first question is whether the Judge purported to apply that test in this case. In my view, he did, or, to put it at its lowest, his conclusions were expressed in a way which makes it clear that he considered that the test was satisfied. In the passage to which I have already referred, quoted by Lord Wilson in para 22, the Judge said that he could not see any sufficiently reliable way that [he could] fulfil [his] duty to [Amelia] to protect her from harm and still place her with her parents, and he immediately went on to explain that this was despite the fact that this court strives to promote her relationship with her parents and their family life together. He also described adoption as the only viable option for Amelias future care. As a matter of ordinary language, it seems to me clear that the Judge was there applying the test laid down by the Strasbourg court, and concluding that it was satisfied. The care order: the appellate courts approach It is next necessary to address the question of the approach to be adopted by an appellate court when an appeal is brought against a judges decision to make a care order in a case such as this, and where the judge has applied, or at least has purported to apply, the correct test. As a matter of pure domestic law, this is an evaluative exercise and therefore it might appear that the approach discussed in paras 57 61 above applies. However, the issue is potentially complicated by the fact that article 8 is engaged. There is no doubt but that Judge Cryan, as the trial judge, the first instance tribunal, was required to decide for himself whether the care order which he was proposing to make satisfied the test, which the Strasbourg jurisprudence establishes is required by article 8. The issue to be addressed concerns the correct approach of an appellate court when confronted by an appeal against the making of such an order. What the Strasbourg jurisprudence requires (and, I would have thought, what the rule of law in a modern, democratic society would require) is that no child should be adopted, particularly when it is against her parents wishes, without a judge deciding after a proper hearing, with the interests of the parents (where appropriate) and of the child being appropriately advanced, that it is necessary in the interests of the child that she is adopted. So far as any appeal against such a decision is concerned, as Lord Hoffmann said in a passage quoted by Lord Wilson in para 35, [t]here is no Convention obligation to have a right of appeal at all. However, to an extent at any rate, that begs the question as to the correct approach for an appellate court to adopt where there is a right of appeal. In that connection, I respectfully disagree with Lady Hales view as expressed in para 204 that an appellate court is under a positive obligation on every such appeal to assess the question of proportionality for itself, if that means that the Court of Appeal in this case was required to decide for itself, effectively de novo, whether the requirements of article 8, as explained in the cases mentioned in paras 195 198 of Lady Hales judgment, were satisfied so far as the making of a care order in respect of Amelia was concerned. It is well established that a court entertaining a challenge to an administrative decision, ie a decision of the executive rather than a decision of a judge, must decide the issue of proportionality for itself see the statements of principle in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, paras 29 30 and 63, and in Belfast City Council v Miss Behavin Ltd [2007] 1 WLR 1420, paras 12 14, 24 27, 31, 42 46 and 89 91. However, this does not mean that an appellate court entertaining a challenge to a judicial decision, as opposed to an executive decision, must similarly decide the issue of proportionality for itself. If it did, it would mean that (subject to obtaining permission to appeal) litigants would be entitled to (or forced to undergo) two separate sequential judicial assessments of proportionality. I do not consider that there is anything in the Strasbourg jurisprudence or in the 1998 Act which suggests that such an entitlement should exist, even where there is a right of appeal. That is not to say that the fact that Convention rights are involved is irrelevant if there is a right of appeal. The appeal process must offer a fair hearing before an independent and impartial tribunal in accordance with article 6 (to quote again from Lord Hoffmann in MT (Algeria)), and, if the appeal process involves a challenge to the trial judges assessment of proportionality, that challenge would have to be properly and fairly addressed. But in my view, the fact that a Convention right is involved does not require an appellate domestic court to consider again the issue of proportionality for itself. What it requires is that a court considers the question of proportionality and that, if there is an appeal, any appeal process involves a proper consideration of the question of proportionality. In other words, the court system as a whole must fairly determine for itself whether the requirement of proportionality is met, but that does not mean that each court up the appeal chain does so. I agree with Lord Wilson at para 36 that, subject to the requirements of article 6 of the Convention, it must be a question of domestic law as to how the challenge to proportionality is to be addressed on an appeal. There is, in my view, no reason why the Court of Appeal in a case such as this should not have followed the normal, almost invariable, approach of an appellate court in the United Kingdom on a first appeal, namely that of reviewing the trial judges conclusion on the issue, rather than that of reconsidering the issue afresh for itself. That this is the normal function of the Court of Appeal is made clear by CPR 52.11, which states that, save in exceptional cases, every appeal is limited to a review rather than a rehearing and the appeal will be allowed only where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The exceptional cases are, as a matter of principle and experience, almost always limited to those where the Court of Appeal (i) decides that the judge has gone wrong in some way so that his decision cannot stand, and (ii) feels able to reconsider, or rehear, the issue for itself rather than incurring the parties in the cost and delay of a fresh hearing at first instance. As I see it, this limitation on the function of an appellate court is based on similar grounds as are set out in paras 53 and 57 61 above see per Lord Diplock in Hadmor Productions Ltd v Hamilton [1983] AC 191, 220 and per May LJ in EI du Pont para 94. If, after reviewing the judges judgment and any relevant evidence, the appellate court considers that the judge approached the question of proportionality correctly as a matter of law and reached a decision which he was entitled to reach, then the appellate court will not interfere. If, on the other hand, after such a review, the appellate court considers that the judge made a significant error of principle in reaching his conclusion or reached a conclusion he should not have reached, then, and only then, will the appellate court reconsider the issue for itself if it can properly do so (as remitting the issue results in expense and delay, and is often pointless). Not only is this consistent with the normal practice of an appeal court in this jurisdiction but it is also consistent with good sense. In many cases, and this is one, the trial judge will have seen the witnesses and had a full opportunity to assess the primary facts and to make relevant assessments (I refer again to what Lord Wilson says at paras 41 42). Once one accepts that this means that the appellate court should defer to the trial judge at least to some extent (as Lady Hale rightly does in para 205), then, unless the appellate court is confined to a primarily reviewing function, it will have some sort of half way house role between review and reconsideration. This would seem to me to be unprincipled and to be liable to cause confusion to actual and potential litigants as well as to the judiciary. Additionally, the introduction of a second layer of judicial assessment of proportionality is likely to lead to increased cost and delay in many cases. Of course, where the trial judge has not heard oral evidence or where his findings have not depended on his assessment of the witnesses reliability or likely future conduct, then the appellate court will normally be in as good a position as the trial judge to form a view on proportionality. The argument that the Convention or the 1998 Act requires the Court of Appeal to form its own view in every case where a trial judges decision on proportionality is challenged, appears to me to be wrong in principle and potentially unfair or inconvenient. The argument is wrong in principle because, if the function of the Court of Appeal is as I have described, then, in my view, there can be no breach of the Convention or the 1998 Act, if it conducts a review of the trial judges decision and only reverses it if satisfied that it was wrong. The only basis for challenging that view is, on analysis, circular, as it involves assuming that the Court of Appeals primary function is to reconsider not to review. The argument is potentially unfair or inconvenient, because in cases where the appeal court could not be sure whether the trial judge was right or wrong without hearing the evidence and seeing the witnesses, it would either to have to reach a decision knowing that it was less satisfactorily based than that of the judge, or it would have to hear the evidence and see the witnesses for itself. That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judges conclusion on proportionality in such a case, unless it decides that that conclusion was wrong. I do not agree with the view that the appellate court has to consider that judges conclusion was plainly wrong on the issue of proportionality before it can be varied or reversed. As Lord Wilson says in para 44, either plainly adds nothing, in which case it should be abandoned as it will cause confusion, or it means that an appellate court cannot vary or reverse a judges conclusion on proportionality of it considers it to have been merely wrong. Whatever view the Strasbourg court may take of such a notion, I cannot accept it, as it appears to me to undermine the role of judges in the field of human rights. I appreciate that the attachment of adverbs to wrong was impliedly approved by Lord Fraser in the passage cited from G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 652, by Lord Wilson at para 38, and has something of a pedigree see eg per Ward LJ in Assicurazioni [2003] 1 WLR 577, para 195 (although aspects of his approach have been disapproved see Datec [2007] 1 WLR 1325, para 46). However, at least where Convention questions such as proportionality are being considered on an appeal, I consider that, if after reviewing the trial judges decision, an appeal court considers that he was wrong, then the appeal should be allowed. Thus, a finding that he was wrong is a sufficient condition for allowing an appeal against the trial judges conclusion on proportionality, and, indeed, it is a necessary condition (save, conceivably, in very rare cases). There is a danger in over analysis, but I would add this. An appellate judge may conclude that the trial judges conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judges view is in category (i) to (iv) and allowed if it is in category (vi) or (vii). As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judges decision was not based on his assessment of the witnesses reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judges decision was wrong, then I think that she should allow the appeal. I am conscious that the analysis in paras 80 90 appears to differ somewhat from that of Lady Hale in paras 204 205 and of Lord Kerr in paras 116 127. However, at least in my opinion, it would, essentially for two reasons, be a very rare case where their approach would produce a different outcome from mine. First, it is only my category (iv) which gives rise to disagreement, in that they would not, as I understand it, accept that such types of case exist. However, many, probably most, cases that on my approach would fall into that category would, on their approach (especially in the light of what they say about the weight to be given to the trial judges assessment) be in category (iii), which would yield the same outcome. Secondly, the advantage which the trial judge has in hearing the evidence and seeing the witnesses will mainly apply to his findings of primary fact, inferences of fact, and assessment of probable outcomes, which then feed into his assessment of proportionality (and, in this case, necessity). When those factors come to be weighed on the question of proportionality (or necessity), the advantage the trial judge has will normally be of less significance, and sometimes even of very little, if any, significance. It is unnecessary to decide whether the approach described in paras 85 90 is appropriate to any appeal concerning an evaluation even where no Convention right is involved, including the sort of issue considered in G v G, in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 and in Assicurazioni. I am not convinced that the approach is necessarily different from that advocated in those cases, although the precise formulation is undoubtedly different. However, it was not a topic on which we had any argument, as the submissions were limited to the proper approach on an appeal on proportionality, or necessity, under the Convention, and I say no more about it. The care order: should it be upheld? So I reach the final question on this second issue, and on this appeal: was the Judges decision to make a care order in this case proportionate, in the light of the conclusions he reached on the primary facts and on the assessments he made, and bearing in mind the strong general desirability of maintaining the family unit, and the possibility of other remedies? In other words, in the light of these factors, was it necessary to make such order to protect Amelia, bearing in mind the overriding necessity of the interests of the child? In the light of the Judges findings, quoted by Lord Wilson in para 21, when considered against the detailed findings of primary fact and assessment which he made, it seems to me that he directed himself appropriately and came to a decision which I cannot possibly characterise as wrong. I agree with Lord Wilsons analysis in para 48, as well as with what Lord Kerr says at paras 131 133. While I understand, and have real sympathy with, the points made by Lady Hale in paras 216 223, I do not view the enquiries she wishes to be made on any remission as realistically open to an appellate court in the light of the various conclusions reached by the Judge. I take this view above all because of his finding, which is admirably explained by Lord Kerr in para 132 as the inescapable difficulty that the parents have been found to be incapable of co operating to the necessary extent with professionals whose intervention is considered to be indispensable to the safeguarding of Amelias happy and fulfilled future. That was a finding plainly open to the Judge, not least in the light of all his unchallenged findings of primary fact and his assessment of Amelias parents. To put the point another way, if we were to remit the case on the basis proposed by Lady Hale, it would be to enable another judge to draw conclusions as to the future behaviour or attitude of Amelias mother and/or father, which were inconsistent with the findings made by Judge Cryan. He concluded that the parents would not co operate with professionals whose access to Amelia, for whose well being such access would be essential. But, as I have already said, those findings were ones with which an appellate court had no grounds, in my opinion, for interfering. It follows that I cannot accept that this case is one which could be properly remitted. In deference to Lady Hales conclusions, I see how it could be argued that (i) the question of co operation was given too much weight by the Judge or (ii) the possibility of setting up a system whereby co operation was assured could have been more fully explored at the hearing. However, to allow the appeal on either ground would, I think, be wrong, in principle and in practice. In principle, because the Judges view was justified in the light of his findings as to the past behaviour of the parents, the impression which he formed of the parents and other important witnesses, and his assessment of the future likelihoods and risk, all of which were open to him. In practice, it is almost always possible for parties who have lost a case because of the judges assessment of their likely behaviour, to contend that they should be given a second chance to explore matters more fully with a view to achieving a different result. To allow this appeal on that ground would justify a remittal for fuller consideration in any case where a party was dissatisfied with a trial judges decision based on the assessment of the future. Of course, the issue in the present case is particularly important and sensitive, but finality is important, not just in the public interest, but for the good of Amelia (and her parents). Concluding remarks Having reached this conclusion, it is only right to refer to the very brief, but important judgments of Rix and Lewison LJJ in the Court of Appeal, which proleptically echo the concerns expressed by Lady Hale. They agreed with Black LJs full and careful reasons for dismissing the appeal, but Lewison LJ, at para 147, was worried that the Judge might have fallen foul of Hedley Js wise remarks quoted in para 67 above, and Rix LJ wondered at para 150: whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk. These observations are also reflected by concerns expressed more broadly by Sloan, Conflicting rights: English adoption law and the implementation of the UN Convention on the Rights of the Child [2013] CFLQ 40. That Article at pp 49 50, suggests that, whereas UNCRC is neutral about the desirability of adoption (quoting Hodgkin and Newell, op cit p 294), the 2002 Act unashamedly aimed to bring about more adoptions more quickly for children in care (quoting Harris Short, New Legislation: The Adoption and Children Bill A Fast Track to Failure? [2001] CFLQ 405). More specifically, the Article identifies a suggested inconsistency between the approach of the Court of Appeal in Re C (A Child) (Adoption: Duty of Local Authority), reported as C v XYZ County Council [2008] Fam 54, at para 15, and that of the High Court in Re A (A child) (Disclosure of Childs Existence to Paternal Grandparents, reported as Birmingham City Council v S [2007] 1 FLR 1223, at paras 73 and 76. In Re C, it was said that the 2002 Act does not privilege the birth family over the adoptive parents simply because they are the birth family. In the Birmingham case, which Sloan suggests is more in line with the policy of UNCRC, Sumner J described adoption as a last resort for any child to be invoked only when neither of the parents nor the wider family and friends can reasonably be considered as potential carers for the child, and he went on to recognise a childs right to be brought up by her own family. We were not addressed on this Article or on those two cases. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents wishes should only be contemplated as a last resort when all else fails. Although the childs interests in an adoption case are paramount (in the UK legislation and under article 21 of UNCRC), a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them. Hodgkin and Newell, op cit, suggest that, under UNCRC, an adoption can only occur if parents are unwilling or are deemed by judicial process to be unable to discharge their responsibilities towards the child. The assessment of that ability to discharge their responsibilities must, of course, take into account the assistance and support which the authorities would offer. That approach is the same as that suggested by Hedley J in the passage quoted in para 67 above, and I agree with it. It means that, before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support. In this case, I revert to the melancholy fact that the Judge was satisfied that (i) without such assistance and support, the parents would not discharge their responsibilities to Amelia, (ii) that, as a result, there would be a grave risk of harm to her, and, crucially, (iii) that the parents would seriously impede the authorities in providing such essential assistance and support. There was ample evidence to support that conclusion, and therefore the appeal must be dismissed. LORD KERR Three different types of judicial decision in care proceedings have been authoritatively identified by Lady Hale in para 199 of her judgment. The first concerns factual decisions on the evidence; the second involves consideration of whether the statutory threshold has been crossed; and the third deals with decisions as to the type of order that should be made. For the reasons that she has given, with which I agree, it is important to recognise the different intellectual exercise which is in play in each of these contexts because that will dictate the proper approach of the appellate court to a challenge about the correctness of a judges decision. A conclusion by a judge at first instance on which facts have been proved, and which have not been, involves the judge sifting the evidence that has been led, assessing it and then deciding whether it has brought him or her to the necessary point of conviction of its truth and accuracy. Although an appellate court is competent to hear appeals against the findings of fact that the judge has made, of necessity, its review of those findings is constrained by the circumstance that, usually, the initial fact finder will have been exposed to a wider range of impressions that influence a decision on factual matters than will be available to a court of appeal. This is not simply a question of assessing the demeanour of the witnesses who gave evidence on factual matters, although that can be important. It also involves considering the initial impact of the testimony as it unfolds did it appear frank, candid, spontaneous and persuasive or did it seem to be contrived, lacking in conviction or implausible. These reactions and experiences cannot be confidently replicated by an analysis of a transcript of the evidence. For this reason a measure of deference to the conclusions reached by the initial fact finder is appropriate. Unless the finding is insupportable on any objective analysis it will be immune from review. The second species of decision in care proceedings (whether the threshold has been crossed) is of a plainly different order from that of fact finding. In deciding whether a child is suffering or is likely to suffer significant harm, a judge must exercise judgment. There may be factual elements to the decision such as, for instance, whether a particular type of harm occurred. Ultimately, however, the dominant character of the decision is that of an appraisal by the judge as to whether the harm is significant. With due respect to Hallett LJs contrary view in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, para 42, this cannot be characterised as a finding of fact. It is a judgment made on the import of the facts found, rather than a factual finding. Given that the determination as to whether the threshold has been crossed is one involving the exercise of judgment, what should the approach of the appellate court be to a review of that decision? Leaving aside for the moment the question of proportionality, there is much to be said for the proposition that the measure of deference that an appellate court should show to this decision approximates to that which is appropriate to a review of factual findings. Like Lord Neuberger, however, I believe that to cast the test of reviewability in this sphere as an examination of whether the judge was plainly wrong is potentially misleading. A finding on whether the threshold has been crossed will, in many cases, be a matter for fine judgment, however. The conclusion on this issue will be informed, at least to some extent, on the judges impression of the evidence. While the weight to be given to his or her conclusion as to whether the threshold has been crossed operates in a different way from that where the judge reaches a conclusion on disputed facts, since the assessment of the evidence is influential in the threshold decision, a degree of reticence on the part of an appellate court on whether to interfere with the decision is warranted. If the appellate court considers that the judge was wrong, however, it should not shrink from reversing his or her decision. The third species of decision in care proceedings (the selection of the appropriate disposal) is, as Lady Hale has said (in para 199), on the face of it, a matter of discretion. One proceeds on the basis that there is a range of options available to the judge, all of which are defensible, but that one is chosen, in the exercise of the judges discretion, as that considered best to meet the judges perception of what is needed to fulfil the requirements of the particular case. In truth, of course, this decision partakes of the exercise of judgment as well as discretion. The distinction (although it cannot be a sharp edged one) between a decision on disposal and the threshold decision is that in the latter case, the judge must arrive at a firm conclusion as to whether the appropriate standard has been met whereas, in the case of disposal, the judge can acknowledge that there is an array of possible disposals from which he or she selects what is considered to be the best. Where what is under review by an appellate court is a decision based on the exercise of discretion, provided the decision maker has not failed to take into account relevant matters and has not had regard to irrelevant factors and has not reached a decision that is plainly irrational, the review by an appellate court is at its most benign. Truly, in that instance, an appellate court which disagrees with the challenged decision of the judge will be constrained to say, even though we would have reached a different conclusion, we cannot interfere. Absent the proportionality dimension, that is probably also true of a review of the decision on whether the threshold has been crossed. The judgment as to whether there has been or is likely to be significant harm to the child must be influenced to a large extent by what the judge finds to have been proved as a matter of fact. To reverse a decision on this will almost invariably involve a review of the correctness of the judges conclusion on some of the facts. For the reasons given earlier, this is potentially perilous territory for the appellate court. So, even if it feels that it would have reached a different conclusion, it should refrain unless it concludes that the decision of the trial judge is simply insupportable. Likewise and obviously where what is under challenge is the selection of the order deemed by the judge to be required to meet the particular circumstances of the individual case, the view of the appellate court that it would have reached a different conclusion should not, apart from proportionality, prevail. Although this decision consists of the exercise of judgment as well as discretion, it is essentially one in which the judge is selecting one of a possible range of options about what is best required to meet the requirements of a particular case. Because that decision is inevitably influenced by, among other things, the judges impression of the evidence, the appellate court should be slow to substitute its view of what is best required. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision maker, at whatever level the decision is made, to starkly confront the question, is this necessary. If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate. Lord Wilson has said in para 36 that the European Convention on Human Rights does not require appellate courts to address issues as to Convention rights with any particular degree of intensity. He also says that it is not incumbent on appellate courts to re hear all the evidence relevant to a Convention issue. I agree with both propositions. But an appellate court which is required to review the proportionality of a decision may not discharge its duty under section 6(1) of the Human Rights Act 1998 by merely saying that the lower court has reached a decision which is not wrong. The observations of Lord Phillips and Lord Hoffmann in MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, which Lord Wilson quotes in para 35 of his judgment, address the argument that an appellate court was required to conduct a full blown investigation of the facts surrounding the question whether a Convention right had been violated. What was in issue was how an appellate court should inquire into a claim that a Convention right had been breached. The passages quoted were not concerned with the quite different question as to what the appellate court had to decide. In the present case both appellate courts, the Court of Appeal and this court, have to decide whether the making of a care order was proportionate. Neither court is required to conduct a complete re hearing of the evidence. But both courts must address directly the question whether they have been satisfied that the making of a care order is proportionate. They may not do so by reference only to the defensibility of Judge Cryans decision. What the appellate courts are required to decide, therefore, is not whether Judge Cryans conclusion is wrong. What they must decide is whether the decision was proportionate and that is a matter for their judgment, not one on which they may defer to the judgment of others. Deferring to the judgment of others is, of course, quite a different thing from taking into account the judgment of others. An appellate court, tasked with the function of deciding whether a decision is proportionate, may indeed, should take into consideration any properly reasoned conclusion by a judge at first instance as to proportionality. Each member of the appellate court must ask whether he or she is satisfied that the decision is proportionate but that does not mean that the first instance judges reasoning should be disregarded. The distinction between examining a first instance judges decision to see whether it falls within the generous ambit of reasonable disagreement and considering it in order to decide what influence it should have on ones own decision may seem somewhat narrow but the two assessments are importantly different from each other. In the first instance, one is not concerned (or at least not principally concerned) with whether one would have reached a different conclusion. In the second, that question is of critical importance but it can properly be influenced by an earlier process of reasoning with which one can agree. Another, perhaps more simple, way of expressing that concept is this: where an appellate court is in the realm of review of a lower court's decision without the dimension of proportionality, if the decision is not one which the appellate court would have reached, it is obliged to consider whether the lower courts conclusion nevertheless falls within the generous ambit of permissible decisions. If it does, it should not be reversed. If, on the other hand, the review must comprehend proportionality, that is not the approach. Generous ambit considerations do not arise. But that does not mean that the appellate court may completely disregard the reasons given by the first instance judge for his or her conclusion. These must be taken into account and given such weight as they deserve, bearing in mind that the judge has had the advantage of seeing the witnesses, hearing the evidence given in real time etc. Ultimately, however, the appellate court must frankly address the question "is the challenged measure proportionate", "is it really necessary". If the court of appeal concludes that it is not, then, notwithstanding its consideration of the first instance judge's view, the decision must be reversed. The decision by an appellate court on whether the making of an adoption order is proportionate cannot be determined by an approach which is geared solely to testing the adequacy of the trial judges assessment of the proportionality issue. In my view this is impermissible because it removes the appellate court from the area of responsibility which it has to ensure that a Convention right is not infringed. Moreover, an approach that contemplates the endorsement by an appellate court of a decision on proportionality which it does not affirmatively find to be correct involves an abdication of the courts statutory duty as a public authority. Section 6 of the Human Rights Act makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. The inaptness of review of the trial judges decision on proportionality rather than the appellate court reaching its own conclusion on the issue can, perhaps, be best illustrated by a series of sequential propositions: (a) Where the parents do not consent, a court may only sanction the adoption of a child (and any ancillary or preparatory steps) where that is proportionate (necessary); (b) Parents therefore enjoy a Convention right not to have their child freed for adoption unless that course is proportionate/necessary; (c) No public authority (including a court) may lawfully act in a way which is incompatible with that right; (d) In order to address the question whether it would be acting unlawfully (in breach of section 6 of HRA) a court, at whatever level, which is called on to sanction an adoption must ask itself whether this is a proportionate/necessary interference with the parents Convention right; (e) The question in (d) cannot be answered by saying that another public authority/court has said that the adoption is proportionate. In my view, an appellate court cannot avoid the imperative of section 6 of HRA by viewing the matter of proportionality through the prism of the defensibility of the trial judges decision. An appeal in an adoption case requires the appellate court to confront the possibility that its decision could involve the infringement of a Convention right. The duty not to act in a way which is incompatible with such a right gives rise to an inevitable, concomitant duty to inquire whether the order that the court makes would have that consequence. That is an inquiry which cannot be satisfactorily answered by the conclusion that another agency has so decided. The inquiry must require the appellate court to decide for itself if the freeing order is proportionate/necessary. It is simply not an option for the appellate court to adopt a stance of agnosticism and say, well we have not reached a firm conclusion ourselves but we cannot be sure that the trial judge was wrong and therefore his decision on proportionality holds the field. That is not to say that the trial judges decision is irrelevant. It is entirely consistent with the proper discharge of the duty under section 6 of HRA for an appellate court to give considerable weight to the decision of the first instance judge, endowed as he is with the conspicuous advantage of having heard the evidence unfold for the first and most pertinent time. But giving the trial judges conclusion on the question of proportionality appropriate weight is a crucially different exercise from saying that it withstands review because it is defendable. Giving it weight because of the benefits it enjoys involves the appellate court reaching its own decision, influenced by the conclusion of the trial judge. Deferring to the judges decision because it is immune from review does not require (or, indeed, permit) the appellate court to reach its own view except as a test of the viability of the judges view. Lord Neuberger considers that neither the HRA nor the ECHR requires in terms that an appellate court must decide proportionality for itself. I agree. I also agree that ECHR does not require that there be a system of appeals in every case. What ECHR requires is that, where an appeal is available, it must be conducted in a way which is Convention compliant. What Convention compliant means in the context of this case is important and I will say something about that presently. The critical point, it seems to me, is to identify what an appellate court is about in deciding an appeal in a care proceedings case. Ultimately, its decision comes down to the question whether to allow the parents wishes to be overridden. It may only do so if that course is proportionate. The fact that the decision is taken on an appeal from an earlier judicial finding does not detract from that central element of the appellate courts function. The difficult question of how, in the context of a decision on proportionality, an appeal court should exercise its appellate role must begin at this fundamental starting point. In the final analysis, the decision to allow the parents wishes to be overborne, by whatever court that decision is taken, must be shown to be necessary. The statement that an appeal must be conducted in a Convention compliant way is normally made in relation to such issues as equality of arms, access to relevant material, the ability to know the case against one etc. But it must also mean that the appeal is conducted in a way that will mean that the Convention right is vindicated in a way that is practical and effective. To have these attributes the right must not be interfered with unless the interference is proportionate and the court (any court) which deals with that question must be satisfied of that. And satisfied of that for itself. So, although neither HRA nor ECHR requires in terms that an appellate court has to decide proportionality for itself, the outworking of the courts duty under section 6 of HRA in particular makes a decision on the proportionality of a freeing order unavoidable for any court deciding that question. This does not mean, however, that the appellate court has to conclude that it is in as good a position as the trial judge or that it has to order that the evidence be heard again. The appellate court decides whether it is satisfied that the decision is proportionate on the basis of the material that is put before it in accordance with the normal rules that attend the hearing of an appeal. That material includes the judges rehearsal of the evidence, the factual findings that he has made and the reasoning which underpins his decision on the question of proportionality. All of these go into the appellate mix. Ultimately, however, the appellate court has to say to itself, are we persuaded that the decision was proportionate. I cannot see how that question can be avoided or elided if faith is to be kept with the duty under section 6 of HRA. A suggested formulation for the test of reviewability in this area has been, was the first instance judge wrong. As I understand the suggestion, this is something which goes to result as well as process so that the appellate court is not merely inquiring whether the lower court went about it the right way but also whether it arrived at the right outcome. If that is so, the question arises, how does the appellate court address the question, did the lower court get it right or wrong (as opposed to did it follow the correct route to its conclusion)? It seems to me that it can only do so by asking what is the right result; in other words, by deciding the issue for itself. Proportionality does not arise in relation to fact finding by the trial judge. It plainly is relevant to the question of disposal in care proceedings. Does it arise in relation to the crossing of the threshold? Lord Wilson thinks not. He considers that proportionality becomes material only when interference with the right to respect for family life under article 8 is in prospect and this only occurs when the threshold has been crossed and the making of a care order is in contemplation. Ward LJ in Re MA (Care Threshold) [2010] 1 FLR 431, at para 54 thought that, given the underlying philosophy of the Human Rights Act, the requirement in article 8 to have respect for family life informed the meaning of significant harm and emphasised the need for a sufficient reason for crossing the threshold. I tend to agree with Lord Wilson that this may introduce an unnecessary layer of complexity to the inquiry whether the harm was significant. The backdrop to the decision whether sufficiently serious harm has occurred or is apprehended in order to hold that the threshold has been crossed is that this opens the gateway to a possible care order. Recognition that this is a draconian step provides sufficient emphasis on the need for the harm to be significant without adding further colour by recourse to article 8. Whether or not article 8 has any part to play in the threshold decision, it certainly comes into full flower at the disposal stage. Lady Hale and Lord Wilson have both referred to emphatic statements by ECtHR in such cases as Johansen v Norway (1996) 23 EHRR 33, K and T v Finland (2001) 36 EHRR 255, R and H v United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236 and YC v United Kingdom (2012) 55 EHRR 967 concerning the stringent requirements of the proportionality doctrine where family ties must be broken in order to allow adoption to take place. I agree with Lady Hales statement (in para 198 of her judgment) that the test for severing the relationship between parent and child is very strict and that the test will be found to be satisfied only in exceptional circumstances and where nothing else will do. I also agree with what Lord Wilson has said in para 34 of his judgment, that a high degree of justification is required before an order can properly be made. Both Lady Hale (with some reluctance) and Lord Wilson (more readily) have accepted that the threshold in this case was crossed. I am happy to acknowledge the great strength of their combined experience and expertise in this area of the law. Quite apart from this, however, I am personally satisfied that the threshold was indeed crossed. The psychiatric conditions from which the mother has suffered and the way in which the parents have reacted in the past must be set against the apparently exemplary care and concern that they have exhibited towards Amelia (to use Lady Hales pseudonym). But the latter does not, in my estimation, counteract the former factors. Without rehearsing the facts which have been so extensively reviewed in the judgments of Judge Cryan, Black LJ, Lady Hale and Lord Wilson, it seems to me clear that there is a sufficient likelihood that the way in which, however well intentioned they may be, the parents care for Amelia would be blighted by their well established difficulties and that her emotional well being and development would suffer significantly in consequence. The inescapable difficulty in this case is that the parents have been found to be incapable of co operating to the necessary extent with professionals whose intervention is considered to be indispensable to the safeguarding of Amelias happy and fulfilled future. Of course this was not a question to be judged solely by reference to experience in previous relations with social services. As Lady Hale has pointed out, the evidence in relation to this was not universally adverse. But the established inability to co operate, combined with the dishonesty and antagonism displayed by the parents, unmistakably presaged the impossibility of ensuring that this child would not suffer significant harm. My conclusion on the threshold issue leads me inexorably to the same view on the question of disposal. If the difficulties that the parents presented could not be overcome and, on my analysis of the evidence, there was no prospect of this there really was no alternative to the care order. While I do not entirely agree with Lord Wilson on what I understand to be his view as to how an appellate court should approach the question of proportionality, I do agree with him as to the outcome of the appeal. I consider that it should be dismissed. LORD CLARKE I agree that this appeal should be dismissed for the reasons given by Lord Wilson, Lord Neuberger and Lord Kerr. I do not detect any difference between them save as to the correct test to be adopted by an appellate court in a case of this kind. Which test is adopted does not, as I see it, affect the correct answer to each of the questions for determination in the particular circumstances of this case, namely the correct analysis of the facts, whether the section 31(2) threshold was crossed and whether a care order with a view to adoption should have been made. However, there is a difference in principle between the approaches of an appellate court to the making of a care order adopted by Lord Wilson and Lord Neuberger on the one hand and Lord Kerr and Lady Hale on the other. I suspect that in the vast majority of cases that difference would not affect the ultimate disposal of a case of this kind, in which it is agreed on all sides that a care order cannot be made unless it is necessary in the best interests of the child. Nothing less than necessity will do, either under our domestic law or under the European Convention on Human Rights. Only in a case of necessity will an adoption order removing a child from his or her parents be proportionate. The importance of this court addressing the difference is that one of its roles is to give guidance to the courts below and it is, to my mind, critical that there should, at the very least, be a clear majority for one approach. I agree with Lord Neuberger and Lord Wilson that the correct approach of an appellate court to the making of a care order is to treat the exercise as an appellate exercise and not as a fresh determination of necessity or proportionality. On that basis the question arises how the exercise should be approached by the appellate court. In the course of argument there was some debate whether, absent some error of principle, the Court of Appeal could only interfere with the decision of the judge if satisfied that the judge was plainly wrong. In England and Wales the jurisdiction of the Court of Appeal is set out in CPR 52.11(3), which provides that the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serous procedural or other irregularity in the proceedings in the lower court. The rule does not require that the decision be plainly wrong. However, the courts have traditionally required that the appeal court must hold that the judge was plainly wrong before it can interfere with his or her decision in a number of different classes of case. I referred to some of them in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, to which Lord Neuberger refers at para 57, at my paras 9 to 23. It seemed to me then and it seems to me now that the correct approach of an appellate court in a particular case may depend upon all the circumstances of that case. So, for example, it has traditionally been held that, absent an error of principle, the Court of Appeal will not interfere with the exercise of a discretion unless the judge was plainly wrong. On the other hand, where the process involves a consideration of a number of different factors, all will depend on the circumstances. As Hoffmann LJ put it in In re Grayan Building Services Ltd [1995] Ch 241 at 254, generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision. In the present context, it seems to me, in agreement with Lord Neuberger at para 58, that the court should have particular regard to the principles stated by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372, which are quoted by Lord Wilson at para 41. As I read their judgments, Lord Neuberger, Lord Kerr and Lord Wilson all conclude that on the question whether the section 31 threshold was crossed the test is whether the judge was wrong, not whether he was plainly wrong. Lord Neuberger and Lord Wilson have reached the same conclusion on the ultimate question, namely whether a care order should be made. I agree with them. CPR 52.11(3) provides that the appeal court will allow an appeal where the decision of the lower court was wrong. As already indicated, I appreciate that the courts have given the expression wrong a different meaning in different contexts. However, in the context of care orders, where the court must be satisfied that it is necessary make the order, the better course is to ask whether the judge was wrong to make the order and not to ask whether he was plainly wrong. In ordinary language there is a difference between wrong and plainly wrong. If a plainly wrong test is adopted, it will be possible for an appellate court to hold that the judge was wrong to make an adoption order but was not plainly wrong to do so. How it might then be asked can it be said that it was necessary to make the order? If it was a wrong order how can it have been a necessary order? This consideration seems to me to argue strongly for the approach adopted by Lord Neuberger and Lord Wilson. For simplicity, I would apply the same test to decisions as to whether or not the threshold is crossed. For the avoidance of doubt, as I see it, this does not mean that the judge will only be held to be wrong if he or she has made a decision which no reasonable judge could have come to. It means that the judges decision is wrong if the case is in one of the three categories identified by Lord Neuberger in para 93 as (v), (vi) or (vii). That is where the view expressed by the judge is one which the appellate court is doubtful about but on balance concludes was wrong, or one which the appellate court concludes was wrong or insupportable. These categories are to be contrasted with Lord Neubergers categories (i), (ii), (iii) and (iv). They include category (iv), where the appellate court cannot say whether the judges view was right or wrong. In short, I agree with the approach proposed by Lord Neuberger in paras 93 and 94. I would only add that, as I read Lord Kerrs judgment, he is of the opinion that, if (contrary to his view) the exercise is that of an appellate court and not that of a court determining the issue of necessity or proportionality for itself, the correct test (absent an error of principle) is whether the decision of the judge was wrong, not whether it was plainly wrong. If that is correct, there is a majority in favour of the appellate approach (Lord Neuberger, Lord Wilson and myself) and, on such an approach, a majority in favour of the test being whether the judge was wrong (Lord Neuberger, Lord Kerr, Lord Wilson and myself). This approach will simply mean that a care order can only be made where a judge has held that such an order was necessary and the Court of Appeal (or this court on appeal from the Court of Appeal) has declined to hold that the judge was wrong. I would expect appeals to this court in adoption cases to be very rare indeed, since on this approach there will very rarely be any basis for a further appeal to this court, with all the expense and delay such an appeal entails. LADY HALE This case raises some profound questions about the scope of courts powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention. How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents? Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents character and behaviour before we separate them for good? Perhaps above all, however, this case raises the issue of when it is proper for an appellate court to interfere in the decisions of the trial judge who has heard and read all the evidence and reached his conclusions after careful cogitation following many days of hearing in court and face to face contact with the people involved. We all agree that an appellate court can interfere if satisfied that the judge was wrong. We also all agree that a court can only separate a child from her parents if satisfied that it is necessary to do so, that nothing else will do. I have come to the conclusion that the judge was indeed wrong to be so satisfied in this case. As my fellow Justices have reached a different conclusion, I must explain myself. The facts We are concerned with a little girl, whom I shall call Amelia, who was born on 22 April 2010 and is now nearly three years old. Her mother, Ms M, was born in 1970 and is now 42 years old. Ms parents separated when she was around five years old and when she was around seven years old her mother remarried Mr E, who thus became Ms step father. They had two sons, born in February 1985 and 1986, who are Ms half brothers. In her early teens M, who had been living with her grandparents, moved in with her mother and Mr E. In 1986, when M was 15 years old, Mr E began a sexual relationship with her, she became pregnant by him and had an abortion. In 1987, Ms younger sister J, then aged 12, also moved in with them. Within a remarkably short time J was the subject of care proceedings arising from a major assault upon her in November 1987. The family left her behind when they moved to Greece for several months in 1989. While there, M again became pregnant by Mr E and had another abortion (she later had five more). After the family returned to this country, Ms mother left Mr E and their two sons, then aged five and three and a half, and she began divorce proceedings in 1990. M (then 20) and the two boys remained living with Mr E. On 17 March 1999, when M was aged 29, she and Mr E had a daughter, whom I shall call Teresa. She is now nearly 14 years old. In 2003, M was convicted of a series of frauds against financial institutions. She was sentenced to two years imprisonment. In her defence, she alleged that the proceedings were a conspiracy between a BT engineer and a police officer and that the police officer had indecently assaulted her. She was prosecuted for and convicted of perverting the course of justice and perjury in respect of the latter allegation and sentenced to a further three years imprisonment, which was reduced to 27 months on appeal because of her serious psychological problems. M now says that Mr E was the prime mover behind all these offences, telling her how to accomplish the frauds, taking her to the premises and waiting for her outside, and also concocting her defence. Judge Cryan heard and accepted evidence from the barrister who defended her at the time, to whom it was apparent that M was completely dominated by Mr E. Judge Cryan held that Mr E knew all along the nature of Ms defence and, at least, was in league with her or, perhaps even, was the driving force behind it (Judgment of 27 April 2011, para 101). But he also held that M was a habitual and purposeful liar and an accomplished fraudster (para 98). In 2003, in the first criminal proceedings, Dr Spoto, presumably a consultant forensic psychiatrist, prepared a report on M, suggesting a diagnosis of Munchausens syndrome. We have not seen that report, but we do know from the later reports that M has a long and complicated history of frequent complaints to a large number of hospitals and medical practitioners for which a physical explanation could not always be found. In 2004, there was a report in the second criminal proceedings from Dr Taylor, who is a consultant forensic psychiatrist. M complained to him of sexual abuse by her own father but not by Mr E. His diagnosis was somatisation disorder: that is, the repeated presentation of physical symptoms, together with persistent requests for medical investigations, but where any physical symptoms present do not explain the nature and extent of the symptoms or the distress and preoccupation of the patient. M had had some real disorders, but these were not such as to explain her repeated presentations with complaints primarily of vaginal bleeding and abdominal pain. But he disagreed with Dr Spoto: there was no definitive evidence that she had feigned or fabricated symptoms, so he did not then diagnose Munchausens syndrome (or factitious disorder as it is now known) still less Munchausens syndrome by proxy (which is the reporting of feigned or fabricated symptoms in a child in order to secure medical attention for the child). In June 2009, M was admitted again to hospital for medical investigations and this time she did not return to the family home with Mr E, her half brothers and her daughter, Teresa. She began to make serious allegations of abuse to the Surrey police against Mr E. Mr E countered these with allegations against her. He made an ex parte application to the court and obtained an interim residence order in relation to Teresa. While M was accommodated in a refuge in Eastbourne, Mr E traced her and harassed her by telephone call and text, necessitating her move to a refuge in Hastings. While there, her younger half brother sought her out and harassed her to come home, which Judge Cryan found highly likely to be a joint exercise involving Mr E. It was during this period that M met Amelias father, F, in Hastings and soon began a relationship with him. He has a great many convictions for serious criminal offences and has also used class A drugs. He has been a somewhat distant father to his four older children. Amelia must have been conceived in August 2009. In November 2009, the couple moved with the support of the police to live in the London Borough of Barnet. The first social work statement to the court reports that M accessed ante natal care appropriately throughout her pregnancy. In January 2010, a midwife asked her about scarring on her body and M told hospital staff that she was fleeing domestic violence, that she had a ten year old daughter who was still living with her partner, and described 23 years of serious abuse by Mr E. In March 2010, Barnet midwifery services made a referral to Barnet social services, because of their concerns about the wellbeing of M and the safety of Teresa. Barnet began an initial assessment but although M gave information over the phone she was reluctant to attend appointments or receive home visits. On 17 March 2010, West Sussex County Council held an initial child protection case conference about Teresa. Ms solicitors later sent the Minutes of this case conference to Barnet social services. From these they learned, not only of the serious allegations which M was making against Mr E, but also of the (less serious) allegations which he was making against her, of her criminal record and reported Munchausens syndrome. Amelia was born on 22 April 2010 at only 32 weeks gestation and was placed in the special baby care unit. On 6 May 2010, Barnet began care proceedings in respect of her and asked for an interim care order. They did not send the parents the usual pre proceedings letter setting out their concerns and asking for the parents response. But both the parents had been evasive and obstructive with them. An interim care order was granted on 10 May 2010 and Amelia was placed in foster care immediately on discharge from the hospital. Greatly to her benefit, to the credit of the local authority and her foster carer, and despite the barrage of complaints from the parents which they had to endure in the early days, she has remained with the same foster carer ever since. Given the complexity of the situation at that point, and the difficulties they were having with the parents, it is understandable that the local authority applied for an interim care order and that the court granted it. Their concerns will have become even greater in September 2010, when Dr Bass, a consultant liaison psychiatrist and renowned authority on somatisation and factitious illness disorders, made his first report. He examined Ms medical history in great detail and agreed with Dr Taylor that she satisfied the diagnostic criteria for somatisation order. He also concluded from the evidence that she exaggerates and possibly fabricates her biographical history as well as her medical history that she had factitious disorder as well. So he wished to re interview her after the fact finding hearing. The fact finding hearing began in March 2011 before Judge Cryan and lasted 20 days. Technically, it was part of the private law proceedings concerning Teresa, M having made a cross application for a residence order in October 2010. West Sussex County Council took an active part in the proceedings but Barnet did not. But it was contemplated that the care proceedings about Amelia would heard together with the residence proceedings about Teresa. On 27 April 2011, Judge Cryan delivered a long and detailed judgment considering the allegations made by M against Mr E, by Ms mother against Mr E, by J against Mr E, and by Mr E against M. He prefaced this judgment with a comment on the forensic challenge with which we can all sympathise: The history is chaotic and complex, and it is a forensic challenge made all the more difficult by the unreliability of almost all of the main witnesses, particularly [M and Mr E] (para 7). In general, he concluded that Mr E was a violent, controlling and bullying personality, who used violence from time to time (para 172), and that M finally left home, not for fear of any particular danger or increase in risk, but rather the cumulative effect of highly intolerable conduct (para 175). His conclusions are summarised in a Scott schedule prepared by the advocates, which the judge confirms is a reasonable reflection of his findings. Items 1 14 are Ms allegations against Mr E. Items 1 3 are allegations of rape. The judge found that there was a lengthy sexual relationship which began when M was 15 years old, when she was not able to give her consent, she became pregnant and had an abortion at his instigation to cover up that fact. After she reached 16, their relationship was not to be characterised as rape but was part of a dysfunctional relationship in which he was the dominant partner. Items 4 6 are allegations of repeated violence towards her. No specific findings were made, save where these were corroborated by other evidence (for example, of an assault outside court during the criminal proceedings against her), but Mr E was a domineering, bullying and occasionally violent man who controlled the household by these means. He did not find that the extensive scarring to Ms body was caused by the offensive actions of Mr E but see above. He did not find item 8, that Mr E forced M to have sex with other people so that he could watch, proved. But he did find proved item 7, that Mr E placed undue influence on M in respect of the criminal proceedings; item 9, that Mr E made threats to kill M; item 10, that Mr E would continue his abuse of M regardless of the presence of their child; item 11, that Mr E placed offensive material about M on her Facebook account; item 12, that Mr E constructed or used a website to post offensive photographs of M, and make defamatory claims about her; item 13, that he harassed her after she left, intending to intimidate her into returning to the home of her child [Teresa] in order that he could continue his abuse of her; and item 14, that his actions have caused her physical and emotional injury, whilst living in his home she was in fear for her own safety, and in fleeing from his home she has remained in fear for her own safety as a result of his continuing threatening behaviour. Items 15 16 concerned his behaviour towards his wife, Ms mother; the judge found that there was domination of and violence towards her, together with some sexually aberrant behaviour. Items 17 26 concerned his very serious physical and psychological abuse of J, all of which the judge found proved. In addition the judge found that paedophile pornographic material had twice been found on the familys computer; on the second occasion M could not have been involved as she had already left; on the first, he did not find that she had been involved. Items 27 to 34 consisted of Mr Es allegations against M. Save for one (that M had alleged that her brother had assaulted her in Hastings which allegation was true), none of these allegations were found to be proved. Mr E had engaged in seriously dishonest conduct and lied to this and other courts, he had coached [Teresa] into making false allegations against M, and persuaded his sons to give false evidence on his behalf. The immediate result was that West Sussex County Council issued care proceedings in relation to Teresa, initially seeking an interim supervision order, but changing this to an interim care order in the light of Mr Es attitude towards them. In a second judgment, dated 24 May 2011, Judge Cryan granted that application. The care proceedings relating to Teresa had not been completed when the case came before us, but she has maintained the negative view of her mother into which the judge found that she was coached by Mr E, and steadfastly refuses to have anything to do with her. Dr Bentovim, a well known child psychiatrist, has produced two reports confirming the brainwashing of Teresa and the effect upon her emotional development. Also in those proceedings there has been a report from the Lucy Faithfull Foundation, dated 2 August 2011, pointing to the possible links between the sexual and other abuse suffered by M and her somatisation disorder, and taking the view that the risks of sexual abuse and of exposure to the effects of the mothers mental ill health were currently low and could be managed. Meanwhile, the care proceedings relating to Amelia continued. Dr Bass produced his second report, in the light of the fact finding hearing, on 4 July 2011. If M had ceased attending doctors with complaints of pelvic pain and vaginal bleeding since September 2009, it did demonstrate an improvement. He confirmed the diagnosis of somatisation disorder, but it was difficult to be clear about evidence that she habitually exaggerates and lies about symptoms (para 5.2). His main concern was that she had remained so long with an abusive partner and reared her daughter in this abusive environment, so that he could not be confident that she would keep a child in her care safe. There was also a risk that she might expose Amelia to unnecessary medical attention and she could present a moral risk to her child as a result of her habitual lying and deception (para 5.3). Dr Taylor produced a second report on 12 July 2011. He accepted that there were incidents providing some evidence of co existing factitious disorder, but he thought that her repeated presentations to doctors with unexplained symptoms were predominantly as a result of somatisation disorder rather than factitious disorder (para 7). He also had some concerns extrapolating the presence of factitious disorder to the risk of fabricated or induced illness in children (para 8). Dr Bass had said that a parenting assessment might help to identity any abnormalities in Ms parenting style and attachment to her child. In September 2011, Barnet instructed the Marlborough Family Service to conduct a viability assessment. Their parenting assessment co ordinator, Ms Summer (a psychologist), produced a report on 4 November 2011 concluding that further assessment of either the mother or the father would not assist the Court, because neither of them can be relied upon to be honest in their reporting of events and to work cooperatively with child protection workers and agencies. The parents, however, with the support of the childs guardian, sought a further parenting assessment from Dr Dale, an experienced social work consultant and researcher. He did not form such a negative view of the parents ability to co operate. His two reports, dated 20 January 2012 and 22 February 2012, concluded that Amelia should be reunified into the care of her parents in the context of a risk management and family support programme without delay (para 9.1). He commented that this case raises important social policy questions worthy of public debate, about the nature and level of perceived risks of future emotional harm required for a local authority to recommend to a court that an infant be subject to compulsory adoption (para 17.4). The final hearing of these proceedings began on 5 March 2012. The guardian, in her report dated 7 March 2012, was unable to make a recommendation to the court. She understood the local authoritys concerns based upon the reports of Dr Bass and Dr Taylor but she was unsure whether these were enough to warrant permanent removal from the parents. She felt that Amelia had been lost in the ongoing battle between the local authority and the parents. In an addendum report after hearing the evidence of the experts and M, but not the father, she concluded that adoption was too draconian and should only be utilised if there was no alternative. She firmly believed that there was an alternative and recommended a supervision order. She acknowledged that M and F may not be the very best parents. However, they had shown 100% commitment to contact, attending assiduously for one and a half hours, five days a week. The quality of the contact was appropriate and there were no major concerns from the supervisors. Amelia was clearly attached to her parents and knows them as her mum and dad. The mother of the fathers four daughters confirmed that he had always been a good, if often absent, father. When he was with them he was caring, loving and attentive. There was also nothing to suggest that M had taken Teresa to the doctor excessively. The judgment The hearing before Judge Cryan lasted some 15 days. Once again, his judgment, dated 14 June 2012, is long (203 paragraphs), careful and detailed. He reviews in detail the evidence about the father, about the relationship between the father and the mother, about the conduct of the mother since Amelias birth, and about the mothers dishonesty. The most striking feature of the parents relationship was the strength of and consistency of their united wish to have their daughter placed in their care. They had attended all the court hearings, all the statutory meetings with the local authority, and every contact session. Throughout the contact they had behaved unimpeachably towards their daughter. They each have a warm and loving relationship with her. But M had not lost the tendency, developed when living with Mr E, of seeking to control by complaint and make false allegations as a way of diverting attention. There were numerous examples of the mothers dishonesty throughout the evidence. He then reviewed the expert evidence, beginning with that of Dr Bass and Dr Taylor. Both maintained their diagnosis of somatisation disorder. Both described the resulting risk to Amelia as the intergenerational transmission of abnormal health behaviour. Dr Bass also considered that there was an unquantifiable risk of Amelia being subject to excessive medicalisation (para 111). However, there were no ongoing presentations at hospital or medicalisation of stresses or emotional problems (para 114). Further, in cross examination, Dr Bass had clearly modified his view of the mothers factitious disorder and reached the conclusion that it was less severe than one normally sees, putting it at mild to moderate (para 117). But both experts agreed that her somatisation disorder brought future risk and necessitated a plan and strategy for the future to ensure that all health care professionals are aware of [the mothers] past and are able to intervene to protect [Amelia] should the symptoms resurface (para 114). He next reviewed at length the evidence of risk management from Ms Nabi of the Lucy Faithfull Foundation, Ms Summer of the Marlborough Family Service, Dr Dale, and the guardian. He shared Ms Summers concerns about how any child would cope with the high levels of dishonesty exercised by her mother (para 155). He noted that even [Dr Dale] considers that here there is a risk which would require management by a risk management and family support programme (para 177). The guardian, although firmly of the view that adoption was the wrong order here, had modified her recommendation from a supervision order to placement with the parents under a care order (paras 180, 182). Overall, he found the guardian an unimpressive witness whose input to this complex case was little short of superficial (para 188). Turning to his conclusions, he found that the threshold required by section 31(2) of the Children Act 1989 has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been (para 189). He did not there spell out the nature and degree of the future harm which Amelia would be likely to suffer if an order were not made, or the degree of likelihood that such harm would materialise, but referred back to the risk identified by Dr Bass and Dr Taylor and to Ms Summers concerns about the mothers willingness to leave Teresa exposed to the risks of living with Mr E and her quite exceptional proneness to lie. Having found the threshold crossed, he went on to consider Amelias welfare in terms of the checklist of factors set out in section 1(3) of the 1989 Act. Under her physical, emotional and educational needs he set out the perceived risks in clearer terms than he had done when finding the threshold crossed: The concerns of the local authority focus primarily on the emotional harm to [Amelia] likely to be caused by the Mothers somatisation disorder and the factitious illness disorder. Those emotional risks are coupled with the concerns expressed by Drs Bass and Taylor and by Ms Summer, which I have accepted, about the parents personality traits, and her mothers vulnerability to accommodation disorder, her mothers lying and her fathers active, but less chronic tendency to dishonesty and vulnerability to the misuse of drugs. Whilst primarily these are engines for emotional harm, it is submitted, and I accept, that physical harm to [Amelia] cannot be discounted, for example by over treatment or inappropriate treatment by doctors (para 192). As to what to do about it, he rejected the views of Dr Dale and the guardian. Dr Dales criticisms of the local authority and Ms Summer had been unfair. He considered that the parents were controlling and wilful. Their unacceptable behaviour was not merely reactive to the mishandling of events by others. He concluded (para 197): Ultimately, I find that I am persuaded by the other group of witnesses that what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe and protected from emotional and/or physical harm identified by Drs Bass and Taylor. The father would not be able to protect Amelia from the risks because he simply did not accept them. Amelia could not be placed with her father alone because there was a high probability that the parents would not separate in any meaningful sense. There would be no way in which the situation could be effectively monitored (para 199). In any event, he had very serious reservations about the father, who has lived a turbulent life with a very serious history of criminality, imprisonment and drug abuse (para 200). Adjournment to make further enquiries of the extended paternal family would simply delay the inevitable (para 201). So he was left with the local authoritys care plan as the only viable option (para 203). The Court of Appeal On appeal, it was argued that the risks identified were not sufficient to constitute significant harm, that they were not imminent, and that it was disproportionate to respond to them by permanent removal of the child. Various criticisms were made of the judges treatment of the evidence, in particular of his failure to deal with the detailed criticisms of Dr Basss diagnosis of factitious illness, with the numerous factual errors and invalid assumptions in Ms Summers evidence, with the detailed rebuttal of and explanation of the allegations in relation to Ms dishonesty and lack of cooperation, and on the other hand to refer to the Lucy Faithfull Foundations view that M did not present a risk or to mention the social workers evidence that there was no physical, sexual or educational risk to the child, and no suggestion that the parents would not offer her adequate physical care and emotional warmth, and that the parents attitude had never prevented her from undertaking her work properly with Amelia. The father also had a number of criticisms of the judges decision not to allow him to be assessed with a view to caring for Amelia on his own. It is no doubt an indication of the complex and troubling nature of this case that Black LJ, who delivered the principal judgment, took enormous care in reviewing the evidence and considering the detailed criticisms made by the parents of the judges approach to that evidence: [2012] EWCA Civ 1475. She reminded herself that the Court of Appeal must avoid approaching the case as if it were making the determination at first instance (para 112). She took the view that the judge was aware of the need to separate the issue of what harm there actually was from the question of whether the parents would cooperate sufficiently with social services. He had intervened to explain to the social worker that it did not matter how unco operative parents were with social services if there was no risk against which social services needed to guard (para 121). The harm was of two kinds: that stemming from the mothers illness related behaviour (para 122) and that stemming from her chronic lying and the fathers dishonesty (para 123). Black LJ attached particular importance to the mothers position in Mr Es household, where she could not argue that her role had been entirely inert she was a habitual and purposeful liar and an accomplished fraudster and her use of complaining tactics since she left Mr E had shown her to be his accomplished pupil. Her vindictive behaviour when a relative of the father had withdrawn her offer of help was redolent of the E household (para 125). Counsel had argued that these non medical risks were not what the Children Act was driving at, but she agreed with the local authority that it was a question of degree which the judge was best placed to assess and make the necessary value judgment (para 128). She concluded In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy (an echo of the words of Hedley J quoted at para 182 below). The judge was entitled to conclude that any strategy to manage the risks would have to go beyond the watchful eye of the GP and involve social services and that the parents would not be able to engage with professionals to ensure that Amelia was safe from harm (para 130). She went on to reject the detailed criticisms made of the judges approach to some of the evidence. Lewison and Rix LJJ were clearly deeply troubled by the case. Lewison LJ was concerned about proportionality: here was a child who had not suffered any harm, who had a warm and loving relationship with her parents; the threshold had not been crossed in the most extreme way, but the order made was the most extreme that could have been made (para 142). But their task was not to make the decision but to examine whether it fell outside the generous ambit within which reasonable disagreement is possible so he would not push his doubts to dissent (para 148). Rix LJ also acknowledged the difficulties in the case, but agreed that one should trust the judge of trial. Lewison LJ associated himself with Rix LJs concluding sentence: I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk (para 150). This appeal It is not the task of this court to review the factual findings of the judge in order to decide whether he was entitled to make them in the light of the evidence before him. The Court of Appeal has already performed that task with conspicuous care. This Court gave permission to appeal because of the general public importance of, and concern about, the point made by Rix LJ. On giving permission, the Court identified four specific, though inter related, questions of law: (i) the meaning of significant harm; (ii) the relationship between the nature and gravity of the harm which is feared and the degree of likelihood of that harm being suffered in the future; (iii) the proportionality of a care order with a care plan for adoption in a case such as this; and (iv) the proper approach of the Court of Appeal to a finding that the threshold has been crossed, and (although this was not expressly referred to) to the issue of proportionality. The first two questions relate to the threshold criteria in section 31(2) of the Children Act 1989, the third relates to the approach of the court once the threshold has been crossed, and the fourth to the appellate function. The threshold The threshold set by section 31(2) of the Children Act 1989 requires that the court be satisfied: (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the childs being beyond parental control. By section 31(9) harm means ill treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill treatment of another; ill treatment includes sexual abuse and forms of ill treatment which are not physical; health means physical or mental health; and development means physical, intellectual, emotional, social or behavioural development. There is no definition of significant, but section 31(10) provides that Where the question of whether harm suffered by a child is significant turns on the childs health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. Thus, while the standard of parenting expected by section 31(2)(b) is the objective standard of a reasonable parent, the level of development expected of the child is the subjective level to be expected of a child like him. Furthermore, as Munby J said in In re K, A Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at para 26, the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family. Since well before the Children Act came into force, the courts have recognised that there is a line to be drawn between parents whose personal characteristics mean that they may be less than perfect parents and parents who may cause harm to their children. Lord Templeman put the point this way in his well known words in In re KD (A Minor)(Ward: Termination of Access) [1988] AC 806, 812: The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the childs moral and physical health are not endangered. Public authorities cannot improve on nature. If, by that last sentence, Lord Templeman was making a factual statement, then some might disagree: if local authorities remove children from unsatisfactory parents at birth and swiftly place them with highly satisfactory adoptive parents they can undoubtedly improve on nature. But in my view Lord Templeman was making a normative statement: public authorities have no right to improve on nature. That thought has been followed through in numerous cases since. As Wall LJ pointed out in Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282, [2007] 1 FLR 1068, at 1084, There are, of course, many statements in the law reports warning of the dangers of social engineering, citing in particular Butler Sloss LJ in Re O (A Minor) (Custody: Adoption) [1992] 1 FLR 77, 79: If it were a choice of balancing the known defects of every parent with some added problems that this father has, against idealised perfect adopters, in a very large number of cases, children would immediately move out of the family circle and towards adopters. That would be social engineering . Re L is an important case because it concerned parents with learning difficulties, very considerable in the case of the mother. The judge had found significant harm on the basis of the report of a psychologist who had not been asked to assess this. She had acknowledged that there was no obvious harm, no explicit malicious abuse or extreme abuse: On the contrary my concern in this family relates to the more subtle and ambiguous consequences on the children flowing from parental deficiencies. Wilson LJ commented: So which was it? Significant harm or subtle and ambiguous consequences? Speaking for myself, I regard the two concepts as mutually exclusive (para 31). For these and many other concerns about the report, the case was sent back to be re heard in the High Court. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, at 2063, Hedley J, having quoted Lord Templeman, continued (para 50): It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance [semble: province] of the state to spare children all the consequences of defective parenting. But clearly we do remove some of those children. The difficulty is to identify what it is that tips the case over the threshold. Although every parent, every child, every family is different, and, as Hedley J put it, significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it, there must be some consistency in the approach of both local authorities and the courts. Hedley J went on say that it must be something unusual; at least something more than commonplace human failure or inadequacy. It does appear that he considered that the children were suffering, and likely to suffer, some harm to their intellectual development as a result of their parents inadequacies, but that it was not of a character or significance to justify the compulsory intervention of the state. The Court of Appeal wrestled with the problem of separating harm from significant harm in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431. The trial judge had found that although the parents had ill treated another child, whose presence in their household remained something of a mystery, their own children were well cared for, healthy, well nourished and had strong bonds with their parents. The eldest child had been slapped, kicked and hit on the head by one or other of her parents. But that was not significant harm. Wilson LJ, at para 29, quoted Booth J in Humberside County Council v B [1993] 1 FLR 257, at p 263: Significant harm was defined by Miss Black, in accordance with the dictionary definition, first as being harm that the court should consider was either considerable or noteworthy or important. Then she expressed it as harm which the court should take into account in considering a childs future. Wilson LJ went on to comment that while I might not have expressed myself in quite such broad terms, they certainly foreshadow the view of Lord Nicholls, expressed three years later, that, in relation to the likelihood of harm, the threshold is set at a comparatively low level. At paragraph 51, Ward LJ emphasised, correctly in my view, that Lord Nicholls remark, in In re H [1996] AC 563, was directed, not at the threshold as a whole, nor at the threshold of significant harm, but at the threshold of likelihood of harm in the future. Lord Nicholls said nothing in that case, or in any later case, to suggest that the threshold of significance was comparatively low. Ward LJ went on, at para 54, to express the difference between harm and significant harm thus: Given the underlying philosophy of the Act, the harm must, in my judgment, be significant enough to justify the intervention of the state and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. The point can fairly be made, both of this definition and of the second of the two definitions suggested by Miss Black to Booth J (para 183 above), that they are somewhat circular: the state is justified in intervening if the harm is sufficient to justify the states intervening. But it serves to make the point that not all harm which children may suffer as a result of their parents care falling short of what it is reasonable to expect is significant for this purpose. The dictionary definition, considerable, noteworthy or important, is to my mind more helpful. It chimes with the Guidance given by the Department of Health and Social Security when the Act first came into force: It is additionally necessary to show that the ill treatment is significant, which given its dictionary definition means considerable, noteworthy or important (para 3.19). There would be no point in the threshold if it could be crossed by trivial or unimportant harm. As to the suggestion made by Ward LJ (at para 54), that article 8 of the European Convention on Human Rights does inform the meaning of significant, I agree that it is only the courts order, and not its finding that the threshold has been crossed, which constitutes an interference with the article 8 right. However, the reason why the threshold is crossed forms part of the courts reasons for making the order, and these must be relevant and sufficient. It is not sufficient that the child would be better off in another family. That is the reason for the existence of the threshold (which was substituted for the more precise criteria laid down in the Children and Young Persons Act 1969 and the Child Care Act 1980). Furthermore, there is a relationship between this debate and the approach taken to proportionality, discussed in paragraph 197 below, which I believe to be common ground between us. If permanent removal is proportionate if it is the only way of avoiding the identified risk of harm, then it is also important that the threshold of harm is not set at too low a level, for otherwise the reasons for removal will not be sufficient: say, for example, that it is highly likely that a child will turn into an unhealthy couch potato like her parents, and only permanent removal could reliably prevent this, it would nevertheless not be a justifiable interference with family life to permit this. Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 that likely does not mean probable or more likely than not. It means, in Lord Nicholls well known words, a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 2 WLR 649. It is in this respect, and this respect alone, that Lord Nicholls observed that the threshold is comparatively low. The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nicholls did not contemplate that a relatively small degree of likelihood would be sufficient in all cases. The corollary of the more serious the harm, the less likely it has to be is that the less serious the harm, the more likely it has to be. Of course, another reason for adopting a test of real possibility, rather than more likely than not, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the childs immediate future. However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The childs resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as to justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the real possibility solidify. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him (s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen. Allied to this is the definition of harm itself (see para 178 above). It is wide, but it is not infinite. The focus is upon the child suffering that harm, so upon the child suffering ill treatment or suffering the impairment of her health or development. Ill treatment will generally involve some active conduct, whether physical or sexual abuse, bullying or other forms of active emotional abuse. Impairment may also be the result of active conduct towards the child, but it could also be the result of neglecting the childs needs, for food, for warmth, for shelter, for love, for education, for health care. Generally speaking, however, the harm is likely to be the result of some abusive or neglectful behaviour towards the child. But this is not invariably the case, as is shown by the inclusion, by way of example, impairment suffered from seeing or hearing the ill treatment of another. We now know that serious harm may be done to the development of children who see or hear domestic violence between their parents. I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind: (1) The courts task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed. (2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development. (3) Significant harm is harm which is considerable, noteworthy or important. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened. (4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect. (5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a risk is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649. Proportionality Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the courts paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the checklist of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights. It is well established in the case law of the European Court of Human Rights that the mutual enjoyment by parent and child of each others company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by article 8 of the Convention (Johansen v Norway (1996) 23 EHRR 33, among many others). However, such measures may be justified if aimed at protecting the health or morals and the rights and freedoms of children. But they must also be necessary in a democratic society. The court has recently summed up the principles in the context of an order freeing a child for adoption, in R and H v United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236, at para 81: In assessing whether the freeing order was a disproportionate interference with the applicants article 8 rights, the court must consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of article 8 of the Convention (see, among other authorities, K and T v Finland (2001) 36 EHRR 255, para 154). The court would also recall that, while national authorities enjoy a wide margin of appreciation in deciding whether a child should be taken into care, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v Germany (2000) 34 EHRR 1412, para 49, and Kutzner v Germany (2002) 35 EHRR 653, para 67). For these reasons, measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the childs best interests (see Aune v Norway (Application No 52502/07) 28 October 2010, para 66; Johansen v Norway (1996) 23 EHRR 33, para 78; and, mutatis mutandis, P, C and S v United Kingdom (2002) 35 EHRR 31, para 118). The Strasbourg court itself has consistently applied a stricter standard of scrutiny to the national courts decisions to restrict or curtail contact between parent and child than it has to the decision to take a child into care in the first place. This is because, as stated, for example, by the Grand Chamber in K and T v Finland (2001) 36 EHRR 255, at para 178, there is: . the guiding principle whereby a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Thus it is not surprising that Lewison LJ was troubled by the proportionality of planning the most drastic interference possible, which is a closed adoption, in a case where the threshold had not been crossed in the most extreme way (see para 174 above). However, I would not see proportionality in such a linear fashion, as if the level of interference should be in direct proportion to the level of harm to the child. There are cases where the harm suffered or feared is very severe, but it would be disproportionate to sever or curtail the family ties because the authorities can protect the child in other ways. I recall, for example, a case where the mother was slowly starving her baby to death because she could not cope with the colostomy tube through which the baby had to be fed, but solutions were found which enabled the child to stay at home. Conversely, there may be cases where the level of harm is not so great, but there is no other way in which the child can be properly protected from it. Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the childs welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34, Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child. The appellate function The judgments involved in care proceedings are of (at least) three different types. First are the decisions on the facts: for example, who did what to whom and in what circumstances. Second is the decision as to whether the threshold is crossed, which involves the various questions set out in para 193 above. In In re MA (Care: Threshold) [2010] 1 FLR 431, at para 56, Ward LJ was inclined to think that this was a value judgment rather than a finding of fact; and in the Court of Appeal in this case, Black LJ was also inclined to categorise it as a value judgment rather than as a finding of fact or an exercise of discretion (para 9). I agree and so, I think, do we all. It is certainly not a discretion and it will entail prior findings of fact but in the end it is a judgment as to whether those facts meet the criteria laid down in the statute. Third is the decision what order, if any, should be made. That is, on the face of it, a discretion. But it is a discretion in which the requirements, not only of the Children Act 1989, but also of proportionality under the Human Rights Act 1998, must be observed. What is the role of an appellate court in relation to each of these three decisions? As to the first, the position is clear. The Court of Appeal has jurisdiction to hear appeals on questions of fact as well as law. It can and sometimes does test the judges factual findings against the contemporaneous documentation and inherent probabilities. But where findings depend upon the reliability and credibility of the witnesses, it will generally defer to the trial judge who has had the great advantage of seeing and hearing the witnesses give their evidence. The question is whether the findings made were open to him on the evidence. As Lord Hoffmann explained in Biogen Inc v Medeva plc [1997] RPC 1, the need for appellate caution is based upon much more solid grounds than professional courtesy. Specific findings of fact are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance . In child cases, as Lord Wilson points out, there is the additional very important factor that the courts role is as much to make predictions about the future as it is to make findings about the past. As to the second, in Piglowska v Piglowski [1999] 1 WLR 1360, 1371, Lord Hoffmann cautioned the same appellate restraint in relation to the trial judges evaluation of the facts as to his factual findings themselves. In In re MA, Wilson LJ would have allowed the appeal on the stark basis that, on the evidence before him, it was not open to Roderic Wood J, of all people, to reach the conclusion which he did (para 34). Hallett LJ considered the question to be one of fact and was not persuaded that the judge was plainly wrong to decline to find that the threshold has been crossed (para 44). Ward LJ, having inclined to the view that it was a value judgment rather than a finding of fact, held that it does not matter for the test this court has to apply is essentially similar, namely whether he has exceeded the generous ambit within which there is room for reasonable disagreement (para 56). In this case, Black LJ adopted the approach of Ward LJ in In re MA (para 9). In fact, the generous ambit or plainly wrong tests were developed, not in the context of value judgments such as this but in the context of a true discretion. In G v G (Minors: Custody Appeals) [1985] 1 WLR 647, Lord Fraser of Tullybelton approved the statement of Asquith LJ in Bellenden (formerly Satterthwaite) v Sattherthwaite [1948] 1 All ER 343, at 345: It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere. In relation to evaluating whether the threshold has been crossed, we are all agreed that the proper appellate test is whether the trial judge was wrong to reach the conclusion he did. This is the test laid down in CPR 52.11(3) and there is no reason why it should not apply in this context. Plainly adds nothing helpful, unless it is simply to explain that the appellate court must be in one of the three states of mind described by Lord Neuberger at paragraph 93 considering the trial judges decision (v) on balance wrong, (vi) wrong or (vii) insupportable. Lord Neuberger, Lord Clarke and Lord Wilson would adopt the same approach to the question of proportionality. The question here is what section 6(1) of the Human Rights Act requires of appellate courts. This is not a case such as R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, in which the courts were engaged in the careful scrutiny of the proportionality of a decision which Parliament had given to the executive to make. The courts are the primary decision makers in care cases. They are not conducting a judicial review of the local authoritys decisions. Local authorities have a range of statutory duties to help children in need and their families, to investigate and to take steps to protect children from harm. It is right, it seems to me, that they should generally follow a precautionary principle. But they do not have the power to intervene compulsorily between parent and child without the sanction of a court order. The courts are the guardians of the rights of both the children and their parents. Hence the courts, as public authorities, have the statutory duty under section 6(1) not to act incompatibly with the Convention rights. This means that the courts have the duty to assess the proportionality of the proposed interference for themselves. Does this mean that an appellate court has the same duty to assess the proportionality of the proposed interference as does the court at first instance? This is a difficult question, but it seems to me that if the court has the duty to assess the proportionality of the decisions of a board of school governors, or of the Secretary of State, or of the immigration appellate authorities, it must a fortiori have the duty to assess the proportionality of the decisions of the trial judge in a care case. It must of course give due weight to the enormous benefit which he has had of reading and hearing all the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days and weeks. And it must be alive to the risks of being over critical of the way in which a judge has expressed himself, bearing in mind the wise words of Lord Hoffmann in Biogen quoted earlier. But the court which makes the final decision is the public authority which is responsible for the invasion of Convention rights. I agree with Lord Kerr that it must decide for itself whether the order will be compatible with those rights. But I also agree that this will only make a difference in cases within Lord Neubergers category (iv), where the appellate judge cannot say whether the trial judge was right or wrong. Application to this case The judge collected all his self directions on the law at the beginning of his judgment, including references to In re H, Re MA, Re L, Re B, and Re C and B. In themselves these directions can scarcely be faulted. But when he gave his reasons for concluding that threshold was crossed he did not clearly spell out (i) what the feared harm was, (ii) whether it was significant, and (iii) how likely it was to happen. Both in the Court of Appeal and in this court it was necessary for us to try and do so. (1) The nature of the harm feared Black LJ was alive to the need to separate the nature of the harm feared from the question of whether the parents would co operate with social services (para 121). The parents have no legal duty to co operate with social services (as opposed to the health and educational services) unless the threshold is crossed. She identified two kinds of harm : (i) that Ms medical behaviour would reassert itself and that Amelia would therefore be harmed by the intergenerational transmission of abnormal health behaviour and by excessive medicalisation (para 122); and (ii) that Amelia would be confused and experience conflicting loyalties as a result of her mothers (and to a lesser extent her fathers) chronic lying and dishonesty and her mothers use of complaining tactics learned in the household of Mr E (paras 123 to 125). (2) Is it significant? Black LJ considered that this was a matter of degree, which the trial judge was best placed to assess (para 128). For my part, I would draw a distinction between the harm stemming from over medicalisation and the other harms identified. A child whose mother actively feigns or fabricates symptoms undoubtedly suffers significant harm, but that was not the harm which the judge found here. A child whose mother exaggerates and sees the worst and thereby exposes her to unnecessary medical investigations and even treatment may well suffer significant harm. But it will be a question of degree, depending upon its frequency and severity. Many of us are anxious mothers and take our children to the doctor far more often than we should. Some of us, of course, are not anxious enough and do not take our children to the doctor when we should. There was evidence that the mother was over anxious during the early days when Amelia was in foster care and that she over dramatised an occasion when Amelia was taken to hospital with breathing difficulties. On the other hand, there was no evidence at all that her older daughter had been subject to excessive medicalisation, despite the fact that the mother was then much more actively engaged in her own over medicalisation. It is clear that the judge did not place a great deal of weight upon this feature, simply commenting that it cannot be discounted (para 192). The other harms, it seems to me, present much more of a problem. They are indeed the harms which stem from parental character defects. In relation to the mothers somatisation disorder, the harm would be the emotional (and possibly also physical) damage which Amelia would suffer from copying her mothers behaviour. In relation to the parents dishonesty and use of complaining tactics, the harm would be the emotional damage which Amelia would suffer, either from copying this behaviour, or from the confusion and divided loyalties resulting from her growing realisation that her mothers version of the truth differed from her own. I accept entirely that the significance of such harms must be a question of degree. I also accept that the mothers problems are indeed out of the ordinary. But then so were the learning difficulties of the parents in Re L. Put at their highest, these do not seem to me to come very high in the hierarchy of bad behaviours which children may learn from their parents. The fathers serious criminality, including violence, and drug abuse would come much higher. (3) How likely are they to be suffered? The issue of significance and the issue of likelihood are inter related. It is very difficult, reading the judgment of the judge, to get any impression of how likely he thought it was that these harms would materialise. I have the impression that he did not think it very likely, though he could not discount, that Amelia herself would be subject to over medicalisation. It is difficult to gauge the likelihood of the other risks materialising, bearing in mind that the mothers behaviour had been different since extricating herself from the household of Mr E, and the other protective factors there might be in play. It is one thing to say that the father does not take the local authoritys concerns seriously enough. It is another thing to say that this father, who is a very different person from Mr E, would not be able to counteract some of the prospective harm. In any event it is clear that these are subtle and slowly developing harms which will only materialise, if they materialise at all, in the longer term. It is possible to get too close to the trees. I have the gravest doubts as to whether, properly analysed, the harm which is feared here is of sufficient significance or sufficient likelihood to justify a finding that the threshold has been crossed. It is difficult to discern whether the judge ever asked himself the question of degree, particularly in relation to the degree of likelihood. It is one thing to find that there are risks which the professionals have identified. It is another thing to find that those risks amount to a sufficient likelihood of sufficiently significant harm to meet the statutory threshold for compulsory intervention in the family. However, I have to bear in mind that this extremely careful and experienced judge spent many weeks with this case. He will undoubtedly have acquired a feel for those questions of degree which no appellate judge could possibly acquire however close her reading of the appellate papers. Provided that we can be satisfied that he asked himself the right questions, it would be difficult indeed to interfere with his assessment. The questions which the judge must ask himself are different from the questions which the professionals must ask themselves. I would have preferred him to spell out his conclusions more clearly and confronted head on the question posed by Hedley J in Re L. But it has to be accepted that the behaviours which caused concern were both extremely unusual and unusually persistent. No one wants to compound the abuse which a parent, often a mother, has suffered in her own childhood by finding that that abuse renders her unable to parent her own children safely. It would be possible to see this mother wholly as a victim the victim of the abuse which she suffered in childhood, from which her own mother was not able to protect her, and the victim of the relationship with her wicked stepfather which was established while she was still a child and from which she was unable to extricate herself for more than 20 years. But that is not the whole picture. As Black LJ identified, although she deserves our sympathy for what she has endured, the judges findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur (para 125). The judge addressed the issue when he commented of the mother: Clearly, she was for many years under the thrall of Mr E, and might fairly be thought of as a victim within that long standing relationship. However, having seen and heard her over a long period and having regard to her subsequent conduct, I find it difficult to see her role as being entirely inert (para 22). We are all these days very well aware of how difficult the victims of domestic violence and abuse can find it to escape, because of the variety of subtle and not so subtle ways in which they can be dominated by their oppressors. But the picture which the judge gained of this mother was more complicated than that and involved a degree of collusion in the abusive environment in which her half brothers and her older daughter Teresa were being brought up. Not without some hesitation, therefore, I am driven to the conclusion that this court is not in a position to interfere with the judges finding that the threshold was crossed in this case. (4) Was the order proportionate? But that is not the end of the story. We all agree that an order compulsorily severing the ties between a child and her parents can only be made if justified by an overriding requirement pertaining to the childs best interests. In other words, the test is one of necessity. Nothing else will do. The judge referred to proportionality when directing himself as to the law at the beginning of his judgment, but he did not remind himself of the test when it came to making his decision. The basis of his decision was the inability of the parents to work with professionals. But it must first be asked what work with professionals would be necessary, before asking whether the parents would co operate. Mr Feehan complains that neither the judge nor the Court of Appeal responded adequately to the detailed criticisms which he had made of the local authoritys case about this. Dr Bass and Dr Taylor had said that the mothers diagnosis necessitated a plan and strategy for the future to ensure that all health care professionals are aware of Ms past and are able to intervene to protect Amelia should the symptoms resurface (para 114). What reason was there to suppose that the parents would not co operate with health care professionals? There was no evidence that Teresa had been exposed to inappropriate attention from the medical professions. The mother had accessed ante natal care appropriately during her pregnancy. The mother had co operated with the investigations conducted by Dr Bass and Dr Taylor and the father had co operated with Dr Bass. The mother had been, of course, a frequent user of medical services, and this was the main reason for concern. But none of this evidence suggests that it would not be possible to devise a plan and strategy to enable the health care professionals to be aware of the situation and take appropriate action should it become necessary. But what about the need for co operation with the social services? Even Dr Dale, the professional who was most supportive of the parents case, accepted that there would need to be a risk management and family support programme (First report, para 20.1) although details would require clarification. There was little evidence about what this might entail, other than the brief enquiries made by the guardian during the hearing. There was conflicting evidence about the parents ability to co operate with such a programme, whatever it might be. On the one hand, West Sussex social services confirmed that the mother had tried to get them to intervene to protect Teresa after she had left and her solicitors had sent a copy of the case conference minutes about Teresa to Barnet social services while she was pregnant with Amelia. She had also cooperated with the enquiries by the Lucy Faithfull Foundation and by Dr Dale (as was to be expected). The parents had been able to co operate with a succession of workers who were supervising their contact with Amelia over the whole of her life. Their initial relationship with the foster carer was not a happy one, but it had much improved. And they had been able to co operate with the childs guardian. On the other hand, they had not been so co operative with Barnet social services. As the judge found, from the start she has failed to co operate reasonably with the local authority and at times has behaved in a singularly unconstructive way (para 140). This was, as some of the examples given by Lord Wilson show, putting it mildly. Perhaps this is not to be wondered at. Their original contact was in the context of concern about Teresa and the household of Mr E. The response was to seek an interim care order separating mother and baby without taking the usual step of a pre proceedings letter explaining matters to them. Anyone who has had to leave a premature baby in a special baby care unit can empathise with the feelings of a mother who is prevented from taking her baby home when, miracle of miracles, that baby is well enough to be discharged from hospital. Of course, the first social work statement to the court explained why the authority was making the application. But the scene was set for a rocky relationship. And this will not have been improved by the parents frequent complaints about Amelias progress in foster care. The other negative relationship was with Ms Summer of the Marlborough Family Service. In her oral evidence, Ms Nabi of the Lucy Faithfull Foundation, who was generally supportive of the mother, was surprised and worried by this. Ms Summer had adopted the method of challenging the parents about the various aspects of their behaviour which were a matter of concern. This had clearly not gone down well with them, they had been at times dishonest, evasive, petulant and immature. In effect, the parents were willing to be helpful when they perceived that a professional was helping them but not when they perceived the professional to be the enemy. But it was essential to set all this evidence against the evidence of the harm which was feared that Amelia might suffer in the future and the sort of programme which might be needed to protect her. It was not established that the mother was immediately in need of the sort of intensive psychological therapy which would make such challenging demands upon her. The question was what monitoring and support was an overriding requirement pertaining to the childs best interests. It must not be forgotten that this is a child who as yet has suffered no harm at all (except possibly the harm of being separated from her mother so soon after birth). She has had the advantage of remaining with the same foster carer throughout, where she is doing well. She has also had the enormous advantage of establishing a strong and loving relationship with her parents, who have given her child centred love and affection in spades, as the judge put it. Their commitment has been excellent and the fact that in all the circumstances their behaviour during contact has attracted so little criticism and so much praise is extraordinary. She will eventually have to move on from her foster home and the only question is whether she moves to a completely new home with adoptive parents as yet unidentified or whether she moves to live with the parents she knows and loves and who know and love her. Conclusion In all the circumstances, I take the view that it has not been sufficiently demonstrated that it is necessary to bring the relationship between Amelia and her parents to an end. In the circumstances of this case, it cannot be said that nothing else will do when nothing else has been tried. The harm that is feared is subtle and long term. It may never happen. There are numerous possible protective factors in addition to the work of social services. There is a need for some protective work, but precisely what that might entail, and how the parents might engage with it, has not yet been properly examined. Accordingly, I would have allowed the appeal and sent the case back for a fresh and in depth enquiry by the childs new guardian (her original guardian having sadly died soon after the judges judgment), who would be able to examine both the necessity for and the viability of the sort of measures which were only beginning to be explored by the previous guardian. My understanding of the careful submissions made to us on her behalf is that this would have been her preferred solution had we not now been so far down the road. Of course the safest solution for Amelia now is almost certainly adoption. But I take the view that the judge was indeed wrong to hold this a proportionate response to the risks which he had identified and that it is my duty to say so. |
This appeal is about equitable relief from forfeiture. Specifically, the question is whether the court has jurisdiction to grant such relief from the loss (to use a neutral word) of rights to make specified use of neighbouring land granted in a perpetual licence, where that loss of use is occasioned by the exercise of a right of termination for breach of an obligation to pay a sum due under the licence. In the present case the sum due was 50, whereas the annual value of the rights which would be lost upon termination is agreed to be in excess of 300,000. Relief from forfeiture is one of those equitable remedies which plays a valuable role in preventing the unconscionable abuse of strict legal rights for purposes other than those for which they were conferred. But it needs to be constrained with principled boundaries, so that the admirable certainty of English law in the fields of business and property is not undermined by an uncontrolled intervention of equity in any situation regarded by a judge as unconscionable. As will appear, the delineation of these principled boundaries has undergone significant development by the appellate courts during the last 45 years, but mainly in relation to relief from the forfeiture of rights in relation to chattels and other forms of personalty. This case has provided the courts with the opportunity to re examine those boundaries in relation to the forfeiture of rights in relation to land and in particular to consider the extent to which, if at all, those recent developments in relation to relief from forfeiture of rights over personalty have consequences for the boundaries of that jurisdiction in relation to rights over land. It has always been a condition for equitable relief from forfeiture that the forfeiture provision in question should have been conferred by way of security for the enforcement of some lesser primary obligation such as, but not limited to, the payment of money. It is common ground, at least in this court, that this requirement is satisfied on the facts of the case. The issues on this appeal relate to the second main condition going to jurisdiction to relieve from forfeiture which may loosely be described as turning upon the nature of the subject matter of the forfeiture, that is the rights which will be lost if the forfeiture is not relieved. The appellants say that, in relation to rights over land, nothing less than a proprietary interest will be sufficient to engage the jurisdiction to grant relief. The respondents say that the authorities establish that possessory rights, falling short of a proprietary interest in the land, are sufficient. But they invite this court to go one step further and declare that any right to use property (whether real or personal) sufficiently engages the jurisdiction to grant equitable relief from its forfeiture, if the first condition, described above, is satisfied. The trial judge, HHJ Behrens QC decided that the rights conferred by the licence in this case were, if not strictly possessory, sufficiently analogous to possessory rights to engage the jurisdiction, and he granted relief. The Court of Appeal decided that this went too far, but that the relevant rights were in any event possessory, so that they engaged the jurisdiction. Although the question whether, assuming jurisdiction, the court ought to have granted relief in its discretion was contested both before the judge and the Court of Appeal, it is only the threshold question of jurisdiction which remains live in this court. The Facts The appellant Manchester Ship Canal Co Ltd (MSCC) is the owner of the Manchester Ship Canal (the Canal) and adjacent riparian land, in particular on the south west side of it, in the vicinity of Ellesmere Port. To the south west of MSCCs riparian land there was a substantial block of land, formerly in mainly military use, including an airfield, which was acquired in July 1961 by the respondent Vauxhall Motors Ltd (formerly General Motors UK Ltd) (Vauxhall) for the purpose of being developed as a substantial vehicle manufacturing plant, now generally well known as Vauxhalls Ellesmere Port factory. Recognising that the construction of large buildings and hard surfaces on the newly acquired site would reduce its capacity for the absorption of surface water, Vauxhall sought to make arrangements with MSCC sufficient to enable it to discharge surface water and treated industrial effluent from the planned manufacturing complex into the Canal. For this purpose, Vauxhall acquired from MSCC a small rectangular part of MSCCs riparian land between the factory site and the Canal, for the construction of a water collection and effluent treatment plant, by a land exchange dated 12 October 1962. But this still left a small strip of riparian land owned by MSCC between the treatment plant and the Canal, across which Vauxhall needed to acquire a right to discharge surface water and treated effluent from the treatment plant into the Canal. Vauxhall acquired these rights by means of a licence (the Licence) made on the same date as the land exchange. Subject to the provision for early termination referred to below, the rights were granted in perpetuity, in exchange for payment of the rent or annual sum of 50 per annum and the performance of certain covenants and conditions undertaken by Vauxhall. The rights granted were set out in three parts, within clause 1 of the Licence. The first was a right to discharge surface water and suitably treated trade effluent from Vauxhalls treatment plant into the Canal, across a specified part of MSCCs land identified on plans annexed to the Licence. The second was a right to construct, maintain, alter and renew under and upon the same parts of MSCCs land pipes and other works (called the Spillway) sufficient to effect and control the discharge of surface water and treated effluent into the Canal, subject to plans and specifications to be approved by MSCCs Engineer. The third was a right of access to the Spillway along specified parts of MSCCs land for the purpose of exercising the infrastructure rights, along a specified route or other route as prescribed by the Engineer. Clause 2 of the Licence provided for payment of the annual rent of 50 as already described. Clause 3 contained covenants by Vauxhall relating, among other things, to the construction and maintenance of the Spillway, providing for it to be rerouted in the event (which did not occur) that MSCC wished to construct a wharf at the point of its discharge into the Canal. Clause 3(k) required Vauxhall to remove the Spillway and reinstate the locus in quo upon determination of the Licence. Clause 3(l) prohibited the assignment, transfer, underletting or other alienation of the benefit of the Licence by Vauxhall other than to a connected company. Clause 3(m) limited the use of the Spillway to the discharge of surface water and treated trade effluent from Vauxhalls factory site. Clause 3 also contained miscellaneous indemnities and an obligation on Vauxhall to pay for any dredging of the Canal necessitated by the construction and use of the Spillway. Clause 4 of the Licence reserved rights to MSCC to construct and use over, under, along or across the Spillway pipes, railway lines, cables, roads, tramways, bridges, subways and wharves, but not so as materially to interfere with the discharge through the Spillway of surface water and treated trade effluent without providing Vauxhall alternative means of effecting and controlling discharge. Clause 5 provided as follows: If the said yearly rent or sum or any part thereof shall at any time be in arrear for the space of 21 days after the same shall have accrued due (whether legally demanded or not) or if and whenever Vauxhalls shall make default in the performance and observance of any of the covenants conditions and provisions herein contained and on their part to be performed and observed the Canal Company may (but without prejudice to any right of action available to them by way of injunction or otherwise) by notice in writing require Vauxhalls to pay the rent in arrear within 28 days or (as the case may be) to pay reasonable compensation for the said default and remedy the same (if capable of being remedied) within a reasonable time and if Vauxhalls shall fail to comply with such notice the Canal Company may thereupon by notice in writing determine this Licence forthwith and in such event this Licence and every clause matter and thing herein contained shall forthwith absolutely cease and determine but without prejudice to any claim by either party against the other in respect of any antecedent breach of any covenant condition or provision herein contained. The Spillway was duly constructed by Vauxhall following the grant of the Licence. The infrastructure erected on MSCCs land consists of an underground pipe of about approximately 2,100mm diameter feeding into a partly underground hexagonal distribution centre, before splitting into two 1,675mm underground pipes leading to an outfall on the bank of the Canal. Following construction, the Spillway was brought into use for discharge of surface water and treated effluent, and has performed that function ever since. By a deed of variation dated 25 July 1997 the Licence was varied in the following material respects. First, clause 3(1), restricting assignment and alienation, was deleted and replaced by a provision for the avoidance of doubt whereby MSCC acknowledged that the rights granted to Vauxhall by the Licence were to be exercisable in perpetuity by all or any of Vauxhall, its successors in title, the owners, tenants and occupiers from time to time of any part of Vauxhalls factory site. Secondly, by clause 4, Vauxhall granted MSCC a right to connect into Vauxhalls treatment plant a pipe discharging surface water from neighbouring land of MSCC, for the duration of the Licence. In the meantime Vauxhall transferred part of its factory site to the Urban Regeneration Agency, upon terms that the land transferred would continue to have the benefit of the drainage system constituted by the Spillway and confirmed by the Licence. The Licence was terminated in the following circumstances. Vauxhall failed to pay its annual rent of 50 due on 12 October 2013. MSCC served notice pursuant to clause 5 of the Licence on 6 February 2014. Vauxhall continued in its failure to pay the 50 due and, on 10 March 2014, MSCC served notice to terminate the Licence under clause 5. After inconclusive negotiations for a new licence at market rates, Vauxhall claimed relief from forfeiture, initially by correspondence and then by these proceedings which were issued on 6 March 2015. As already noted the judge granted relief from forfeiture and the Court of Appeal affirmed his decision, albeit on slightly narrower grounds. The Law Equitable relief from forfeiture is a remedy of ancient origin. Prior to the conveyancing and property legislation consolidated in 1925, its main spheres of activity lay in relation to leases and mortgages of land, but those are now statutory. For present purposes, it is unnecessary to trace its antecedents back before 1972, when the rationale for and main principles regulating the remedy were restated in this well known passage in the speech of Lord Wilberforce in Shiloh Spinners Ltd v Harding [1973] AC 691, at 723 724: it remains true today that equity expects men to carry out their bargains and will not let them buy their way out by uncovenanted payment. But it is consistent with these principles that we should reaffirm the right of courts of equity in appropriate and limited cases to relieve against forfeiture for breach of covenant or condition where the primary object of the bargain is to secure a stated result which can effectively be attained when the matter comes before the court, and where the forfeiture provision is added by way of security for the production of that result. The word appropriate involves consideration of the conduct of the applicant for relief, in particular whether his default was wilful, of the gravity of the breaches, and of the disparity between the value of the property of which forfeiture is claimed as compared with the damage caused by the breach. That passage contains a trenchant restatement of the central rationale and condition for the exercise of the remedy, namely that the primary object of the bargain should be the securing of a stated result, for which the forfeiture provision is added by way of security. Lord Wilberforce did not however state any second condition for the exercise of the jurisdiction to grant relief, relating to the nature of the rights liable to be forfeited. Earlier, at p 722 he said: There cannot be any doubt that from the earliest times courts of equity have asserted the right to relieve against the forfeiture of property. The jurisdiction has not been confined to any particular type of case. The commonest instances concerned mortgages, giving rise to the equity of redemption, and leases, which commonly contained re entry clauses; but other instances are found in relation to copy holds, or where the forfeiture was in the nature of a penalty. Although the principle is well established, there has undoubtedly been some fluctuation of authority as to the self limitation to be imposed or accepted on this power. The property liable to forfeiture in that case was a lease but, since the right of re entry was reserved by an assignee of the lease rather than by the lessor upon its grant, the statutory regime for relief from forfeiture did not apply. Nonetheless, since the proprietary interest in land constituted by a lease had always been fairly and squarely within the types of property liable to forfeiture within the reach of equitys remedy of relief, the issue as to the nature of the property to which the remedy might extend simply did not arise. That question did arise for decision in Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) [1983] 2 AC 694. The rights in issue consisted of the charterers rights under a time charter of a ship, which entitled the owners to withdraw the vessel from the service of the charterers if specified monthly payments due in advance were not made on time. Having failed to make timely payment and received a telex from the owners withdrawing the vessel, the charterers claimed that withdrawal amounted to a forfeiture and sought equitable relief, including an injunction restraining the owners from withdrawing the vessel from service. Affirming the Court of Appeal, the House of Lords held that the court had no jurisdiction to grant relief in such a case. Giving the leading judgment, Lord Diplock identified two reasons for that conclusion, in relation to time charters. The first was that a time charter conferred upon the charterer no interest in or right to possession of the vessel. He said, at pp 700 701: A time charter, unless it is a charter by demise, with which your Lordships are not here concerned, transfers to the charterer no interest in or right to possession of the vessel; it is a contract for services to be rendered to the charterer by the shipowner through the use of the vessel by the shipowners own servants, the master and the crew, acting in accordance with such directions as to the cargoes to be loaded and the voyages to be undertaken as by the terms of the charterparty the charterer is entitled to give to them. Being a contract for services it is thus the very prototype of a contract of which before the fusion of law and equity a court would never grant specific performance: Clarke v Price (1819) 2 Wils 157; Lumley v Wagner (1852) 1 De G M & G 604. To grant an injunction restraining the shipowner from exercising his right of withdrawal of the vessel from the service of the charterer, though negative in form, is pregnant with an affirmative order to the shipowner to perform the contract; juristically it is indistinguishable from a decree for specific performance of a contract to render services; and in respect of that category of contracts, even in the event of breach, this is a remedy that English courts have always disclaimed any jurisdiction to grant. This is, in my view, sufficient reason in itself to compel rejection of the suggestion that the equitable principle of relief from forfeiture is juristically capable of extension so as to grant to the court a discretion to prevent a shipowner from exercising his strict contractual rights under a withdrawal clause in a time charter which is not a charter by demise. At p 702, referring to the dicta of Lord Wilberforce in the Shiloh Spinners case, he said: That this mainly historical statement was never meant to apply generally to contracts not involving any transfer of proprietary or possessory rights, but providing for a right to determine the contract in default of punctual payment of a sum of money payable under it, is clear enough from Lord Wilberforces speech in The Laconia [1977] AC 850. Speaking of a time charter he said, at p 870: It must be obvious that this is a very different type of creature from a lease of land. Lord Diplocks second reason was that, in any event, the provision that the owner could withdraw the vessel upon failure by the charterer to make payment in advance was not a mere security, since timely payment was needed to fund the wages and victualling of the master and crew together with the insurance and maintenance of the vessel sufficient to enable her to perform the contracted services. For present purposes, the key phrases which stand out from Lord Diplocks speech are, no interest in or right to possession of the vessel, on p 700 and proprietary or possessory rights on p 702. He used the concepts of proprietary and possessory rights as a sine qua non in relation to the rights liable to be forfeited, in the absence of which equity could not intervene. The sharp distinction in his mind between a time charter, which did not confer those rights, and a charter by demise, which did, may be illuminated by the following explanation from Evans LJ in Bridge Oil Ltd v Owners and/or demise charterers of the ship The Guiseppe di Vittorio [1998] 1 Lloyds Rep 136, at 156: What then is a demise charter? Its hallmarks, as it seems to me, are that the legal owner gives the charterer sufficient of the rights of possession and control which enable the transaction to be regarded as a letting a lease, or demise, in real property terms of the ship. Closely allied to this is the fact that the charterer becomes the employer of the master and crew. The condition for jurisdiction to grant equitable relief from forfeiture, that the rights subject to forfeiture should be proprietary or possessory in nature first enunciated, in a negative sense, in The Scaptrade, have been followed in a series of later cases, mainly about chattels and other forms of personal property, rather than rights in relation to land. Sport International Bussum BV v Inter Footwear Ltd [1984] 1 WLR 776 was a case about an exclusive right to purchase sports shoes and resell them in specified territories contained in an agreement settling litigation which included a provision for termination upon (inter alia) the buyers failure to provide a security guarantee on time. Giving the judgment of the Court of Appeal, after a review of the Shiloh Spinners case and The Scaptrade, Oliver LJ said, at p 787B that: historically, the availability of equitable relief from forfeiture has been confined to cases where the subject matter of the forfeiture is an interest in land. At p 788C he continued: The fact remains that the jurisdiction never was, and never has been up to now, extended to ordinary commercial contracts unconnected with interests in land and, though it may be that there is no logical reason why, by analogy with contracts creating interests in land, the jurisdiction should not be extended to contracts creating interests in other property, corporeal or incorporeal, there is, at the same time, no compelling reason of policy that we can see why it should be. And the fact is that the defendant in this case is seeking an extension by analogy, and an extension not based on any pressing consideration of legal policy but simply on an appeal to sympathy for what is considered to be a hardship arising from strict adherence to a bargain which is concluded with its eyes open. In the House of Lords, Lord Templeman noted at p 794 that Lord Diplock had, in The Scaptrade, confined the power to relieve from forfeiture to contracts concerning the transfer of proprietary or possessory rights. He continued: I do not believe that the present is a suitable case in which to define the boundaries of the equitable doctrine of relief against forfeiture. It is sufficient that the appellants cannot bring themselves within the recognised boundaries and cannot establish an arguable case for the intervention of equity. The recognised boundaries do not include mere contractual licences and I can see no reason for the intervention of equity. Your Lordships are concerned with an unusual contract bringing hostile litigation to an end and including a number of provisions which cannot be dissected so as to attribute different degrees of importance to different rights and obligations. Ms Katharine Holland QC for MSCC drew attention, correctly, to the fact that Oliver LJ referred only to proprietary, rather than possessory, rights as sufficient to attract equitable relief from forfeiture. This was part of his description of the history of the remedy. It was not endorsed by the House of Lords, although other parts of Oliver LJs analysis were. Nor has it stood the test of time, as appears below. BICC plc v Burndy Corpn [1985] Ch 232 was about the forfeiture of patent rights conferred under a commercial agreement. Dillon LJ (with whom Kerr and Ackner LJJ agreed) said this, at p 252: There is no clear authority, but for my part I find it difficult to see why the jurisdiction of equity to grant relief against forfeiture should only be available where what is liable to forfeiture is an interest in land and not an interest in personal property. Relief is only available where what is in question is forfeiture of proprietary or possessory rights, but I see no reason in principle for drawing a distinction as to the type of property in which the rights subsist. The fact that the right to forfeiture arises under a commercial agreement is highly relevant to the question whether relief against forfeiture should be granted, but I do not see that it can preclude the existence of the jurisdiction to grant relief, if forfeiture of proprietary or possessory rights, as opposed to merely contractual rights, is in question. Ms Holland QC drew the courts attention to Union Eagle Ltd v Golden Achievement Ltd [1997] AC 514, a vendor and purchaser case in which the purchaser was ten minutes late in tendering the purchase price under a contract which made time for completion of the essence. Giving the judgment of the Privy Council on an appeal from Hong Kong, Lord Hoffmann rejected a claim for relief from forfeiture, concluding at p 523 as follows: In his dissenting judgment, Godfrey JA said that the case cries out for the intervention of equity. Their Lordships think that, on the contrary, it shows the need for a firm restatement of the principle that in cases of rescission of an ordinary contract of sale of land for failure to comply with an essential condition as to time, equity will not intervene. This decision is not of significant assistance for present purposes. It was a case in which a contract for the purchase of legal title to land was found to have been repudiated by the failure by the purchaser to comply with a time of the essence provision. Thus the property the subject matter of the contract never became subject to the vendors obligation to convey. While it may be said that the purchaser had a species of equitable interest pending completion, the facts were far removed from cases such as the present, where the rights subject to forfeiture are perpetual in nature and have already been conferred and enjoyed for many years prior to the event giving rise to termination. Most of the cases about relief from the forfeiture of possessory (rather than proprietary) rights concern personalty. Nonetheless, some slight indication that possessory rights in relation to land may also qualify for relief from forfeiture is to be found in the judgment of Nourse LJ in Bland v Ingrams Estates Ltd [2001] Ch 767. The plaintiff had a charging order (creating an equitable charge) over a lease of land. The landlord forfeited the lease and the lessees did not apply for relief. On application for relief from forfeiture under the courts inherent jurisdiction, the Court of Appeal held that, in an area so heavily regulated by statute, equity ought not to intervene. Nonetheless the plaintiff was able to stand in the shoes of the lessees so as to assert their statutory right to relief, as if he was a beneficiary under a trust. In reviewing the inherent equitable jurisdiction Nourse LJ said this, at p 780 (para 31): A jurisdiction does not become discretionary just because it is both inherent and equitable. The authorities show that the cases in which the inherent jurisdiction to grant relief against forfeiture for non payment of rent has been exercised have been restricted to those in which the person claiming relief is entitled to possession of the land or at any rate, which is not necessarily the same thing, has a legal estate or equitable interest in it. Now that so much of the jurisdiction has been overtaken by statute, any legitimate basis for its extension has disappeared. Admittedly and notoriously, there are gaps and anomalies in the statutory framework. But it is not for the courts to fill the gaps and cure the anomalies in purported reliance on a jurisdiction which has never existed. Nourse LJ appears to have regarded a right to possession of land as having qualified, historically, for equitable relief from forfeiture. Nonetheless it is slender authority for the resolution of the present issue. It deserves mention only because all of the other relevant cases are about rights in relation to chattels or other personalty, rather than land. On Demand Information plc v Michael Gerson (Finance) plc [2003] 1 AC 368 was about forfeiture of rights in relation to video and editing equipment granted under finance leases. The leases provided a three year period for use by the lessee at a substantial rent, provision for yearly extensions for modest payments and provision that, upon termination (if they had performed their obligations) the lessees could sell the equipment and retain 95% of the proceeds. For present purposes the relevant issue was whether the equitable jurisdiction was restricted to cases of forfeiture of proprietary rights. At p 379 (para 29) Lord Millett said this: The Court of Appeal (Pill and Robert Walker LJJ, Sir Murray Stuart Smith dissenting) [2001] 1 WLR 155 dismissed the lessees appeal. The court unanimously upheld the deputy judges ruling that the criteria for the exercise of the equitable jurisdiction were present at the date of the application. They rejected the lessors objection that the leases were purely contractual in nature, and that the jurisdiction to grant relief from forfeiture was restricted to cases where the forfeiture of proprietary rights strictly so called was in question. As Robert Walker LJ put it, contractual rights which entitle the hirer to indefinite possession of chattels so long as the hire payments are duly made, and which qualify and limit the owners general property in the chattels, cannot aptly be described as purely contractual rights. For my own part, I regard this conclusion as in accordance with principle; any other would restrict the exercise of a beneficent jurisdiction without any rational justification. This is the first occasion upon which a perception that possessory rights of an indefinite duration could qualify for equitable relief from forfeiture was enunciated. Although not apparent from The Scaptrade, the relevance of the indefinite duration of the possessory right was reinforced by Hamblen J in Celestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd [2011] 1 All ER (Comm) 259, a case about rights of limited duration under operating leases of aircraft. By contrast with the typical finance lease considered in the On Demand case, the operating leases for eight years conferred no rights upon the lessee to extend or to acquire the aircraft on termination. The aircraft had a substantial expected operational life after termination so that the interest of the lessor was not merely financial or economic. Hamblen J held that there was no jurisdiction to grant relief from the forfeiture of an operating lease of this kind. At para 57 he said: In summary, whilst I accept that the ASLAs transfer possessory rights to Paramount, for the relief jurisdiction to apply to contracts transferring a bare possessory right for only a proportion of the economic life of the chattel would represent a major extension of existing authority. He also concluded that the forfeiture provision was not merely by way of security, and that there were strong policy reasons why relief should not be available for operating leases of this type. Finally, the extent of the equitable jurisdiction was thoroughly reviewed by the Privy Council in ukurova Finance International Ltd v Alpha Telecom Turkey Ltd (Nos 3 5) [2016] AC 923, a case about a contractual power to appropriate shares, charged by way of equitable mortgage to secure repayment of a loan. For present purposes the importance of the decision lies in the Boards treatment of the submission that equitable relief from forfeiture was limited, in the context of mortgages, to mortgages of real property rather than personalty. After citing the passage from the judgment of Dillon LJ in the BICC case (quoted above) the Board continued, at para 94: That reasoning, with which the Board agrees, supports the conclusion that relief from forfeiture is available in principle where what is in question is forfeiture of proprietary or possessory rights, as opposed to merely contractual rights, regardless of the type of property concerned. Analysis The issues as to the extent of the jurisdiction to grant equitable relief from forfeiture have, if anything, widened since the hearing in the Court of Appeal. At that stage it appears to have been common ground that the jurisdiction did extend to relief against the forfeiture of possessory rights in relation to land. MSCC did not submit that the jurisdiction was limited to proprietary rights (as it does before this court) and Vauxhall did not submit that the jurisdiction extended to any rights to use property, regardless whether they were strictly possessory, as it now does before this court. Rather the issue was whether the rights granted by the Licence were truly possessory in the relevant sense. There were also issues about whether the termination right in clause 5 was by way of security, and issues about discretion, but they have fallen by the wayside. It is convenient to begin by addressing MSCCs main submission that the jurisdiction to grant equitable relief from the forfeiture of rights relating to the land is limited to rights which, on settled principles, amount to a proprietary interest, so that merely possessory rights, and therefore all rights conferred by licences, are insufficient. Ms Holland advanced a series of interconnected arguments about why this should be so. Her main point was that there had always existed a fundamental, well settled and clearly understood distinction between proprietary interests in land and other rights relating to land, encapsulated in the distinction between a lease, which did confer a proprietary interest and a licence, which did not. Thus the boundary between a lease and a licence has traditionally been assumed also to be a boundary for the jurisdiction from relief from forfeiture, as is apparent from para 4.1.69 of Gray and Grays Elements of Land Law, 5th ed (2008): Only a tenant and not licensee may ask for relief against forfeiture. Any other boundary for the intervention of equity into contractual arrangements conferring rights over land, and in particular which admitted possessory rights in addition to proprietary interests, would be causative of damaging uncertainty in an area of the law in which certainty commands a premium. Secondly, she submitted that although the concept of a possessory right appeared to have become entrenched in defining the boundary of equitable relief from the forfeiture of rights in relation to chattels and other personalty, this should not be transplanted so as to move the boundary line in connection with rights over land. This was first because the concept of possession as used in the authorities about chattels was different from the concept of possession in relation to land, and more akin to a form of ownership. Thirdly, because possession in the context of land had no single clear or settled meaning, its use for the identification of the boundary of equitys intervention would be a recipe for confusion and uncertainty. These are formidable submissions. It is undoubtedly true that certainty is, or should be, an important element of land law. As Fox LJ said in Ashburn Anstalt v Arnold [1989] Ch 1, at p 26: In matters relating to the title to land, certainty is of prime importance. But certainty is equally important in the law of commerce, and one of the reasons why English commercial law is chosen around the world by commercial counterparties to govern their contracts, even when neither they nor the subject matter have any connection with England. The authorities summarised above, beginning with The Scaptrade, demonstrate that English commercial law has accommodated the concept of possessory rights in relation to personalty as sufficiently defining the boundary of equitys intervention by way of relief from forfeiture, over a wide range of different types of subject matter, including ships and (potentially) aircraft, trademarks and patents, video equipment and shares. If the concept of possessory rights as part of the relevant boundary causes no damaging uncertainty in those widely varied commercial contexts, there is no immediately obvious reason why it should do so in relation to rights over land. The Court of Appeal had no difficulty in identifying a sufficiently certain concept behind the phrase possessory rights in relation to land. Basing himself on JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, Lewison LJ said, at para 59: There are two elements to the concept of possession: (1) a sufficient degree of physical custody and control (factual possession); (2) an intention to exercise such custody and control on ones own behalf and for ones own benefit (intention to possess). What amounts to a sufficient degree of physical custody and control will depend on the nature of the relevant subject matter and the manner in which that subject matter is commonly enjoyed. The existence of the intention to possess is to be objectively ascertained and will usually be deduced from the acts carried out by the putative possessor While that concept is drawn from a case about adverse possession, it is a practical and workable concept which, although necessarily fact based, involves no inherent uncertainty. I do not accept Ms Hollands submission that the use of the concept of possessory rights in relation to chattels and other personalty in the decided cases equates to something more akin to ownership, and therefore a proprietary interest, in relation to land. As is apparent from the citation from The Scaptrade and Guiseppe di Vittorio cases, the essence of a demise charter which sets it apart from a pure time charter is that it gives the charterer not ownership of the vessel, but possession and control of it. I consider that the frequent use in the decided cases of the words proprietary or possessory as alternatives in relation to rights over personalty clearly points to a recognition that a purely possessory right is something falling short of ownership, or of a proprietary interest. There are to be weighed against MSCCs submission powerful reasons why, now that it is settled that equitable relief may apply to forfeiture of possessory rights in relation to a wide range of chattels and other personalty, it should also do so in relation to possessory rights over land. First, the original proving ground for equitable relief from forfeiture consisted of rights in relation to land, originally, but not only, leases and mortgages. It would be strange indeed if equitys reach was wider in relation to rights over chattels and other forms of personalty than over rights in relation to land. Secondly, as was noted by Robert Walker LJ and Lord Millett in the On Demand case, and by Dillon LJ in BICC plc v Burndy Corpn, there is simply no logic or reason in principle for drawing a distinction as to the type of property in which the rights subsist, when considering the extent of equitys jurisdiction to relieve from forfeiture. If therefore it is the nature of the right rather than the identity of the property over which it may be exercised that matters, then there must be every good reason to apply a jurisdiction applicable to possessory rights as much to rights over land as to rights over other forms of property. I would acknowledge that a recognition that equity may relieve against the forfeiture of possessory rights over real property, falling short of a proprietary interest, means that the simple assumption of the editors of Gray and Gray that relief may never be granted from the forfeiture of a licence calls for re examination. There will be many licences which only grant rights falling short of possession, for which that simple proposition will still hold good. As will appear, the Licence granted in the present case was a very unusual one, both because it granted an element of virtually exclusive possession, coupled with a high degree of control over the locus in quo, and because it was granted in perpetuity. It by no means follows from a conclusion that the rights conferred by this Licence are within equitys jurisdiction to relieve from forfeiture, that licences in relation to land will fall generally within that same boundary. Finally in relation to this issue, while it is essential for the certainty of the law that the scope for equitable intervention on grounds of unconscionability should be delimited by reference to reasonably clear boundaries, they should be identified by reference to a principled understanding of the nature and purpose of the relevant equity, rather than be merely arbitrary. The careful examination and development of the reasons why that boundary should accommodate relief from the forfeiture of possessory rights in the authorities cited above seems to me to be clearly in accordance with that principled approach. By contrast, the slavish adoption of a rule that nothing other than a proprietary interest will do, in relation to land, does nothing of the kind. This may be illustrated in this case by the fact that the Licence granted rights over MSCCs land very similar to, and indeed more extensive than, rights in the nature of an easement. It is common ground that an easement creates an interest in land, so that its forfeiture may be relieved against. There is no principled reason why the perpetual rights granted by the Licence should not do. It is necessary next to address Vauxhalls submission that a better boundary than one which merely accommodated possessory rights would be one which extended the equitable jurisdiction in relation to all forms of right to use property, provided only that the right of termination is intended to secure the payment of money for the performance of other obligations. I would reject this submission as well. It was heavily based upon an over literal reading of Lord Wilberforces speech in Shiloh Spinners Ltd v Harding which, as noted above, did not include as a condition of the existence of the jurisdiction any requirement as to the nature or quality of the rights liable to forfeiture. But he had no reason to do so, since the rights liable to forfeiture in that case amounted to a proprietary interest in land, and the question whether the jurisdiction might extend to any right to the use of property never arose for argument, let alone decision. To expand the ambit of the equitable jurisdiction in that way, leaving all control upon its use as a matter of discretion, would offend against the well recognised need to ensure that equity does not undermine the certainty of the law. Furthermore it would set at nought the careful development of the principled limitation of the jurisdiction to the forfeiture of proprietary or possessory rights, worked out over many years in a succession of broadly coherent authorities. I would however wish to sound one note of caution against the slavish application of the whole of that jurisprudence to land. The requirement, developed in the On Demand and Celestial cases that the possessory right should be one which is indefinite, rather than time limited to a period shorter than the full economic life of the chattel or other species of personal property, may have unintended consequences in relation to land. Chattels by their nature are of limited economic life, and most intellectual property rights, and patents in particular, have their own inherent time limitations. By contrast, land is a form of perpetual property, and I can well conceive of forms of possessory rights in relation to land which are not perpetual, but which might nonetheless qualify for equitable relief from forfeiture. The point need not be decided in this case since, most unusually, this Licence was indeed granted in perpetuity. It is to be noted that the acknowledgment in The Scaptrade that equity might relieve from the forfeiture of a demise charter (which is typically for much less than the economic life of the ship) suggests that even in relation to chattels a rule that the possessory right should be indefinite may go too far. It remains to consider whether the Court of Appeal was right to conclude that the rights granted by the Licence fell within that possessory class to which the jurisdiction to grant relief from forfeiture extends. It is common ground that they conferred no proprietary interest in favour of Vauxhall over MSCCs adjacent land. Ms Holland submitted that the rights also fell short of granting the requisite degree of possession and control over MSCCs land, lying between Vauxhalls treatment works and the Canal itself, to be regarded as possessory in the relevant sense. She emphasised, with force, that this question depended upon the nature of the rights granted, rather than merely upon the extent to which, following the grant of the Licence, Vauxhall rather than MSCC occupied or controlled the Spillway for the purpose of its construction, maintenance and operation. Her main point was that the essence of the right granted by the Licence was that of discharge of surface water and treated effluent, and that the rights to construct, maintain and operate the Spillway were strictly ancillary. The mere right of discharge did not involve possession, let alone exclusive possession, and in any event the terms of the Licence reserved to MSCC a substantial degree of control, over both the construction and maintenance of the Spillway, including a right to have the infrastructure enlarged or rerouted in stated circumstances. Finally, even if the court were to find that Vauxhall had possessory rights in relation to the infrastructure constituting the Spillway, Ms Holland submitted that there was no forfeiture of that right, because Vauxhall was both entitled and indeed obliged to remove and recover the infrastructure on termination of the Licence. These submissions were advanced with equal force before the Court of Appeal, where they constituted the central part of MSCCs case. Giving the leading judgment, Lewison LJ dealt with them with conspicuous care and detail before concluding that the Licence did indeed confer the requisite possessory rights. I have already concluded that the Court of Appeal applied the correct legal test to this question. Beyond that the issue turned on the application of that test to detailed facts, from which this court would be slow to depart from the Court of Appeal unless it was clearly wrong. It is sufficient for the disposal of this last issue for me to say that nothing in Ms Hollands submissions on this point came near to persuading me that Lewison LJs analysis was wrong. On the contrary, if it were necessary to conduct that analysis afresh, I would find it difficult to improve upon his, in particular at paras 66 69 of the judgment. Nonetheless out of respect for Ms Hollands careful submissions, I will provide the following summary of my own reasoning. The starting point is that, as is common ground, the infrastructure works carried out entirely by Vauxhall for the purpose of creating the Spillway became, upon their completion, part of MSCCs land, because they were fixtures. The question therefore is whether Vauxhall had the requisite degree of possession and control of the Spillway itself. In my view it clearly did. The infrastructure consisted largely of underground pipes and chambers which were, in practice, only or at least mainly accessible from Vauxhalls treatment plant. The practical reality was that the Spillway formed an integral part of the infrastructure for the transmission of surface water and treated effluent from Vauxhalls factory site, the remainder of which, including further retaining structures, pipes and a substantial ravine all lay on Vauxhalls land. Although MSCC had certain default rights to intervene if Vauxhall failed adequately to maintain and operate the Spillway, and a right to re route it if it caused difficulties at its point of discharge into the Canal, none of these significantly impacted upon the reality that Vauxhall would be the dominant player in the maintenance and operation of the Spillway once constructed. Of course, the whole of the construction itself was Vauxhalls undertaking. Using the chartering analogy derived from The Scaptrade, far from MSCC providing a service to Vauxhall for the discharge of its surface water and treated effluent, Vauxhall built, operated and maintained that infrastructure, and had exclusive perpetual use of it, subject only to MSCCs right of termination for breach of covenant in clause 5. It is in that context nothing to the point that, by later transactions, Vauxhall permitted MSCC to discharge water from its own land into Vauxhalls treatment works for onward transmission along the Spillway into the Canal. That additional flow became Vauxhalls discharge once it left the treatment works, and in no way detracted from Vauxhall having exclusive use of the Spillway. Finally, there is nothing in Ms Hollands point that, upon termination, Vauxhall was obliged to remove and recover the infrastructure which constituted the Spillway, so that there was no forfeiture. All Vauxhall would recover by the performance of that expensive obligation would be a collection of useless debris. The notion that nothing was thereby forfeited has no foundation in reality. Conclusion For those reasons, I would dismiss this appeal. LADY ARDEN: Issues covered by this judgment I agree with Lord Briggs that relief from forfeiture can be given where the rights in land are possessory only, which was a new point taken in this Court, and that the conclusion of the Court of Appeal that the rights were possessory is unassailable. This judgment considers whether to hold that there is jurisdiction to grant relief from forfeiture in the case of a licence of land where the rights are possessory only introduces an unacceptable element of uncertainty into the law. As to the question of certainty in the law, the present case is relatively unusual because it involves relief from forfeiture in relation to a licence over land, and not a lease where the lessee will have a proprietary interest in the land. However, this licence was not a lease by reason only that it operates in perpetuity and not for a certain time as required at common law. Where in any case relief from forfeiture is given, the party seeking forfeiture will not be able to use the property in the way in which he expected to do in the event of breach, and this may reduce the value and marketability of his asset. The operation of the agreement according to its express terms will be rendered uncertain if the licensee can apply for relief. Thus, it might be said that by allowing relief from forfeiture in respect of rights acquired under a mere licence, which moreover applies a test of possession for that purpose which depends on the successful party establishing a particular state of fact (involving no doubt the consideration of the totality of the relevant facts), the court has produced a situation in which an unacceptable element of certainty has been introduced. In my judgment, this is an important issue with which the court must grapple. It can only be resolved by looking at the loss of certainty resulting from this decision in the wider context of the operation of the doctrine. Standpoint for analysing the relief from forfeiture and the role of equity The doctrine of relief from forfeiture is an equitable doctrine. I would approach it from the standpoint of equity rather than through the prism of property law. Equity is a body of principles which alleviates the strict application of rules of law in appropriate cases. In this case, the relevant rule of law is that the court will enforce the terms of the parties agreement because there is no reason in law why it should not be enforced. Equity serves to finesse rules of law in deserving cases. It thus makes the system of law in England and Wales one which is more likely to produce a fair result than would be possible if equity did not exist. This must surely be one of the reasons why the law of England and Wales is held in high regard in the world. Some uncertainty is inevitable Some element of uncertainty in the application of the doctrine of relief from forfeiture is inevitable. Equity in general operates by principles rather than by rules. That means that relief from forfeiture is not an automatic consequence if particular conditions are fulfilled but instead is given in appropriate cases. It is not a foregone conclusion that once the conditions for relief are shown relief will necessarily be granted and that inevitably means an element of uncertainty about its availability. Another element of inherent uncertainty arises from the fact that the doctrine of relief from forfeiture is a general doctrine and will apply to new circumstances, such as where the court has to deal with a particular form of property, or (as here) interest in or in relation to property, for the first time. The most obvious new circumstances are the creation of new forms of property or interest in property, such as shares in a registered company or aircraft. Thinking ahead, it may be applied in the future to forms of property which only exist in the cybersphere, or to rights which are treated as to all intents and purposes as rights to property (see eg M Solinas Bitcoiners in Wonderland: Lessons from the Cheshire Cat (2019) LMCLQ 433). I note that the view that the law of forfeiture may yet expand in this general area is supported by Professor Ben McFarlane in Snells Equity, 33rd ed (2015), para 13 023, cited by Lewison LJ in his judgment in this case ([2018] EWCA Civ 1100; [2019] Ch 331, paras 50 51). It inevitably follows that there will be respects in which the equitable doctrine of relief from forfeiture will be unfenced. So, while I agree with Lord Briggs that there is a need for there to be certainty in this area of the law, especially in the commercial field, I would go further and conclude that certainty for the purposes of a general doctrine of equity differs from that which results from a hard edged rule of law. As Sir Richard Arden MR explained in Eaton v Lyon (1798) 3 Ves 689, 693, 30 ER 1223: At Law a covenant must be strictly and literally performed: in Equity it must be really and substantially performed according to the true intent and meaning of the parties, so far as circumstances will admit. Types of rights or types of cases? Lord Briggs points out that a mere contractual licence alone would not be enough to give rise to relief from forfeiture. There would typically be an exclusive licence (above, para 46). I agree that it is likely to be necessary to establish possessory rights, but I would go further and hold that the law recognises that there are cases in which equitable relief will not be given even if there is an interest in property of a proprietary or possessory kind. But before I reach that stage, I must retrace my steps and travel over a little of the history of relief from forfeiture. As Lord Briggs explains, equitable relief from forfeiture is a remedy of ancient origin. It is inevitably difficult, given the long history of equity, to say that the doctrine was ever finally constituted in a particular form. Rather it kept evolving as the social and economic life of the nation changed: the law of equity developed and keeps on developing. Questions such as this case raises as to whether particular forms of property interest are or are not within the reach of the doctrine would have no meaning in a society which did not discover the utility of them until later in its history. As time went on, the doctrine applied to both real and personal property and to intangible as well as tangible property, as need arose. I would prefer to express no view on the wider definition of an interest in property involved in the respondents alternative argument since it does not need to be decided on this appeal and has not been fully argued. There is a degree of uncertainty in the concept of possessory rights in relation to land, and it may be that an extension to rights to use property may not involve any significant further degree of uncertainty. The fundamental principle giving rise to relief from forfeiture What then is the principle on which equity acts when it grants relief from forfeiture? The fundamental principle was, as Lord Briggs has said, that equity intervenes to restrain forfeiture where (1) the right had been conferred to secure the performance of some other covenant and (2) although the covenantor had breached his covenant, he was now in a position to perform it and to pay any compensation that might be appropriate: see Peachy v Duke of Somerset (1721) Prec Ch 568; 24 ER 255. These are the preconditions to relief from forfeiture in the sense that they must be present, but they are not necessarily sufficient of themselves to justify the intervention of equity, even putting on one side the exercise of the judges discretion. In the striking phrase of Dr P G Turner in his valuable case note on the decision of the Court of Appeal in this case (entitled What delimits equitable relief from forfeiture?): Equity will only relieve where the security purpose stands ahead of any other. ((2019) 78(2) CLJ 276, 279) Moreover, this was a statement of general principle, not limited to any particular sort of property. Forfeiture and penalties Forfeiture and penalties are often coupled together, and forfeiture and penalties often operated within the same legal and factual space. In Sloman v Walter (1784) 1 Bro Ch C 418, the parties were partners in a coffee house. The plaintiff conducted the business of the coffee house but he agreed with the defendant that the defendant should have the use of a particular room in the coffee house when he required it. This promise was secured by a bond for 500. On one occasion he asked to use it and was refused. The defendant then sued to enforce the bond. Lord Thurlow LC held: the only question was, whether this was to be considered as a penalty, or as assessed damages. The rule, that where a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty only as accessional, and, therefore, only to secure the damage really incurred, is too strongly established in equity to be shaken. This case is to be considered in that light There is no reason to think that the kindred doctrine of forfeiture was restricted to covenants to secure the payment of money any more than penalties. Fluctuations in the doctrine of relief from forfeiture Sometimes the law has developed, and then retraced its steps. Thus, in several cases, the courts decided in favour of granting relief to a tenant who had committed a breach of covenant which did not involve the payment of money, such as cutting timber when he should not have done so. The courts were prepared to grant relief against these breaches just as they did against the payment of rent. But then Lord Eldon LC in Hill v Barclay (1811) 18 Ves Jun 56, 64; 34 ER 238 firmly held that the breach had to be of a covenant to pay money. He held that: The distinction has been taken, that relief may be had against the breach of a covenant to pay money at a given day; but, not, where any thing else is to be done. In all these cases the law having ascertained the contract, and the rights of the contracting parties, a Court of Equity ought not to interfere. This meant that Parliament had in due course to provide by statute for relief against forfeiture for lessees of land, including those who were in breach of a covenant other than a covenant to pay rent, where the lessor was seeking to exercise a right of re entry or forfeiture: see now section 146 of the Law of Property Act 1925. The legislature intervened in relation to leases but its intervention did not mean that relief from forfeiture was not capable of being invoked in cases not covered by legislation, as Lord Wilberforce (with whom the other members of the House agreed) explained in Shiloh Spinners Ltd v Harding [1973] AC 691 at 725. There was an inconclusive discussion at the hearing of this appeal as to whether parties could contract out of forfeiture relief under the general law. In this connection, I note that section 146(12) expressly rules this out in relation to relief under that section. Issue is whether the circumstances satisfy the doctrine not the type of interest Where the conditions described by Lord Briggs (above, para 17) were fulfilled, and assuming that the complainant had some relevant form of entitlement to property which would be affected by the forfeiture, the doctrine of forfeiture applied unless there was some good reason why it should not do so, such as where relief from forfeiture was inconsistent with some statutory right, or the case fell within a class of case where relief was not given. Equity did not, therefore, ask whether the forfeiture would be of a particular type of interest in property. Nor, as far as I can see from the case law, did equity, in the case of tangible movable property, draw arbitrary distinctions between movable and immovable property such as whether the period for which the applicant had any right in the property was for the whole or substantially the whole of its economic life: there can be no doubt that in theory a lease of land in respect of which forfeiture might be given may be for a short period, say a month. No relief from forfeiture for termination under ordinary and lawful commercial bargain So, as it seems to me, the primary question that has to be resolved in relation to the doctrine of relief from forfeiture outside leases of land and mortgages is not what relationships to property it covers but whether the circumstances in which it is sought to be invoked are those in which equity would grant relief. There is no exhaustive list of those cases, but one of them is where the bargain giving rise to the forfeiture is an ordinary and lawful commercial bargain inconsistent with equity granting such relief from forfeiture (unless of course the right involved a penalty). Lord Briggs has already given an example of this namely The Scaptrade. On my approach this does not critically turn on the difference between charters by demise and time charters. The commercial bargain in that case required the time charterer to make his payments timeously and it was well understood between commercial people that the ship would be withdrawn if that did not happen because the shipowner needed the payments to be made timeously in order to provide a fully equipped ship. An earlier case in this field is Sparks v The Company of Proprietors of Liverpool Water works (1807) 13 Ves Jun 428; 33 ER 354, which concerns intangible property, namely the rights conferred by a share. In this case, the plaintiff was a shareholder in a statutory company formed to supply water to Liverpool. The company had issued shares, which were partly paid. Under its articles, calls could be made by notice which was to be a maximum of 21 days. The plaintiff was absent from his address and did not receive notice of the call in question. As he had failed to pay the call, the company could and did exercise an express power in its constitution to forfeit his shares, which was undoubtedly given to secure members obligation to pay calls. The plaintiff brought proceedings claiming that his failure to pay the call had been accidental due to his absence from his home. Sir William Grant MR refused to give relief from forfeiture. He held that if relief from forfeiture was given in such a situation, the company could not carry on its business. He held, at p 434: It is essential, that the money should be paid, and that they should know, what is their situation. Interest is not an adequate compensation, even among individuals; much less in these undertakings. If the company could not forfeit the shares, it would not know whether it could cause the shares to be transferred to anyone else and make calls on them, and it would not have the capital the call was supposed to raise. Sparks v Liverpool Waterworks may also be compared with Union Eagle Ltd v Golden Achievement Ltd [1997] AC 514, which Lord Briggs summarises at para 29 of his judgment. Lord Hoffmann summed up the point in that case in the final sentence of the advice of the Privy Council by saying that the case showed: the need for a firm restatement of the principle that in cases of rescission of an ordinary contract of sale of land for failure to comply with an essential condition as to time, equity will not intervene. I would put Celestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd [2011] 1 All ER (Comm) 259 (discussed by Lord Briggs at paras 33 and 51 above) into this category. Hamblen J there held that the grant of relief from forfeiture of a lease of a chattel which would have significant economic life after the expiry of the lease was outside existing authorities dealing with chattels. He did not consider whether to extend authority because he went on to hold that there was no jurisdiction to grant relief anyway because the termination provision sought to be relieved was not for the purposes of security for non payment of rent and because time for payment was of the essence of the agreement and the owner of the aircraft, which in that case had a residual economic life, had a considerable interest in the timeous performance of obligations and because the grant of relief would cause considerable uncertainty generally (see judgment of Hamblen J at paras 72 to 80). Hamblen J distinguished the earlier case of On Demand Information plc v Michael Gerson (Finance) plc [2003] 1 AC 368 (discussed by Lord Briggs at para 32 above) on the basis that the lessee would retain the goods indefinitely. The point in the On Demand case was that the lessees had sold without giving the requisite notice and in those circumstances they were required to pay to the hirer some 95% of the proceeds of sale which they had obtained for the hired goods on a sale for which they had been unable to complete the approval processes required under the contract. That was clearly a situation in which equity had to intervene. Approach is consistent with Shiloh Spinners The approach explained above is consistent with the law as authoritatively laid down in the Shiloh Spinners case [1973] AC 691 by Lord Wilberforce, with whom the other members of the House agreed. The particular facts are not important. In a magisterial analysis, Lord Wilberforce saw the doctrine as a principle of general application. He held, at p 722: There cannot be any doubt that from the earliest times courts of equity have asserted the right to relieve against the forfeiture of property. The jurisdiction has not been confined to any particular type of case. The commonest instances concerned mortgages, giving rise to the equity of redemption, and leases, which commonly contained re entry clauses; but other instances are found in relation to copy holds, or where the forfeiture was in the nature of a penalty. Although the principle is well established, there has undoubtedly been some fluctuation of authority as to the self limitation to be imposed or accepted on this power. Lord Wilberforces speech went on to describe the debates that had taken place in the early 19th century on different issues. These differences of view as to when equity should or should not grant relief show that the doctrine of relief from forfeiture was not based on some generalised concept of unconscionability but on a detailed and, as Lord Briggs describes it, principled distinction between the different situations which might bring it into contention: Yet even this head of relief has not been uncontested: Lord Eldon LC in his well known judgment in Hill v Barclay (1811) 18 Ves Jun 56 expressed his suspicion of it as a valid principle, pointing out, in an argument which surely has much force, that there may be cases where to oblige acceptance of a stipulated sum of money even with interest, at a date when receipt had lost its usefulness, might represent an unjust variation of what had been contracted for: see also Reynolds v Pitt (1812) 19 Ves Jun 140. Secondly, there were the heads of fraud, accident, mistake or surprise, always a ground for equitys intervention, the inclusion of which entailed the exclusion of mere inadvertence and a fortiori of wilful defaults. Outside of these there remained a debatable area in which were included obligations in leases such as to repair and analogous obligations concerning the condition of property, and covenants to insure or not to assign. As to covenants to repair and cases of waste, cases can be quoted before the 19th century in which relief was granted: see Webber v Smith (1689) 2 Vern 103 and Nash v Earl of Derby (1705) 2 Vern 537. There were hostile pronouncements. In Wadman v Calcroft (1804) 10 Ves Jun 67 both Sir William Grant MR and Lord Eldon LC are found stating it to be clear that relief cannot be given against the breach of other covenants ie than covenants to pay rent. It was soon after that the critical divide or supposed divide occurred, between the liberal view of Lord Erskine LC in Sanders v Pope (1806) 12 Ves Jun 282 and the strict view of Lord Eldon LC in Hill v Barclay. The latter case came to be followed as the true canon; the former was poorly regarded in Lincolns Inn, but it is important to observe where the difference lay. This was not, as I understand it, in any disagreement as to the field in which relief might be granted, for both cases seem to have accepted that, in principle, relief from forfeiture might be granted when the covenant was to lay out a sum of money on property: but rather on whether equity would relieve against a wilful breach. Lord Wilberforce continued, at pp 723 724: [N]o decision in the present case involves the establishment or recognition directly or by implication of any general power that is to say, apart from the special heads of fraud, accident, mistake or surprise in courts exercising equitable jurisdiction to relieve against mens bargains. Lord Eldon LCs firm denial of any such power in Hill v Barclay does not call for any revision or review in this case. Equally there is no need to qualify Kay LJs proposition in Barrow v Isaacs & Son [[1891] 1 QB 417]. I would fully endorse this: it remains true today that equity expects men to carry out their bargains and will not let them buy their way out by uncovenanted payment. But it is consistent with these principles that we should reaffirm the right of courts of equity in appropriate and limited cases to relieve against forfeiture for breach of covenant or condition where the primary object of the bargain is to secure a stated result which can effectively be attained when the matter comes before the court, and where the forfeiture provision is added by way of security for the production of that result. The word appropriate involves consideration of the conduct of the applicant for relief, in particular whether his default was wilful, of the gravity of the breaches, and of the disparity between the value of the property of which forfeiture is claimed as compared with the damage caused by the breach. (Emphasis added) So, significantly, equity did not mend or relieve against peoples bargains, and there were categories of cases in which equity did not grant relief, not just individual cases where the discretion was exercised against the grant of relief. As I have explained, those appropriate and limited cases do not include cases such as The Scaptrade [1983] 2 AC 694, Union Eagle and Sparks where (outside leases of land and mortgages) it was inconsistent with the terms of the parties bargain that there should be any relief from strict performance of the contract if the other party chose to enforce his rights (always provided that those terms were not unlawful, or for example unenforceable as penalties). This is a basic principle of equity for several reasons, and a key element of equitys role in economically significant cases. No unacceptable loss of certainty I have raised the question whether there is an unacceptable loss of certainty involved in applying the doctrine of relief from forfeiture where rights were the subject of a licence. I answer that concern as follows. This case does not alter the underlying approach of equity to claims for relief from forfeiture. Even where the preconditions for forfeiture have been met, relief will not be given if the case falls within one of the categories of case in which equity does not intervene. The inappropriateness of relief from forfeiture is most likely in inconsistent with ordinary and lawful commercial bargain cases, in which the approach of the courts is clear. It is, furthermore, not every type of licence which will be productive of rights in respect of property, as in this case. Further, in this case, the licence was prevented from being a lease only because it was perpetual and if it had been a lease there is no doubt that there would have been jurisdiction to grant relief from forfeiture. Moreover, the extension of the law in this case is a logical development conducive of a coherent legal principle on the basis that the gap between relief in relation to realty and relief in relation to personalty should, as Lord Briggs has explained, be closed so far as possible. In summary, the application of the doctrine to a right arising under a licence is a small step, and it is, as I see it, unlikely to be the case that this development of the law will turn out to involve any significant loss of certainty in what the principle of relief from forfeiture stands for. The circumstances of the present case Passing to the present case, the right given by clause 5 of the licence, which appears to be an adaptation of the right of re entry in a lease, was intended to be a security for the payment of an annual sum of 50. Like Lord Briggs, I consider that the judgment of Lewison LJ contained a most careful analysis of the question whether the licence conferred a possessory right and that there is no basis on which this court should interfere with that conclusion. There is no appeal in this case against the exercise by HHJ Behrens of his discretion to grant relief from forfeiture. Accordingly, on this appeal we have not been concerned with the additional range of factors which the court considers when exercising its discretion to grant relief from forfeiture. This is a large subject and it should not be thought that, since these judgments do not deal with it, it is not also an area of law in which there is a body of authority. I would therefore also dismiss this appeal. |
Suppose that a convicted drug trafficker is found to have benefited from his trafficking to the extent of 1m but, having at the time realisable property worth only 100,000, a confiscation order is initially made against him just for this lesser sum. Suppose then that the defendant, entirely legitimately, later acquires property to the value of upwards of a further 900,000. Is he at that stage liable to a further court order increasing to the full extent of his criminal gain the amount recoverable under the confiscation order by reference to these after acquired assets? It is not in doubt that, assuming his offences were committed after 24 March 2003, and that he were therefore subject to the provisions of the Proceeds of Crime Act 2002 (POCA), the answer would be a clear yes see particularly section 22(3) of POCA. But what if, as in the case of this appellant, his offences were committed before that date so that he falls to be dealt with under the Drug Trafficking Act 1994 (the 1994 Act), in particular under section 16 of that Act? Section 16, as amended by section 165(1) of, and paragraph 169 of Schedule 9 to, the Powers of Criminal Courts (Sentencing Act 2000, provides: (1) This section applies where, by virtue of section 5(3) of this Act, the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking. (2) If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the courts reasons. (3) An application under subsection 2 above may be made either by the prosecutor or by a receiver appointed in relation to the realisable property of the person in question under section 26 or 29 of this Act or in pursuance of a charging order. (4) Where a certificate has been issued under subsection (2) above the prosecutor may apply to the Crown Court for an increase in the amount to be recovered under the confiscation order; and on that application the court may (a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and (b) increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (2) of section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 (as it has effect by virtue of section 9 of this Act) if the effect of the substitution is to increase the maximum period applicable in relation to the order under subsection (4) of that section. Is the High Court, on an application made under section 16(2), entitled to have regard to after acquired assets? That is the critical question now for decision by this court, leave to appeal in respect of it having been granted on 11 April 2011. It was a question expressly left open by the House of Lords successively in In re Maye [2008] 1 WLR 315 (see Lord Scott of Foscotes speech at para 24) and R v May [2008] AC 1028 (see Lord Binghams speech at para 41). There is, however, a preliminary issue also to be decided: was section 16 in force at the material time? With that brief introduction let me sketch in, to the limited extent necessary, the particular facts of the present case. On 7 January 1997 the appellant pleaded guilty before Judge Slinger at the Crown Court sitting at Preston to five offences of conspiracy to supply controlled drugs, two offences relating to Class A drugs, three to Class B drugs, all committed in 1995. On 8 January 1997 he was sentenced to 12 years imprisonment, reduced on appeal to ten years. In confiscation proceedings commenced under the 1994 Act the judge assessed the value of the appellants proceeds of drug trafficking to be 273,717.50 but the amount then realisable to be only 823. Accordingly, on 10 July 1997, pursuant to section 5 of the 1994 Act, the judge made a confiscation order for 823 payable within 14 days, an order which was duly satisfied. Following his release from prison in November 2000, the appellant went into the property business with his father and acquired very substantial further assets. In the light of this change of circumstances, the prosecution sought and obtained from the High Court, initially a restraint order under section 26 (made by Richards J on 18 March 2005) and thereafter a certificate under section 16(2) (issued by Mitting J on 18 May 2005) certifying that the amount that might now be realised was greater than the 823 taken into account when the confiscation order was first made. Armed with that certificate the prosecution then applied to the Crown Court under section 16(4) for an increase in the amount to be recovered under the confiscation order. On 26 October 2007, following a seven day hearing, Judge Slinger found that the appellant now held realisable assets to the value of 348,315.54 and on 14 November 2007 he exercised his discretion to substitute for the 823 originally recoverable the sum of 273,717.50 (the full value of the appellants proceeds from crime) to be paid within six months, with three years imprisonment in default. On 20 February 2009 (for reasons given on 2 April 2009) the Court of Appeal (Criminal Division) dismissed the appellants appeal, brought on the basis that Judge Slinger had over estimated the value of his realisable assets and had failed to take properly into account in the exercise of his discretion the length of time which had elapsed since the appellants release from prison. The appellant no longer contends that, in making the order under section 16(4), Judge Slinger exercised his discretion incorrectly. Subsequently the prosecution obtained from Pitchford J on 18 December 2009 an order under section 31 of the 1994 Act appointing a receiver with a view to enforcing the revised confiscation order. However, in the light of the appellants argument (citing the reservations of the House of Lords in In re Maye and R v May) that Mitting Js section 16(2) certificate, made by reference to after acquired assets, had been issued without jurisdiction, the judge suspended the receivers powers pending a proposed appeal. The appellants appeal, brought by leave of Black LJ granted on 30 June 2010, was heard by the Court of Appeal (Arden, Thomas and Etherton LJJ) on 10 November 2010 and dismissed on 20 December 2010. Arden LJ gave the only reasoned judgment. She regarded the court as bound by an earlier decision of the Court of Appeal (Criminal Division) (judgment given by Rose VP) in R v Tivnan [1999] 1 Cr App R(S) 92 in the prosecutions favour. She in any event agreed with it. As for the appellants submission that section 16 no longer had effect after POCA came into force on 24 March 2003, Arden LJ regarded it as clearly wrong having regard to the terms of The Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003/333) (the Commencement Order). It is convenient, and in any event appropriate, to deal first with the appellants argument that, by the time of Mitting Js section 16(2) certificate, section 16 was no longer in force. The Commencement Order Unless saved by the transitional provisions of the Commencement Order, it is clear that POCA repealed the relevant sections of the 1994 Act with effect from 24 March 2003. One turns, therefore, to article 3 of the Commencement Order headed Transitional Provisions relating to confiscation orders England and Wales and in particular to article 3(1): Section 6 of the Act (making a confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24 March 2003. Section 6 of POCA (to broadly similar effect as section 2 of the 1994 Act) is the opening section of Part 2 of POCA dealing generally with confiscation orders in England and Wales and it comes into play when two conditions are satisfied, the first (specified by section 6(2)) being that a defendant has been convicted or is being committed to the Crown Court in respect of certain offences. The second condition is for present purposes immaterial. What, then, is the position where, as here, the relevant offences were committed before 24 March 2003 so that, by virtue of article 3 of the Commencement Order, section 6 of POCA does not have effect? The answer to this is to be found in article 10 of the Commencement Order under the heading Savings for England and Wales: (1) Where, under article 3 . a provision of the Act does not have effect, the following provisions shall continue to have effect . (e) sections 1 to 36 and 41 of the Drug Trafficking Act 1994; The appellants contention is that article 3 (and, in turn, article 10) only come into play when not only was the relevant offending before 24 March 2003 but also no confiscation order had by then been made. Section 6 of POCA, he submits, is concerned only with the making of a confiscation order, not with any subsequent adjustments, up or down, of the amount payable under it. If no confiscation order has been made in respect of pre 24 March 2003 offending, and after that date it appears that such an order may be appropriate, then, since article 3 precludes that happening under section 6 of POCA, article 10 provides that the relevant provisions of the 1994 Act continue to have effect instead. These include sections 13 and 14 (concerning respectively the reconsideration of a case where initially the court did not consider making a confiscation order under section 2 and reassessing whether the defendant has in fact benefited from drug trafficking, both therefore predicating that no confiscation order has yet been made). Sections 15 and 16, however, (concerning respectively a revised assessment of the proceeds of drug trafficking and an increase in realisable property) would not continue to have effect since both these sections predicate that a confiscation order has already been made. Nor, for the same reason, would section 17 (concerning the inadequacy of the defendants realisable property to pay the amount outstanding under a confiscation order) continue to have effect, much though the defendant might wish to invoke it. Mr Pownall QC for the appellant accepts that there is no good reason why, in the circumstances he postulates, Parliament should have wished to repeal rather than give continuing effect to sections 15 and 16, still less section 17, of the 1994 Act. Construing article 3 as he does, however, namely as applying only to the actual making of confiscation orders and not to other legislative provisions in respect of them, such, he submits, is the (admittedly unsatisfactory) effect of the commencement order. The Court of Appeal was to my mind clearly right to reject this argument. Section 6 of POCA is the foundational section for the whole confiscation order scheme and article 3, in disapplying it in respect of pre 24 March 2003 offending, is thereby disapplying the entire POCA confiscation order regime, leaving it to article 10, in particular article 10(1)(e), to continue in force the whole confiscation order scheme earlier provided for by the 1994 Act. So much for this preliminary issue. Does section 16(2) extend to after acquired assets? Mr Perry QC for the prosecution submits that section 16(2) is concerned with the amount that might be realised as at the date of the High Court hearing of the application. It is couched in the present tense and contains no words of limitation as to time. It is thus intended and apt to be operated in any or all of the following four differing (but sometimes overlapping) factual situations: (a) where the defendant concealed assets at the time the confiscation order was originally made (concealed assets); (b) where the assets originally taken into account were initially undervalued (undervalued assets); (c) where the assets originally taken into account have since increased in value (appreciated assets); (d) where, subsequent to the making of the original confiscation order, the defendant has increased his realisable property (after acquired assets). The appellant argues that while section 16(2) applies to the first three situations, it does not apply to the fourth. It is, I should add, common ground that, with regard to the first three situations, section 16(2) applies no less to different property representing property actually held by the defendant at the time of the original confiscation order as to such property as was originally held. So much, indeed, was decided by the House of Lords in In re Maye [2008] 1 WLR 315 which held (with regard to comparable legislation in Northern Ireland) that the appellants interest in his parents unadministered estates (an interest later valued at 18,000) had been a thing in action, and accordingly his property, when the confiscation order had originally been made; and so too an action for damages for false imprisonment, subsequently settled for 2,500. In deciding upon the correct construction of section 16(2) the court must, of course, be guided principally by the language of the section itself and by the definition sections in the 1994 Act which bear upon it. Section 64 provides that: In this Act the expressions listed below are defined by, or otherwise fall to be construed in accordance with, the provisions of this Act indicated below. Amongst the expressions then listed is amount that might be realised, the provision indicated being section 6(1). Section 6(1) provides (so far as presently material): For the purposes of this Act the amount that might be realised at the time a confiscation order is made against the defendant is (a) the total of the values at that time of all the realisable property held by the defendant . Section 6(2) then defines realisable property to mean (again, so far as presently material) (a) any property held by the defendant . Mr Pownalls central submission is that those definition sections require section 16(2) to be construed as if it read: If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the total values of all property held by the person in question at the time the confiscation order is made is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the courts reasons. For my part I find that a difficult submission. The words in section 16(2) falling to be construed in accordance with section 6(1) are not amount that might be realised at the time a confiscation order is made against the defendant but are rather amount that might be realised. When, therefore, one comes to section 6(1), which defines the former (longer) rather than the latter (shorter) expression, it seems to me that the meaning of this shorter expression (that in section 16(2) and section 64) is to be found in the part of section 6(1)(a) reading the total of the values . of all the realisable property held by the defendant ie excluding the words at that time which refer back to the time a confiscation order is made against the defendant, words conspicuously absent from section 16(2). I would accordingly construe the material words in section 16(2) as if they read: If . the High Court is satisfied that the total of the values of all the realisable property held . is greater than the amount taken into account in making the confiscation order . the court shall issue a certificate . In short, nothing in the definition sections requires section 16(2) to be construed for all the world as if it referred to the amount that might have been realised at the time the confiscation order was made. On the contrary, it seems to me plainly directed to the amount that might be realised now and by reference to realisable property now held by the defendant. As for the words in parenthesis (whether it [the amount that might be realised, as both sides agree] was greater than was thought when the order was made or has subsequently increased) it seems to me that they are designed to encompass all ways in which the amount might have grown and can apply equally to after acquired assets as to concealed assets, undervalued assets or appreciated assets. The Court of Appeal in the present case thought that after acquired assets fell for consideration within the first limb of the parenthesis. The Court of Appeal in Northern Ireland in In re Maye [2005] NI CA 41; [2006] NI 206 thought rather that they fell within the second limb, as having caused the realisable amount to be subsequently increased. For my part I prefer the Northern Ireland view but really it matters not. No one suggests that the critical issue now arising can be determined by reference to the words in parenthesis. It follows that, as a matter of pure construction of section 16 itself, I prefer Mr Perrys argument. There are, however, as it seems to me, other pointers too in the same direction. It is, for example, accepted that after acquired assets are properly to be taken into account in the operation of sections 15 and 17 of the Act. True it is that, so far as section 15 is concerned, the question is put beyond doubt by subsections 7 and 9. But presumably that is because section 15 is directed essentially to revising the assessment of the proceeds of drug trafficking and, but for these subsections, would not appear to involve any recalculation of realisable assets. Sections 16 and 17 by contrast are directly concerned with determining the value of the defendants realisable property section 16 to see whether it has increased, section 17 to see whether it has proved to be or has become inadequate to pay the amount outstanding. To my mind it is logical that, by the same token that the defendant cannot require his after acquired assets to be ignored in the determination of his present ability to pay, (as was expressly conceded by Mr Pownall both in his written case and in his oral argument although now rather surprisingly Lord Hope suggests an entirely different view of section 17), nor should they be ignored in deciding whether he can pay an additional amount up to the point when he will have disgorged an amount equivalent to all the benefit which has accrued to [him] from drug dealing (per Rose LJ in Tivnan [1999] 1 Cr App R (S) 92, 97). The symmetry between sections 16 and 17 is to my mind striking. Their sidenotes read respectively: Increase in realisable property and Inadequacy of realisable property. Sidenotes, as Lord Hope explained in R v Montila [2004] 1 WLR 3141, paras 33 34, although unamendable and thus carrying less weight than other parts of the Act, can nevertheless properly be considered in the Acts construction. Why should realisable property, in one case but not the other, be confined to that held by the defendant at the time of the original confiscation order? The Court of Appeal in Tivnan [1999] 1 Cr App R (S) 92, 97 further found support for the prosecutions contended for construction of section 16 in section 9(5) of the 1994 Act: Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned. Although I would not myself place very much weight upon it, I too would regard section 9(5) as at least a straw in the wind: an indication of Parliaments intention that even serving a term in default will not exonerate a defendant from the possibility of eventually having to disgorge assets up to the extent of his criminal gains. I also see some force in Mr Perrys argument that Parliament would not willingly have sought to put upon the court the burden of disentangling the value of assets held at the time of the confiscation order from their value at the time of a section 16(2) application. Suppose that when the confiscation order was made the defendant had partly completed the manuscript of a novel or a painting which was later completed and then sold for a substantial sum. Or suppose that at the time of the confiscation order he was part way to acquiring a statutory right to buy his council house at a favourable price (the factual background to the Court of Appeal (Criminal Division) decision in R v Bates [2007] 1 Cr App R (S) 9). Why should the court have to apportion the eventual gain and ignore that part of it acquired subsequent to the confiscation order? Or suppose the defendant wins the lottery. Why should it make all the difference whether he bought his ticket the day before or the day after the confiscation order was made? Of course, considerations of this kind cannot be decisive. But I see no good reason to ignore them entirely. The main argument in support of the appellants case is that it is unfair and counter productive to increase the amount of a confiscation order by reference to after acquired assets. This, it is said, would militate against his reform and rehabilitation and be likely to discourage him (once he has satisfied any initial confiscation order and been released from any sentence of imprisonment) from engaging in lawful and openly profitable employment. And, of course, the longer after conviction it is sought to confiscate after acquired assets, the more unfair it may appear. Such no doubt were the considerations which led the House of Lords in In re Maye [2008] 1 WLR 315 and in R v May [2008] AC 1028 to leave open what Lord Scott in In re Maye, para 24 called this important and difficult question for later decision. In the same connection Mr Pownall points to the six year limitation period six years beginning with the date of conviction to which applications under sections 13, 14 and 15 of the 1994 Act are all made subject. If the prosecution cannot beyond such six year time limit seek to obtain, or increase the amount payable under, a confiscation order by reference to the defendants gains from drug trafficking, he asks, why should they be entitled to increase the amount payable in respect of such gains by reference to after acquired assets with no limitation of time whatever? There seems to me, however, nothing in this latter point. It is plain that section 16 contains no limitation period, yet no one disputes that it can be invoked without limit of time in respect of concealed, undervalued or appreciated assets. The absence of a limitation period, therefore, tells one nothing about whether section 16 applies also to after acquired assets. The reason for introducing a six year time limit into sections 13, 14 and 15 must surely be to establish a finite period for determining the full extent of a defendants criminal gains the ultimate ceiling for any confiscation order. These sections fix the extent of a defendants criminal liability for disgorgement under the confiscation scheme; sections 16 and 17 go to the very different question as to how far this liability is required to be met. As for the main argument, based on fairness and rehabilitation, naturally I recognise that Parliament could have chosen a different policy with regard to after acquired assets. But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA) to leave it open to the courts as a matter of discretion to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth. That the court does indeed have a discretion in the matter is plain both from the wording of section 16(4) and from a number of authorities, notably In re Saggar (Confiscation Order: Delay) [2005] 1 WLR 2693; R v Bates [2007] 1 Cr App R (S) 9; and R v Griffin [2009] 2 Cr App R (S) 587. This is not, however, the occasion to explore the approach to the proper exercise of that discretion or, indeed, the question whether its exercise could ever be affected by considerations arising under the Human Rights Act 1998. As already noted, there is no challenge here to the exercise of the Crown Courts section 16(4) discretion, only to whether the section 16(2) certificate was lawfully issued. In my judgment the section 16(2) certificate here was lawfully issued: the section requires that after acquired assets are properly to be taken into account. In common, therefore, with Lord Walker and Lord Wilson, with both of whose judgments I am in full agreement, I too would dismiss this appeal. LORD WALKER On the first issue in this appeal the court is unanimous, and I need say no more than that I agree with the reasoning and conclusions of Lord Brown (with whom Lord Wilson agrees) and Lord Hope (with whom Lady Hale agrees). But on the second issue there is division. I agree with Lord Browns reasoning and conclusions of Lord Brown and Lord Wilson and I respectfully disagree with Lord Hopes. I shall set out my reasons as briefly as possible. On the second issue Lord Hope takes as his starting point the well established principle of statutory construction that property rights are not to be taken away without compensation unless Parliaments intention to expropriate them has been expressed in clear and unambiguous terms. The principle is in no doubt. But the statutory purpose of the Drug Trafficking Act 1994 (the 1994 Act), and similar statutes, could hardly have been made clearer. As Lord Steyn observed in relation to Part VI of the Criminal Justice Act 1998 in R v Rezvi [2003] 1 AC 1099, 1152, para 14: It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy. The United Kingdom has undertaken, by signing and ratifying treaties agreed under the auspices of the United Nations and the Council of Europe, to take measures necessary to ensure that the profits of those engaged in drug trafficking or other crimes are confiscated: see the United Nations convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (19 December 1988); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, 8 November 1990. These Conventions are in operation and have been ratified by the United Kingdom. There are numerous other authoritative statements to the same effect. It is sufficient to refer to the observations of Lord Bingham in McIntosh v Lord Advocate [2003] 1 AC 1078, para 4 and in R v May [2008] AC 1028, paras 7 to 9. Once it is recognised that Parliament certainly did intend to strip those convicted of serious crimes of the proceeds of their wrongdoing, the force of the general principle of construction is considerably attenuated. Of course the fact remains that the 1994 Act is a statute of a penal nature, and its detailed provisions must be closely considered and fairly applied. But I am not persuaded that the linguistic points mentioned by Lord Hope in paras 60 to 67 of his judgment raise any real doubt, so as to enable the appellant to be given the benefit of that doubt. Before considering these detailed points I would draw attention to an ambiguity in the expression after acquired property which may lead to confusion (as it did in R v Maye [2008] 1 WLR 315, an appeal from Northern Ireland which must be distinguished from R v May [2008] AC 1028). A newly acquired asset may be obtained in place of another asset in numerous ways: for instance, by making changes in a portfolio of investments, or by remortgaging a house in order to pay the deposit on a second house, or by receiving cash on the surrender or maturity of a life policy. These may be termed substituted assets but they are not after acquired property in the relevant sense, that is property accruing to a person (whether as earnings or by gift, inheritance or some other windfall) without a corresponding diminution in that persons existing assets. All this is elementary and was explained by Lord Scott in R v Maye. (The distinction is clearest in the law of personal insolvency. Under section 307 of the Insolvency Act 1986 an undischarged bankrupts trustee in bankruptcy can give notice causing after acquired property of the bankrupt to vest in him. This necessarily means after acquired property in the full sense, since assets acquired by any sort of process of exchange would necessarily already belong to the trustee.) Section 6 of the 1994 Act explains the meaning of the amount that might be realised when a confiscation order is made. Section 6(1)(a) shows that it is an aggregate value: The total of the values at that time of all the realisable property held by the defendant, subject to adjustment in two ways that are not now material. The plural form values indicates, as one would expect, that separate items of property are to be identified and valued. Section 6(1) expressly focuses on the time when a confiscation order is made. Section 6(3), referring to various coercive orders that may be made under penal statutes, does not have the same explicit focus. If the language of section 6(1) has to be adapted to valuation at a later time, as sections 16 and 17 plainly require, I see no reason why section 6(3) should not be adapted in the same way. In paras 63 and 64 Lord Hope refers to section 15(7) and (9) of the 1994 Act. Section 15 is concerned with reassessing the proceeds of drug trafficking as determined (in the normal course) under the provisions of sections 2 and 4. It is a central feature of the legislation that under section 2(4) (and apart from the special procedure for postponed determinations under section 3) the determination of the amount to be recovered is to be made under section 4 (assessing the proceeds of drug trafficking) and section 5 (amount to be recovered under confiscation order) before the convicted defendant is sentenced. A reassessment of the proceeds of drug trafficking is therefore a major step and subsections (6) to (14) of section 15 are required in order to spell out the detailed changes in the statutory procedure needed to make the process of reassessment workable. Section 16 is concerned, as Lord Hope observes, with the other part of the formula defining the quantum of any varied confiscation order. Section 16 (and its counterpart, section 17) are less complicated because the amount of the proceeds (whether as assessed before the original confiscation order was made, or as reassessed under section 15) are by then a given, and section 16 is unmistakeably looking at the matter at the time of the application under that section. Section 16(2) provides: If . the High Court is satisfied that the amount that might be realised . is greater than the amount taken into account in making the confiscation order. The section then has a parenthesis with two loosely framed alternatives (Whether it [the amount] was greater than was thought when the order was made or has subsequently increased). The amount is, as already noted, an aggregate value of separate items of property which must be first identified and then valued. The past tense of the words was greater is surprising but I do not think anything can turn on it. It would be odd, to my mind, if separate items of realisable property were to be identified at one date (that of the original confiscation order) but valued at another (the date when the section 16 application is heard). I agree with Lord Hope that it is not necessary to read section 16 as extending to after acquired assets in order to give it some sensible meaning. But if after acquired property is excluded, difficult problems of identification and tracing are likely to arise, especially if the individual in question has engaged in business activities highly geared by borrowing, such as those of which the appellant gave evidence. Had Parliament intended to draw a distinction between substituted assets and after acquired assets it could easily have made its intention clearer. Neither side made any submission as to the effect of section 7(3) of the 1994 Act. In relation to section 17 Lord Hope does not accept the submission of Mr Perry QC as to his construction producing symmetry between section 16 (increase in realisable property) and section 17 (inadequacy of realisable property). Lord Hopes point (though not put quite so bluntly) is that this argument begs the question in that it makes the unreasoned assumption that for the purposes of section 17 after acquired property must be taken into account. But in my opinion there are sound reasons for approaching the question of symmetry on that basis. Under section 17 a convicted criminal subject to a confiscation order is asking to be released from his obligation. The justification for section 17 is that not even the worst offender should be sent to prison for an additional term if he is simply incapable of complying with his obligation under an existing order. If he can comply with it out of his after acquired assets, he should be required to do so. For these reasons, and for the fuller reasons set out in the judgments of Lord Brown and Lord Wilson, I would dismiss this appeal. LORD WILSON I agree with Lord Brown and Lord Walker that the appeal should be dismissed. On the first issue I wish to add nothing to Lord Browns judgment. On the second issue I add this judgment only because the other four members of the court are evenly divided. I consider that a natural reading of section 16(2) of the 1994 Act yields the conclusion that after acquired assets fall to be taken into account upon applications to the High Court and thereafter to the Crown Court under the section. There is in my view a fallacy at the heart of the construction which Mr Pownall QC presses upon the court. The inquiry of the High Court is whether the amount that might be realised is greater than another specified and easily identified amount. Mr Pownall is right to say that, in the construction of the quoted phrase, section 64 sends the court back to section 6. But then comes his misconstruction. Section 6 provides that the amount that might be realised at the time a confiscation order is made. is. the total of the values at that time of all the realisable property held by the defendant subject to adjustments. But the two references to the time when a confiscation order is made form no part of the meaning of the phrase. The draftsman of the section is doing no more than to apply the meaning of the phrase, viz the total of the values. of all the realisable property held by the defendant, to the particular time which section 6 is designed to address. The particular time which, by contrast, section 16(2) is designed to address is the time of the application made thereunder: is the amount that might be realised greater than the other specified amount? In my view, moreover, Mr Pownalls construction does not work if only because it is common ground that, in relation to pre acquired assets, the inquiry is into their value at the time of the application rather than their value at the time when the confiscation order was made. So I find nothing in section 16(2) to suggest an exclusion of after acquired assets. On the contrary I consider that the words in parenthesis confirm their inclusion. The words are whether [the amount that might be realised] was greater than was thought when the order was made or has subsequently increased. The Court of Appeal relied on the first alternative whereas I consider that the relevant alternative is the second. The use of the aorist tense (was) in the first alternative requires the court to survey pre acquired assets, in particular when hidden or undervalued at the time when the confiscation order was made, and to assess their true value at that time. But the use of the perfect tense (has increased) in the second alternative requires the court to survey any increase up to the date of its inquiry in the amount that might be realised, not just because of a rise in the value of the pre acquired assets. A second obvious reason for such an increase is the acquisition of assets after the date of the confiscation order. Sections 16 and 17 of the 1994 Act are opposite sides of the same coin. Their side notes describe their subject matter as increase in realisable property and inadequacy of realisable property respectively. Both sections address the situation in which, pursuant to section 5(3), the court has ordered that the amount to be recovered from the defendant is the amount that might be realised rather than the higher amount of his proceeds of drug trafficking and in which, subsequently, the prosecution and the defendant wish to argue that the ordered amount should then be seen to be too low or too high respectively and be adjusted accordingly. There was no issue before this court but that, on an application by the defendant under section 17, the High Court should survey the present value of all the defendants property, whether acquired before or after the making of the confiscation order. Such was decided by the Court of Appeal, Civil Division, in In re ODonoghue [2004] EWCA Civ 1800 in relation to a provision, namely section 83(1) of the Criminal Justice Act 1988, in substantially identical terms. It would be surprising if the courts survey under section 16 lacked the same width. Section 16 does not oblige the Crown Court to order an increase in the amount of the confiscation order (which is subject in any event to the ceiling of the assessed value of the defendants proceeds of drug trafficking) in parallel with its assessment of the amount of the increase in the defendants realisable property. Subsection (4) confers on it a discretion to order such lesser increase as appears to the court to be appropriate having regard to the amount now shown to be realisable. It is clear from the decision of the Court of Appeal, Criminal Division, in R v Bates [2006] EWCA Crim 1015, [2007] 1 Cr App R (S) 9, at paras 12 and 13, that factors such as the defendants abandonment of a life of crime, the legitimate nature of his acquisition of the assets, the passage of time since the confiscation order was made and matters of exceptional hardship may be relevant to the exercise of the discretion. Such is in my view the area which Parliament has provided for the court to make allowance for the type of factors which, as is clear in para 59, Lord Hope instead prefers to weigh in his approach to the exercise of construction. I agree with the observation of Lord Hope, at para 61 below, that, in the exercise of construction, broad generalisations about the purpose of the 1994 Act are to be avoided. That is why, in my respectful view, there may be pitfalls in an approach founded first upon a proposition that the Act is not designed to provide for confiscation in the sense in which schoolchildren and others understand it (para 57) or in the popular sense (para 58) and then upon a conclusion that the respondents construction of section 16 would provide for confiscation in such senses. Nor do I agree that a rule of construction apt to a provision which expropriates property without compensation should be applied to a provision designed to extract from a defendant a sum which cannot exceed the value of his proceeds of drug trafficking. In my view the most arguable point in favour of the appellants construction of section 16(2) is that Parliament could have made it clearer or, as I prefer to say, even clearer that after acquired assets were to be included. In this regard a contrast is fairly made with section 22(3) of the Proceeds of Crime Act 2002 and, in particular, with section 15(7) and (9)(c) of the 1994 Act itself. But then Parliament could have made it clearer or, as I prefer to say, would have made it clearer had such been its intention that after acquired assets were to be excluded. So, albeit that it is the most arguable, the point fails in my mind to deflect the force of the arguments in support of their inclusion which I have sought to articulate. LORD HOPE (with whom Lady Hale agrees) I agree with Lord Brown, for the reasons he gives, that section 16 of the Drug Trafficking Act 1994 was in force on 18 May 2005 in relation to existing confiscation orders such as those which were made against the appellant on 10 July 1997 when Mitting J issued his certificate under that section. Section 6 of the Proceeds of Crime Act 2002 sets out the basic framework for the making of a confiscation order under the 2002 Act. Article 3(1) of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 provides that section 6 of the 2002 Act shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24 March 2003. There is therefore a clear dividing line between the 1994 Act on the one hand and the 2002 Act on the other as to the date when the scheme of the 1994 Act was to cease to apply and the scheme of the 2002 Act was to take effect. It would be surprising, however, if article 3(1), which is in the widest terms, was intended to prevent the courts from increasing the amount to be recovered under a confiscation order that was made under the 1994 Act where it turns out after the scheme of the 2002 Act has come into operation that the real value of the proceeds of drug trafficking was greater than the assessed value, or that there was an increase in the defendants realisable property. That these contingencies, which sections 15 and 16 of the 1994 Act provided for, were not overlooked becomes plain when the Commencement Order is read as a whole. Article 10(e) states that, where under article 3, a provision of the 2002 Act does not have effect, sections 1 to 36 and 41 of the 1994 Act shall continue to have effect. These words ensure that the scheme of the 1994 Act is preserved in relation to persons such as the appellant whose offences were committed before 24 March 2003. It is worth noting, as Lord Brown points out at the end of para 14, that the scheme of the 1994 Act contains, in section 17, a provision that is designed to operate in favour of a defendant unlike sections 15 and 16 which are available to be invoked against him by the prosecutor. That provision is available where the defendants realisable property is inadequate to enable him to satisfy the terms of the confiscation order. The court can, if satisfied that this is the situation, substitute a different amount as the amount to be recovered under it. But for that provision, defendants in the situation that it refers to would be exposed to the risk of a prison sentence for failing to meet the terms of the confiscation order. The need to preserve the protection that it gives to the defendant is not one which the draftsman of the Commencement Order is likely to have overlooked. Mr Pownall QC for the appellant submitted, however, that the saving provision in article 10 applied only to orders made after 23 March 2003 by virtue of sections 13, 14 or 19 of the 1994 Act. This was because orders made under those sections were confiscation orders within the meaning of section 2(9) of the 1994 Act, not variations of existing confiscation orders. He acknowledged that Parliament was unlikely to have wanted to prevent a defendant whose confiscation order was made before that date from applying for relief under section 17, and he was unable to suggest any good reason for supposing that it was Parliaments intention to exclude the application of sections 15 and 16 in such a case either. But he said that the wording of the Commencement Order was clear and that article 3(1) was to be read narrowly according to its own terms. Its effect, in a case such as this, was that section 22 of the 2002 Act which provides for the making of a fresh order on reconsideration of the available amount could not apply, as it was available only in the case of orders made under section 2 of that Act and those referred to in section 2(9). The answer to this submission is, as I have already indicated, that article 3 does not stand alone. It has to be read in the context of the Commencement Order as a whole. Article 10(e) of the Order says all that is needed to preserve the scheme that was comprised in sections 1 to 36 of the 1994 Act. Its effect is to fill the gap that would have been created if those sections were not to continue to be available where the offence was committed before 23 March 2003. As sections 15 to 17 were part of that scheme, they remain available. I would hold that the appellant fails on this issue. The more difficult question is whether section 16(2) of the 1994 Act extends to after acquired assets in the full sense of that expression as explained by Lord Walker in para 35. The difficulty lies partly in the wording of that subsection, which is framed in general terms and does not address this question directly, and partly in the nature of the exercise that, on the respondents construction of it, the court is required to carry out. In R v May [2008] AC 1028, para 9 Lord Bingham of Cornhill said the process for which the statute provides is not confiscation in the sense in which schoolchildren and others understand it. This was because the object is to deprive the criminal who has benefited financially from crime, directly or indirectly, of what he has gained: see also para 48(1) where he added that the system does not operate by way of a fine. He had already made that point in McIntosh v Lord Advocate [2003] 1 AC 1078, para 4, where he said that one of the important premises on which the Proceeds of Crime (Scotland) Act 1995 rested was that it was desirable to deprive traffickers of their ill gotten gains. Lord Steyn in R v Rezvi [2003] 1 AC 1099, para 14 said that the measures that the United Kingdom had undertaken to take by signing and ratifying the relevant treaties was to ensure that the profits of those engaged in drug trafficking are confiscated. I do not find anything in these observations that suggests that they had mind the problem raised by this case. The respondent says that the object of the scheme of which section 16 forms part is to deprive the defendant of realisable assets whether or not they consist of after acquired assets in the full sense, albeit not exceeding the value of the benefit received from his offending. He points out that, when proceeding under section 6 of the 1994 Act, the court was required to assess the amount that might be realised at the time the confiscation order was made by having regard to all assets, irrespective of whether they were acquired by criminal conduct or legitimate means. The amount to be recovered was not limited to the product of the defendants criminal enterprise. But it seems to me that if legitimate after acquired assets were to be included too, this would indeed amount to their confiscation in the popular sense. It seems to be clear that the effect of reading section 16(2) of the 1994 Act in that way could be to penalise a defendant for the efforts of his own enterprise and hard work after he is released from custody. That objection can indeed be made in this case. The appellant was released from prison in November 2000. There is no suggestion that the increase in the value of his assets that has accrued since then has had anything to do with his previous offending. The assumption must be that the assets that he has acquired as a result of his business activities are entirely legitimate. I think that to deprive him of the increase can properly be described as confiscation. This is the kind of situation that, according to well established principles, ought not to be assumed to have been what Parliament intended unless it provided for this in clear terms. Section 22(3) of the 2002 Act, which states that the court must apply the available amount provision in section 9 when that amount is being recalculated under it as if references to the time the confiscation order is made were to the time of the new calculation, does satisfy this test. There is no doubt that the solution which section 22(3) has adopted meets the problems of identification and tracing if after acquired property is excluded to which Lord Walker refers in para 39. The question is whether the same result was achieved by section 16(2), which lacks a clear direction to that effect. The general principle of construction is that a statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous: Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Comrs [1927] AC 343, 359, per Lord Warrington of Clyffe. As Lord Reid explained in Westminster Bank Ltd v Beverley Borough Council [1971] AC 508, 529, this principle flows from the fact that Parliament seldom intends to do that, and that before attributing such an intention we should be sure that it was really intended. But he added this qualification to the way the principle was expressed by Lord Warrington: When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is a reasonable doubt, the subject should be given the benefit of the doubt. There is no hint here that this principle should be attenuated according to the impression one forms as to whether or not the subject deserves, or does not deserve, to be given that benefit. It is a principle of universal application. Its force would be greatly weakened if it were otherwise. Lord Bingham was, I think, making the same point in R v May [2008] AC 1028 when, in the course of his description of the principles to be followed by those called upon to exercise this jurisdiction in the future, he said in para 48, under item (4) of his list, that in view of its importance and difficulty the court should focus very closely on the language of the statutory provision in question and in the light of any statutory definition. We are not concerned in this case with his warning to avoid being distracted by proliferating case law or any judicial gloss or exegesis, as the question which we have to address here was left open both in R v May and in In re Maye [2008] 1 WLR 315. But his advice that guidance should be sought in the statutory language itself is very much in point in this case. Broad generalisations as to what the legislation was designed to achieve will not do. One must concentrate on the words that were used by Parliament. The wording that the head note to section 16 uses is Increase in realisable property. The expression realisable property is defined in section 6(2) of the Act: see the index of defined expressions in section 64. Section 6(1) states that for the purposes of the Act an amount that might be realised at the time a confiscation order is made against the defendant includes, among other things, the total of the values at that time of all the realisable property held by the defendant. It is in that context that section 6(2) provides: In this Act realisable property means, subject to subsection (3) below (a) any property held by the defendant; and (b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act. Section 6(3) provides that property is not realisable property if an order made under various Acts which provide for the forfeiture of property is in force in respect of it. The context in which the definition appears directs attention to the time that the confiscation order is made. It does not appear to contemplate the carrying out of the exercise that section 6(1) refers to at any later date. Mr Pownalls argument that the expression realisable property has nothing to do with after acquired property is reinforced by the presence in section 15, which deals with the revised assessment of the proceeds of drug trafficking, of subsections (7) and (9)(c). Section 15(7) provides: Any determination under section 2(4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made. [emphasis added] Section 15(9)(c) provides that section 6(1) of the Act shall have effect as if for confiscation order is made there were substituted of the determination. These modifications would not have been required if the expression the amount that might be realised in section 6(1), read together with section 6(2), was capable of embracing assets acquired after the date when the confiscation order was made. Section 15 is concerned with the amount assessed to be the value of the defendants proceeds of drug trafficking. Section 16 is concerned with the other part of the formula that defines the amount to be recovered under the compensation order, as the head note makes clear. In contrast to what one finds in sections 15(7) and 15(9)(c), there is no indication that in this context the date as at which the realisable property held by the defendant is to be identified, for the purpose of assessing the amount that might be realised by it, is different from that as at which the exercise directed by section 6(1) was carried out. The fact that recourse to the court under section 16 is not subject to any time limit, unlike section 15(15) which imposes a six year time limit on applications for a revised assessment of the proceeds, adds weight to this argument. It is not inconceivable that it was the intention that assets acquired legitimately many decades after the making of the confiscation should enable the recoverable amount to be recalculated and it can, of course, be said that there are no words that exclude after acquired property. But the confiscatory nature of the exercise requires us to be satisfied that this was what Parliament really intended and to give the benefit of the doubt to the defendant if we are not. Moreover, it is not necessary to read section 16 as extending to after acquired property to make sense of it. Mr Perry QC for the respondent accepted that section 16 can be invoked where the defendant concealed assets at the time of the confiscation order, or where the assets that were originally taken into account were undervalued when the order was made or where they have increased in value. The presence of the words in parenthesis in section 16(2), which contemplate that the amount that might be realised was greater than was thought when the order was made or has subsequently increased, is sufficiently explained by those three situations. They do not point irresistibly to the conclusion that after acquired assets may be taken into account too when the court is determining the amount that might be realised under that section. Section 17 deals with the problem which arises where the realisable property is inadequate for the payment of any amount remaining to be recovered under the compensation order. It was said by Mr Perry to support his argument that section 16 extended to after acquired property. There was, he said, a symmetry between the two sections which enabled the court to have regard to the defendants assets as a whole when it was making its assessment. There is an obvious symmetry if the cause of the problem is that the assets that were originally taken into account were overvalued at that time or that they have decreased in value. In either of these situations the property that was taken into account as realisable property within the meaning of section 6(2) would be incapable of providing the defendant with the funds needed to meet the terms of the confiscation order. So means are provided for an adjustment to be made to take account of this. There is obvious force in the point that Lord Walker makes in para 41 that the offender should not be excused from his prison sentence if he can comply with the terms of the existing order. But there is no indication in section 17 that any assets that the defendant may have acquired after the making of the compensation order have any part to play in this assessment. The fact that it uses the defined expression realisable property (which section 6(2), read with the direction in section 64 as to how these words are to be construed, identifies as the assets held by the defendant at the time of the making of the confiscation order) to identify the subject matter of the exercise is an indication to the contrary. The symmetry argument might, indeed, be said to support the conclusion that section 16 is no more concerned with after acquired property than, on this reading of it, is section 17. Section 23(2) of the 2002 Act solves this problem, as does section 22(3), by making it clear in express terms that the available amount is to be re assessed at the time of the new calculation. It is perhaps worth noting that the author of the unusually detailed annotations to the 1994 Act in Current Law Statutes included the following sentence in his general note on section 16: Note that this section does not apply to property which comes into the possession of the defendant after the order is made. No reasons are given for this observation. But this may be because the annotator, who had studied the background to this enactment in great detail, regarded the point as so obvious as not to require any explanation. In any event, it is of some interest that this was what a contemporary writer understood to be the effect of the section. For the reasons I have given, I do not think that it is self evident that he was wrong. A contrast can, no doubt, be drawn between the phrase the amount that might be realised in section 16(2) and the phrase the amount that might be realised at the time a confiscation order is made in section 6(1). As Lord Brown says in para 21, the words at the time a confiscation order is made are conspicuously absent from the phrase used in section 16(2). It can also be said that section 16(2) does not in terms confine its attention to what, as defined by section 6(2), is realisable property. But, as the head note to section 16 indicates, the exercise that it contemplates is concerned only with an increase in the value of realisable property, which is a defined expression. None of the language that it uses is unworkable on that assumption. I do not think that the other factors that Lord Brown so helpfully refers to in his judgment carry much weight. I do not see that section 9(5) of the 1994 Act, to which the Court of Appeal in R v Tivnan [1999] 1 Cr App R (S) 92 attached some importance, as providing any guidance as to what Parliament intended in a case where a defendant who was in default had acquired more assets after the date of the making of the confiscation order. All one can say is that the purpose of the terms imposed in default of payment is to encourage or coerce payment of the sum due under the order. They are not imposed as a substitute for payment. So it makes sense for the order to continue to have effect, for what it may be worth. I have not found this an easy question to answer, and I confess that my initial impression was that Mr Perry was right and, as there was no express direction to the contrary, that the High Court was entitled under section 16 to have regard to after acquired assets in determining the amount that might be realised. But, on further reflection, I have concluded that the proper approach is that indicated by Lord Reid in Westminster Bank Ltd v Beverley Borough Council [1971] AC 508, 529. Before attributing such an intention to Parliament we have to be sure that this is what it really intended. The section, in contrast to what one finds in section 15, does not say this expressly, and I am unable to say that such an intention appears by irresistible inference when the statue is read as a whole. I cannot, with the greatest of respect, agree with Lord Walker that the linguistic points that I have mentioned do not raise any real doubt. In my opinion there is such a doubt, and the benefit of the doubt must go to the appellant. For these reasons I would allow the appeal and set aside the section 16(2) certificate. |
The appellants have four things in common. They have Afghan nationality. They came to the UK as unaccompanied minors. They claimed asylum. Their claims were rejected. The present appeals involve two discrete sets of issues. They relate a) to the sufficiency of the appellate process and b) to the respondents obligations with regard to family tracing. Background In 1999 the EU Council of Ministers resolved to work towards a Common European Asylum System. There followed a group of Council Directives which together form a code. They are Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (the Reception Directive), Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive) and Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (the Procedures Directive). Article 39 of the Procedures Directive requires Member States to ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against a decision taken on their application for asylum. The main provisions of domestic law regarding challenges to asylum decisions are in the Nationality, Immigration and Asylum Act 2002 (NIAA). The provisions applicable in these cases are those contained in that Act as it was prior to the Immigration Act 2014. In the form with which we are concerned, section 82 gives a general right of appeal to the First tier Tribunal (Immigration and Asylum Chamber) from an immigration decision as defined in section 82(2). This includes a refusal of leave to enter the UK; a refusal to vary a persons leave to enter or remain if the result is that the person has no leave to enter or remain; or a decision to remove them. Additionally, section 83 (as amended by section 26(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004) provides: (1) This section applies where a person has made an asylum claim and a) his claim has been rejected by the Secretary of State, but b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate). (2) The person may appeal to the Tribunal against the rejection of his asylum claim. (Section 82 was substantially amended and section 83 was repealed by section 15 of the Immigration Act 2014, which came into force, subject to various savings, on 20 October 2014.) Lindblom J explained in his judgment in TNs case, [2011] EWHC 3296 (Admin) at para 22, the reason given by the government, when introducing section 83, for confining it to cases where an unsuccessful applicant for asylum is given leave to remain for more than a year. The reason was that in circumstances where a person arrives from a country in turmoil, and their claim for asylum is rejected, but it is not immediately safe or practicable to return them, they will be given leave to remain for a short period with a view to reconsidering at the end of that period whether the situation has become sufficiently stable for it to be possible to return them. Kosovo was given as an example. If at the end of the period of leave there is a refusal to extend it, the person concerned will have an immediate right of appeal under section 82 against the refusal and against any removal decision. The likely effect of providing an earlier right of appeal under section 83 would be to clog up the appeal system before it became necessary for their appeals to be heard. It has long been the policy of the government not to return an unaccompanied asylum seeking child (UASC) unless the respondent is satisfied that there are proper reception arrangements in the country to which they are to be removed. Under section 55 of the Borders, Citizenship and Immigration Act 2009 the respondent has a duty, in summary, to ensure that any of her functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK. Statutory guidance issued under that section, Every Child Matters (November 2009), para 2.7, requires the Border Agency to act in accordance with principles which include the following: In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children. Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. The respondents published guidance on Processing an Asylum Application from a Child states at para 17.7: Discretionary Leave under UASC Policy The UK Border Agency has a policy commitment that no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed. Where: the child does not qualify for asylum or HP [humanitarian protection] or otherwise under the general DL policy, and; we are not satisfied that the child will be able to access adequate reception arrangements in the country to which they will be removed; the child should normally be granted DL for three years or, with effect from 1 April 2007, until they are 17.5 years of age, whichever is the shorter period. This applies in all cases except where stated otherwise in country specific operational guidance notes (OGN). Paragraph 17.8 states: Best interests and duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The availability of safe and adequate reception arrangements is only one factor to consider in deciding on whether the person should be granted Discretionary Leave under the UASC policy. Full account also needs to be given to the following: the best interests of the child must be taken into account as a primary consideration in the decision; and the duty to have regard to the need to safeguard and promote the welfare of the child in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 and the statutory guidance that accompanies it (Every Child Matters ). The best interests of a child, whilst a primary consideration, is not the sole consideration when considering whether a child should be granted leave to remain or return to the country of origin. Other factors, including the need to control immigration, are also relevant. In some cases, it may be reasonably clear that the childs best interests may be served by returning to the country of origin for example where the family has been traced and it is clear that the return arrangements can be made direct to parents. In other cases, the decision on whether to return will be a matter of making a careful assessment of the childs best interests and balancing those interests against the wider public interest of controlling immigration. In the case of UASCs from Afghanistan whose applications for asylum are rejected, it has been the respondents settled practice at all relevant times to grant them discretionary leave to remain until they reach the age of 17 years six months. Whether the period of leave exceeds one year will therefore depend on the age of the individual child. Family tracing is one aspect of concern for an unaccompanied childs welfare. The Reception Directive lays down minimum standards for the reception of asylum seekers in Member States: article 1. Chapter IV (articles 17 to 20) contains provisions for protecting the welfare of persons with special needs. Article 19 is concerned with unaccompanied minors. Article 19.1 requires the host Member State to ensure that the minor is represented by legal guardianship, or by an organisation which is responsible for the care and well being of minors, or by another appropriate organisation. Article 19.2 requires the placement of UASCs, from the moment that they are admitted to the territory until they are obliged to leave, with adult relatives, or with a foster family, or in accommodation centres with special provisions for minors, or in other accommodation suitable for minors. Article 19.3 provides: Member States, protecting the unaccompanied minors best interests, shall endeavour to trace the members of his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety. The importance of the second sentence cannot be overstressed. Recognising the potential delicacy and sensitivity of the problem, article 19.4 provides: Those working with unaccompanied minors shall have had or receive appropriate training concerning their needs, and shall be bound by the confidentiality principle as defined in the national law, in relation to any information they obtain in the course of their work. The only reference to family tracing in the Qualification Directive is in Chapter VII, which deals with the content of international protection, ie the rights of those who have refugee status or are entitled to humanitarian protection, rather than the process of determining whether they qualify for such protection. Article 30.1 requires Member States, as soon as possible after the granting of refugee status or subsidiary protection status, to take the necessary measures to ensure the representation of unaccompanied minors by legal guardianship, or by an organisation responsible for the care and well being of minors, or by any other appropriate representation including that based on legislation or court order. The rest of article 30 in effect echoes article 19 of the Reception Directive. The Procedures Directive lays down minimum standards on procedures in Member States for granting and withdrawing refugee status: article 1. Article 17 contains certain provisions about unaccompanied minors (essentially to ensure that they are properly represented, properly informed and that their best interests are taken into account in the process as a primary consideration), but the Procedures Directive makes no mention of family tracing as part of the process for determining the application. Article 19.3 of the Reception Directive was implemented in domestic law by regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005/7). Regulation 6(1) provides: So as to protect an unaccompanied minors best interests, the Secretary of State shall endeavour to trace the members of the minors family as soon as possible after the minor makes his claim for asylum. Regulation 6(2) provides: In cases where there may be a threat to the life or integrity of the minor or the minors close family, the Secretary of State shall take care to ensure that the collection, processing and circulation of information concerning the minor or his close family is undertaken on a confidential basis so as not to jeopardise his or their safety. TN travelled to the UK in August 2010 in the back of a lorry. On 8 September he was arrested while working illegally and was put into accommodation provided by Birmingham City Council social services. Two days later he applied for asylum. The basis of his claim was that in July 2009 two paternal uncles, who were members of the Taliban, visited the home where TN lived with his parents, two sisters and two younger brothers, and asked his fathers permission for him to join the Taliban. His father refused. After the visit it was decided that TN should leave Afghanistan. His father arranged for him to escape with an agent in October 2009. He said that since his arrival in the UK he had not had any contact with his family, but he feared that if he returned to Afghanistan he would be killed by his paternal uncles because of his refusal to join the Taliban. On 12 November 2010 the respondent rejected TNs application but, in accordance with her published Asylum Policy Instruction on Discretionary Leave, she granted him leave to enter and remain in the UK until the age of 17 years six months. His agreed date of birth is 1 January 1994, and the period of leave was therefore eight months. On 14 February 2011 TN began judicial review proceedings claiming a declaration that sections 82 and 83 of NIAA are incompatible with his right under article 39 of the Procedures Directive to an effective remedy before a court or tribunal against the decision made in his asylum application, and compensation. His claim was dismissed by Lindblom J in a comprehensively detailed judgment, which was upheld by the Court of Appeal (Maurice Kay, V P, and Beatson and Briggs LJJ) [2013] EWCA Civ 1609, [2014] 1 WLR 2095. TNs case now comes before this court on appeal from that decision. Separately, on 29 June 2011 TN applied to extend his discretionary leave by an application for humanitarian protection. He repeated his claim to be at risk if returned to Afghanistan. Humanitarian protection is leave granted under the Immigration Rules ((HC 395), paras 339C Q) to a person who is in the UK, does not qualify for refugee status and in respect of whom substantial grounds have been shown for believing that he or she would face a real risk of suffering serious harm in the country of return. It fulfils the UKs obligation to provide such persons with subsidiary protection under the Qualification Directive, as well as protection under articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On 29 September 2011 the respondent sent a family tracing pro forma for TNs completion in order to assist in tracing his family members. It was completed by him on 25 October 2011. In it he stated that he had been in contact with the British Red Cross, who had taken details of his family and village, but they had not been able to locate any members of his family. He said that before leaving Afghanistan his parents were living in Mohammad Agha district, but that since leaving Afghanistan he had not had any contact with them and that he did not know where they were. On 8 November 2011 the respondent refused to extend TNs discretionary leave. He appealed to the First tier Tribunal and his appeal was dismissed by FTTJ Camp, but that decision was set aside in the Upper Tribunal by deputy UTJ Juss in a determination dated 30 August 2012. UTJ Juss held that the First tier Tribunals decision was flawed by reason of a number of matters including the failure of the respondent to comply with her tracing duty. The effect of the Upper Tribunals order was that the respondent must now re take her decision on TNs application. She is waiting for the outcome of this appeal before doing so. MA arrived in the UK on 27 July 2009. He was provided with accommodation by Birmingham City Council social services on 30 July and claimed asylum on 6 August. He claimed to be 13 years old but was assessed to be aged 16 and was given a notional birth date of 1 January 1993. He said that his father was a member of the Taliban and used to be away for lengthy periods. MA was uneducated and worked as a shepherd. His claimed that his elder brother was killed in an explosion cause by American forces and that a few months later his father was taken away by the government. His mother and maternal uncle told him that it would not be safe for him to remain in Afghanistan as the government would come after him even though he was only 13 years of age. He was subsequently told that his father had been killed. Arrangements were made with an agent for him to leave Afghanistan. He and his mother had lived in a village in Babrak District, Khost, but he had no contact with her after leaving the village and he did not know her whereabouts. His uncle was a shepherd in Khost and had no permanent address. On 23 November 2009 the respondent rejected MAs application but granted him discretionary leave until 1 July 2010, when he would be aged 17 years six months. On 26 June 2010 MA applied to extend his period of leave on grounds of humanitarian protection. The application was refused and MA appealed to the First tier Tribunal. MA gave oral evidence in support of his claim. His account was disbelieved by IJ Sangha and his appeal was dismissed. On appeal to the Upper Tribunal, deputy UTJ Hall described it as a claim to be entitled to refugee status or humanitarian protection or protection under the European Convention. He found that IJ Sanghas decision contained an error of law because of an absence of adequate findings but he re made the same decision. He too heard oral evidence from MA and disbelieved his account. MA was given permission to appeal to the Court of Appeal on the issues whether he had been deprived of a significant chance of establishing refugee status by the respondents failure to endeavour to trace his family members, and whether section 83 of NIAA denied him the opportunity of establishing refugee status as an unaccompanied minor. His appeal was heard by the Court of Appeal jointly with TNs appeal and was dismissed. AA travelled to the UK in the back of a lorry on an unknown date in mid 2011. Following arrest by the police, he claimed asylum on 13 October 2011. According to his account, his father had been a known Taliban commander in Nangarhar Province in eastern Afghanistan and was killed in April or May 2011. He then came under pressure both from the local Taliban, who wanted him to become a suicide bomber to avenge his fathers death, and from the police because it was common for sons to follow their fathers path. With his mother and younger brother he left their family home in the village of Baghak, which was sold, to join his grandfather in the village of Jokan. But he said that this was still not safe, because they had further visits from the Taliban and the police, and so his grandfather arranged for him to leave the country. On 19 February 2012 the respondent wrote to AAs solicitors asking whether they required assistance in tracing AAs family and enclosing a family tracing pro forma. On the following day the Secretary of State rejected AAs asylum claim but granted him discretionary leave until the age of 17 years six months. His accepted date of birth was 29 December 1995 and so the period of leave was for more than a year. AA appealed to the First tier Tribunal and gave oral evidence but the judge, IJ Hodgkinson, disbelieved his core account and dismissed his appeal. That decision was upheld in the Upper Tribunal by deputy UTJ Drabu CBE. AA was given permission to appeal to the Court of Appeal on the question of the respondents failure to take steps to trace his family members. The appeal was dismissed for reasons given in a judgment by Underhill LJ, with which McFarlane and Beatson LJJ agreed: [2013] EWCA Civ 1625. Compatibility of section 83 of NIAA with article 39 of the Procedures Directive TN and MA were both aged over 16 years six months at the time when their applications for asylum were rejected and they were given discretionary leave to remain until they reached 17 years six months. In the interim period they had no statutory right to appeal to the First tier Tribunal and the only form of legal challenge open to them was to bring judicial review proceedings (a course taken by TN but not MA). It is their case that they were thereby deprived of an effective remedy in breach of article 39. This argument was rejected by the Court of Appeal unanimously but in part for different reasons. Maurice Kay V P accepted the respondents submission that judicial review was an effective remedy within the meaning of the Procedures Directive. He was not persuaded by the respondents alternative submission that the availability of an appeal to the First tier Tribunal under section 82 at the end of the period of discretionary leave was itself an effective remedy. He did not consider that a delayed remedy would necessarily be as effective as an immediate remedy. Beatson LJ agreed that judicial review was, in the circumstances, an effective remedy which satisfied the requirements of article 39. He also accepted the respondents alternative submission, as to which he said: 31. I do not consider that the short delay before claimants such as these would be able to appeal against an adverse decision by the Secretary of State made after their eighteenth birthday means that the totality of the remedy they have is not an effective remedy within article 39. As was stated in Samba Diouf v Ministre du Travail, de lEmploi et de lImmigration (Case C 69/10) [2012] CMLR 204], the Procedures Directive lays down minimum standards. Article 39 requires Member States to ensure that applicants have the right to an effective remedy, not that they should have the most effective remedy. The suggestion that a delayed remedy by way of appeal would not, in principle, suffice because it would not necessarily be as effective as an immediate one would have been appears to require a higher threshold than an effective remedy. 32. I also consider that to regard the right of appeal after the short delay envisaged in cases such as these as inadequate and not an effective remedy could undermine the legislative decision to restrict the right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 to those who have been given leave to enter for more than 12 months. That policy was not criticised by this court in FA (Iraq) v Secretary of State for the Home Department [2010] 1 WLR 2545. It serves the useful purpose of helping to avoid duplication between decision making at first instance and on appeal in cases in which the Secretary of State will be reconsidering a persons position in the near future. 33. It may be the case that delaying an appeal until after a persons eighteenth birthday would mean that it would not be necessary for the best interests of that person as a child to be a primary consideration in the decision making process pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009. But such applicants will, in the light of KA (Afghanistan) v Secretary of State for the Home Department [2013] 1 WLR 615, be treated as young people and their whole history will be considered. I am concerned that to regard the fact that an immediate appeal would be an appeal by a child whereas an appeal within what would otherwise be a reasonable period would be an appeal by a young adult as a reason for finding the remedy to be inadequate and not an effective remedy under article 39 would be undesirable from a policy point of view. Briggs LJ agreed that judicial review was an effective remedy, and, if necessary, he said that he would have been inclined like Beatson LJ to accept the respondents alternative submission, but he preferred not to express a final view. The Strasbourg court has consistently accepted that judicial review is capable of satisfying the requirement of providing an effective remedy within the meaning of article 13 of the European Convention in the context of asylum cases: Vilvarajah v United Kingdom (1991) 14 EHRR 248, para 126, D v United Kingdom (1997) 24 EHRR 423, para 71, and Bensaid v United Kingdom (2001) 33 EHRR 205, para 56. Those cases undoubtedly establish an important general principle, but I regard it as a mistake to concentrate on the remedy of judicial review in the particular circumstances that Parliament has established a statutory procedure under NIAA for granting and withdrawing refugee status. In general, a right of appeal to an immigration judge, involving a full factual review, arises at the point when an applicant would otherwise be liable to removal. Additionally, section 83 enables an applicant to appeal at a time when he is not at risk of removal, despite the rejection of his claim, if he has been given discretionary leave to remain for over a year. Such an applicant is in the position that his case will not be reviewed for some time, but his longer term outlook is uncertain. Does the scheme satisfy the requirement of providing an effective remedy for an applicant who is refused asylum but given leave to remain for a matter of months? I agree with Beatson LJ that the answer is yes for essentially the reasons which he gave. The right of appeal of the person to the tribunal is not immediate but is still effective. The deferment is not for long and there are understandable reasons for it. In a situation where crisis conditions in a particular country lead to a surge of asylum applications resulting in a large number of applicants being granted short term leave to remain, it is not in the public interest or the interest of applicants for tribunals to become clogged with cases which are due to be reviewed by the respondent before long in any event. The point is made that TN and MA were deprived of the chance of establishing that they were entitled to refugee status as members of a particular vulnerable social group, namely minors who were effectively orphans. But as Maurice Kay LJ observed in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014, [2013] 1 WLR 615, para 18, when it comes to the kinds of risk such as the forcible recruitment or the sexual exploitation of young males, persecution is not respectful of birthdays. And if, however unrealistically, the relevant social group and attendant risk are identified in a way which is strictly age specific, any corresponding entitlement to refugee status would be time limited in the same way. If the statutory scheme failed to provide an effective remedy, it would be necessary to consider whether the availability of judicial review made good the deficit, but that situation does not arise. TN and MA also relied on article 47 of the Charter of Fundamental Rights of the European Union, which provides: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. A denial of refugee status to an applicant does not, as such, concern a right or freedom guaranteed under the European Convention (A v Netherlands (2010) 59 EHRR 1098), and in relation the law of the Union the argument under article 47 adds nothing to the argument under the Procedures Directive. Family tracing: the issues The appellants all contend that the respondents decision to reject their asylum claims was vitiated by her failure to carry out her tracing duty and, in particular, that they were prejudiced by the failure because proper inquiries may have produced evidence to support their accounts which the respondent disbelieved. Mr Stephen Knafler QC on behalf of AA argued that the only lawful conclusion open to the tribunal, applying corrective justice, was to find that AA was entitled to asylum (or make findings which required the respondent to grant corrective leave) and that this court should so hold. Alternatively, he submitted that the case should be remitted to the Upper Tribunal, which should (a) decide the case on the facts as they were at the time of the respondents decision and (b) apply a presumption that AA was credible, since he had cooperated in providing all the information relevant to tracing which he had been asked to provide and the respondent had failed to carry out inquiries which could well have corroborated his account. The Upper Tribunal should only reject his appeal if it was satisfied that his claim, notwithstanding its presumptive credibility, was clearly not capable of belief. Mr Becket Bedford on behalf of TN and MA also submitted that the proper remedy for the respondents breach of duty with regard to family tracing was for the tribunal to have held that they were entitled to asylum. Before considering the reasoning of the Court of Appeal in the present cases it is necessary to refer to some of its earlier decisions. In Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 the Court of Appeal held that asylum appeals should be determined by reference to the position at the time of the appellate decision rather than by reference to the factual situation at the time of the original decision against which the appeal was brought. This makes good sense and the general policy has not been doubted. The subject matter is whether the applicant requires refugee protection. Hearings before the First tier Tribunal involve immigration judges receiving evidence and making up their own minds about the facts. As Simon Brown LJ observed in Ravichandran, at p 112, this may fairly be regarded as an extension of the decision making process. Moreover, as he also pointed out, immigration judges build up a body of knowledge, and it would not serve the public interest if they were required to ignore matters which they know to have happened after the date of the Secretary of States decision. The situation might have changed for the better or for the worse. Similar considerations apply, at least to some extent, to the Upper Tribunal. If it finds that there has been a material error by the First tier Tribunal it will ordinarily re make the decision and for that purpose may well hear fresh oral evidence (as in the case of MA). And the point about the judges constantly developing bank of knowledge is equally applicable to the Upper Tribunal. It would not make sense for the First tier Tribunal to take into account its knowledge about the situation at the time of its decision, but for the Upper Tribunal to have to ignore its more recent knowledge. In R (Rashid) v Secretary of State for the Home Department [2005] EWCA 744, [2005] Imm AR 608, the Court of Appeal created in effect an exception to the Ravichandran principle. The facts were unusual. The claimant was an Iraqi Kurd. He came to the UK during the regime of Saddam Hussein and claimed asylum. In December 2001 his claim was rejected on the ground that internal relocation was available to him within the Kurdish Autonomous Zone (KAZ). The decision was upheld by an immigration adjudicator and in July 2002 he was refused permission to appeal to the Immigration Appeal Tribunal. In February 2003 he was given permission to apply for judicial review to argue whether the KAZ was an entity capable of providing the necessary protection for the purposes of the Refugee Convention. The same point was due to be considered by the Court of Appeal in the following month in appeals brought by M and A, and Rashids judicial review claim was ordered to be listed after the hearing of those appeals. On 6 March 2003 the Treasury Solicitor wrote to M and As solicitors, saying that the Secretary of State was not as a matter of policy at that time relying on the availability of relocation to the KAZ, and they were granted refugee status. The policy in question had existed from October 2000, but not all Home Office case workers were aware of it and it had not been consistently applied. Rashids solicitors learned about the policy as a result of the Treasury Solicitors letter to M and As solicitors, and on 12 March 2003 they wrote asking for Rashids case to be reconsidered. The Treasury Solicitor replied that he was aware of cases stacked behind those of M and A, and that Rashids case had been sent back to a case worker for reconsideration. In the same month military action in Iraq began, and on 21 March it was announced that all decision making on claims by Iraqi nationals had been suspended. At the end of the war the Secretary of State adopted a new policy, and Rashids claim was rejected on the ground that after the collapse of Saddam Husseins regime he was not at risk. On Rashids application for judicial review, the Court of Appeal held that he was entitled to unconditional leave to remain in the UK. The Secretary of State relied on the Ravichandran principle. The leading judgment was given by Pill LJ, with whom May LJ agreed. He based his decision on the principle that an abuse of power called for the court to intervene to give such relief as it properly and appropriately can (para 37). He found that there was an abuse of power because there was conspicuous unfairness in Rashids treatment. After startling and prolonged failures of the Home Office (para 13), the correct policy emerged in the cases of M and A. Rashids case had been stacked behind them, the issues were identical and fairness required that the same treatment be given to him as to them. Pill LJ recognised that the court could not declare that Rashid was entitled to be granted refugee status, as M and A had been, because that is a status conferred on the basis of criteria prescribed in an international treaty and should not be conferred if the criteria are not satisfied at the time of the decision. But he held that the court could and should declare that Rashid was entitled to indefinite leave to remain. This, he said, provided a remedy for the unfairness and was the appropriate response in the circumstances. In a concurring judgment Dyson LJ said that the case presented the stark question which of two considerations should prevail: justice and fairness, which suggested that the claimant should not be returned to Iraq, or the Ravichandran principle. He accepted that to hold the Secretary of State to an earlier policy which had been withdrawn by the final stage of the decision making process would infringe the principle established by Ravichandran, but this consideration was outweighed by the conspicuous unfairness which there had been. The reasoning in Rashid has been criticised. In R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546, [2007] Imm AR 781, para 39, Carnwath LJ described the reasoning as not altogether convincing, and that it appeared to turn abuse of power into a factor able to achieve remedial results not open to the courts in other instances of illegality. He also had doubts about the weight placed by the court on the Departments conduct. The courts proper sphere is illegality, not maladministration. If the earlier decision to refuse the asylum application was unlawful, it was the unlawfulness rather than the cause of it (whether bad faith or muddle) which justified the courts intervention and provided the basis for the remedy. Having made those criticisms, Carnwath LJ said that the courts task was to try to extract a principled basis for the decision, which must be found in the majority judgment of Pill LJ. Although Pill LJ appeared to have expressed the result as an exercise of the courts remedial discretion, the court had no power to grant indefinite leave to remain; the power and discretion rested with the Secretary of State, and it was not open to the court to assume that function. The principled basis for the decision must be that it was open to the court to determine that a legally relevant factor in the exercise of the discretion was the correction of injustice, and that in an extreme case the court could find that the unfairness and the remedy were so plain that there was only one way in which the Secretary of State could exercise his discretion. In DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305, [2011] INLR 389, the Court of Appeal remitted an asylum claim by an unaccompanied minor to the Upper Tribunal because no consideration had been given to the respondents duty to consider the appellants best interests as required by section 55 of the 2009 Act. The respondent had also made no attempt to trace his family. As to that aspect, Lloyd LJ said in his judgment with which Rimer LJ agreed: 68. The obligation to endeavour to trace under regulation 6 applies when a child has made an asylum application, but the application is to be determined on its merits, whether or not any steps have been taken pursuant to the obligation. To that extent I would accept the submission for the respondent that the obligation to endeavour to trace is distinct from the issues that arise on an application for asylum. If steps have been taken pursuant to the obligation under regulation 6, the results, if any, may be relevant to the determination of the asylum application, depending on what the issues are on that application. In fact, no attempt to trace was made by UK Border Agency in the present case. All that was done was to draw to the attention of the applicant or his foster carer the facilities of the Red Cross, with a view to his attempting to trace his relatives through that agency. It seems to me that that failure is not, by itself, relevant to the determination of the appellants asylum application. However, the Secretary of State is still subject to the obligation, and steps ought now to be taken to comply with that obligation. In KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014, [2013] 1 WLR 615, the eight appellants came, unaccompanied, from Afghanistan to the UK aged 15 or 16 and claimed asylum. Their applications were refused and they were all granted discretionary leave until the age of 17 in accordance with the standard policy. Shortly before its expiry they applied for a variation which was refused. Each appealed unsuccessfully to the First tier Tribunal. Two of the appeals were heard while the appellants were still minors. All appealed to the Upper Tribunal, and their appeals were heard and dismissed after they had reached the age of 18. In each case the Upper Tribunal approached the assessment of risk on the basis of the facts at the time of the hearing before it, including the fact that the appellant had recently reached that age. They were given leave to appeal to the Court of Appeal on the grounds that the respondent had failed in her tracing duty and that, although they had now reached their majority, the illegality should be remedied by the grant of leave to remain as the necessary corrective action on the Rashid principle. In any event it was submitted that the Upper Tribunal was wrong to apply the general rule established by Ravichandran. The judgment of the Court of Appeal was given by Maurice Kay LJ, with whom Hooper and Moore Bick LJJ agreed. He accepted that on the evidence there was a systemic breach of the respondents duty to endeavour to trace. He described it as a complicated question whether this gave rise to the Rashid principle, about which he agreed with Carnwath LJs analysis in section It was not a simple matter of the systemic breach entitling the appellants to have their appeals allowed with remittal to the respondent to consider grants of leave to remain, but nor did the case admit of the simple analysis that the breach was irrelevant at the time of the hearings by the Upper Tribunal on the Ravichandran principle. The burden of proof was on the claimant to establish not only the failure to discharge the duty to endeavour to trace but also that he was entitled to the relief sought. There was, he said, a hypothetical spectrum. He continued (para 25): At one end is a claimant who gives a credible and cooperative account of having no surviving family in Afghanistan or having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case the Ravichandran principle would not be an insurmountable obstacle. I do not find this easy to follow. If the applicants account is accepted as credible, it is difficult to see why the fact that he has passed the milestone of his 18th birthday should result in his appeal failing in circumstances where it would have succeeded if he had been only 17 years 11 months old. In that sense I see why the Ravichandran principle would not be an obstacle. But I do not see precisely how the Rashid principle would apply or what would be the evidential significance of the respondents breach of duty. Maurice Kay LJ went on: At the other end of the spectrum is a claimant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family. In such a case, again depending on the totality of established facts, he may have put himself beyond the bite of the protective and corrective principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk on return and because there would be no causative link between the Secretary of States breach of duty and his claim to protection. Again it is not easy to identify the necessary causative link between the breach of duty and the claim for protection, but it cannot be the absence of the result of family tracing in assessing the credibility of the claimant. What is clear in Maurice Kay LJs analysis is that the assessment of the credibility of the claimants account of not having available family protection must necessarily be made on the evidence available to the tribunal, without a presumption in the claimants favour. The court allowed one of the eight appeals, on other grounds, and gave directions in relation to the remaining seven appellants for them to lodge supplemental skeleton arguments setting out how their case was put in in the light of the way in which Maurice Kay LJ had mapped out the general principles. The appeals came back before a differently constituted court (Maurice Kay VP, Jackson LJ and Sir Stanley Burnton). The second stage of their appeals is reported under the title EU (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 32, [2013] Imm AR 496. Sir Stanley Burnton gave the leading judgment, with which the other members of the court agreed. He was unsparing in his criticism of Rashid (para 6): I have to say that, like the Court of Appeal in S, I have great difficulties with the judgments in Rashid. In cases that are concerned with claims for asylum, the purpose of the grant of leave is to grant protection to someone who would be at risk, or whose Convention rights would be infringed, if he or she was returned to the country of nationality. Of course, breaches of the duty of the Secretary of State in addressing a claim may lead to an independent justification for leave to remain, of which the paradigm is the article 8 claim of an asylum seeker whose claim has not been expeditiously determined, with the result that he has been in this country so long as to have established private and family life here. But to grant leave to remain to someone who has no risk on return, whose Convention rights will not be infringed by his return, and who has no other independent claim to remain here (such as a claim to be a skilled migrant), is to use the power to grant leave to remain for a purpose other than that for which it is conferred. In effect, it is to accede to a claim to remain here as an economic migrant. The principle in Rashid has been referred to as the protective principle, but this is a misnomer: the person relying on this principle needs to do so only because he has been found not to be in need of protection. I do not think that the court should require or encourage the Secretary of State to grant leave in such circumstances either in order to mark the courts displeasure at her conduct, or as a sanction for her misconduct. Sir Stanley Burnton acknowledged that the respondents breach of her tracing duty could have evidential relevance, because in assessing the risk to a claimant on return to his or her country of nationality the lack of evidence from the respondent as to the availability of familial support was a relevant factor. The failure to endeavour to trace a claimants family might also result in a claimant, who had lost contact with his family, putting down roots here and establishing an article 8 claim. But Sir Stanley Burnton emphasised the need for the claimant to establish some causative relevance of the respondents breach to the protection claimed. On this approach, it is not for the tribunal or the court, in considering a claim for asylum, to try to compensate the claimant for some past breach of duty which does not affect the question whether he is presently exposed to a risk entitling him to the protection of the Refugee Convention (or to humanitarian protection). The consequences of a breach of duty by the respondent may be a relevant factor in the assessment of present risk, because of the possible effect on the nature and quality of the available evidence. But that is different from exercising some form of remedial jurisdiction entitling the tribunal or court to order that the claimant should have indefinite leave to remain, on account of the respondents breach of duty, in a case where the evidence does not establish the present existence of a right to refugee status or humanitarian protection. Sir Stanley Burnton referred to two other points of general application. First, he added to the courts comments in KA (Afghanistan) v Secretary of State for the Home Department about the boundary line between minority and adulthood that in many cases the date of birth of 1 January (in a particular year) given to an applicant after an age assessment is notional. The fact that the true date of birth is unknown is an additional reason for not regarding the supposed date of majority as necessarily changing the assessment of risk. Secondly, Sir Stanley Burnton saw force in a point made by the respondent that UASCs who arrive in this country from Afghanistan have done so as a result of someone, presumably their families, paying for their fare and/or for an agent to arrange their journey. The costs are likely to have been considerable, relative to the wealth of an average Afghan family. They are unlikely to want to cooperate with an agent of the respondent for the return of their child to Afghanistan. The individual appeals were dismissed. EUs case was typical. The immigration judge disbelieved his account of how and why he came to leave Afghanistan and his claim to have lost contact with his family. The Upper Tribunal treated the respondents failure to endeavour to trace his family as irrelevant. The Court of Appeal held that it was right to do so in view of the immigration judges rejection of his evidence about losing contact with his family. In the present appeals by TN and MA, Maurice Kay V P affirmed the general principle established in Ravichandran that an appellate tribunal considers an asylum case on the basis of the latest evidence and material, including any which postdates the original decision. He described Ravichandran as not a one way street because the most recent material may enhance an applicants case just as it may undermine it. It was an even handed principle, which ensures that, when asylum cases are considered on appeal, those currently at risk on return to their countries of origin are not returned and those who are not or are no longer at such risk are not accorded a status which they do not merit (paras 25 26). He recognised that the concept of corrective relief which was considered in KA is an exception because it contemplates relief on the basis of a previous error or breach of obligation which has lost current significance because of the passage of time (for example, attaining majority) or a change of policy (para 24). He did not grapple with the conflict between a) the general principle by which an appellate tribunal looks even handedly at the position at the date of review, and b) the exception by which the tribunal grants relief, to which the applicant is not otherwise entitled, by reason of an error which has lost current significance. Nor did he address the criteria for determining when the purported exception should apply, apart from referring in general terms to a hypothetical spectrum of cases. He said that in the case of MA, any assessment of his position on the KA hypothetical spectrum was bound to be conditioned by the reasoned rejection of his evidence about not having attempted to contact his family, and he described MAs difficulties in this respect as insurmountable. MAs appeal was therefore dismissed. He said nothing about TNs position in this regard, because his case had been remitted to the respondent. In AAs case, the respondents reasons for refusal letter stated: 82. In light of findings in DS efforts have been made to establish a method by which the Secretary of State can assist in locating the families of unaccompanied asylum seeking children in Afghanistan. Should you wish the UK Border Agency to make efforts to locate your family, please fill in and return the tracing pro forma as soon and provide as much detail as possible in regards to all of your family in Afghanistan to allow this to be explored. 83. It should be noted that the UK Border Agency is currently unable to attempt to trace your family within Afghanistan. The Foreign and Commonwealth Office has confirmed that there is no presence in Afghanistan that would currently be able to assist in conducting family tracing in Afghanistan. In the Court of Appeal AA relied on a report by Mr Tim Foxley MBE, an expert on political and social conditions in Afghanistan, which was admitted as evidence without objection by the respondent. His overall conclusion was that a blanket assertion that UKBA could not trace families in Afghanistan was not sustainable. He recognised that there were significant security problems in Nangarhar district. However, the British Embassy in Kabul had extensive local contacts and for the purpose of family tracing it would be possible for embassy staff to tap into links with the Afghan national government (Ministry of Refugees and Repatriation), local government, the Afghan police or various NGOs operating in Afghanistan. A witness statement on behalf of the respondent described the methods by which, in principle, the families of UASCs may be traced, and also the difficulties of doing so in Afghanistan on account of the security situation (other than by telephone or email, if the applicant provided the telephone number or email address). Underhill LJ concluded that the respondent was in breach of the tracing duty in her handling of AAs case by a) not initiating the process earlier and b) not asking sufficiently searching questions aimed at eliciting ways in which his family might have been traced by remote means, that is, other than by trying to telephone or email them. The second criticism is puzzling because Underhill LJ himself noted that the effect of AAs answers in interview, confirmed in his own witness statement, was that he had given all the information that he could. In this court Mr Knafler realistically accepted that there was nothing more which the respondent could have hoped to glean from questioning AA, but he concentrated on the respondents failure to pursue any of the avenues identified by Mr Foxley before reaching a decision whether to accept the asylum claim. Underhill LJ accepted that the tracing process must be treated as part of the process of deciding the asylum claim and it was therefore right to consider what evidence might have been elicited if the duty had been properly performed. On the facts, he rejected the submission that if UKBA had asked the right questions from the start, and if the respondent had established an effective system of tracing in Afghanistan prior to 2012, there was a real prospect that information would have been obtained that would have supported AAs asylum claim. He concluded that whatever tracing procedures were in place, the information available to the respondent afforded no opportunity for remote tracing. Underhill LJ added that it was AAs own case that his family arranged for him to leave Afghanistan and come to the UK, no doubt at considerable cost. They were very unlikely to want him to be returned, and, even if it were possible to contact any member of his family, they would have a strong incentive to support his account of persecution. Any corroboration from that source would therefore be of doubtful value. Drawing the threads together, it was submitted in the present appeals on behalf of MA and AA that the tribunal ought to have made a presumption of credibility in each the tracing duty was an integral part of the decision making process; the Court of Appeal was wrong to find in each case that the breach of i) ii) duty was immaterial on the facts; iii) appellants favour; iv) the tribunal and Court of Appeal ought not to have followed Ravichandran but, applying Rashid, ought to have held that each appellant was entitled to asylum or unconditional leave. It was submitted on behalf of TN that the Upper Tribunal was right to allow his appeal, but should have gone further and held that he was entitled to asylum or unconditional leave, rather than remitting the matter to the respondent for a fresh decision. Commissioner for England (OCC) submitted that: In a written intervention in AAs case, the Office of the Childrens i) the respondent is under a duty to assess the childs best interests before seeking to discharge any of her obligations, including the tracing obligation; ii) the methods used in fulfilling the tracing obligation must take into account the childs wishes and feelings and the need for the child to give informed consent to any family tracing process; iii) no adverse credibility finding should be reached without an assessment of the childs ability to provide information or further information for the purposes of family tracing; iv) the best interests assessment and the family tracing process should be regarded as a necessary part of the search for a durable solution for the child based on his or her own individual circumstances; v) if an unaccompanied minor becomes 18 before a final decision on his or her appeal, the duty to trace is still a component of the search for a durable solution, that is, one which will last beyond their 18th birthday. Analysis I begin with section 55 of the 2009 Act and the statutory guidance issued in Every Child Matters. Officials who discharge the respondents functions in relation to immigration and asylum must take into account the best interests of a child as a primary consideration when making decisions which affect them. Protection of the childs best interests provides the rationale for the respondents tracing obligation, as regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 explicitly recognises. The OCC rightly emphasised that before any tracing process is embarked upon the child must be properly consulted about his or her wishes. This is a necessary part of considering the childs best interests. There may be all sorts of reasons why the child may not want any such process to be carried out, or may be concerned about the way in which it is carried out, because of potential consequences for the child, members of their family or others. Article 19.4 of the Reception Directive requires that those working with unaccompanied minors shall have had appropriate training. I turn next to Ravichandran and Rashid. The principle in Ravichandran is sound. As Simon Brown, LJ said in that case, on an asylum appeal the subject matter is whether the appellant requires refugee protection. The function of the court is quite unlike its function when adjudicating, for example, on a private law claim for breach of contract or tort. A claimant who establishes that there has been a breach of contract or tort is entitled to be put, so far as the court is able to do so, in the same position as if the wrong had not been committed. In Ravichandran the court rightly held that on an asylum appeal the question is one of present status: does the appellant meet the criteria of the Refugee Convention or is he in need of humanitarian protection? I agree with the criticisms made of Rashid by Carnwath LJ in R(S) v Secretary of State for Home Department and by Sir Stanley Burnton in EU (Afghanistan) v Secretary of State for the Home Department. In Rashid the sloppiness of procedures in the Home Office resulted in the appellant being unfairly denied refugee status when he applied for it; but refugee status is not bound to endure for ever. By the time that his case reached the Court of Appeal the source of persecution in Iraq had been overthrown, and the effect of the courts decision was to give him a right which he did not need for his personal protection. Because the Rashid exception to Ravichandran lacks a satisfactory principle, it is also impossible to state its scope with any degree of clarity. In KA (Afghanistan) v Secretary of State for the Home Department Maurice Kay LJ (para 17) described it as a complicated question whether the facts of the cases under consideration gave rise to the Rashid principle, and the court struggled in its attempt to articulate what needed to be shown for the principle to apply. I would hold that the Ravichandran principle applies on the hearing of asylum appeals without exception, and Rashid should no longer be followed. The question whether the appellant qualifies for asylum status is not a question of discretion. It is one which must be decided on the evidence before the tribunal or court, and there is no legal justification for approaching that question with a presumption that the appellant is credible arising from a failure of the respondent properly to discharge her obligation in relation to family tracing. Discretionary leave by definition involves a discretion, but it is a discretion which belongs to the respondent and not to the court. The respondent must of course exercise her discretion lawfully, with proper regard to any policy which she has established, but I agree with Sir Stanley Burnton that it is not proper for a court to require the respondent to grant unconditional leave to an appellant who would not be entitled to such relief under current policy (or have a current right to remain in the UK on other grounds, such as article 8), as a form of relief for an earlier error or breach of obligation. There remains the question how the tribunal should approach an asylum appeal where the respondent has failed in her tracing obligation. If the appellant believes that he may have been prejudiced, it would be open to him to ask the respondent to attempt to carry out a tracing process and to ask the tribunal to adjourn the appeal for that to be done. There would be force in the argument that it should not make a difference whether the appellant has by then turned 18, since that would not remove an obligation which had arisen under the Reception Directive and the effects of which were intended to last beyond their minority (as the OCC has submitted). However, in deciding whether it accepts the appellants account, the tribunal must act on the evidence which it has. In that respect I agree with what was said by Lloyd LJ in DS (Afghanistan) v Secretary of State for the Home Department (set out at para 43 above). If the appellant has identified people who might be able to confirm his account, but the respondent has not pursued that lead, the tribunal might fairly regard the appellants willingness to identify possible sources of corroboration as a mark of credibility, but this would be an evidential assessment for the tribunal. There is no presumption of credibility. In MAs case and AAs case the appellants account was disbelieved by the Upper Tribunal. I agree with the Court of Appeals rejection of the argument that the Upper Tribunal should have allowed the appeals by reason of the respondents breach of her tracing obligation. The tribunal was right to assess the case on the evidence which it had. Neither of the appellants gave any information from which their family could be traced, and the tribunals conclusion that their accounts lacked credibility was properly open to it. As explained at para 18 above, the outcome of TNs appeal leaves a decision still to be made in his case by the respondent, following the remission of his asylum claim by the Upper Tribunal. I would dismiss the appeals. |
This appeal raises the issue whether the daily vessel operating expenses of shipowners incurred while they were negotiating to reduce the ransom demands of pirates should be allowed in general average ie whether those expenses should be shared proportionately between all those whose property and entitlements were imperilled as a result of that seizure or whether they must be borne by the shipowner alone. General average and the York Antwerp Rules General average refers to the system of maritime law by which sacrifices of property made, and loss and expenditure incurred, as a direct result of actions taken for the purpose of preserving a common maritime adventure from peril are rateably shared between all those whose property is at risk in the adventure. The principle of rateable sharing of such losses between parties to a maritime adventure appears to date back at least to the law of the Rhodians. Having been adopted by the Romans, it passed on a customary basis into European sea laws of the Middle Ages, and thence into modern European Codes. It appears that the expression general average started to be used in English judgments around the end of the 18th century and was first authoritatively discussed judicially in this country by Lawrence J in Birkley v Presgrave (1801) 1 East 220, 228 229. It was first recognised statutorily in section 66 of the Marine Insurance Act 1906. The York Antwerp Rules are an internationally agreed sets of rules, the first set (under that name) propounded in 1877, since when they have gone through a number of versions. The latest version was agreed in 2016. The Rules are designed to achieve uniformity in ascertaining which losses fall within the principle, in determining the method of calculating those losses, and in deciding how they are to be shared. Although internationally agreed between relevant expert and interested bodies, the Rules are not the subject of English legislation or international convention, and they derive legal force only through contractual incorporation. In the present case the 1974 version of the Rules was contractually incorporated into the relevant carriage contract. I will refer to that version as the Rules. The Rules are in English and French, and for the most part I shall confine myself to the English version. The Rules are introduced by a Rule of Interpretation, which states that: In the adjustment of general average the following lettered and numbered Rules shall apply to the exclusion of any Law and Practice inconsistent therewith. Except as provided by the numbered Rules, general average shall be adjusted according to the lettered Rules. The seven lettered Rules are shortly expressed and are plainly intended to be of general application, whereas most of the 22 numbered Rules are lengthier, a few of them much lengthier. Three of the lettered Rules are of particular relevance to this appeal, namely Rules A, C, and F. Rule A is in these terms: There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure. Rule C provides: Rule F states: Only such losses, damages or expenses which are the direct consequence of the general average act shall be allowed as general average. Loss or damage sustained by the ship or cargo through delay, whether on the voyage or subsequently, such as demurrage, and any indirect loss whatsoever, such as loss of market, shall not be admitted as general average. Any extra expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided. The numbered Rules play no part in these proceedings, save that some reliance has been placed on Rule XI. That Rule is concerned with Wages and Maintenance of Crew and other expenses bearing up for and in a Port of Refuge etc, and is the second longest of the Rules. It provides among other things for crew wages and maintenance to be recoverable in general average where Rule XI applies. The factual background On 29 January 2009 the chemical carrier MV Longchamp (the vessel) was transiting the Gulf of Aden on a voyage from Rafnes, Norway, to Go Dau, Vietnam, laden with a cargo of 2,728.732 metric tons of Vinyl Chloride Monomer in bulk (the cargo). The cargo was carried under a bill of lading dated 6 January 2009 which stated on its face that General Average, if any, shall be settled in accordance with the York Antwerp Rules 1974. At 06.40, seven heavily armed pirates boarded the vessel. The pirates commanded the master to alter course towards the bay of Eyl, Somalia, where she arrived and dropped anchor at 10.36 on 31 January 2009. At 14.05 on 30 January 2009 a negotiator for the pirates boarded the vessel and demanded a ransom of US$6m. The vessels owners (the owners) had meanwhile formed a crisis management team who had set a target settlement figure of US$1.5m. On 2 February 2009 an initial offer of US$373,000 was put to the pirates. Negotiations between the pirates negotiators and the owners crisis management team continued over the following seven weeks with various offers and counter offers being made. Eventually on 22 March 2009, after a negotiation period of 51 days, a ransom was agreed in the amount of US$1.85m. On 27 March 2009 the ransom sum was delivered by being dropped at sea. At 07.36 on 28 March 2009 the pirates disembarked and at 08.00 that day the vessel continued her voyage. It is accepted that the US$1.85m ransom payment itself can be allowed under Rule A. It is also accepted that the costs and expenses of the negotiator in relation to the ransom, Captain Ganz, and the costs and expenses of his special advisers, NYA International, are allowable. There was a dispute about the allowability of a sum of around US$20,640 in respect of media expenses but that is no longer challenged by the cargo interests. The essential issue on this appeal is whether the vessel operating expenses incurred during the period of negotiation (the negotiation period expenses) are allowable in general average under Rule F. Those sums are: (1) US$75,724.80 for crew wages paid to the crew. (2) US$70,058.70 for high risk area bonus paid to the crew by reason of the fact that the vessel was detained within the Gulf of Aden. These are additional wages which the crew were entitled to under their contract of employment whilst at sea within a high risk area. (3) US$3,315 for crew maintenance (ie food and supplies). (4) US$11,115.45 for bunkers consumed. In this judgment, I shall treat the aggregate sum as being US$160,000. The procedural history The average adjuster, Mr Robin Aggersbury of Stichling Hahn Hilbrich, considered that the negotiation period expenses were allowable under Rule F on the basis that they were incurred during a negotiation period of about 51 days which enabled an amount of US$4,150,000 [to be] saved in the common interest of all property owners concerned, which would otherwise have been recoverable as per Rule A. The 51 day period to which he referred was, as explained above, from 30 January to 22 March 2009. The cargo was valued at destination at US$787,186 and the value of the vessel was assessed at US$3,947,096; so cargo interests were liable for 14.44% of the total general average expenditure. Following publication of the adjustment, the cargo interests requested and obtained a report (the Report) from the Advisory Committee of the Association of Average Adjusters. The Report set out the facts in considerable detail, and concluded, by a majority of four members to one, that the negotiation period expenses did not fall within Rule F. The cargo interests had previously made payments on an account of general average, but following the publication of the adjustment they issued proceedings challenging (in accordance with the Report) the adjusters conclusion that the negotiation period expenses fell within Rule F, and seeking an appropriate repayment. The arguments of the parties The owners argument involves the following steps. First, it is rightly common ground that the US$1.85m ransom paid to the pirates for the release of the vessel was expenditure which was a general average act within Rule A. Secondly, the negotiation period expenses claimed fell within the expression expense incurred by the owners within Rule F. Thirdly, those expenses were incurred in place of another expense, namely the US$4.15m saved as a result of the negotiations. Fourthly, those expenses, being US$160,000, are less than the general average expense avoided, namely the US$4.15m (and for the sake of simplicity I will treat this as the saving, although the actual saving was somewhat less by virtue of expenses such as those paid to Captain Ganz and NYA). Fifthly, it follows from this that the negotiation period expenses are properly allowable under Rule F. The cargo interests raise a number of points in answer to this argument, and those points (which I shall take in a slightly different order from that in which they were argued in this court or discussed by Hamblen LJ in his judgment) are as follows: a) The ransom saved was not allowable. b) The ransom saved was not another expense. c) The negotiation period expenses were not incurred with the necessary intention. d) The negotiation period expenses are not extra expense. e) The negotiation period expenses would or may have been incurred anyway. f) The negotiation period expenses are irrecoverable by virtue of Rule C or (by implication) Rule XI. I shall consider those arguments in turn, although it is the first and second arguments which justify particular consideration partly because they are the most difficult points and partly they are issues on which my view differs from that of the Court of Appeal. It would not have been reasonable to accept the initial ransom demand The cargo interests first contention is based on the proposition that it would not have been reasonable for the owners to have accepted the pirates initial ransom demand for US$6m. On that basis, it is said that a payment of US$6m (or, more accurately, the saving of US$4.15m) would not have been expenditure reasonably incurred within Rule A, and therefore cannot qualify as an expense which would have been allowable as general average in Rule F. The judge accepted that, in order to succeed in its claim under Rule F, the owners would have to establish that it would have been reasonable for them to have accepted the pirates initial demand, but decided that, in all the circumstances, it would have been reasonable for the owners to have paid US$6m ransom. The Court of Appeal agreed with the judges analysis of the legal position, and declined to interfere with his conclusion that it would have been reasonable of the owners to have met the pirates initial demand. It is a difficult question whether the Court of Appeal ought to have concluded that the judge was entitled to conclude that it would have been reasonable for the ship owner to have paid the pirates the US$6m which they initially demanded. While an appellate court should be slow to interfere with a trial judges finding of fact, this was not a finding of primary fact. And, at least on the face of it, one would have thought that it would have required very unusual circumstances for a ship owner not to try and negotiate with pirates who had made such a very high demand. Further, the evidence suggests that no ship owner accepted an initial demand made by Somali pirates and that their demands were generally pitched on the basis that they would be substantially reduced by negotiation. On the other hand, one must beware of the perils of wisdom of hindsight, and it is right to bear in mind that there was a wounded sailor on the vessel and that the cargo was perishable. In my opinion, it is not necessary to resolve this difficult issue, because I do not consider that the judge or the Court of Appeal were correct in assuming that the owners had to establish that it would have been reasonable to accept the pirates initial demand in order to justify the contention that the negotiation period expenses were allowable under Rule F. One does not need to examine the wording of the Rules to appreciate that the assumption made by the courts below would lead to very odd results, as explained by Hamblen LJ at [2016] Bus LR 1285, paras 62 to 64. It would mean that, if a ship owner incurs an expense to avoid paying a reasonable sum, he can in principle recover under Rule F, whereas if he incurs expense to avoid paying an unreasonable sum (ie a larger sum), he cannot recover. The more obvious his duty to mitigate, and the greater the likely benefits of such mitigation, the less likely he would be to be able to recover. Such a state of affairs (apparently known to cognoscenti as the Hudson conundrum, after the writer who first described it) would be a remarkable result. Fortunately, examination of the wording of Rules A, C and F shows that it does not arise. Where I part company with the judge and the Court of Appeal is in relation to their view that the reference in Rule F to another expense which would have been allowable as general average is to an expense whose quantum is such that it would have qualified as a claim under Rule A. In my opinion, the reference to an expense which would have been allowable is to an expense of a nature which would have been allowable. First, the word allowable in Rule F naturally takes one to Rule C, where the similar word allowed is used, rather than Rule A, where there is no reference to anything being allowed (the same point applies to the French version admissible in Rule F and admis in Rule C). Unlike Rule A, Rule C is concerned purely with the type of expense, and not with quantum. Secondly, the opening part of Rule F is unlikely to be concerned with quantum, as that is dealt with in the closing part, which imposes a cap on a sum recoverable under Rule F, namely only up to the amount of the general average expense avoided. Thirdly, the interpretation assumed in the courts below imposes an unnecessary fetter on the allowability of an extra expense, as there is already a reasonable fetter in the concluding part of Rule F. Fourthly, the interpretation I favour produces an entirely rational outcome: whenever an expense is incurred to avoid a sum of a type which would be allowable, that expense would be allowable, but only to the extent that it does not exceed the sum avoided. Applying that reasoning to this case, and subject to the discussion below as to the cargo interests other arguments, the US$160,000 falls within Rule F. The US$160,000 was incurred in order to avoid paying a US$6m ransom (or, more accurately, a ransom of around US$4m more than the ransom actually paid), and as the ransom was an allowable expense in principle, the US$160,000 therefore falls within Rule F, subject to the appellant establishing that it would have been reasonable to have paid a ransom of around US$2.4m (ie the ransom it did pay plus the US$160,000 together with the further expenses such as those paid to Captain Ganz and NYA). If the judge was even arguably entitled to reach the conclusion that paying a US$6m ransom was reasonable, it must have been reasonable to pay a ransom well under half that figure. Even if the analysis in para 19 above were not right, I would have reached the same conclusion. As pointed out by Lord Sumption in the course of the argument, where an unreasonably high sum is expended, there would be no reason not to hold that Rule F applied, albeit only to the extent of a reasonable sum, on the basis that the greater includes the less. Thus, if (contrary to the analysis in para 19 above), Rule F only applied where a sum was reasonably incurred, and in this case the judge had concluded that the maximum reasonable ransom would have been US$4m, then Rule F would have applied to US$4m of the US$6m ransom. The reduction in ransom was not an alternative course of action I turn then to the second contention raised by cargo interests, which was the ground on which they succeeded in the Court of Appeal. That contention is that the negotiation period expenses do not fall within Rule F, because the payment of a reduced ransom of US$1.85m was not an alternative course of action to the payment of the ransom originally demanded, namely US$6m: it was merely a variant. This contention involves arguing that to trigger Rule F, it is not enough for a claimant to incur expense in achieving a result which costs less than what an allowable item would otherwise have cost: the expense must be incurred to achieve a result which involves replacing that allowable item with a different and cheaper item. As Lord Mance expressed it during the argument, this argument involves saying that Rule F applies only where some means is adopted to complete the adventure, and that means is different from that which might normally be expected. The notion that Rule F is only engaged in a case where the claimant achieves an alternative course of action in that sense was said by Hamblen LJ at [2016] Bus LR 1285, paras 38 to 40 to be supported by passages in the two leading books in English on general average. In paras F.01 and F.29, the editors of Lowndes & Rudolf, The Law of General Average and the York Antwerp Rules, 14th ed (2013) write: As the name implies, substituted expenses are the expenses incurred in respect of a course of action undertaken as an alternative to or in substitution for the expense that would be allowable as general average. For this rule to have any application there must have been an alternative course which, if adopted, would have involved expenditure which could properly be charged to general average. In Hudson & Harvey, The York Antwerp Rules: The Principles and Practice of General Average Adjustment, 3rd ed (2010), para 11.33, there is this: Although Rule F is phrased in terms which refer to the incurring of the expense, its application in practice presupposes a choice between two (and sometimes more) different courses of action. I am not convinced that, as a matter of language, those passages support the conclusion that Rule F can only be invoked when the claimant has taken an alternative course of action, but I accept that the prevailing view among the writers on the subject, and among those who work in the field, of general average may well be as Hamblen LJ suggested. Thus, it certainly seems to have been assumed to be the generally accepted position by Hoffmann LJ in his striking dissenting judgment in Marida Ltd v Oswal Steel (The Bijela) [1993] 1 Lloyds Rep 411, where, at p 423 he quotes with approval a passage from the 11th ed (1990) of Lowndes & Rudolf which is identical to that quoted by Hamblen LJ from the 14th ed. However, the law cannot be decided by what is understood among writers and practitioners in the relevant field (or even by views expressed by Hoffmann LJ in a dissenting judgment, especially in a case where the point did not strictly arise and does not appear to have been argued). Experience shows that in many areas of practical and professional endeavour generally accepted points of principle and practice, when tested in court, sometimes turn out to be unsustainable. I accept that it may be right for a court to have regard to practices which have developed and principles which have been adopted by practitioners, but they cannot determine the outcome when the issue is ultimately one of law. Further, as the opinions of the average adjuster and of the majority of the Advisory Committee of the Association of Average Adjusters in this case demonstrate, there is certainly no question of there being a universal view on the issue. Turning to the language of Rule F, I consider that this alternative course of action contention goes nowhere. Even if one accepts that the extra expense must involve an alternative course of action, it seems to me that the owners claim satisfies that requirement. It appears to me that (ignoring other sums for present purposes) the right analysis of the owners claim is that it is for (i) US$1.85m under Rule A and (ii) US$160,000 under Rule F, on the basis that (i) the US$1.85m, as a reasonable sum paid to ransom the vessel and the cargo, is admittedly within Rule A, and (ii) the US$160,000, as negotiation period expenses, represents extra expense incurred in place of the US$4.15m, the amount by which the ransom was reduced. On that basis, as I see it, the incurring of the US$160,000 did represent an alternative course of action, in the sense that the cargo interests use that expression, from the payment of the US$4.15m: the former involved incurring vessel operating expenses whereas the latter involved paying a ransom. There is an alternative analysis of the owners claim, which is that it should be treated as being for a single sum of US$2.01m, namely the US$1.85m ransom actually paid plus the US$160,000 negotiation period expenses, under Rule F on the basis that this combined sum was extra expense incurred in place of the US$6m originally demanded. However, I do not see how that helps the cargo interests. Logically, their argument on this basis should be that the US$1.85m is disallowable under Rule F as it was not an alternative course of action from paying the originally demanded US$6m ransom, but the negotiation period expenses are recoverable under Rule F, as they did involve an alternative course of action which is precisely the opposite of the cargo interests actual case, and indeed a nonsensical result. Accordingly, the cargo interests second contention cannot simply be based on the wording of Rule F. Their contention, as I see it, must be that the expenses incurred in negotiating a reduction in the cost of an allowable item do not fall within Rule F because the reduction in the cost of an allowable item which would be paid for anyway, and which falls within Rule A, cannot be within the scope of Rule F. I do not find it easy to see how one can get that out of the words of Rule A or Rule F. I suppose that one could take the analysis in para 27 above and argue that it works perfectly well where, as a result of the negotiation, an alternative course of action, within the restrictive use of that expression as urged by the cargo interests, was taken. However, given the problem identified in para 27 above with such an approach where the reduced sum is not such an alternative course of action, I am very dubious whether the approach can be justified anyway. Given that the Rules represent an international arrangement, it is particularly inappropriate to adopt an approach to their interpretation which involves reading in any words or qualification. As already mentioned, it appears to me that, as a matter of ordinary language, Rule F applies to the negotiation period expenses for the reasons given in para 26 above. To imply some qualification such as the requirement that those expenses must have been incurred so as to achieve an alternative course of action appears to me to be very dangerous. In the same way as an international convention or treaty, the Rules should be interpreted by a United Kingdom court unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation, to quote Lord Wilberforce in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, 152. As Lord Hobhouse said in King v Bristow Helicopters Ltd [2002] 2 AC 628, para 148, in relation to an article in the Warsaw Convention, it is the unadorned language of the article to which attention must be directed. Quite apart from this, the cargo interests second contention appears to me to lead to difficulties and potential anomalies in practice. Thus, there would be difficulties about deciding whether a particular variant was an alternative course of action. Towage to destination, extra costs of arranging dry docking with cargo on board, overtime worked on repair or cargo operations (at least sometimes), and (historically) air freight instead of sea freight for spare parts were examples given by the respondents of alternative courses of action (mostly taken from Lowndes & Rudolf, op cit). But it is hard to see where the line is to be drawn. The difficulties about deciding whether overtime payments qualify is plain from reading Lowndes & Rudolf, op cit, para F.25; in addition, overtime payments are enhanced payments for the same work whose cost would have been recoverable under Rule A in any event. And if air freight can qualify if it is incurred instead of sea freight, it is hard to see much logic in disqualifying sea freight at a lower rate negotiated with a new party on a different type of vessel. Further, given that, on the cargo interests case, negotiation period expenses could not be claimed if they were incurred as a result of negotiating a reduction in the cost of repair with one shipyard, what would the position be if the negotiations were with a competing shipyard and/or in respect of a novel and different way of effecting the repairs? It also appears to me to be somewhat inconsistent in terms of logic that (as has been agreed between the parties in this case) the costs and expenses of Captain Ganz and NYA are subject to general average whereas the negotiation period expenses are not. It is clear that the costs and expenses claimed by and paid to Captain Ganz and NYA included costs and expenses attributable to the negotiations with the pirates (for instance, hotel bills for most of the 51 day period). They can only be justified on the basis that they were referable to the negotiations to reduce the ransom, in the sense that they were incurred solely because of the negotiations taking place. Accordingly, if they are claimable, it is hard to understand why the negotiation period expenses should not also be claimable. At [2016] Bus LR 1285, para 47, Hamblen LJ suggested that there were a number of anomalies if the negotiation period expenses were allowable. First, he mentioned the difficulty of establishing that the expenses would not have been incurred even if the initial demand for US$6m ransom had been accepted. I doubt that that problem would arise in most cases where the vessel operating costs are said to fall within Rule F, and it may well arise in some cases where it would be common ground that Rule F would apply. In any event, it is for the claimant in each case to establish, on the balance of probabilities, that the delay caused by the negotiation would not have occurred if there had been no negotiation. Secondly, he said that, in a case such as this there could be no entitlement to claim vessel operating costs as Rule F expenses until a demand had been made. I agree, but fail to see why it is an anomaly. Thirdly, Hamblen LJ pointed out that, in the absence of a demand, eg if there were simply negotiations, it might be hard to say when, or even whether, Rule F was engaged. I accept that there may be ransom cases where it is hard to determine at what precise point Rule F is engaged, but it would, I think, be a rare case where at some point early in the negotiations the pirates did not come up with a figure. Anyway, I suspect that point could apply to cases where Rule F is undoubtedly engaged. Quite apart from that, I do not accept that the fact that there may be difficulties for claimants in a few other ransom cases is a reason for holding that Rule F is not engaged in this case. More broadly, if (as appears to me to be appropriate) one views Rule F simply as entitling a claimant to claim in respect of an expense successfully incurred for the purpose of mitigating a loss, it seems to me that none of these points should give rise to concerns. The cargo interests other arguments The cargo interests third contention is that, in order to be recoverable under Rule F, the negotiation period expenses must be shown to have been consciously and intentionally incurred by the owners, and there was no evidence that the owners or their agent had consciously decided to incur those expenses in order to reduce the ransom payable to the pirates. Indeed, Hamblen LJ said at [2016] Bus LR 1285, para 43 that it does not appear that the owners ever considered that they faced a choice and that there was no evidence to suggest that they ever considered choosing between paying the ransom on demand and paying a lesser sum following negotiation. Accordingly, runs the argument, the owners cannot recover under Rule F as they never made a conscious choice between paying the US$6m ransom initially demanded by the pirates or negotiating with the pirates. I do not accept that contention. The question whether one expense has been incurred in place of another expense must be assessed objectively. In this case, it is clear (and must have been clear at the time) that negotiations were (and would be) needed if the ransom was to be reduced, that such negotiations took (and would take) time, and that the passage of time resulted in the negotiation period expenses (and would result in expenses of that nature) being incurred. As the negotiations resulted in the ransom being reduced, it seems to me that, subject to any other argument, it must follow that the expenses incurred as a result of those negotiations were incurred in place of the US$4.15m saved (or that the expenses incurred plus the US$1.85m actual ransom were incurred in place of the original US$6m ransom demand). The cargo interests further contend that the negotiation period expenses were not extra expense within the meaning of that word in Rule F. This contention is based on the proposition that, in order to qualify as extra expense, an expense would have to be of a nature which would not normally have been incurred in response to the peril threatening the adventure. I can see no reason for giving the word extra such a restrictive meaning. First, it is not its natural contextual meaning, which, in my view, is simply an expense which would not otherwise have been incurred (but for the saving of the other expense). Secondly, such a meaning is supported by the contrast with the word extraordinary in Rule A. Thirdly, such a restrictive meaning lies unhappily with the French equivalent adjective, which is supplmentaire. I take some comfort from, but do not rely on, the fact that the word extra in Rule F has now been replaced, in later versions of the Rules, by the word additional. The cargo interests next contention is that the delay which led to the negotiation period expenses may well have occurred even if the owners had agreed to the pirates initial demand of US$6m. For instance, if the owners had accepted the US$6m, the pirates may have thought that they had pitched their initial demand too low, and would have increased it, leading to further negotiations and consequent delay. That is of course a possibility. However, it is inherent in the judges conclusion that he considered it more likely than not that the vessel and cargo would have been released promptly if the US$6m ransom demand had been accepted and paid. That was the sort of finding (albeit an implied finding, but necessarily so, in his conclusion) with which an appellate court should be very slow to interfere. And in this case it appears to me that we should clearly not question it: it was an eminently defensible finding. It is clear that a delay of some period would be inevitable as a result of the negotiations, and it is clear that the 51 days (between the initial demand of US$6m and the final agreement at US$1.85m) was inevitable as a result of the negotiations; on the other hand, to put it at its very lowest, it is not unlikely that none of the 51 days delay would have been suffered if the US$6m demand had been met. The cargo interests final contention is that, as Rule C excludes from general average expenditure which is an indirect loss including demurrage, and/or because Rule XI includes crew wages and maintenance where it applies, the claim in the present case must fail. In my opinion, there is nothing in that point. I accept that the negotiation period expenses, if consequential on a general average act, would have fallen within the exclusion in Rule C of loss sustained through delay, but I do not accept that it follows that they must therefore fall outside Rule F. Rule C applies to expenses and other sums claimed by way of general average as consequences of a general average act (as defined by Rule A). It does not apply to expenses covered by Rule F, which is concerned with sums which are expended or lost in mitigating or avoiding the sums which would otherwise be claimable as general average. By definition, sums recoverable under Rule F are not themselves allowable in general average, but are alternatives to sums which would be allowable. One can understand why, as a matter of policy, demurrage and similar indirect liabilities are not recoverable as general average, but it does not follow that such indirect liabilities should be irrecoverable if they are expended in order to mitigate what would otherwise be a larger general average claim. As for the cargo interests reliance on Rule XI, I find it hard to see why the fact that vessel operating expenses are specifically allowed in one specific type of case, means that it should be presumed that they are excluded from every other type of case. In any event, the Rules start by saying that the lettered Rules apply save where the numbered Rules apply, and that makes it particularly difficult to justify the notion that a specific allowance in a numbered Rule should impliedly rule out such an allowance in a lettered Rule. Indeed, I understood the cargo interests in this case to accept that vessel operating costs would be recoverable in a case where Rule F did apply (subject to their Rule C argument considered in para 37 above), and that seems to be consistent with what is said in the two books on general average to which I have referred. I agree with the judgment of Lord Neuberger. Conclusion For these reasons, I would allow this appeal and restore the decision of the deputy judge. LORD SUMPTION: (with whom Lord Hodge and Lord Clarke agree) The York Antwerp Rules have a status in shipping law similar to that of the Uniform Customs and Practices in the law relating to documentary credits. They depend wholly on contractual incorporation for their binding force. But they are designed to create a body of principle applicable internationally in a uniform way, although incorporated in shipping agreements of different kinds, governed by different laws. It will therefore rarely if ever be appropriate to imply matter into them which is not apparent from the natural meaning of the words, unless the implication is necessary to make them workable or intelligible or to avoid absurdity. Rule F is simplicity itself. It provides for the allowance of expenditure which is not allowable as general average expenditure but has successfully mitigated expenditure or sacrifice which would have been allowable as general average. The cost of maintaining the ship and crew during a period of delay which would not have occurred but for the peril but was necessary to enable the ransom to be reduced, is deemed to be general average up to the amount of the reduction. I appreciate that the practice of most average adjusters has been to disallow such expenditure. In the absence of a comprehensive body of case law (general average rarely reaches the courts), adjusters have adopted a variety of practices or rules of thumb to supplement the Rules. This is perhaps inevitable, but such practices are not law and there is a tendency in this field for them to lose sight of the basic concepts expressed in the Rules themselves. I suspect that this particular practice has been influenced by the second paragraph of Rule C and the limited scope of application of Rule XI. But the second paragraph of Rule C serves to limit the permissible heads of general average expenditure so as to exclude delay. There is no textual, indeed no rational reason why it should be taken to limit the permissible heads of expenditure which although not general average expenditure successfully mitigates something else that is. As for Rule XI, like the other numbered rules, that is a specific rule relating to ships entering a port or place of refuge, which does not impinge upon the general principles set out in the lettered rules, as applied to other situations. In my opinion, the appeal should be allowed. I agree that the appeal should be allowed for the reasons given by Lord LORD CLARKE: Neuberger and Lord Sumption. LORD MANCE: (dissenting) Although a general average case was the origin of the English Commercial Court, general average cases are few and far between. The correct resolution of the present case has divided both general average practitioners and the courts, and the number of issues raised has tended to multiply as the case has progressed. The core question is simple. Where a vessel with its cargo has been seized by pirates, and the owners over a period succeed in negotiating down an initial ransom demand, can the owners include in general average not merely the ransom payment ultimately made, but also vessel and crew costs totalling US$160,213.95 incurred during the period of negotiation (the negotiation period expenses). The vessel MV Longchamp was boarded by pirates at 06.40 hours on 29 January 2009. A ransom demand of US$6m was made by the pirates at 14.05 on 30 January 2009 and was rejected by the owners as too high on 31 January 2009. The vessel had by then been taken to a position off Eyl on the coast of Somalia. Thereafter, negotiations took place lasting until 18.25 on 22 March 2009, when the pirates accepted the owners last offer of US$1.85m. The ransom was dropped at sea off Eyl on 27 March and the vessel was released to proceed on her voyage at 07.36 on 28 March 2009. The negotiation was in practice conducted by the owners. The negotiation period to which the relevant expenses relate runs from 14.05 on 30 January to 08.25 on 22 March 2009. The relevant bill of lading provided for any general average to be adjusted according to the York Antwerp Rules 1974. The ransom payment and the costs of specialist negotiators are accepted as direct general average costs, falling within Rule A of those Rules. The question is whether the negotiation period expenses fall to be included in general average under Rule F, reading: Any extra expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided. The owners case is that: (i) if they had paid the US$6m ransom initially demanded, that would have been allowable as general average within the meaning of Rule F; (ii) instead of doing this, they entered into successful negotiations; (iii) the resulting reduction in the ransom payable from US$6m to US$1.85m avoided general average expense of US$4.15m; and (iv) the negotiation period expenses totalling US$160,213.95 can and should be treated as an extra expense incurred in place of the general average expense of US$4.15m avoided. Before the deputy judge, Mr Stephen Hofmeyr QC [2015] 1 Lloyds Rep 76, the focus was on point (i), whether the US$6m would, if paid, have been allowable as general average. He held that it would have been. The Court of Appeal agreed with the judge on this point. But it focused on a different aspect, whether Rule F was in principle applicable when all that had occurred was negotiation, in the event a long, rather than a short negotiation, but not an alternative course of action by which expenditure different in kind was incurred. In the Court of Appeals view, this was not a case of extra expense being incurred in place of another expense, but a case where the owners had no real choice or true alternative to pursue (per Hamblen LJ [2016] Bus LR 1285, paras 51 53) and there was only one course of action open namely to treat with the pirates however long that might take (per Sir Timothy Lloyd, para 99). I have considerable sympathy with the Court of Appeals instinct that Rule F was not designed with the present situation in mind. The classic circumstances in which it is treated as applying are cases where there is one obvious or natural course of action open to the owners following a general average event, but there is also some different action, which might if taken lead to a more generally beneficial outcome overall. This, it is common ground that Rule F in the 1974 Rules embraces situations where, instead of undergoing repairs in a port of refuge, the vessel is towed as is to destination, or the cargo is forwarded on another vessel, or, where, instead of discharging cargo in order to undertake dry docking and repair, extra equipment is obtained to enable dry docking and repair without such discharging. In the Canadian case of Western Canada Steamship Co Ltd v Canadian Commercial Corp [1960] 2 Lloyds Rep 313, decided in an era when sea transport was the norm, the cost of airfreighting a new propeller shaft from Wales to Singapore was allowed on the same basis. However, it is also clear that Rule F can apply in situations where the general average expense avoided would have been allowable under one of the numbered rules, setting out various specific situations in which various types of vessel or crewing costs are in principle recoverable as general average. In short, the focus of Rule F seems to me to have been correctly identified by Hoffmann LJ in Marida Ltd v Oswal Steel (The Bijela) [1993] 1 Lloyds Rep 411, 421, when he quoted with approval the then most recent edition of Lowndes & Rudolf on General Average and the York Antwerp Rules (11th ed (1990), p 144), as saying that the substituted expenses must be: an alternative to, or in substitution for what might prima facie be thought of as being the normal or standard means of dealing with a given situation. Hoffmann LJ went on (p 422) to leave open the question whether under Rule F the course of conduct giving rise to the substituted expense should have fallen outside the obligations contained in the contract of affreightment or whether it is sufficient that the expenditure was a less usual and more [sic] expensive way by which the owner complied with his contractual obligation, eg to repair the ship. He concluded by noting that Lowndes & Rudolf suggest that expenditure of the latter kind could fall within the Rule, but that Rule F certainly contemplates that there was a practical alternative by which the adventure could have been completed. The cargo interests conceded in their written case, and I am prepared for present purposes to accept, that this does not exclude all possibility that Rule F might cover a situation in which, by some unusual or non standard step, the owners are able to replace or reduce in amount an expense of one kind by incurring a lesser expense of the same kind. It does not however seem to me necessary to go even that far in the present case, since what is submitted is that the owners have, by incurring negotiation period expenses, consisting of vessel and crew costs, avoided a different kind of expense, namely extra ransom costs. What is however clear on any view is that Rule F is not intended to cover general average situations in which owners simply do what would in the ordinary course be expected of them in the interests of the common adventure. Where this is the position, the expenses incurred will be admissible, potentially, as the direct consequence of the general average act, allowable as general average under the first paragraph of Rule C, unless they are excluded as loss or damage incurred through delay under the second paragraph of Rule C. One qualification to this is however significant. Even if expenses would otherwise be excluded as loss or damage incurred through delay, they may nevertheless be admitted if they fall within one of the numbered heads. Rule XI(a) in particular covers costs of crew and vessels fuel and stores during the prolongation of a voyage occasioned by a vessel entering a port or place of refuge or returning to her loading port or place in circumstances falling within Rule X(a). Rule XI(b) covers, broadly, crew costs when a vessel has entered or been detained in any port of place in consequence of, or for repairs following, a general average event. It is unnecessary to examine the precise ambit of these provisions. What matters is that they constitute very specific qualifications of the exclusion by the second paragraph of Rule C of loss or damage through delay. There is no equivalent qualification which could cover the present case. Hence the owners reliance on Rule F. In order to bring the case within Rule F, the owners have to show and the onus is on them both as a matter of general principle and specifically under Rule E that they incurred extra expense, that this was in place of another expense and that that other expense would have been allowable as general average; and, once they have done that, the extra expense is only allowable up to the amount of the general average expense avoided. I have little difficulty with accepting the negotiation period expenses as an extra expense in the sense that they were over and above anything that would, taking Mr Hofmeyr QCs words ([2015] 1 Lloyds Rep 76, para 89), ordinarily have been incurred on such a voyage. I have already covered what may have been contemplated in Rule F by the use of the phrase in place of another expense. Rule F only applies if the other expense would have been allowable as general average and subject to the condition that the extra or substituted expense is allowable only up to the amount of the general average expense avoided by not incurring that other expense. Viewing Rule F as a whole, it is clear that the owners must show that, had they incurred the other expense, the costs it would have involved could validly have been treated as general average their right to include extra or substituted expenses as general average being limited under Rule F by the extent to which the hypothetical other expense could have been so treated. The last sentence of para 19 of Lord Neubergers judgment accepts this. It seems therefore of only academic interest to debate whether the same conclusion would flow from the words would have been allowable as general average by themselves. For my part, however, I consider that it would have done. The word allowable must take one back to the requirements of Rule A as well as Rule C. Rule A apart, there would be no indication what is meant by general average or an expense allowable in general average. The onus placed under Rule E on any party claiming in general average to show that the loss or expense claimed is properly allowable as general average must carry one back to Rule A as well as C. In this connection, it is also notable that the French word used throughout Rules C, E and F (admis, admise, admission or admissible) has in each case the same root. The Hudson conundrum, to which Lord Neuberger refers (para 18 above), does not lead to any different conclusion. In most, if not all, circumstances in which Rule F applies, there will be a prima facie or standard course of action to be taken in the face of the general average event, but the owners will, by adopting some unusual means, have arrived at an alternative solution to further the common adventure. In such cases, the other paying parties will be hard pressed to suggest that the prima facie or standard reaction would have been unreasonable. There is a parallel here with the duty to mitigate, which is not lightly to be imposed or treated as broken. The Court of Appeal ([2016] Bus LR 1285, paras 73 74) was in this respect right in my view to agree with the deputy judges general conclusion of principle ([2015] 1 Lloyds Rep 73, para 77) that the hypothetical other expense must be one which would have been reasonably incurred in a sense interpreted and applied with a sufficient degree of latitude to give rule F practical effect. In many cases, the differences between the two courses (the standard and that adopted) may not be large, and both may easily be reconciled as reasonable reactions. Rule F is also careful, by its concluding words, to recognise that the extra expense may not be less than that which would have resulted from taking the standard course. In such a case, Rule F performs the valuable function of allowing recovery up to the amount which would have been recoverable had the standard course been adopted. Turning specifically to an unusual situation like the present: if there is no course at all open to take, the expenses of which would have been allowable as general average, then matters must run their course. If a ransom is demanded and paid in an amount which is unreasonable to pay, the only amount allowable in general average will be whatever lesser amount it would have been reasonable, after negotiation, to pay. If the negotiation period expenses are regarded as an extra expense incurred in place of the amount of the ransom avoided by the negotiation, they can be recoverable at most only so far as the negotiation avoided the making of a ransom payment which it would have been reasonable to pay. On no view is there any basis for reading into the clear language of Rule F an entirely artificial assumption that, when judging whether the other expense would have been allowable as general average, the possibility of incurring the extra expense in place of that other expense must be ignored. To do so would be flatly contrary to the language and evident intent of Rule F. The reasoning and decision of the House of Lords in Marida Ltd v Oswal Steel (The Bijela) [1994] 1 WLR 615 turned on the very different wording of Rules X(b) and XIV, under which the express assumption in Rule XIV that such [temporary] repairs had not been effected there could be, and fell to be, read into Rule X(b) when considering what repair expenses would have been necessary and allowed in general average for the purposes of Rules X(b) and XIV, read together. Both the courts below have in this case concluded that it would have been reasonable for the owners to accept and pay the first ransom demand of US$6m. The Court of Appeal has however decided the case against the owners on the basis that they faced no real choice but to negotiate, however long the negotiation might take. There is to my mind a tension between the two strands of the Court of Appeals reasoning. If it would have been reasonable to accept and pay the first demand, then the owners were on the face of it taking a stand by seeking an even more reasonable deal in the interests of all concerned in the common adventure. It is not apparent that Rule F could not extend to such a course, if, as here, it involved the owners in some expense in the form of additional crew and vessel expenses. But I find even more difficult the joint conclusion of both courts below that it would have been reasonable for the owners to meet the first ransom demand. The deputy judge found difficulty in seeing how any ransom payment could be described as reasonable: [2015] 1 Lloyds Rep 76, para 98. He said: At least in one sense, no ransom payment could ever be described as reasonable. Pirates are criminals engaged in extortion and their demands are unlawful and deplorable. How can a payment extorted by pirates be described as reasonable? In my view, it cannot. The idea of a reasonable ransom is radically misconceived and the term an oxymoron. That is however to look at the point from only one direction. The relevant viewpoint is that of the unfortunate victims involved in a common adventure. From their viewpoint, there must be some ransom demands to which it is reasonable and others to which it is unreasonable to respond. Even the deputy judge appeared prepared to accept that the latter would include a ransom demand well in excess of the value of the vessel and cargo. However, this was as far as the deputy judge was prepared to go. Leaving aside exceptional circumstances, where the value of the ransom demanded clearly exceeded the value of the property involved in the venture, he thought it obvious that it would not be reasonable to say that an owner under an obligation to proceed with due despatch had not reasonably incurred a ransom paid. He went on, at para 99: Even if it may be said that, by January 2009, a pattern of dealing between Somali pirates and shipowners had developed, as described by David Steel J in Masefield AG v Amlin Corporate Member Ltd (The Bunga Melati Dua) [2010] 2 All ER 593 [2010] 1 Lloyds Rep 509 at paras 19, 23, 25 and 26 (affirmed on appeal: [2011] 1 Lloyds Rep 630; [2011] 1 WLR 2012), such a pattern would not remove the potential for unreasonable, irrational and illogical behaviour. In support, the deputy judge said that negotiation was an uncertain process and it was not possible to state with reasonable certainty when the ransom demand was made that the amount of the ransom would inevitably be significantly reduced by the process of negotiation (para 100). Whether or not it is possible to state with reasonable certainty that a negotiation will achieve significant success cannot however be the test of whether or not negotiation should reasonably be essayed. The deputy judge also derived comfort from his conclusion on this point from the consideration that natural justice requires that all should contribute to the substituted expenses incurred (para 103). A difficulty about this observation is that nothing in Rule F could enable cargo interests to recover any matching loss or damage that they might suffer from the delay during negotiations. The cargo was in fact perishable, even though in the event it survived the rigours it underwent without apparent deterioration. As the Court of Appeal correctly recognised in this connection (para 51), whether or not an item falls within general average depends on the proper interpretation of the York Antwerp Rules. They represent a balanced framework, negotiated over time between all interests involved. As I have already observed, the Court of Appeals reasoning involves a potential tension between the approaches taken to the scope of Rule F and to the issue of the reasonableness of paying the initial ransom demand. In the former context, Hamblen LJ said this [2016] Bus LR 1285, paras 43 46: 43. Some support for the cargo interests approach is to be found in the evidence. Thus, it does not appear that the owners ever considered that they faced a choice. The owners crisis management and negotiation team were set up before any ransom demand had been made. From the outset the goal was to negotiate to obtain release of the vessel upon payment of a ransom, but in a reduced amount. There is no evidence to suggest that they ever considered choosing between paying the ransom on demand and paying a lesser sum following negotiation. 44. This is also borne out by the advisory committees stated experience, which is that in all Somali piracy cases the same course of action is taken, namely to negotiate and pay a reduced ransom leading to release of the vessel. Again it does not appear that there is considered to be a choice of payment on demand. 45. In my judgment this failure to recognise that there is a choice reflects the reality, which is that payment on demand is simply a different way of going about the same course of action and not a true alternative course of action. Whether or not the ransom is paid on demand there will still be a negotiation, there will still be delay, there will still be the incurring of vessel and crew running costs during the period of delay. In either case the same expenses will be incurred; the difference is only in their extent. 46. In this case, for example, there was a period of delay between the hijacking and the first ransom demand. Even if that first demand had been accepted, it does not follow that it would have been agreed. As the majority of the advisory committee state, the unprecedented acceptance of the ransom on demand may well have been met by a demand from the pirates for a still higher figure. Even if that was not the case, it would still have been necessary to negotiate and agree matters relating to place and method of payment and to the release of vessel and crew. Thus in this case it is to be noted that there was a period of six days between the agreement of the ransom and the release of the vessel. In the latter context, however, Hamblen LJ said, at paras 77 84: 77. The cargo interests contend that the judge was wrong to conclude that payment on demand would have been reasonable and that account should have been taken (but was not) of the following matters: (1) The established modus operandi for Somali pirates as at the date of the hijacking, namely invariably to negotiate down the amount of the ransom demanded over a period of time with little or no risk to cargo or crew. (2) In the experience of the majority of the advisory committee, the negotiation period is common in all piracy cases and there is always a period of negotiation before a vessel is released and it is the normal means of dealing with such situations. (3) The minority member accepted that there was a reasonable period of customary negotiation and that clearly, the ransom amount initially demanded cannot automatically be allowed in general average. (4) The position adopted by the owners in their skeleton argument at trial, That is not to say that paying the first demanded ransom is ever likely in fact to be a reasonable course of action. In reality, where there is the option of entering into negotiations with pirates, it will almost always be the right thing to do. 78. They submit that if proper regard is had to these matters it should be concluded that it would be unreasonable to pay the originally demanded ransom without even attempting to negotiate the amount of the ransom payment, contrary to the established practice, and that the judge was wrong to conclude otherwise. They further submit that payment on demand would be an artificial invention. 79. The owners do not accept that there is satisfactory evidence to establish the matters sought to be relied upon by the cargo interests, but that in any event they do not render payment of the full ransom demand unreasonable. 80. The owners accept that the evidence at that time was that Somali pirates would release a vessel upon payment of a ransom. As they point out, that being so, the sooner the ransom was paid, the quicker the vessel would be released and the vessel, cargo and crew removed from danger. 81. In my judgment, if, as stated in the Masefield case [2010] 2 All ER 593, the safest, most timely and effective means to secure the release of a ship and crew was to pay a ransom, it follows that the most safe, timely and effective means of so doing is to pay as soon as possible. It may be that the general practice was to try to negotiate the ransom down, but that does not mean that it would be unreasonable to pay the ransom straight away so as to avert the very real danger to vessel, cargo and crew as quickly and effectively as possible. Nor can a course of action which procures such real and tangible benefits be regarded as an artificial invention. 82. Further, in my judgment the reasons given by the judge are all cogent and compelling reasons for concluding that payment of the initial ransom sum would have been reasonable. 83. Further reasons for supporting that conclusion include the following: (1) The effect of the delay involved in seeking to negotiate a lower ransom is to keep the vessel, cargo and crew in peril, with all the risks of saying no to pirates, who are violent, armed criminals. (2) The vessel and cargo were under the control of the pirates. As such, there were obvious dangers should there be a storm or other peril of the sea. (3) The owners knew that there had been a firefight during the capture of the vessel and that a crew member had been wounded. (4) Although, as matters turned out, the pirates main negotiator was said to be a calm, rational communicator who never resorted to threats or other coercive tactics, the owners had no reason to assume that. (5) This was just one of many known unknowns facing the owners. 84. For all these reasons I conclude that it cannot be shown that the judge was wrong to find that payment of the initial ransom demand would have been reasonable. It follows that I would dismiss the appeal on this issue. I note that, after the quotation from the Masefield case [2010] 2 All ER 593 in para 81 of Hamblen LJs judgment, the words to pay a ransom are not a correct citation. The actual words in the Masefield judgment were to negotiate and subsequently pay a ransom. The cargo interests rely on the apparent acceptance both by the deputy judge ([2015] 1 Lloyds Rep 76, para 99, quoted in para 61 above) and by the Court of Appeal ([2016] Bus LR 1285, paras 43, 44, 46 and 81) of a general practice to negotiate any ransom demand down over a period. The owners object that there is no evidence justifying any such conclusion. But their own skeleton argument for the trial stated that: This is not to say that paying the first demanded ransom is ever likely in fact to be a reasonable course of action. In reality, where there is the option of entering into negotiations with pirates, it will almost always be the right thing to do. But when considering the allowability in GA of the costs of the negotiation, the relevant alternative scenario to be considered is the one in which there is no negotiation possible/available. The last sentence reflects the owners then case, which relied on a suggested analogy with the reasoning of the House of Lords in The Bijela, discussed in para 58 above. The trial in the present case was a Commercial Court trial on the documents. It seems clear that the deputy judge treated himself as entitled to rely on all the material before him when considering the factual position, including the statements in the Masefield case and the Report of the Advisory Committee of the Association of Average Adjusters on the present case, which he summarised at some length, while recording that it was common ground that it was not binding on the court. I see no reason to regard either the deputy judge or the Court of Appeal as having erred in this respect. David Steel Js judgment in the Masefield case noted ([2010] 2 All ER 593, para 14) that the initial ransom demand in that case of US$2m in August 2008 was all of a piece with the process of Somali hijacking. Fortunately the process of negotiating such a demand and making an agreed payment had invariably led to the release of all vessels involved. Against that background, I did not understand it to be controversial that the actual prospects of recovery of the cargo as at 18 September 2008 were good. Other relevant factors on the issue of reasonableness are that the range of potential values as assessed at the time was between US$5m and US$7m (with US$5.4m being later established as the correct figure). A demand of US$6m self evidently exhausted or very nearly exhausted all interests involved. Further, any indication of agreement to pay anything like the initial demand would almost inevitably have fed a suspicion on the pirates part that they had demanded far too little, and would have complicated matters then and for the future. In contrast, and in the light of the past experience of other shipowners whose vessels had been seized by Somalian pirates, there was on the face of it every reason to give effect to what was evidently the present owners immediate reaction, that is to hire experienced negotiators and engage on a time consuming and painstaking process of negotiation. In reaching a conclusion that it would have been reasonable for the owners to capitulate in response to the very first demand, the courts below were making an evaluative judgment on the basis of documentary evidence and material. This is not a situation in which their evaluation commands a large inherent advantage, compared with that which the Supreme Court is in a position to make, although of course it merits weight and it is for the cargo interests to show that it was wrong. In the light of all the circumstances, the cargo interests have satisfied me that it was wrong. I am unable to accept the evaluative judgment reached by both courts below to the effect that it would have been reasonable for the owners to pay the initial ransom, and that, had they done so, they could have required the full US$6m to be treated as general average. The reasoning of the courts below appears to me contrary to all the relevant indications as to how the owners actually acted and would have been expected to act. It is clear that the owners never contemplated the sort of remarkable capitulation that payment of the initial ransom would have involved, and that it would have taken them and other shipowners into uncharted territory, as opposed to a relatively familiar negotiation process, had they ever done so. They would in my opinion clearly have been acting unreasonably in the circumstances had they done so. The case has been fought and decided on the basis that this is the critical issue. No alternative case has been advanced to the effect that negotiations would or might have led to a settlement at some lesser figure which might have covered some, no doubt lesser figure of negotiation period expenses. Lord Neuberger notes (para 20 above) that the actual negotiation period expenses claimed of US$160,000 would have been covered (together with the negotiators expenses) by a ransom payment of around US$2.4m. That is mathematically correct. But it does not reflect the reality which has to be addressed. It postulates immediate agreement on or about 30 January 2009 on a ransom of US$2.4m. Yet, even in early March 2009 the pirates were still looking for a ransom of US$3m, reduced on 2 March 2009 to US$2m. Depending on where one dates and places a reasonable settlement at a reasonable settlement figure, it is clear that, on this basis, any recoverable negotiation period expenses would be considerably reduced below the US$160,000 odd claimed. The case has not been put on a basis which required or allows now for any such hypothetical exercise (of assessing when and at what figure below US$6m a reasonable settlement could have been achieved) to be undertaken. The owners have established that Rule F is in principle capable of applying to negotiation period expenses, which may well be the principle which this litigation is about. But I do not think that they have established on the facts that they have any claim on the only factual basis on which the case has been put. I would therefore dismiss this appeal, albeit for reasons different from those given by the Court of Appeal. |
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. The appellant, Mr Anson was at all material times resident but non-domiciled in the UK for UK tax purposes. He was liable to UK income tax on his UK sourced income and on foreign income remitted to the UK. He was non-resident in the US for US tax purposes, but was liable to US federal and state taxes on his US sourced income. Mr Anson was at all material times a member of a Delaware limited liability company, which was classified as a partnership for US tax purposes. As a member of an entity classified as a partnership, Mr Anson was liable to US federal and state taxes on his share of the profits. Mr Anson remitted the balance to the UK, and was therefore liable to UK income tax on the amounts remitted, subject to any double taxation relief which might be available. The respondent Commissioners decided that Mr Anson was not entitled to any double taxation relief, on the basis, put shortly, that the income which had been taxed in the US was not his income but that of the limited liability company. The question is whether they were correct to do so. The facts The relevant period comprises the seven UK tax years running from 6 April 1997 to 5 April 2004. Throughout that period, Mr Anson was a member of HarbourVest Partners LLC (the LLC), a limited liability company formed under the law of Delaware and carrying on business in Boston, Massachusetts. The LLC was originally formed in 1996, when its founder members, including Mr Anson, provided the necessary capital. The amount paid was returned to the members in 1999 by way of distribution. The business of the LLC consisted of the management of a number of venture capital funds. It had no economic interest in the funds, or in the gains or losses from fund investments, but earned fees from its investment management activities. Its accounts were made up in respect of calendar years, which were also US tax years. The LLC was established under the Delaware LLC Act (the LLC Act), and under the terms of a limited liability company agreement (the LLC agreement) governed by Delaware law. The most significant provisions of the LLC Act will be mentioned shortly. The LLC agreement was an agreement between the members: the LLC itself was not party to it. Article IV dealt with members capital accounts. In particular, section 4.1 provided for the crediting to each members capital account of his capital contributions, and for the debiting to his account of all distributions made to him. Section 4.2 required the members capital accounts to be adjusted, at least annually, in specified respects. In particular, it provided (read short) that all gross income and gains realized during the period in question shall be credited, and all losses, deductions and expenses during the period in question shall be debited, to the respective capital accounts of the members pro rata, in accordance with ratios prescribed in the agreement, and subject to specified adjustments. Mr Ansons profit share was 11.5%, which was similar to his ownership interest. Article V set out the provisions relating to distributions. Section 5.1 provided: Subject to the provisions of this article V, to the extent cash is available, distributions of all of the excess of income and gains over losses, deductions and expenses allocated in accordance with section 4.2 with respect to any calendar year will be made by the company at such time within seventy-five (75) days following the end of such calendar year and in such amounts as the managing members may determine in their sole discretion. The managing members may from time to time in their discretion make additional distributions in accordance with the provisions of this article V. Mr Anson was not a managing member during the relevant period. Among the other provisions of the LLC agreement, it is necessary to note article XI, which dealt with dissolution, and made provision in that eventuality for the sale of the assets, the allocation of losses or gains to members in accordance with section 4.2, and distributions to the members. Under article 12.2, members were entitled on request to access to the books and records and to information about the business. During each calendar year, all the LLCs income and gains were credited, and all losses, deductions and expenses were debited, to its members capital accounts on a quarterly basis, in accordance with section 4.2. The excesses of the income and gains over the losses, deductions and expenses that is to say, the profits - were distributed to the members on a quarterly basis in arrears, in accordance with section 5.1, on the basis of the ratios set out in the LLC agreement. The following matters of Delaware law were agreed by the expert witnesses who gave evidence before the First-tier Tribunal (Judges John F Avery-Jones CBE and Ian Menzies-Conacher FCA) (the FTT) and were found as facts: i) The LLC was a legal entity which was brought into existence by executing a certificate of formation, filing of that certificate with the Delaware Secretary of State, and entering into an LLC agreement. ii) The business of the LLC was carried on by the LLC itself, rather than by its members, in the sense that the LLC as an entity with separate legal existence was engaged in business. The members were however active in the business, each member being required by the LLC agreement to devote at least 90% of his full business time to the advancement of the LLCs business and interests. iii) The assets used for carrying on the business of the LLC belonged beneficially to the LLC and not to the members. iv) The LLC was liable for the debts incurred as a result of carrying on its business. The members had no liability for the liabilities of the LLC. The FTT made the following additional findings in relation to the nature of a members interest in a Delaware LLC, and in the LLC in particular: i) A Delaware limited liability company interest is defined by section 18-101(8) of the LLC Act as a member's share of the profits and losses of a limited liability company and a member's right to receive distributions of the limited liability company's assets. ii) That interest is in principle assignable, except as provided in the LLC agreement. The assignee has no right to participate in the management of the business except as provided in the agreement and with the approval of all the other members. An assignee does not become a member but becomes entitled to the same economic interest as the assignor. iii) In the present case, the LLC agreement provided that a member's interest could not be transferred except for sales by a former member (a) under provisions giving the LLC a right of first refusal before any such sale, (b) to a person engaged in the full time business of the LLC, with the written consent of the managing members and two-thirds of the other original members, or (c) on death. iv) Section 18-503 of the LLC Act provides that the profits and losses of a limited liability company shall be allocated among the members, and among classes or groups of members, in the manner provided in a limited liability company agreement. v) A limited liability company interest is personal property. A member has no interest in specific limited liability company property (section 18- 701 of the LLC Act). vi) Subject to the LLC agreement, the members manage the LLC and vote in proportion to their interest in profits. vii) The LLC agreement provided that the operation and policy of the LLC was vested in the managing members, who had power to contract on its behalf, but certain matters, such as mergers and incurring liabilities of more than $500,000 in a year, required the consent of the members. viii) The interest of a member in the LLC was not similar to share capital, but was more similar to partnership capital in an English partnership. The parties expert witnesses were asked to address a number of questions which had been listed in an Inland Revenue tax bulletin 39 issued in February 1999 (and subsequently repeated in later bulletins), following the decision of the Court of Appeal in Memec plc v Inland Revenue Comrs [1998] STC 754, as factors which would be considered for the purpose of deciding whether a UK resident with an interest in a foreign entity should be taxed on his share of the profits of the foreign entity as they arose or only when he received a distribution of profits from the entity. One of those questions was the following: Are the persons who have an interest in the entity entitled to share in its profits as they arise; or does the amount of profits to which they are entitled depend on a decision of the entity or its members, after the period in which the profits have arisen, to make a distribution of its profits? Mr Ansons expert, Mr Abrams, treated the question as asking whether there was an automatic entitlement to share in profits, or whether any such entitlement depended, as in the case of a dividend, upon a decision taken after the end of the relevant period. He focused particularly upon section 4.2 of the LLC agreement, since it addressed how profits were allocated among members, and upon section 5.1, since it governed distributions. Applying the approach to contractual interpretation which, according to his evidence, applied under Delaware law, he concluded that section 5.1 created a mandatory requirement (subject to the other provisions of article V, and to cash being available) to distribute the excess of income and gains over losses, deductions and expenses allocated in accordance with section 4.2, in respect of each calendar year, ie the profit. That was consistent with the earlier crediting of the income and gains to the members capital accounts, and the debiting of losses, deductions and expenses, under section 4.2. The members were therefore entitled to participate in a share of the LLCs annual profits as they arose. The witness was clearly not referring to a proprietary entitlement. The Commissioners expert, Mr Talley, treated the question as asking whether the members had a proprietary interest in the profits as they arose. He noted that, in terms of section 18-701 of the LLC Act, the members had no interest in specific property of the LLC. It followed that they had no beneficial interest in the LLCs assets. In that proprietary sense, they were therefore not entitled to a share in the profits prior to a distribution. In a joint statement to the tribunal, each expert responded to the view expressed by the other in relation to this question. Mr Abrams pointed out that assets and profits were distinct concepts in general and under the LLC Act. Section 18- 101(8) defined a members interest in an LLC as including a members share of the profits and losses. The members entitlement to share in the profits was not affected by section 18-701, which concerned a different issue, namely the ownership of specific property of the LLC. Mr Talley, on the other hand, disagreed with Mr Abramss construction of section 5.1 of the LLC agreement: in his opinion, distributions were made at the discretion of the managing members. In his oral evidence, Mr Abrams said that the law of Delaware drew the same distinctions between a loss and a liability, and between a profit and an asset, as had been explained in Reed v Young [1986] 1 WLR 649, 654; [1986] STC 285, 289. In cross-examination, he observed that the questions put to him, which linked entitlement to profits to ownership of the LLCs income receipts as they were received, commingled two different concepts. When the LLC earned fees, the dollars went into the companys bank account. Those assets were the property of the company, just as the companys debts were the liability of the company. Whether the dollars translated into profits was a different issue. Profits and losses were an accounting concept. The LLC Act recognised the distinction between profits and assets in section 18-101. The LLC agreement imposed an obligation to distribute the profits at the end of each year. Mr Talley, in his oral evidence, accepted that profits and assets were distinct concepts in the law of Delaware, and that profits were an accounting measure. He maintained that profits nevertheless had to be reflected in the assets on the balance sheet, and in that sense formed part of the assets. He stated, however, that his primary reason for considering that the members had no entitlement to share in profits prior to a decision to make a distribution was his interpretation of section 5.1 of the LLC agreement as rendering distributions discretionary. In its discussion of this issue, the FTT stated that it accepted the contention, advanced on behalf of Mr Anson and supported by Mr Abrams, that in summary article IV allocated the profit to the members as it arose and article V required payment to be made. It referred first to sections 18-101(8) and 18-503 of the LLC Act. As explained earlier, section 18-101(8) defines limited liability company interest as a members share of the profits and losses of a limited liability company and a members right to receive distributions of the limited liability companys assets, while section 18-503 provides that the profits and losses of a limited liability company shall be allocated among the members, and among classes or groups of members, in the manner provided in a limited liability company agreement. The FTT also noted that the whole of the profits were allocated to the members capital accounts. It continued: This means that the profits do not belong to the LLC in the first instance and then become the property of the members because there is no mechanism for any such change of ownership, analogous to the declaration of a dividend. It is true, as Mr Talley has said, that the assets representing those profits do belong to the LLC until the distribution is actually made but we do not consider that this means that the profits do not belong to the members; presumably the same is true for a Scots partnership. Conceptually, profits and assets are different, as is demonstrated by the reference to both in the definition of limited liability company interest [in section 18-101(8) of the LLC Act]. There is a corresponding liability to the members evidenced by the allocation to their capital accounts. Accordingly, our finding of fact in the light of the terms of the LLC operating agreement and the views of the experts is that the members of [the LLC] have an interest in the profits of [the LLC] as they arise. (para 10) Having reached its conclusion on the basis of the legislation and article IV of the LLC agreement, the FTT did not regard the dispute as to whether distributions under section 5.1 were mandatory or discretionary as relevant. It nevertheless considered the matter, and concluded that distributions were mandatory. In relation to US tax treatment, as the profits generated by the LLC were connected with the conduct of a US trade or business, they were subject to US federal and Massachusetts state taxes, under the US Internal Revenue Code (the Code) and the General Laws of Massachusetts respectively, regardless of the residence or tax domicile of the recipient of the profits. Under the US entity classification rules set out in the US Treasury Regulations, the LLC was classified as a partnership for US tax purposes (it might have elected to be classified as a corporation, but made no such election). The Code states that in such circumstances the partners are liable to tax, rather than the partnership: in other words, the LLCs members, rather than the LLC itself. As a result, each member, including Mr Anson, was personally liable for US federal and Massachusetts state tax on his share of the profits, as his income, whether or not that sum was actually distributed to him. As required by the Code, the LLC filed an annual federal partnership income tax return, reporting the profits of the partnership. Mr Anson was also required to file an annual federal income tax return, in which his share of the LLCs profits was reported as his income. The federal income tax due by Mr Anson in respect of his share of the profits was withheld by the LLC at the rate of 39.6% applicable to withholding tax on foreign partners share of effectively connected income. That withholding tax was remitted to the federal tax authorities, as required by the Code and authorised by the LLC agreement. The LLC was required to file an annual return for partnership withholding tax for each member, and also to complete the foreign partners information statement of withholding tax, which foreign partners needed to furnish with their US federal income tax return in order to claim a withholding tax credit for the tax paid. The distributions made to Mr Anson were accordingly reduced by the amount of the tax withheld and remitted on his behalf. Mr Anson was then credited with the amount of tax withheld, when the amount of federal tax due by him on his share of income was assessed. In relation to state taxes, the LLC was required to submit an annual state income tax return recording the profits of the partnership, using the Massachusetts partnership return of income, together with a partners Massachusetts information schedule for each partner, setting out each partners share of the profits. Mr Anson was also required to file annual state income tax returns, in which he reported his share of the profits. He paid the state income tax directly to the state tax authorities. Double taxation relief Mr Anson was at all relevant times UK resident and ordinarily resident but non-domiciled. He was consequently liable to UK income tax under the Income and Corporation Taxes Act 1988 (the 1988 Act), section 18, Schedule D Case V, on income arising from possessions out of the United Kingdom which he remitted to the UK. He paid taxes in the US on his share of the profits at the rate of 45%, and remitted the balance to the UK. The question is whether he is liable to pay UK income tax on that balance at the rate of 40%, producing what he would say is an effective rate of taxation of 67% (ie 45 in US taxes for every 100 of income, plus 22 in UK tax, calculated as 40% of the 55 remitted after payment of US taxes), or is entitled to double taxation relief. Mr Anson claims double taxation relief in respect of US federal income tax under article 23(2)(a) of the UK/US Double Taxation Convention of 31 December 1975 (the 1975 Convention), for all of the relevant UK tax years up to the year ended 5 April 2003. For the year ended 5 April 2004, he claims double taxation relief under article 24(4)(a) of the UK/US Double Taxation Convention of 24 July 2001 (the 2001 Convention). Both Conventions are given effect in UK law, in the context of this appeal, by Orders in Council made under section 788 of the 1988 Act or the predecessor provision (SI 1980/568 and SI 2002/2848 respectively). Mr Anson also claims unilateral relief in respect of both US federal income tax and Massachusetts state income tax under section 790(4) of the 1988 Act for all of the relevant UK tax years. Article 24(4)(a) of the 2001 Convention is in terms which are not materially different from those of article 23(2)(a) of the 1975 Convention. It is common ground that the relevant provisions of the two Conventions have the same effect, and that the same arguments apply to both, mutatis mutandis. It is also common ground that there is no material difference, so far as the present case is concerned, between the tests imposed by article 23(2)(a) of the 1975 Convention and section 790(4) of the 1988 Act. In those circumstances, the present discussion, like the parties submissions, will focus only on the 1975 Convention. Article 23(2)(a) of the 1975 Convention provides: United States tax payable under the laws of the United States and in accordance with the present Convention, whether directly or by deduction, on profits or income from sources within the United States (excluding in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same profits or income by reference to which the United States tax is computed. The dispute between the parties concerns, in particular, the question whether the UK tax to which Mr Anson is liable is computed by reference to the same profits or income by reference to which the US federal tax was computed, within the meaning of article 23(2)(a), and the analogous question, under section 790(4) of the 1988 Act, whether the UK tax is computed by reference to the same income as the Massachusetts state tax. The proceedings before the FTT There were three issues before the FTT. The first was whether Mr Anson was entitled to relief under the double taxation agreements and section 790(4) of the 1988 Act. The second was whether, if he failed in respect of that claim, he was nevertheless entitled to rely on section 739 of the 1988 Act. The third was whether discovery assessments raised by the Commissioners were valid. In relation to the first issue, counsel for the Commissioners invited the FTT to find that the LLC was opaque rather than transparent, applying the terminology and the approach adopted by the Court of Appeal in the case of Memec, to which it will be necessary to return. Counsel argued that the LLC was opaque, since it, and not its members, carried on its business, was liable for the debts and obligations incurred, owned the business, and had a beneficial interest in the profits of the business. Although the US tax had been charged in respect of the profits of the LLC, UK tax was charged in respect of income derived by Mr Anson from his rights as a member of the LLC. It followed, counsel argued, that the UK tax was not computed by reference to the same profits or income as the US tax, within the meaning of the Conventions and section 790(4). The FTT said that it would address the issue applying the Memec approach, although it preferred to concentrate on the words of the treaty rather than ask whether the LLC was transparent or opaque. It had found as a fact that the LLC carried on business as a principal; that it, and not its members, was liable for its debts and obligations; and that it, and not its members, owned the business. But it had also found that the LLC had nothing equivalent to share capital, and that the members were entitled to the profits as they arose. There was, it said, a spectrum running from an English partnership, where the partnership had no separate personality and the partners owned the assets jointly and carried on the business, and were entitled to the profits, through the Scottish partnership, where the partnership was a legal person which owned the assets, but the partners were entitled to the profits, to the UK company, where the company was a legal person which owned the assets, and the members were normally entitled to profits only after a dividend had been declared. The LLC stood somewhere between a Scottish partnership and a UK company, having the partnership characteristic of the members being entitled to profits as they arise and owning an interest comparable to that of a partnership interest, but also some of the characteristics of a company. It was in their view on the partnership side of the dividing line, particularly in relation to its income. The factor which, the FTT said, it was mainly concerned with in relation to the Conventions was whether the profits belonged to the members as they arose. It had concluded that that was the effect of the LLC agreement and the LLC Act. Accordingly, it said, the appellant is taxed on the same income in both countries. He was therefore entitled to double taxation relief under the Conventions in respect of the federal income tax, and to unilateral relief under section 790(4) in respect of the state taxes. Mr Anson therefore succeeded on the first issue. The FTT went on to hold that, if it had been necessary to decide the other issues, it would have decided them against Mr Anson: [2010] UKFTT 88 (TC). The Upper Tribunal The Commissioners appealed to the Upper Tribunal, and Mr Anson cross- appealed in respect of the section 739 issue. The Upper Tribunal (Mann J) allowed the Commissioners appeal and reversed the decision of the FTT: [2011] UKUT 318 (TCC); [2011] STC 2126. Mann J construed the FTTs finding that the profits belonged to the members as they arose as meaning that the profits vested in the members as their property, rather than as meaning that the members had an entitlement to the profits under the LLC Act and the LLC agreement. In doing so, he laid stress on the FTTs comparison of the LLC with English and Scottish partnerships: a comparison which, he said, would not be nearly as relevant as the FTT plainly thought it to be if it were concerned with a contractual rather than a proprietary entitlement. It appears to be implicit in that comment that Mann J understood the partners in a Scottish partnership to have a proprietary interest in the assets of the partnership, and assumed that the FTT had shared that understanding. Having construed the FTTs finding in that sense, Mann J noted that there was nothing in the evidence to support such a finding. More fundamentally, as Mann J pointed out under reference to Reed v Young, profits are an accounting measure rather than specific assets. If the assets were owned by the LLC, as the FTT found, there could be no distinct entity, profits, owned by the members. Having construed the FTTs decision as being based to a material extent upon a finding of fact which was unsupported by any evidence and was in any event illogical, Mann J concluded that the matter had to be re-considered. This reasoning respectfully appears to me to be open to criticism. First, given a finding by an expert tribunal which was ambiguously expressed, I would hesitate to attribute to the tribunal a conclusion which involved an elementary error on a matter falling squarely within its expertise and which, furthermore, had no basis in the evidence. It is clear from the FTTs decision that it understood that, as it said, conceptually, profits and assets are different. It also understood that the assets of the business were the property of the LLC. It based its conclusion that the profits belong as they arise to the members not upon a confusion between profits and assets, but upon the expert evidence as to the combined effect under Delaware law of sections 18-101(8) and 18-503 of the LLC Act, which respectively defined a members interest in an LLC as his share of profits and losses, and required the profits and losses to be allocated among the members in the manner provided in the LLC agreement, and article IV of the LLC agreement itself, which required all income and expenditure to be respectively credited and debited to the members capital accounts in accordance with their profit shares. The natural reading of the FTTs decision, in those circumstances, is that when it described the profits as belonging to the members it was referring to a right in personam rather than a right in rem. That would be consistent with the evidence of Mr Abrams. It would also be consistent with the comparison which the FTT made between the LLC and a Scottish partnership. Although taxed in the same way as an English partnership (Commissioners for General Purposes of Income Tax for City of London v Gibbs [1942] AC 402), and having many points of similarity to an English partnership, a Scottish partnership differs in possessing separate legal personality. The partners do not, therefore, have any direct proprietary interest in any of the partnership assets (unless they happen to hold assets as trustees for the partnership). They have no title to sue for damage to partnership property, and they have no insurable interest in partnership property: see MacLennan v Scottish Gas Board, First Division, 16 December 1983 (unreported on this point); Arif v Excess Insurance Group Ltd 1987 SLT 473; Mitchell v Scottish Eagle Insurance Ltd 1997 SLT 793. What the partners do own is a share of the partnership. That share is an incorporeal moveable right or ius crediti (Clark, A Treatise of the Law of Partnership and Joint Stock Companies According to the Law of Scotland (1866), I 178; Bell, Commentaries on the Law of Scotland, 7th ed (1870), II 536): the right is a debt or demand against the partnership, as Bell described it. As long as the partnership continues, a partner is entitled under statute to require that the partnership's assets be applied for partnership purposes (Partnership Act 1890, section 20(1)), and to his share of the profits of the partnership business (section 24(1)). On a winding up, a partner is entitled to claim his portion of the net proceeds of sale of partnership assets. Those rights are broadly analogous to those of a member of the LLC under the LLC Act, as found by the FTT: an interest, which is personal property, entitling the member to share in the profits of the LLC in accordance with the LLC agreement, and to share in the net proceeds of sale of the LLCs assets in the event of a dissolution of the LLC. There are, of course, also some differences: in particular, the partners in a Scottish partnership, other than a limited partnership, have an unlimited liability for its debts, whereas the members of the LLC had no liability for its debts beyond their initial capital contributions, prior to their repayment. Nevertheless, given the points of similarity, the comparison made by the FTT between the LLC and a Scottish partnership was understandable, and did not carry the implication which Mann J supposed. On the basis, however, that the FTT had erred in law in this respect, and that it was therefore open to the Upper Tribunal to consider the matter afresh, Mann J accepted that, on the FTTs findings, there was no intermediate step in the form of a third party act, analogous to the declaration of a dividend, which stood between Mr Anson and whatever he was entitled to. The more difficult question was whether the income on which the US tax was paid was the same income, for the purposes of the double taxation treaty, as that which the Commissioners sought to tax. Mann J considered that it was not. The fact that the members of the LLC did not have a proprietary right in the underlying assets seemed to him to be crucial. In the absence of such a right, the profits were owned by the LLC, and a contractual obligation to credit them to the members accounts and to distribute them did not make them the property of the members, at least for English tax purposes. The US taxes and UK income tax were therefore not computed by reference to the same profits. In a separate judgment, Mann J upheld the decision of the FTT on the section 739 issue: [2012] UKUT 59 (TCC); [2012] STC 1014. The Court of Appeal Mr Anson then appealed to the Court of Appeal in respect of the issues concerning relief from double taxation. The court refused the appeal for reasons given by Arden LJ, with which Laws and Lloyd LJJ agreed: [2013] EWCA Civ 63; [2013] STC 557. The Court of Appeal stated that the relevant test for determining whether a person is taxed on the same profits or income in both jurisdictions is whether the source of the profits or income in each jurisdiction is the same (para 30), the source being the source for the purposes of UK tax law (para 37). It derived that test from the case of Memec, which was described as the leading authority on this point (para 30). As I shall explain, that case was concerned with the equivalent of article 23(2)(b) of the 1975 Convention, rather than article 23(2)(a). The issue was whether a dividend had been paid to a UK company by an overseas company in which it held a qualifying interest. It was in that context that, in Memec, the court laid emphasis upon identifying the source of the UK companys income, and on the question whether its partnership (governed by foreign law) with a foreign subsidiary, which received the dividends in question and then made payments to the UK company in accordance with the partnership agreement, was transparent, in the sense that the payment of the dividends to the foreign subsidiary, and its payment to the UK company of the sums due under the partnership agreement, were equivalent to the payment of the dividends directly to the UK company itself. On the basis that the case of Memec had established the approach to be adopted, the court derived from that case the following proposition: Where the taxpayer became entitled to the profit of an entity because of some contractual arrangement to which he is a party, he must show that the contract is actually the source of the profit, rather than a mechanism to secure a right to a profit derived from another source. This will in general mean that, as the judge held, he has to show a proprietary right to the profits. (para 38) This is not easy to follow. At first sight, the first sentence appears to be suggesting the opposite of what was decided in Memec, namely that the taxpayer did not qualify for relief because the source of its income was the contract constituting the partnership, rather than the contract being a mere mechanism for the payment of income derived from the overseas company: see, in particular, the dictum of Lord Asquith in Stainers Executors v Purchase [1952] AC 280, 291, cited by Robert Walker J at first instance in Memec [1996] STC 1336, 1350. The second sentence might also be contrasted with the approach of the Court of Appeal in Memec. As will be explained, the court adopted in that case an approach to transparency which involved analysing the characteristics of the partnership agreement under the governing foreign law, comparing those characteristics with the characteristics of paradigm examples of arrangements which were transparent (such as English and Scottish partnerships) or opaque (such as UK companies), and determining whether in the light of that comparison, having regard to all relevant factors, the foreign partnership was relevantly similar to the transparent or opaque UK entities. That was the approach followed by the FTT in the present case. The Court of Appeal, on the other hand, treated the ownership of business assets as decisive, Arden LJ stating: in order for a member of an entity to show that he was entitled to profits from the moment that the profit arose he will have to show that he has an interest in the assets to the value of the profit. This will necessarily be a proprietary interest. (para 59) The court accepted (at para 70) the Commissioners submission that the FTTs finding, that the effect of the LLC agreement and the LLC Act was that profits of the LLC belonged to the members as they arose, was a holding on UK domestic law, with which the Upper Tribunal was entitled to interfere, rather than a finding of fact as to the position under Delaware law. Arden LJ explained: Delaware law governs the rights of the members of [the LLC] as the law of the place of its incorporation, and the LLC agreement is expressly made subject to that law. However, the question whether those rights mean that the income of [the LLC] is the income of the members is a question of domestic law which falls to be determined for the purposes of domestic tax law applying the requirements of domestic tax law . (para 71) Applying this approach, Arden LJ considered that the Upper Tribunal had been correct to conclude that the profits of the LLC did not belong to the members. The source of the LLCs profits was its trading. Mr Anson was merely entitled to a distribution out of those profits. He had no proprietary interest in the assets of the LLC, and was therefore said to be in a different position from the partners in an English or Scottish partnership. Mr Anson was refused permission to advance a potentially material argument, not raised below, relating to an exchange of notes between the UK and the US dated 24 July 2001, concerned with the application of article 24 of the 2001 Convention in situations where a person was taxed as a resident of one contracting state on income derived through an entity which was fiscally transparent under the laws of either contracting state. A number of criticisms might be made of the Court of Appeals reasoning. First and foremost, the court did not directly address the only relevant question, namely whether the UK tax was computed by reference to the same profits or income by reference to which the US tax was computed. It began by identifying that question, but then appears to have been diverted by a consideration of the issue which it understood to have been decided in Memec, and the approach adopted in that case. As a consequence, the remainder of its judgment focused on the question whether Mr Anson had a proprietary right to the profits of the LLC as they arose. That question not only appears to demonstrate the persistence of the conceptual confusion between profits and assets, but does not address the critical point, namely whether the income taxed in one country is the same as the income taxed in another. The reasoning summarised in para 47 also appears to elide two distinct issues. First, the questions whether the members had a right to the profits, and as to the nature of that right, were questions of non-tax law, governed by the law of Delaware. The FTTs conclusion, whether correctly construed as a finding that Delaware law had the effect of conferring on the members of the LLC an automatic statutory (or contractual) entitlement to the profits of the LLC, or as a finding that Delaware law vested the members with a proprietary right to the profits as they arose, was on either view a finding of fact. Secondly, domestic tax law - in this case, the relevant double taxation agreements as given effect in UK law - then fell to be applied to the facts as so found. This approach was explained by Robert Walker J in Memec at [1996] STC 1336, 1348-1349. It is well illustrated by the contrasting decisions in Baker v Archer-Shee [1927] AC 844 and Archer-Shee v Garland [1931] AC 212, where the taxpayer lost in the House of Lords in the first case, and then succeeded in the House of Lords in the second case, because of the introduction in the second case of evidence establishing that the trust law of the state of New York differed from English trust law. The present appeal Mr Anson now appeals to this court. In the course of the initial hearing of the appeal, counsel were asked about the possible significance of the words in parentheses in article 23(2)(a) of the 1975 Convention (excluding, in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid), and of article 23(2)(b), which allows relief for tax on the profits out of which a dividend is paid in the case of a dividend paid by a US corporation to a UK company controlling at least 10% of voting power in the US corporation. Counsel were also asked whether the form of words employed in article 23(2)(a), in allowing relief in respect of tax computed by reference to the same profits or income, might permit a less technical approach than that ordinarily adopted in UK tax law. Equivalent provisions are contained in the 2001 Convention, and similar provision is also made, in relation to unilateral relief, by section 790(5) and (6) of the 1988 Act. Counsel were given the opportunity to make additional submissions in writing in relation to these points. As a result, substantial submissions were made in writing after the hearing of the appeal, following which a further hearing was held at the request of the Commissioners. Two distinct grounds of appeal are now advanced on behalf of Mr Anson. The first is that, even assuming that US tax was charged on the profits of the LLC, and that Mr Anson was liable to UK tax only on distributions made out of those profits, the US and UK tax were nevertheless charged on the same profits or income, within the meaning of the 1975 and 2001 Conventions. This ground was not advanced below. The second ground is that, as a matter of UK tax law, and on the findings which the FTT made and was entitled to make, Mr Anson was liable to tax in the UK on his share of the profits of the trade carried on by the LLC, which was the same income as had been taxed in the US. The Vienna Convention on the Law of Treaties It is a matter of agreement that, as international treaties, the 1975 and 2001 Conventions have to be interpreted in accordance with articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969; TS 58 (1980); Cmnd 7964). That is so notwithstanding that, although the US is a signatory of the Vienna Convention, the US Senate has not given its consent to it: the provisions of articles 31 and 32 can in any event be applied, since they have been accepted by the International Court of Justice (and also, in this country, by the House of Lords) as being an accurate statement of customary international law. Articles 31 and 32 of the Vienna Convention are in the following terms: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable. Put shortly, the aim of interpretation of a treaty is therefore to establish, by objective and rational means, the common intention which can be ascribed to the parties. That intention is ascertained by considering the ordinary meaning of the terms of the treaty in their context and in the light of the treatys object and purpose. Subsequent agreement as to the interpretation of the treaty, and subsequent practice which establishes agreement between the parties, are also to be taken into account, together with any relevant rules of international law which apply in the relations between the parties. Recourse may also be had to a broader range of references in order to confirm the meaning arrived at on that approach, or if that approach leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable. The object and purpose of the Convention The purposes of the 1975 Convention, as stated in its preamble, are the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains. The preamble does not indicate more precisely what is meant by double taxation: in particular, whether the Convention is restricted to juridical double taxation, or can also extend to economic double taxation. The former is usually considered to arise where two jurisdictions impose income taxes on the same person in respect of the same income. The latter is usually considered to arise where there is taxation of the same or derivative income in separate hands. Context The contemporary background of a treaty, including the legal position preceding its conclusion, can legitimately be taken into account as part of the context relevant to the interpretation of its terms: see, for example, Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd [1961] AC 807, 836; Effort Shipping Co Ltd v Linden Management SA [1998] AC 605, 624-625. The 1975 Convention replaced an earlier double taxation convention between the UK and the US, signed at Washington on 16 April 1945: TS 26 (1946); Cmnd 6902 (the 1945 Convention). The 1945 Convention, to which effect was given by the Double Taxation Relief (Taxes on Income) Order 1946, SR & O 1946/1327, had been amended by a number of protocols, including a Supplementary Protocol signed at Washington on 17 March 1966: TS 65 (1966); Cmnd 3128 (the 1966 Protocol). As I shall explain, article 23(2) of the 1975 Convention repeats almost verbatim a provision of the 1966 Protocol. In interpreting article 23(2), it is therefore necessary to understand the intended effect of the relevant provision of the 1966 Protocol. That in turn requires consideration of the provision of the 1945 Convention which the 1966 Protocol was designed to amend. The background to the 1945 Convention The logical starting point is the background to the 1945 Convention. The UKs income tax legislation taxed income arising from foreign possessions, as I have explained. Relief in respect of foreign taxes was only partial, and was in any event confined to income from the Dominions. Partners in the UK, whether Scottish or English, were assessed jointly, in the name of the partnership, on the total tax due by the individual partners on their shares of the profits of the firm: Commissioners for General Purposes of Income Tax for City of London v Gibbs [1942] AC 402; MacKinlay v Arthur Young McLelland Moores & Co [1990] 2 AC 239. A partners share of the profits of a foreign partnership, on the other hand, was treated as income from a foreign possession: Colquhoun v Brooks (1889) 14 App Cas 493. So far as companies were concerned, the income tax legislation applied an imputation system to ordinary dividends paid by UK companies to UK resident shareholders. In other words, dividend income from a UK company was treated as franked by the companys payment of income tax on its profits. The rationale was that since ordinary dividends were paid out of profits on which the company had paid income tax, it was unjust to subject them to income tax in the hands of the shareholders. As Lord Atkin explained in Cull v Commissioners of Inland Revenue [1940] AC 51, 56: My Lords, it is now clearly established that in the case of a limited company the company itself is chargeable to tax on its profits, and that it pays tax in discharge of its own liability and not as agent for its shareholders. The latter are not chargeable with income tax on dividends, and they are not assessed in respect of them. The reason presumably is that the amount which is available to be distributed as dividend has already been diminished by tax on the company, and that it is thought inequitable to charge it again. Lord Wright gave a similar explanation at p 75: ... the shareholder is not taxed under Schedule D in respect of that part of his income which consists of dividends. The profits have been charged to tax in the hands of the company and that fact is deemed to redound to his benefit. UK tax law did not, therefore, carry the principle of separate corporate personality to its logical conclusion. If it had done so, the profits of the companys trade would have been taxable in the hands of the company, and distributions of the net profits in the form of dividends would also have been chargeable under Schedule D in the hands of the shareholders. As Lord Phillimore noted, however, in Bradbury v English Sewing Cotton Co Ltd [1923] AC 744, 769: Their taxation would seem to be logical, but it would be destructive of joint stock company enterprise. ... The reason for their [scil, the shareholders] discharge may be the avoidance of double taxation, or to speak accurately, the avoidance of increased taxation. Dividends paid by overseas companies to UK resident shareholders did not benefit from similar treatment under the express terms of the legislation, but they were held nevertheless to do so, by virtue of an implied term, to the extent that the profits out of which the dividends were paid had already borne UK income tax: Gilbertson v Fergusson (1881) 7 QBD 562. Some limits to the scope of the decision in Gilbertson v Fergusson were set by the House of Lords in Barnes v Hely Hutchinson [1940] AC 81. The case differed in two respects from Gilbertson v Fergusson. First, UK taxes had not been paid by the overseas company paying the dividend, but by UK companies in which it held shares. Secondly, the dividends received by the taxpayer were preference dividends rather than ordinary dividends, and were therefore paid at a fixed rate, undiminished by the taxes paid by the UK companies. In these circumstances, the taxpayer was held to have been correctly assessed on the full amount of the dividend. It was also emphasised in Barnes that, notwithstanding the concept of franked dividend income, the income received by the shareholder was not the same income as that of the company. Lord Wright explained at pp 94-95: The English company is taxed on the balance of its profits or gains, that is on its income; the shareholder is taxed on his own income. The shareholder is never taxed on the companys fund of profits, but only on the dividend which comes to him in payment of the debt which is created when the company declares the dividend. The tax is in every case on the individuals income, not on a fund possessed by another person, the company, even though it is the fund of profits of that company, from which the individual's income or part of it will be paid. ... This principle must not be obscured by reason of the circumstance that in the way already noted, the dividend is treated as franked by the tax paid by the company. The fund which is taxed in the hands of the company and the dividend which is declared by the company in favour of the shareholder are separate items for taxation law. It is only the latter which is the shareholders income. The decision in Gilbertson v Fergusson was overruled in Canadian Eagle Oil Co Ltd v The King [1946] AC 119, decided a few months after the 1945 Convention had been signed. The facts of the case were similar to those in Barnes v Hely Hutchinson, except that the dividends in question were ordinary dividends. There was held to be no basis for implying into the statute the limitation which had been implied by the Court of Appeal in Gilbertson: there was no necessary implication that economic, as distinct from juridical, double taxation was not intended. No sooner had Gilbertson been overruled, however, than Parliament legislated to restore the relief, limited to ordinary dividends paid by an overseas company which had itself paid UK income tax on part of its profits (so preserving the limitations imposed by the decision in Barnes v Hely Hutchinson): Finance Act 1946, section 31. The relief survives, in an amended form, in current legislation. The 1945 Convention The 1945 Convention (Cmd 6902) was negotiated during 1944 and 1945. The background, and the travaux prparatoires, are discussed in Avery Jones, The History of the United Kingdoms First Comprehensive Double Taxation Agreement [2007] BTR 211. The Convention sought to address a number of issues, including double taxation relief. As I have explained, the UK allowed only partial relief, and confined its scope to the Dominions. The US also allowed partial relief, but on a worldwide basis. Apart from the general desire to extend the scope of the relief, there was a specific concern in relation to the taxation of dividend income, at a time of substantial UK investment in the US (and vice versa) and historically high rates of taxation in both countries. The two countries had fundamentally different systems of taxing dividends. The UK, as I have explained, had an imputation system, assessing UK companies to income tax (at a standard rate of 50%, plus 5% national defence contribution), and treating their dividends as income which had already been taxed. The US, on the other hand, had a classical corporation tax system: the corporation paid tax on its profits (at a rate of 40%), and dividends were paid to shareholders under the deduction of a withholding tax (at a rate of 30%). Given the prevailing rates, the taxation of dividends received by UK shareholders in US corporations, without relief in respect of US taxation of the profits out of which the dividends were paid (except to the limited extent permitted under the Gilbertson principle), presented a serious problem. There was a similar problem for US shareholders in UK companies: they had been held by the US Supreme Court in Biddle v Commissioner 302 US 573 (1938) not to qualify for foreign tax credit relief in respect of the income tax paid by the UK company, since they had not paid the tax (an exception being made for US corporations holding 50% of a UK company). The structure of the 1945 Convention, followed in the 1966 amendments and in the 1975 Convention, was to avoid double taxation primarily by means of distributive provisions allocating the right to tax specified categories of income to one or other of the contracting states. Provisions of that kind covered, in particular, the industrial and commercial profits of enterprises engaged in business in one of the contracting states (article 3), and dividends derived from US corporations and UK companies (article 6). Situations where income continued to be taxable in both countries were addressed by article 13. Article 6 of the 1945 Convention sought to achieve parity of tax treatment for UK shareholders in US corporations, and for US shareholders in UK companies, by reducing the withholding tax on dividends paid to the former to 15% (so that the effective tax charge imposed by the US was 40% on the profits of the corporation, plus 15% withholding tax on the remaining 60%, producing an effective rate of 49%), and by exempting the latter from UK surtax (so that the effective tax charge imposed by the UK was the standard 50% on company profits). As I have explained, article 13 of the 1945 Convention addressed double taxation relief in situations where income might be taxed in both contracting states. Article 13(1) addressed the position in the US: Subject to section 131 of the United States Internal Revenue Code as in effect on the first day of January, 1945, United Kingdom tax shall be allowed as a credit against United States tax. For this purpose, the recipient of a dividend paid by a corporation which is a resident of the United Kingdom shall be deemed to have paid the United Kingdom income tax appropriate to such dividend if such recipient elects to include in his gross income for the purposes of United States tax the amount of such United Kingdom income tax. The first sentence set out the general principle. Section 131 of the US Internal Revenue Code was the provision which had been in issue in the case of Biddle. It allowed foreign tax credit relief in respect of income taxes paid or accrued during the taxable year to [a] foreign country. The second sentence resolved the particular problem which had previously existed in relation to relief for US shareholders in UK companies, by deeming them to have paid the UK income tax paid by the company on its profits. This effectively reversed the decision in Biddle, and so enabled US shareholders to benefit from the general principle stated in the first sentence. Article 13(2) addressed the position in the UK: Subject to such provisions (which shall not affect the general principle hereof) as may be enacted in the United Kingdom, United States tax payable in respect of income from sources within the United States shall be allowed as a credit against any United Kingdom tax payable in respect of that income. Where such income is an ordinary dividend paid by a United States corporation, such credit shall take into account (in addition to any United States income tax deducted from or imposed on such dividend) the United States income tax imposed on such corporation in respect of its profits, and where it is a dividend paid on participating preference shares and representing both a dividend at the fixed rate to which the shares are entitled and an additional participation in profits, such tax on profits shall likewise be taken into account in so far as the dividend exceeds such fixed rate. The first sentence established a general principle that US tax on income from sources within the US was allowable as a credit against UK tax on that income, in other words the same income. The second sentence dealt with the particular case of dividend income, and required such credit the credit against UK tax on the same income - to take into account, in addition to any withholding tax deducted from the dividend, the US tax paid by the corporation on the profits out of which the dividends were paid. This approach, in deeming the tax on the profits of the corporation to have been charged on the shareholders income, followed the imputation approach adopted in the UK case law since Gilbertson v Fergusson. The remainder of the second sentence dealt specifically with preference shares, and limited the relief to any additional participation in profits above the fixed rate payable, in accordance with the decision in Barnes v Hely Hutchinson. Article 13(2) thus introduced a new general relief for US taxes paid on the same income, and applied it to dividend income in accordance with the approach then adopted in UK tax law to relief for UK taxes paid by overseas corporations. UK shareholders in US corporations thus benefited under article 13(2) from similar relief to that accorded to US shareholders in UK companies under article 13(1). Article 13(2) required income to have a source within the US in order to be eligible for relief. The 1945 Convention contained provisions deeming particular types of income to have their source within the UK or the US, in articles 3(3) and 13(3). The 1966 Protocol In 1965, the UK tax regime in relation to dividends changed fundamentally, with the introduction of corporation tax. Relief based upon an imputation system became inappropriate. The 1945 Convention was accordingly amended by the 1966 Protocol, to which effect was given by the Double Taxation Relief (Taxes on Income) (USA) Order 1966 (SI 1966/1188). The new article 6, as inserted by the 1966 Protocol, sought to achieve parity of tax treatment for UK shareholders in US corporations, and for US shareholders in UK companies, by subjecting the dividends in each case to a withholding tax of not more than 15%. position in the US, provided: In relation to double taxation relief, the new article 13(1), dealing with the ... Subject to the provisions of the law of the United States regarding the allowance as a credit against United States tax of tax payable in a territory outside the United States (which shall not affect the general principle hereof), the United States shall, however, allow to a citizen, resident or corporation, as a credit against its taxes, the appropriate amount of United Kingdom income tax paid and, in the case of a United States corporation owning at least 10% of the voting power of a corporation resident in the United Kingdom, shall allow credit for the appropriate amount of United Kingdom tax paid by the corporation paying such dividend with respect to the profits out of which such dividend is paid . The first part of that provision (down to paid, where it first appears) repeated the general principle established by the 1945 Convention. The withholding tax imposed by the UK on dividend income would fall within its scope. In the remainder of the provision, the general relief for dividends, in respect of UK tax on company profits, which had appeared in the 1945 Convention was not repeated. The rationale of that relief - the imputation system - no longer applied in a situation where UK tax was charged on the dividend itself. An exception was however made, in the concluding clause, for cases where the shareholder was a company with a substantial trade investment in the company paying the dividend. The new article 13(2), dealing with double taxation relief in the UK, provided: (2) Subject to the provisions of the law of the United Kingdom regarding the allowance as a credit against United Kingdom tax of tax payable in a territory outside the United Kingdom (which shall not affect the general principle hereof), (a) United States tax payable under the laws of the United States and in accordance with the present Convention, whether directly or by deduction, on profits, income or chargeable gains from sources within the United States (excluding, in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same profits, income or chargeable gains by reference to which the United States tax is computed; (b) In the case of a dividend paid by a company which is a resident of the United States to a company which is resident in the United Kingdom and controls directly or indirectly at least 10% of the voting power in the United States company, the credit shall take into account (in addition to any United States tax creditable under (a)) the United States tax payable by the company in respect of the profits out of which such dividend is paid. Comparing the 1966 version of article 13(2) with the 1945 version, there are a number of significant differences. First, the introduction of the words in parentheses in para (2)(a) made it clear that the only credit to be allowed in the case of US dividends was in respect of the withholding tax, which fell within the scope of the general principle (United States tax payable whether directly or by deduction), and that credit was no longer to be given in respect of the tax paid by the US corporation on its profits. That followed logically from the UKs abandonment of the imputation system. Secondly, para (2)(b) created an exception for cases where the shareholder was a company with a substantial trade investment in the company paying the dividend. Article 13(2) thus continued to provide similar relief, under UK law, to that provided under US law in terms of article 13(1). A third change was the use of the phrase computed by reference to, in article 13(2), in place of the words payable in respect of, which had been used in the 1945 version. The modified wording was introduced following the decision of the House of Lords in Duckering v Gollan [1965] 1 WLR 680. The case concerned a double taxation agreement between the UK and New Zealand, which contained a provision in similar terms to article 13(2) of the 1945 Convention, allowing a credit against UK tax payable in respect of that income. The taxpayer was liable to UK tax on his income, including income arising in New Zealand, for the year 1958- 1959. The tax was computed, on a preceding year basis, by reference to his income in 1957-1958. He had not paid tax in New Zealand which had been computed by reference to that income: as a result of a change in tax law there, his New Zealand tax for 1957-1958 had been computed on a preceding year basis, by reference to his income arising in 1956-1957, and his tax for 1958-1959 had been computed on a current year basis, by reference to his income arising in 1958-1959. He successfully sought a credit against his UK tax for 1958-1959 for the tax paid in New Zealand in 1958-1959, on the basis that he had paid tax in both countries in respect of the same income, despite the fact that the income by reference to which his tax liability was computed in the two jurisdictions was not the same. In the light of that decision, the 1966 Protocol used the phrase computed by reference to. The 1975 Convention The 1975 Convention was subsequently entered into in order to address matters unrelated to the issues which I have been discussing (including, in particular, the introduction in the UK of advance corporation tax in 1973). Article 1(3) introduced a new provision: Notwithstanding any provision of this Convention except paragraph 4 of this article, a contracting state may tax its residents ... and its nationals as if this Convention had not come into effect. Article 1(4) provides that nothing in article 1(3) affects the application of a number of specified provisions, including article 23. The net result is that income may be taxed on the basis of residence or nationality (except where otherwise specified in article 1(4)), as well as on the basis of one of the distributive articles, but double taxation is then to be avoided by applying article 23. The distributive articles include provisions covering business profits (article 7) and dividends (article 10). The latter provision retains the 15% ceiling on withholding tax. Article 23(1), dealing with double taxation relief in the US, provides: In accordance with the provisions and subject to the limitations of the law of the United States (as it may be amended from time to time without changing the general principle hereof), the United States shall allow to a resident or national of the United States as a credit against the United States tax the appropriate amount of tax paid to the United Kingdom; and, in the case of a United States corporation owning at least 10% of the voting stock of a corporation which is a resident of the United Kingdom from which it receives dividends in any taxable year, the United States shall allow credit for the appropriate amount of tax paid to the United Kingdom by that corporation with respect to the profits out of which such dividends are paid. With some minor differences of expression, this provision is in substance the same as article 13(1) of the 1945 Convention as amended by the 1966 Protocol. Article 23(2), dealing with double taxation relief in the UK, provides: (2) Subject to the provisions of the law of the United Kingdom regarding the allowance as a credit against United Kingdom tax of tax payable in a territory outside the United Kingdom (as it may be amended from time to time without changing the general principle hereof): (a) United States tax payable under the laws of the United States and in accordance with the present Convention, whether directly or by deduction, on profits or income from sources within the United States (excluding in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same profits or income by reference to which the United States tax is computed; (b) in the case of a dividend paid by a United States corporation to a corporation which is resident in the United Kingdom and which controls directly or indirectly at least 10% of the voting power in the United States corporation, the credit shall take into account (in addition to any United States tax creditable under (a)) the United States tax payable by the corporation in respect of the profits out of which such dividend is paid. These provisions repeat almost verbatim the terms of article 13(2) of the 1945 Convention, as revised by the 1966 Protocol. The only change is the deletion of the references to chargeable gains. It is also relevant to note article 23(3): For the purposes of the preceding paragraphs of this article, income or profits derived by a resident of a contracting state which may be taxed in the other contracting state in accordance with this Convention shall be deemed to arise from sources within that other contracting state, except that where the United States taxes on the basis of citizenship, the United Kingdom shall not be bound to give credit to a United States national who is resident in the United Kingdom on income from sources outside the United States as determined under the laws of the United Kingdom and the United States shall not be bound to give credit for United Kingdom tax on income received by such national from sources outside the United Kingdom, as determined under the laws of the United States. This provision is of wider scope than article 13(3) of the 1945 Convention, but has the same function of enabling it to be determined whether income has its source within the UK or the US for the purpose of applying article 23(1) and (2). The first ground of appeal In relation to the first ground of appeal, the argument advanced on behalf of Mr Anson focused on the provision made in article 23(2)(a) in respect of dividends. The argument runs as follows. When UK tax is payable on a dividend received from a US corporation, and US tax has been paid by the corporation on the profits out of which the dividend was paid, there can be no question of the UK tax being computed by reference to the same profits or income as the profits of the corporation, if the source of the income is identified on the basis of UK (or, indeed, US) tax law. A dividend is a paradigm case of income which does not have the same source, under UK or US tax law, as the profits out of which it is paid. If the question whether income is the same is to be determined by applying domestic law, there is therefore no need for article 23(2)(a) to contain a provision expressly excluding underlying tax that is to say, tax paid by a corporation on the profits out of which a dividend is paid - from the scope of the relief: it would in any event be excluded by the requirement that the UK and US taxes should be computed by reference to the same profits or income. There appear accordingly to be two possibilities. One is that the provision in relation to dividends adds nothing of substance. The second is that the existence of that provision implies that the underlying tax on dividends would otherwise be within the scope of the relief, and that the identity of income is not therefore determined according to domestic law. The first possibility is not initially attractive, since it is a general principle of treaty interpretation ut res magit valeat quam pereat. Following the jurisprudence of the International Court of Justice (eg United Kingdom v Albania (Corfu Channel) [1949] ICJ 1, 24), the court would be reluctant to conclude that a provision in an agreement made between two governments was otiose, if that conclusion could reasonably be avoided. The point is strengthened when regard is had to article 23(2)(b). Where a dividend is paid by a US corporation to a corporation resident in the UK which controls at least 10% of its voting power, article 23(2)(b) provides that the credit shall take into account, in addition to any US tax creditable under para (2)(a), the US tax payable by the corporation in respect of the profits out of which such dividend is paid. The words the credit refer back to the credit described in para (2)(a), which is a credit against any United Kingdom tax computed by reference to the same profits or income by reference to which the United States tax is computed. Since it is that credit which is to take into account the underlying tax, the apparent implication is that the UK tax paid by the shareholder on his dividend is computed by reference to the same profits or income, within the meaning of the Convention, as the US tax paid by the corporation on the profits or income out of which the dividend was paid. So runs the argument. If article 23(2) is considered in isolation from the remainder of the Convention, and without regard to the context, this is indeed a powerful argument. As I have explained, however, article 23(2) replicates article 13(2) of the 1945 Convention, as amended by the 1966 Protocol. The history of the provision makes it clear that the express treatment of underlying tax on dividends reflected the changes necessitated by the UKs adoption of corporation tax in place of the previous imputation system. Relief for underlying tax had previously been allowed, providing similar relief in the UK to that available in the US under article 13(1). Once the imputation system was abandoned, relief for underlying tax logically went with it. The words in parentheses in article 23(2)(a) of the 1975 Convention served to make clear the alteration in the relief available. There is nothing in the context to suggest that they were intended to have any wider implication. On the contrary, the context suggests that article 23(2) was intended to provide similar relief to that available in the US under article 23(1), as had been the case under the 1945 Convention; and it was always clear from the Biddle decision that the US did not afford relief for underlying tax unless the Convention provided otherwise (as article 13(2) of the 1945 Convention in its original form did, but the later provisions did not). The argument, and this ground of appeal, must therefore be rejected. The second ground of appeal: sources In relation to the second ground of appeal, an argument was advanced on behalf of the Commissioners concerning the meaning of the word sources, as used in article 23(2)(a). Given that the paragraph is concerned with relief against UK tax, they argued, the word sources must be intended to bear the same meaning as it bears in UK tax law. It was therefore necessary to determine the source of the income taxed in each jurisdiction in accordance with UK tax law. That was also consistent, they argued, with article 3(2) of the 1975 Convention, which provides: As regards the application of this Convention by a contracting state any term not otherwise defined shall, unless the context otherwise requires and subject to the provisions of article 25 (Mutual agreement procedure), have the meaning which it has under the laws of that contracting state relating to the taxes which are the subject of this Convention. Since the expressions sources was not defined by the Convention, it was submitted that it must be given the meaning which it had under UK tax law. This argument is inconsistent with the sense in which the word sources is used in article 23(3). That provision explains how the expression, profits or income from sources within the United States, in article 23(2), is to be applied. The general rule is that income or profits derived by a resident of a contracting state which may be taxed in the other contracting state in accordance with this Convention shall be deemed to arise from sources within that other contracting state. As I have explained, one has to look elsewhere in the Convention in order to discover whether particular profits or income may be taxed in the US in accordance with the Convention, and are therefore profits or income from sources within the United States for the purposes of article 23(1) and (2). Articles 6 to 22 of the Convention contain distributive provisions allocating taxing powers between the UK and the US in relation to a range of different types of profits and income, and different categories of taxpayer. This has nothing to do with the schedular source doctrine of UK tax law. It is only where the United States taxes on the basis of citizenship that article 23(3) refers, exceptionally, to sources ... as determined under the laws of the United Kingdom. As Arden LJ observed in Bayfine UK v Revenue and Customs Comrs [2011] EWCA Civ 304; [2012] 1 WLR 1630, para 23, article 23(3) contains its own rule as to how source [is] to be determined, save where tax has been imposed on the basis of citizenship. The case of Bayfine concerned the question whether a UK company was entitled under article 23(2)(a) to a credit, to set against UK tax on its profits, in respect of the US tax which had been paid by its US parent on the same profits. The Commissioners are recorded as having submitted in that case that domestic law did not apply to source for the purpose of article 23, because article 23 contained its own comprehensive clause for defining source: it was a free-standing treaty concept which applied for all the purposes of that article. That submission was accepted by the Court of Appeal, subject to the exception in respect of taxation on the basis of US citizenship. The same reasoning disposes of the Commissioners argument that article 3(2) of the 1975 Convention requires the term sources to be given the meaning which it bears under UK tax law. Article 3(2) directs that, unless the context otherwise requires, any term not otherwise defined is to be given by each contracting state the meaning which it has under the laws of that contracting state. As I have explained, however, article 23(3) explains how the source of profits or income is to be determined for the purposes of article 23, and that explanation is unrelated to the source doctrine of UK tax law. Memec Further arguments were advanced by both parties on the basis of the case of Memec. That case concerned a double taxation agreement between the UK and Germany, originally entered into in 1964 and amended by protocol in 1970, which contained a provision in almost identical terms, mutatis mutandis, to article 13(2) of the 1945 Convention between the UK and the US as amended by the 1966 Protocol. The only difference was that the voting control required to qualify for exceptional relief in respect of underlying tax on dividends, under the equivalent of article 23(2)(b) of the 1975 Convention, was 25% rather than 10%. The provision was therefore for all material purposes also similar to article 23(2) of the 1975 Convention. The taxpayer, Memec plc (Plc), was a partner in a German silent partnership (stille Gesellschaft). The partnership had no separate legal personality, but was a contractual arrangement under which Plc had the right to receive a share of the profits of the business carried on by the other partner, in return for a capital payment. The other partner, Memec GmbH (GmbH), was a German company, wholly owned by Plc. It alone carried on the business of the silent partnership. It alone owned the assets of the business, and the income from those assets as it accrued. It had wholly owned subsidiaries, which were also German companies. The subsidiaries paid dividends to GmbH, and that income formed the principal source of the profits of the partnership, which were shared between the partners in accordance with their agreement. The question was whether Plc could claim credit under the double taxation agreement for German taxes paid by the subsidiaries of GmbH on their trading profits. The first point on which issue was joined (and the only one relevant to the present case) was whether the dividends paid by the trading subsidiaries to GmbH should be treated as having been paid by them to Plc. It was conceded by the Commissioners that, if that premise were established, relief would then be due. The basis of the concession is not recorded in the judgments, but must have been the provision in the UK/German treaty corresponding to article 23(2)(b) of the 1975 Convention (as was submitted on behalf of Mr Anson, and not disputed, in the present appeal). What was being sought was relief in respect of underlying tax on the profits out of which dividends were paid. Such relief was only available under the equivalent of article 23(2)(b), and was only available under that provision in the case of a dividend paid by a company which is a resident of the Federal Republic to a company which is a resident of the United Kingdom. It could hardly have been argued that relief was available under the provision in the treaty corresponding to article 23(2)(a) of the 1975 Convention, since (apart from any other consideration) article 23(2)(a) does not provide relief in respect of the underlying tax on profits out of which dividends are paid. The question under the treaty, therefore, was the one arising under the provision corresponding to article 23(2)(b): were the dividends paid by GmbHs subsidiaries paid by a company which is a resident of the Federal Republic to a company which is a resident of the United Kingdom? The critical issue was whether the dividends were paid by the subsidiaries to Plc, for the purposes of the treaty, notwithstanding that the payments were made to GmbH. The arguments on that issue focused on the question whether the source of the relevant income of Plc was the dividends from the trading subsidiaries, or its contractual right under the agreement to payment of its share of the partnership profits. Another way the argument was expressed was in terms of whether the partnership was transparent, so that its existence could be disregarded in determining whether the dividends were paid by the subsidiaries to Plc. In deciding that relief was not available on this basis, Robert Walker J considered that the decisive point was the absence of any proprietary right enjoyed by Plc in the shares of the trading subsidiaries, or in the dividends accruing on those shares. The shares and the dividends belonged to GmbH. Plc did not therefore receive, or become entitled to, the dividends paid by the trading subsidiaries. Its contractual right to a share of the profits of the partnership must be regarded as a separate source of income. In the Court of Appeal, the approach adopted by Peter Gibson LJ was to consider the characteristics of an English or Scottish partnership which made it transparent, and then to see to what extent those characteristics were shared or not by the silent partnership, in order to determine whether it should be treated for corporation tax purposes in the same way. In that regard, it was observed that the absence of a proprietary right in the shares of the subsidiaries, or in the dividends accruing on those shares, was less obviously a point of distinction from a Scottish partnership than an English one. A clearer distinction was that, unlike an English or Scottish partnership, Plc and GmbH did not carry on business in common: the business was carried on solely by GmbH. Peter Gibson LJ acknowledged that the absence of what English or Scots law would regard as a partnership was not in itself determinative of transparency, but concluded that he saw insufficient justification present in the circumstances of the silent partnership for treating the share of the profits of the GmbH business received by Plc as the same as the profits of the subsidiaries or the dividends which were paid to GmbH alone as shareholder and not to Plc (p 766). Henry LJ agreed, and Sir Christopher Staughton gave a concurring judgment on this issue. The present case is not concerned with a claim to relief under article 23(2)(b). If it were - if, for example, the taxpayer were Anson plc, a UK resident company holding at least 10% of the voting power in the LLC, and the question was whether it was entitled to relief from corporation tax in respect of underlying tax paid in the US by subsidiaries of the LLC then it would be necessary, as in Memec, to consider whether Anson plc could be treated as having been paid the dividends received by the LLC from its subsidiaries. But that is not this case. The issue in this case is not whether the receipts of the LLC from third parties are to be regarded as having been paid to the members of the LLC, but whether the income on which Mr Anson paid tax in the US is the same as the income on which he is liable to tax in the UK. As I shall explain, answering that question involves considering whether income arises to Mr Anson, for the purposes of UK income tax, when his share of profits is allocated to his account, or when he receives distributions of profits. That issue is different from the issue considered in Memec. The answer to the question whether the receipts and expenditure of an entity are paid to and by its members does not necessarily determine whether, when a profit arises in a given accounting period, that profit constitutes the income of the members. The answer to the latter question depends on the respective rights of the entity and its members in relation to the profit, and therefore on the legal regime governing those rights. The correct approach to the present question Article 31(1) of the Vienna Convention requires a treaty to be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. It is accordingly the ordinary (contextual) meaning which is relevant. As Robert Walker J observed at first instance in Memec, [1996] STC 1336, 1349, a treaty should be construed in a manner which is international, not exclusively English. That approach reflects the fact that a treaty is a text agreed upon by negotiation between the contracting governments. The terms of the 1975 Convention reflect the intentions of the US as much as those of the UK. They are intended to impose reciprocal obligations, as the background to the UK/US agreements from 1945 onwards makes clear. The terms of article 23(2), in particular, broadly reciprocate those of article 23(1), and are important to businesses in the US as well as to the UK investors who may receive dividends or other income from them. In that context, one would be predisposed to favour an interpretation which reflected the ordinary meaning of the words used and the object of the Convention. This is indeed a point which has been repeatedly made, in other cases concerned with the construction of the UK/US double taxation conventions, in the face of narrow and technical constructions: see, for example, Strathalmond v Inland Revenue Comrs [1972] 1 WLR 1511, 1517-1518, and Inland Revenue Comrs v Commerzbank AG; Inland Revenue Comrs v Banco do Brasil SA [1990] STC 285, 303. In that connection, it is also relevant to note that, by virtue of section 788(3) of the 1988 Act, the arrangements made in a double taxation treaty given effect by an Order made under that section are, subject to the provisions of Part XVIII of the Act (the double taxation provisions), to have effect notwithstanding anything in any enactment. The provisions of the 1975 Convention therefore override inconsistent provisions in domestic UK tax legislation, other than those concerned with double taxation relief. It has not been suggested in this appeal that there is any conflict between the 1975 Convention (on any of the interpretations canvassed in argument) and the provisions of Part XVIII of the 1988 Act. Giving the words used in article 23(2)(a) their ordinary meaning, it is necessary to identify the profits or income by reference to which the taxpayers UK tax liability is computed. That is primarily a question of UK tax law (I say primarily, because the meaning of terms used in the Convention may not be a question of UK tax law: United Kingdom tax, for example, is a defined term). It is then necessary to identify the profits or income from sources within the US on which US tax was payable under the laws of the US and in accordance with the Convention. That is primarily a question of US tax law. It is then necessary to compare the profits or income in each case, and decide whether they are the same. The words the same are ordinary English words. It should however be borne in mind that a degree of pragmatism in their application may be necessary in some circumstances if the object of the Convention is to be achieved, for example where differences between UK and foreign accounting and tax rules prevent a precise matching of the income by reference to which tax is computed in the two jurisdictions. It appears that some potential difficulties of this kind are in practice avoided by the Commissioners accepting that the profits on which foreign tax is computed and in respect of which relief can be claimed are not confined to those arising under UK tax principles in individual UK chargeable periods: see Munro, UK Tax Treaties (2013), para 4.26. Relief under the Convention in the present case Mr Anson is liable to UK income tax under Case V of Schedule D in respect of income arising from possessions out of the United Kingdom. There is no dispute that he had a possession out of the UK for this purpose, although the parties differ as to how it should be described. More importantly, the parties differ as to the stage at which Mr Ansons income, and therefore a liability to tax, arises. Mr Anson maintains that income arises as profits are earned by the LLC, regardless of whether they are distributed. The income which is liable to tax is therefore Mr Ansons share of the profits. The Commissioners argue that income arises only as and when profits are distributed. If no distributions are made, then on the Commissioners argument no tax liability arises. The income liable to tax is therefore the distributions. There is no doubt that taxpayers can be liable to tax in respect of income to which they are entitled without receiving payment of that income. Examples include the income of an interest-in-possession trust (Baker v Archer-Shee) or of a partnership (Reed v Young [1986] 1 WLR 653-654; [1986] STC 285, 289-290; Padmore v Inland Revenue Comrs [1987] STC 36, 51). The Commissioners distinguish partnerships from the present case on the basis that the business of a partnership is carried on by the partners themselves, who are therefore automatically entitled to the profits. There is a dispute between the parties whether that is a correct analysis of a Scottish partnership, but it is unnecessary to resolve that question in the present appeal. The Commissioners distinguish the case of an interest-in-possession trust on the basis that the business (or other profit-generating activity) is carried on by one person on behalf of another, who is automatically entitled to the profits. The present case is different, it is said, because there is no similar entitlement. Expressing the same idea in a different way, in the case of a partnership or an interest-in-possession trust, the source of the taxpayers income is the business carried on by the firm or the trustees respectively, whereas in the present case, it is said, the source of Mr Ansons income is his rights under the LLC agreement. The premise of the Commissioners submissions is that, because the business of the LLC is carried on by the LLC, it necessarily follows that the profits generated by the business belong to the LLC. On that premise, the effect of the LLC agreement must be to require the LLC to transfer its profits to the members. As the Commissioners state in their printed case: If a trader carries on a trade beneficially, the profits belong to him and any instrument which obligates the trader to pay on those profits creates a source for the payee which is a distinct source from that of the trading entitys trade. ... A trader who agrees contractually to pay all, or a part of, his profits to a third party remains taxable on all of his profits. The profits do not belong to the third party and he is not taxable on them. The difficulty with this argument is that it is contradicted by the findings made by the FTT. It is relevant to note, in the first place, that the rights of a member of the LLC were found to arise from the LLC Act, combined with the LLC agreement. Secondly, that agreement was not a contract between the LLC and its members: the LLC was not a party to it, but was brought into being by it, on the terms set out in it and in the provisions of the LLC Act. It was thus the constitutive document of the LLC. It was against that background that the FTT made findings which contradict the premise that the profits belong to the LLC in the first instance and are then transferred by it to the members. Their conclusion, on the contrary, was that, under the law of Delaware, the members automatically became entitled to their share of the profits generated by the business carried on by the LLC as they arose: prior to, and independently of, any subsequent distribution. As the FTT stated: The profits do not belong to the LLC in the first instance and then become the property of the members. ... Accordingly, our finding of fact in the light of the terms of the LLC operating agreement and the views of the experts is that the members of [the LLC] have an interest in the profits of [the LLC] as they arise. As I have explained, the evidence as to Delaware law entitled the FTT to make that finding. The Commissioners challenged it in this court, as they did below, on two bases. The first was that the FTT was describing a proprietary right, as the Upper Tribunal had held. Since there was no basis in the evidence for such a finding, the FTT had erred in law. I reject that criticism for the reasons explained at paras 38-40. Secondly, it was argued that the FTTs finding constituted a holding on domestic law, not a finding of fact on foreign law. I reject that criticism for the reasons explained in para 51. If, then, Mr Anson was entitled to the share of the profits allocated to him, rather than receiving a transfer of profits previously vested (in some sense) in the LLC, it follows that his income arising in the US was his share of the profits. That is therefore the income liable to tax under UK law, to the extent that it is remitted to the UK. There is no dispute as to the income which was taxed in the US: that was Mr Ansons share of the profits of the LLC. Mr Ansons liability to UK tax is therefore computed by reference to the same income as was taxed in the US. He accordingly qualifies for relief under article 23(2)(a). Conclusion For these reasons, I agree with the conclusion reached by the FTT, and would therefore allow the appeal. |
Can a member of a Limited Liability Partnership (LLP) be a worker within the meaning of section 230(3) of the Employment Rights Act 1996 (the 1996 Act)? If she is, she may claim the benefit of the protection given to whistle blowers in sections 43A to 43L of that Act, inserted by the Public Interest Disclosure Act 1998. There are also potentially other rights involved if the member is a worker. Section 230(3) of the 1996 Act defines two sorts of worker for the purpose of that Act. Limb (a) covers an individual who has entered into, works under or has worked under a contract of employment. No one has suggested that the contract between the member and the LLP in this case was a contract of employment. The question is whether the member falls within limb (b) of section 230(3), which covers an individual who has entered into or works under or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. Section 230(5) is also relevant: In this Act, employment . (b) in relation to a worker, means employment under his contract; and employed shall be construed accordingly. Section 230(4) provides that in the Act, employer means the person by whom the worker is employed. 4. The immediate context is whether the member can claim the benefit of the protection given to whistle blowers by the 1996 Act. But limb (b) workers are also able to claim two other rights under the 1996 Act, the right not to suffer an unauthorised deduction from wages (section 13) and the right not to be subjected to a detriment for exercising rights under the Working Time Regulations (SI 1998/1833) (section 45A). The same definition of worker is also used in some other legislation, most notably the National Minimum Wage Act 1998, the Working Time Regulations 1998 (SI 1998/1833), and the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). But the rights given to this type of worker are much less extensive than those given to workers under a contract of employment. They do not, for example, include protection against unfair dismissal. The facts 5. The appellant is an English qualified solicitor. In 2005 she was employed by Shadbolt & Co LLP to develop a joint venture with a Tanzanian law firm, with whom she also had an employment contract. In 2009, Shadbolt ended their joint venture with that firm but entered into a joint venture with a different Tanzanian firm. Later in 2009, Clyde & Co LLP were negotiating to take over various parts of Shadbolts business, including the Tanzanian joint venture. On 24 December 2009, they made a formal offer to the appellant, subject to completion of the deal with Shadbolt. Under this, she would become an Equity Partner of the LLP. Her annual share of the LLP profits was fixed at 103,000 (whether or not the LLP actually made a profit). Her existing arrangements with the Tanzanian joint venture would continue. The LLP would look to propose her as a Senior Equity Partner once the results of the joint venture are able to provide a track record showing the sustainability of income and profit to satisfy our partnership process. 6. The deal with Shadbolt was completed in February 2010, when the appellant became a member of Clyde & Co LLP. She signed a Deed of Adherence to the LLPs Members Agreement. The other parties to the Deed were the LLP and each of the Members individually. Under the Members Agreement, there were two levels of membership, Equity Members and Senior Equity Members. Senior Equity Members were placed on the LLPs lockstep, each level of which conferred a certain number of profit sharing units. Equity Members received a fixed annual share of profits and such profit sharing units as the management board might determine. The rights of the Senior Equity Members were more extensive than those of the Equity Members, but they could all vote to elect the Senior Partner and the members of the management board. Members agreed that the objective of each Member shall be to carry on business for the best advantage of the LLP so as to promote the wellbeing and success of the Business for the prosperity and advantage of all Members and to that end each Member shall devote his full time and attention to the Business and that each Member shall be just and faithful to the LLP in all transactions relating to the Business and in relation to the property and other assets of the LLP. Business is defined as the business to be carried on by the LLP as set out in clause 3, which states that [t]he LLP carries on business as solicitors, foreign lawyers and registered European lawyers. 7. In November 2010, the appellant reported to the LLPs money laundering reporting officers that the managing partner of the Tanzanian law firm had admitted paying bribes to secure work and to secure the outcome of cases. She claims that these were protected disclosures within the meaning of section 43A of the 1996 Act. She also claims that she was subject to a number of detriments as a result, including suspending her, making allegations of misconduct against her and ultimately expelling her from the LLP in January 2011. These claims are denied by the LLP and have not yet been tried. 8. In February 2011, the appellant brought claims in the Employment Tribunal against the LLP and one of its Senior Equity Members under the sex discrimination provisions of the Equality Act 2010 and under the whistle blowing provisions of the 1996 Act. The respondents preliminary objection to both claims, that the Tribunal had no jurisdiction because the appellant worked primarily outside the jurisdiction in Tanzania, has been resolved in her favour. The respondents also objected to her whistle blowing claim on the ground that she was not a worker within the meaning of section 230(3) of the 1996 Act. 9. The Employment Tribunal found that she was not a worker, although she worked under a contract to do or perform personally work or services for the LLP, because she was in business in her own right receiving a share of the profits in relation to the work carried out. In the Employment Appeal Tribunal, Judge Peter Clark allowed her appeal and held that she was a worker. She was an integral part of the LLPs business, she could not offer her services to anyone else, she was in a subordinate position and the LLP was not her client. (The Court of Appeal commented that Judge Clark appears to have considered the issue of subordination in the context of determining whether the LLP was a client or customer rather than as an independent requirement in its own right: [2013] ICR 883 para 30). The LLPs appeal to the Court of Appeal was successful, but on a completely different ground from those argued in the Tribunals: [2012] EWCA Civ 1207. The decision of the Court of Appeal 10. The Court of Appeal held that the appellant could not be a worker for the purpose of section 230(3) of the 1996 Act because of section 4(4) of the Limited Liability Partnerships Act 2000. This provides: A member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership. 11. The LLP argued that employed by should be widely construed to include both types of 1996 Act worker. The appellant claimed that its natural meaning was restricted to contracts of employment. Elias LJ (with whom the other members of the court agreed) accepted that focusing simply on the language, the argument is not clear cut (para 48). But the intention seems to me to be that whatever the employment status of the partners under the 1890 Act, it should not alter as a result of incorporation. If Parliament did not intend to change their status as regards whether they were employees under limb (a), I can see no logical reason why Parliament would have adopted a different position with respect to the questions whether they may be limb (b) workers (para 48). 12. There was no previous case considering whether a partner could be a limb (b) worker. But both Ellis v Joseph Ellis & Co [1905] 1 KB 324 and Cowell v Quilter Goodison Co Ltd [1989] IRLR 392 established that a partner could not be an employee. Essentially this was because the partners were all in a contractual relationship with one another in a joint venture and thus each partner would have to be employed, inter alia, by himself. He would be both workman and employer, which is a legal impossibility (para 63). Further, [t]he very concept of employment presupposes as a matter of sociological fact a hierarchical relationship whereby the worker is to some extent subordinate to the employer . Where the relationship is one of partners in a joint venture, that characteristic is absent (para 64). These reasons applied just as much to limb (b) status as they did to employees. 13. Given that section 4(4) produced this result, Elias LJ did not have to consider whether it was an essential part of the definition of worker that one party was in a subordinate relationship to the other (para 68). He acknowledged that there is a powerful case for saying that, focusing solely on the language of section 230, the terms of the statutory definition of worker were satisfied in this case. He agreed with the EAT that the LLP could in no sensible way be said to be either the client or the customer of the claimant (para 69). But the analysis has to be more subtle than that (para 70). Underlying the statutory definition of worker is the notion that one party has to be in a subordinate relationship to the other. An LLP could not properly be described as a client or a customer but neither could it properly be described as an employer of its members (para 71). Hence he was inclined to the view that the employment judge was correct. He would be minded to hold that the member of an LLP would not by virtue of that status alone constitute either an employee or a worker (para 73). Whether they might enter into some separate employment relationship with the partnership, rather in the manner that a company director can do, would be a different question (para 73). This appeal 14. Mr Thomas Linden QC, on behalf of the appellant claimant, argues that the plain wording of section 230(3)(b) includes his client. It is common ground that she is employed under a contract personally to perform work or services for the LLP; she was an integral part of their business and the LLP was not her client or customer. There is no additional element of subordination involved in the concept of employment; but if there is, the claimant was subordinate for this purpose. Section 4(4) of the 2000 Act does not modify the 1996 Act in respect of worker status, but even if it did, she would have been a worker in a partnership. Finally, he argues that the claimants right to freedom of expression under article 10 of the European Convention on Human Rights requires that we construe the legislation so as to afford her effective protection for her rights. 15. On the statutory construction point, Mr Andrew Stafford QC, for Clyde & Co LLP, argues that the Court of Appeal were right for the reasons they gave. A partner under an ordinary partnership cannot be an employee of a partnership of which she is a member. Section 4(4) of the 2000 Act was plugging into that rule and applies just as much to the wider definition of worker as it does to employees. Under article 10, he argues that our whistle blowing protection is more advanced than that in much of Europe, the Convention right is not as extensive, and so it is not necessary to interpret section 230 of the 1996 Act so as to cover members of an LLP; and in any event it would go against the grain of the legislation as he has identified it, and thus not be within the bounds of possible readings for the purpose of section 3 of the Human Rights Act 1998. Discussion 16. The immediately striking thing about this case is how much hard work has to be done in order to find that a member of an LLP is not a worker within the meaning of section 230(3)(b) of the 1996 Act. It is common ground that the appellant worked under a contract personally to perform any work or services. It is now common ground that she provided those services for the LLP. It is also now common ground that the LLP was not her client or customer. The Court of Appeal accepted (para 69) that there was a powerful case that the definition was satisfied. How then can it be said that she was not a worker for this purpose? 17. The argument which found favour with the Court of Appeal was that section 230(3) had impliedly been modified by section 4(4) of the 2000 Act. It is, of course, the case that when passing the 1996 Act, or when amending it in 1998 to insert the whistle blowing provisions, Parliament could not have had limited liability partnerships in mind, because they did not then exist. It was not then known whether the pressure, mainly from large accountancy firms, to introduce some new form of business structure with limited liability would be heeded, or, if it was, what form such a structure might take. It might have retained the traditional form of partnership in England and Wales, in which the firm is not a separate legal personality but a group of individuals who contract with one another and collectively with others; or it might have been a completely new form, in which, although called a partnership, the entity has a separate legal personality. The latter course was eventually chosen. 18. Meanwhile, in another part of the forest, the Law Commission and Scottish Law Commission were conducting a joint project on partnership law. They published a joint consultation paper in 2000, shortly after the Limited Liability Partnerships Act 2000 received the Royal Assent (Law Commission Consultation Paper No 159, Scottish Law Commission Discussion Paper No 111). In this they pointed out that there was doubt in Scots law, which does accord separate legal personality to a partnership, whether a partnership could enter into an employment contract with one of its partners (para 23.21; referring to Allison v Alisons Trustees (1904) 6 F 496 and Fife County Council v Minister of National Insurance 1947 SC 629). They provisionally recommended that, if a partnership were to have a separate legal personality, it should be able to enter into a contract of employment with one of its partners. It may well be, therefore, that those with an interest in partnership law were already alert to the fact that, if a partnership were to become a separate legal entity, at the very least the arguments about whether partners could also be employees would be different. There is, after all, no problem at all about a majority shareholder also being, not only a Director, but also an employee of a limited company. 19. The Law Commissions published their Report on Partnership Law in 2003 (Law Com No 283, Scot Law Com No 192). This reported that the response of consultees to their suggestion that it should be possible for partners to become employees was divided. The Commissions were persuaded that the status, right and obligations of a partner were wholly different from those of an employee (para 13.52). Hence they recommended that a partnership should not be capable of engaging a partner as an employee. 20. We cannot know what prompted the inclusion of section 4(4) in the 2000 Act (and intriguingly, the Law Commissions do not refer to it either in their Consultation Paper or in their Report). We do know that section 4(4) has caused some bewilderment among English lawyers. In Tiffin v Lester Aldridge LLP [2012] 1 WLR 1887, para 31, Rimer LJ commented that [t]he drafting of section 4(4) raises problems. That is because in law an individual cannot be an employee of himself. Nor can a partner in a partnership be an employee of the partnership, because it is equally not possible for an individual to be an employee of himself and his co partners (see Cowell v Quilter Goodison Co Ltd [1989] IRLR 392). Unfortunately, the authors of section 4(4) were apparently unaware of this. He went on to conclude that what section 4(4) must have been getting at is not what it says that it is getting at, which is whether the member would be regarded as employed by the partnership if the members of the LLP were partners in a partnership; instead, in his view, it must have been getting at whether the LLP member would be regarded as a partner had the LLP been a partnership. 21. But once it is recognised that the 2000 Act is a UK wide statute, and that there is doubt about whether partners in a Scottish partnership can also be employed by the partnership, then there is no need to give such a strained construction to section 4(4). All that it is saying is that, whatever the position would be were the LLP members to be partners in a traditional partnership, then that position is the same in an LLP. I would hold, therefore, that that is how section 4(4) is to be construed. 22. The issue in Tiffin was whether a member of an LLP could make a claim for unfair dismissal against the LLP. That, of course, depends, not upon whether she is a worker in the wider sense used in section 230(3)(b) of the 1996 Act, but upon whether she is an employee under a contract of employment. On any view, employed by in section 4(4) would cover a person employed under a contract of service. 23. The question for us is whether employed by in section 4(4) bears a wider meaning than that and also covers those who undertake to do or perform personally any work or services for another party to the contract . In my view, it does not. 24. First, the natural and ordinary meaning of employed by is employed under a contract of service. Our law draws a clear distinction between those who are so employed and those who are self employed but enter into contracts to perform work or services for others. 25. Second, within the latter class, the law now draws a distinction between two different kinds of self employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The arbitrators in Hashwani v Jivraj (London Court of International Arbitration intervening) [2011] UKSC 40, [2011] 1 WLR 1872 were people of that kind. The other kind are self employed people who provide their services as part of a profession or business undertaking carried on by some one else. The general medical practitioner in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005; [2013] ICR 415, who also provided his services as a hair restoration surgeon to a company offering hair restoration services to the public, was a person of that kind and thus a worker within the meaning of section 230(3)(b) of the 1996 Act. Had Parliament wished to include this worker class of self employed people within the meaning of section 4(4), it could have done so expressly but it did not. 26. Thirdly, however, doing so would have raised the question of whether partners in a traditional partnership can also be workers for that partnership in this wider sense. That would be a very different question from whether they can be employees. If Parliament had indeed wished to exclude that possibility, which might have been a change in the law, it could be expected to do so directly and expressly, but it did not. 27. Fourthly, and perhaps most importantly, there are the provisions of section 230 of the 1996 Act itself. Section 230(1) defines an employee as an individual who has entered into, works, or has worked under a contract of employment. Section 230(2) defines a contract employment as a contract of service or apprenticeship. Section 230(5) expressly provides that, in the 1996 Act, employment means both the employment of an employee under a contract of employment and the employment of a worker under his contract. Employed is to be construed accordingly. Thus, in order to be able to use the words employed and employment in a wider sense than they would normally carry, so as to cover the employment of class (b) workers and those for whom they work, Parliament expressly enacted an extension to what would otherwise be the natural and ordinary meaning of those words. Such an extension is conspicuously lacking in the 2000 Act. With the greatest of respect to Lord Clarke, I do not consider it possible to construe the wording of the 2000 Act, the conventional meaning of which is quite clear, by reference to an extended definition in an earlier Act which was restricted to that Act. For all purposes in section 4(4) of the 2000 Act refers to all the purposes for which employment under a contract of service is relevant. 28. For all those reasons, I conclude that section 4(4) of the 2000 Act does not mean that members of an LLP can only be workers within the meaning of section 230(3) of the 1996 Act if they would also have been workers had the members of the LLP been partners in a traditional partnership. 29. This means that there is no need to consider the subsidiary but important questions which would arise had section 4(4) borne the meaning for which Clyde & Co contend: (i) is it indeed the law, as held by the Court of Appeal in Cowell v Quilter & Goodison and Tiffin v Lester Aldridge LLP that a partner can never be an employee of the partnership; and (ii) if so, does the same reasoning which leads to that conclusion also lead to the conclusion that a partner can never be a worker for the partnership? Suffice it to say that Mr John Machell QC, for the interveners, Public Concern at Work, mounted a serious challenge to the rule against dual status. Ellis v Joseph Ellis was decided before section 82 of the Law of Property Act 1925 made it clear that a person could contract with himself and others. There are some contracts which a partner may make with the members of the partnership, such as lending them money or granting them a lease or a tenancy. So why should it be legally impossible to be employed, under either type of contract, by the partnership? This question raises two subsidiary questions: (a) whether such a relationship can arise from the terms of the partnership agreement itself (as apparently suggested by Lord Clarke at para 52 of his judgment), or (b) whether it can only arise by virtue of a separate contract between the partner and the partnership (a possibility kept open by Elias LJ in the Court of Appeal, see para 13 above). As it is not necessary for us to resolve any of these issues in order to decide this case, I express no opinion upon a question which is clearly of some complexity and difficulty. 30. Having reached the conclusion that section 4(4) of the 2000 Act does not operate so as to exclude the appellant from being a worker within the meaning of section 230(3)(b) of the 1996 Act, it is necessary to consider the more subtle analysis addressed in the Court of Appeal, that underlying the statutory definition of worker is the notion that one party has to be in a subordinate relationship to the other (para 71). Elias LJ would have been minded to hold that the member of an LLP would not by virtue of that status alone constitute either an employee or a worker (para 73). If by that he meant only that there are some members of an LLP who are purely investors and do not undertake personally to work for the LLP, then of course I would agree. But if by that he meant that those members who do so undertake (whether by virtue of the membership agreement or otherwise) cannot be workers, then I respectfully disagree. 31. As already seen, employment law distinguishes between three types of people: those employed under a contract of employment; those self employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self employed but do not fall within the second class. Discrimination law, on the other hand, while it includes a contract personally to do work within its definition of employment (see, now, Equality Act 2010, s 83(2)) does not include an express exception for those in business on their account who work for their clients or customers. But a similar qualification has been introduced by a different route. 32. In Allonby v Accrington and Rossendale College (Case C 256/01) [2004] ICR 1328, the European Court of Justice was concerned with whether a college lecturer who was ostensibly self employed could nevertheless be a worker for the purpose of an equal pay claim. The Court held, following Lawrie Blum v Land Baden Wurttemberg (Case C 66/85) [1987] ICR 483 that there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (para 67). However, such people were to be distinguished from independent providers of services who are not in a relationship of subordination with the person who receives the services (para 68). The concept of subordination was there introduced in order to distinguish the intermediate category from people who were dealing with clients or customers on their own account. It was used for the same purpose in the discrimination case of Jivraj v Hashwani. 33. We are dealing with the more precise wording of section 230(3)(b). English cases in the EAT have attempted to capture the essential distinction in a variety of ways. Thus in Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667, Mr Recorder Underhill QC suggested, at para 17(4), that [t]he reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis a vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arms length and independent position to be treated as being able to look after themselves in the relevant respects. In Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, 34. Langstaff J suggested, at para 53, that . a focus on whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principals operations, will in most cases demonstrate on which side of the line a given person falls. 35. In James v Redcats (Brands) Ltd [2007] ICR 1006, Elias J agreed that this would often assist in providing the answer but the difficult cases were those where the putative worker did not market her services at all (para 50). He also accepted, at para 48, that . in a general sense the degree of dependence is in large part what one is seeking to identify if employees are integrated into the business, workers may be described as semi detached and those conducting a business undertaking as detached but that must be assessed by a careful analysis of the contract itself. The fact that the individual may be in a subordinate position, both economically and substantively, is of itself of little assistance in defining the relevant boundary because a small business operation may be as economically dependent on the other contracting party, as is the self employed worker, particularly if it is a key or the only customer. 36. After looking at how the distinction had been introduced into the sex discrimination legislation, which contained a similarly wide definition of worker but without the reference to clients and customers, by reference to a dominant purpose test in Mirror Group Newspapers Ltd v Gunning [1986] ICR 145, he concluded, at para 59: . the dominant purpose test is really an attempt to identify the essential nature of the contract. Is it in essence to be located in the field of dependent work relationships, or is it in essence a contract between two independent business undertakings? . Its purpose is to distinguish between the concept of worker and the independent contractor who is on business in his own account, even if only in a small way. 37. The issue came before the Court of Appeal in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005, [2013] ICR 415, a case which was understandably not referred to in the Court of Appeal in this case; it was argued shortly before the hearing in this case, but judgment was delivered a few days afterwards. The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the Hospital Medical Group for whom he performed hair restoration surgery. The Court of Appeal considered that these were three separate businesses, quite unrelated to one another, and that he was a class (b) worker in relation to the Hospital Medical Group. 38. Maurice Kay LJ pointed out (at para 18) that neither the Cotswold integration test nor the Redcats dominant purpose test purported to lay down a test of general application. In his view they were wise not to lay down a more prescriptive approach which would gloss the words of the statute. Judge Peter Clark in the EAT had taken the view that Dr Westwood was a limb (b) worker because he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations. That was the right approach. The fact that Dr Westwood was in business on his own account was not conclusive because the definition also required that the other party to the contract was not his client or customer and HMG was neither. Maurice Kay LJ concluded, at para 19, by declining the suggestion that the Court might give some guidance as to a more uniform approach: I do not consider that there is a single key with which to unlock the words of the statute in every case. On the other hand, I agree with Langstaff J that his integration test will often be appropriate as it is here. For what it is worth, the Supreme Court refused permission to appeal in that case. 47. The issues in this appeal depend essentially upon the true construction of section 230(3)(b) of the Employment Rights Act 1996 (the ERA) and section 4(4) of the Limited Liability Partnerships Act 2000 (the LLPA). I agree with Lady Hale that, on the true construction of section 230(3)(b) of the ERA, construed without reference to the LLPA (if that were possible), the appellant could properly be described as a limb (b) worker because she would satisfy the terms of the sub section. In short, for the reasons given by Lady Hale, by the terms of the appellants contract with the respondent LLP (Clyde & Co), she undertook to perform personally certain work or services for it and its status was not by virtue of the contract that of a client or customer. 48. That question could not however have fallen for consideration before the LLPA came into effect because until then there was no such entity as an LLP. The status of a person working for an LLP must now be determined by reference both to the ERA and to the LLPA. As Lady Hale observes at para 10, the Court of Appeal held that the appellant could not be a worker for the purposes of section 230(3) of the ERA because of section 4(4) of the LLPA, which provides: A member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership. 49. I appreciate that this is a minority view in this Court but it seems to me, as it has seemed to me throughout, that the effect of section 230(3) and (5) of the ERA and section 4(4) of the LLPA, read together, is that a person who is a limb (b) worker within section 230(3) is a person regarded for any purpose as employed by the LLP within section 4(4) of the LLPA. This is in part because of section 230(5) of the ERA, which provides: In this Act, employment (b) in relation to a worker, means employment under his contract; and employed shall be construed accordingly. 50. I entirely understand that at common law employment has traditionally had a narrow meaning and means, in effect employment under a contract of employment. However, under the ERA it has been given a wider meaning and extends to a limb (b) worker, who is by definition working under any other contract, that is any contract other than a contract of employment. There cannot I think be any doubt that the appellant was a member of an LLP. Moreover, for the reasons given by Lady Hale she was a worker within section 230(3)(b). 51. As I see it, the question is whether, on these facts, the appellant is being regarded for any purpose as employed by the limited liability partnership. I would answer that question in the affirmative because she is being so regarded by the express terms of section 230(5) of the ERA. I appreciate that section 230(5) defines the meaning of employment in this Act, that is the ERA but this to my mind a purpose which falls within the expression for any purpose in section 4(4). 52. If that were correct it would follow that, whether the appellant was employed as a worker by the LLP for the purposes of the ERA would depend upon whether if [she] and the other members were partners in a partnership [ie an 1890 Act partnership] [she] would be regarded for that purpose as employed by the partnership. This raises the question which Lady Hale describes at para 29 as of some complexity and difficulty. There is to my mind much to be said for the view that, if the appellant had been a partner in an 1890 Act partnership, she would now be treated as employed by the partnership, especially in the light of section 82 of the Law of Property Act 1925. As Lady Hale asks rhetorically, why should it be legally impossible to be employed, under either type of contract, by the partnership? If the answer to that question is that there is no good reason why the appellant 53. would not be regarded as employed by the partnership within the meaning of the last part of section 4(4) of the LLPA, so that section 4(4) does not prevent the appellant from being regarded for the purpose of the ERA as employed as a worker, the whole provision (as I see it) makes sense because its underlying purpose is, at any rate in this respect, to treat partners in both types of partnership in the same way. 54. Notwithstanding those points, the question remains, as Lady Hale says, of some complexity and difficulty. In these circumstances, it is desirable that it should be determined in a case in which it is necessary for it to be decided. That being the position, at any rate so long as I remain in the minority on the first point, it would be better for me to refrain from expressing an opinion on the second point. LORD CARNWATH 55. I agree that the appeal should be allowed for the reasons given by Lady Hale. I would emphasise that this conclusion turns on the special characteristics of a limited liability partnership, which is something of a hybrid as between a conventional 1890 Act partnership and a limited company. It does not necessarily have any direct relevance to the resolution of equivalent issues in relation to other forms of partnership, under English or Scottish law. 56. I would only add a short comment in relation to the alternative argument of Mr Machell QC, which Lady Hale found it unnecessary to address (para 29). This challenged the traditional view that a partner cannot be an employee of his own firm. That view is put in strong terms in the current (19th) edition of Lindley & Banks on Partnerships (2010). Commenting critically on the second part of section 4(4) of the Limited Liability Partnerships Act 2000, the editors say: Note that the drafting of this sub section is wholly defective Partnership and employment are, of course, mutually exclusive concepts and there are no circumstances under English law where a partner could be regarded as employed by his own firm. (para 2 40 n 145, their emphasis) That comment is cross referenced to a later paragraph headed Partner or Employee? (para 5.55) which discusses the criteria for deciding whether a salaried partner is to be regarded as a partner or an employee, and adds: What is certain is that if the salaried partner is held to be and treated as a partner in law, he cannot also be an employee in the firm. Cases referred to include Ellis v Joseph Ellis & Co [1905] 1 KB 324 and Cowell v Quilter Goodison Co Ltd [1989] IRLR 392, cited by Lady Hale (para 12). 57. As far as concerned English law, that was also the basis on which the Law Commissions proceeded in their recent review of Partnership Law, mentioned by Lady Hale. It does not appear to have been questioned by anyone during the consultation. As she notes (para 18 19), the Commissions recognised possible doubts as to whether that was also the position under Scots law. But they resolved them by recommending that, in both jurisdictions, a partnership should not be capable of engaging a partner as an employee (para 13.43; draft bill cl 7(4)). 58. Mr Machell relies in particular on section 82(1) of the Law of Property Act 1925 which provided: Any covenant, whether express or implied, or agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone. Of the cases cited by Lindley, he observes that Ellis was decided before the enactment of section 82(1), which as he puts it, abolished the two party rule; Cowell was a decision on its own facts. He offers no academic support for this submission. Nor does he explain how the point has apparently been overlooked for so long by practitioners and academics. By way of analogy, he asserts that a partnership can take a lease of premises owned by one or more of the partners, for which proposition he cites inter alia Rye v Rye [1962] AC 496 and, Lindley & Banks para 10.45. 59. Although I agree with Lady Hale that it is unnecessary for us to decide this issue, for my part I am currently unpersuaded by Mr Machells submissions. Whatever may be the position or legal analysis in respect of leases (on which the authorities to which he refers are not conclusive), section 82 does not assist him in the present context in my view. A contract treated as being between a particular partner and the other members of his firm may be effective in law for many practical purposes. But it cannot be equated with a contract between the partner and the firm as such, since each partner is an essential part of the firm. Furthermore, the reasoning of the Court of Appeal in Ellis v Joseph Ellis does not turn simply on the lack of capacity to contract. As Lord Collins MR said, the particular arrangements made in that case in relation to payment for work did not affect the workers relation to the other partners, which was that of co adventurers and not employees. In my view this was a statement of principle about the fundamental difference between the relationship of partners and that of employer and employee, a difference which is not bridged by section 82. 39. I agree with Maurice Kay LJ that there is not a single key to unlock the words of the statute in every case. There can be no substitute for applying the words of the statute to the facts of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of subordination to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves. As Elias J recognised in Redcats, a small business may be genuinely an independent business but be completely dependent upon and subordinate to the demands of a key customer (the position of those small factories making goods exclusively for the St Michael brand in the past comes to mind). Equally, as Maurice Kay LJ recognised in Westwood, one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to ones bow, and still be so closely integrated into the other partys operation as to fall within the definition. As the case of the controlling shareholder in a company who is also employed as chief executive shows, one can effectively be ones own boss and still be a worker. While subordination may sometimes be an aid to distinguishing workers from other self employed people, it is not a freestanding and universal characteristic of being a worker. 40. It is accepted that the appellant falls within the express words of section 230(3)(b). Judge Peter Clark held that she was a worker for essentially the same reasons that he held Dr Westwood to be a worker, that she could not market her services as a solicitor to anyone other than the LLP and was an integral part of their business. They were in no sense her client or customer. I agree. Human Rights 41. I have reached that conclusion without the help of the European Convention on Human Rights. But it may be worth noting that that conclusion is entirely consistent with the appellants rights under article 10, whereas a different conclusion would pose more problems. Article 10 provides for a qualified right to freedom of expression. In Heinisch v Germany [2011] IRLR 922, that right was held to extend to a geriatric nurse in a nursing home who reported her employers to the prosecuting authorities because of the understaffing. The European Court of Human Rights held that her dismissal without notice on the ground that she had lodged a whistleblowing complaint against her employer and the failure of the domestic courts to order her reinstatement had violated her rights under article 10. Her right to impart information could be restricted if this was in accordance with the law, pursued a legitimate aim (in this case to protect the rights and reputation of the employer), and was proportionate to that aim. The court considered a number of factors relevant to the proportionality calculation, bearing in mind the duty of loyalty owed by an employee to her employer. It was important to establish whether the employee was acting in good faith and had reasonable grounds for the complaint, whether the information disclosed was in the public interest, and whether there was any more discreet means of remedying the wrongdoing; proportionality also required a careful analysis of the severity of the penalty imposed upon the whistle blower and its consequences (see paras 62 to 70). Hence article 10 operates as a protection for whistle blowers who act responsibly. 42. In Heinisch, the court also recalled, at para 44, that article 10 applies to the workplace in general: Kudeshkina v Russia, Application no 29492/05, judgment of 26 February 2009 shows that a professional person such as a judge is entitled to the freedom to criticise the judicial system. It also applies when relations between employer and employee are governed by private law: the state has a positive obligation to protect it even in the sphere of relationships between private persons: see Fuentes Bobo v Spain (2000) 31 EHRR 1115. 43. Hence it is argued that, if the appellants claims as to the reasons for her dismissal are made good, it would be incompatible with her convention rights for the law to deny her a remedy. If the whistle blowing provisions of the 1996 Act apply to her, she would have such a remedy. Those provisions are consistent with the proportionality calculation carried out in Heinisch. The expectation is that disclosure will first be made to the employer or the person responsible for the wrong doing or to a prescribed regulator (see sections 43C, 43E, 43F). Disclosure may only be made to other persons in more limited circumstances (see sections 43G, 43H), for example where the worker reasonably believes that she will be subject to a detriment if she discloses to her employer, and it must be reasonable in all the circumstances of the case. If those provisions do not apply to the appellant, then it is difficult to see what other protection she would have, given that she is not entitled to protection from unfair dismissal. Hence it is our duty under section 3 of the Human Rights Act 1998 to interpret the 1996 Act so as to give her that protection. 44. This argument raises what might be a difficult question. Under section 3(1) of the Human Rights Act 1998, we have a duty to read and give effect to legislation in a way which is compatible with the convention rights (and this means that it may have a different meaning in this context from the meaning it has in others). While it is comparatively easy to see how this may be done in order to prevent the state from acting incompatibly with a persons convention rights, in other words, to respect the negative obligations of the state, it is a little more difficult to assess whether and when this is necessary in order to give effect to the positive obligations of the state and thus to afford one person a remedy against another person which she would not otherwise have had. It is at this point that the respondents argument that the 1996 Act gives better protection than is required under the Convention might be relevant. 45. Fortunately, however, as the appellant already has that protection under the 1996 Act as interpreted in a completely conventional way, it is not necessary for us to decide whether her convention rights would require and permit us to interpret it compatibly. Conclusion 46. In my view, the appellant clearly is a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996 and entitled to claim the protection of its whistle blowing provisions. That conclusion is to my mind entirely consistent with the underlying policy of those provisions, which some might think is particularly applicable to businesses and professions operating within the tightly regulated fields of financial and legal services. The appeal must be allowed and the case remitted to the employment tribunal to determine her claim under those provisions along with her sex discrimination claim. LORD CLARKE |
Part 4 of the Proceeds of Crime Act 2002 deals with the circumstances where benefits obtained by persons in Northern Ireland by their criminal activity can be confiscated. By virtue of article 2 of and the Schedule to the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003, Part 4 of the Act came into force on 24 March 2003. The first and central provision in Part 4 of the Act is section 156. That section is declared in the statute to be concerned with the making of confiscation orders. Subsection (1) of section 156 expressly requires that the Crown Court must proceed in accordance with the terms of the section, where two conditions are satisfied. The context for the way in which confiscation orders are to be applied for and obtained is therefore set. That context, in my view, is defined by the consideration that it is confined to confiscation orders which can be made under the Act. The relevant statutory provisions Subsections (2) and (3) of section 156 set out the two conditions foreshadowed in subsection 1. The first of these is that the defendant against whom a confiscation order is sought must either have been convicted of an offence or offences before the Crown Court or have been committed to the Crown Court in respect of an offence under section 218. There is an important rider to, or explanation of, the latter of these conditions. It is to the effect that the committal should have been with a view to a confiscation order being considered. This reinforces the nature of the context in which these provisions fall to be considered. The purpose of the committal is to deal with confiscation orders that might be made under the 2002 Act. The terms of section 218(1) again emphasise this essential aspect. Subsection (1)(b) makes clear that committal should take place when the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156. Thus, under this provision, the court is principally concerned with the making of a confiscation order under the 2002 Act. The magistrates court must commit the defendant to the Crown Court if requested to do so section 218(2)(a). But it may also, under section 218(2)(b), commit him in respect of other offences falling within subsection (3). Offences falling within the latter subsection are those of which the defendant has been convicted by the magistrates or other court and where the magistrates court has the power to deal with them. Thus, offences in respect of which it is not proposed to seek a confiscation order may be referred to the Crown Court. It is not difficult to deduce the reason for that. It would not be unusual for a defendant to be charged with a number of offences, only some of which would qualify for applications for a confiscation order. For administrative convenience, and to avoid the possibility of over penalisation, it may be considered prudent to commit the defendant to the Crown Court for a comprehensive sentencing exercise. The section 218(2) distinction between the two categories of case which the magistrates court may commit to the Crown Court is significant: those offences which are committed so that a confiscation order can be considered and other offences in which the question of a confiscation order does not arise. The important theme, in relation to this case, is that the first category relates to offences in respect of which a confiscation order can be made under the Act. This reflects the general, underlying purpose of the legislation, so far as concerns confiscation orders. It is that, in the first and principal instance, the cases which are to be dealt with by the Crown Court are those in respect of which a confiscation order under the 2002 Act can be made. The provision that a second type of case (the other offences category) can also be committed serves to demonstrate that the primary purpose of the Crown Court in dealing with cases emanating from the magistrates court is to make confiscation orders which can be made under the Act. Returning to section 156, the second condition which forms part of the enjoinder to the Crown Court to act is provided for in subsection (3). That condition is fulfilled where the prosecutor asks the court to proceed under the section or the court considers it is appropriate to do so. Both these alternatives are obviously geared to the making of confiscation orders that can be made under the Act. The theme of facilitating or requiring the making of confiscation orders under the 2002 Act is again apparent from subsection (4) of section 156. The court is required to consider whether the defendant has a criminal lifestyle by subsection (4)(a) and, if it so decides, it must determine whether he has benefited from his general criminal conduct under subsection (4)(b). If the court decides that the defendant does not have a criminal lifestyle, it must consider whether he has benefited from particular criminal conduct section 156(4)(c). All of these provisions have as their ultimate aim the ascertainment of whether a confiscation order under the Act is appropriate. That basic objective is evident from the succeeding subsections (5) to (8) of section 156. These do not require to be set out, but subsection (9) is material for other reasons. It provides: References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2). Drawing on the language used in this subsection and an allied provision, section 236(1), it is argued that the phrase, the offence (or offences) concerned is given a fixed and immutable meaning throughout the Act. (Section 236(1) provides that a reference to the offence (or offences) concerned must be construed in accordance with section 156(9)). Guidance as to that meaning is provided, it is suggested, by article 4 of the Commencement Order which provides: Transitional provisions relating to confiscation orders Northern Ireland 4(1) Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003. In particular, the use of the words, any of the offences in article 4 is said to indicate that, if any of the offences on which a defendant has been committed pre date 24 March 2003, none of the offences, even those which were committed after that date can be treated as candidates for confiscation orders under the 2002 Act but must be dealt with under legislation which applied on the date when the first offence occurred. To say that this would produce a wholly anomalous result is not an exaggeration. This is particularly so since it is accepted by the appellants that, if the prosecution elects not to have a defendant committed to the Crown Court on a charge which might have warranted a confiscation order in respect of an offence committed before March 2003, and has the defendant committed only on offences committed after that date, it would be open to the Crown Court to make confiscation orders under the 2002 Act in respect of those offences. Likewise, it is accepted that in a case which starts in the Crown Court, if the prosecution chooses not to proceed on a charge relating to an offence committed before March 2003, a confiscation order may be made in relation to offences that occurred after 24 March 2003. In effect, therefore, the appellants accept that the jurisdiction of the court to make confiscation orders under the 2002 Act could be controlled by tactical decisions by the prosecution. Ironically, the appellants object to what they portray as the election of the prosecution to proceed under the 2002 Act and to ignore offences to which they had pleaded guilty and which occurred before the relevant date, when pre and post 24 March offences are proceeded with on the same indictment. They suggest that, in those circumstances, the prosecution should not be permitted to choose only the post March offences on which to seek compensation orders. The respondents riposte to this argument is, of course, that this is not a matter of election or choice. It submits that only offences which can be dealt with under the Act qualify for consideration as confiscation offences. It is therefore not a matter of tactical decision by the prosecution but, rather, the consequence of the correct construction of section 156. The appellants counter this argument by pointing to, among other provisions, section 224(3)(b) of the Act. As noted at para 8 above, the court is required to consider whether the defendant has a criminal lifestyle by subsection (4)(a) of section 156. If it decides that the defendant does not have a criminal lifestyle, it must consider whether he has benefited from particular criminal conduct section 156(4)(c). Section 224 deals with criminal conduct and benefit. Subsection (1) provides: Criminal conduct is conduct which constitutes an offence in Northern Ireland, or (a) (b) would constitute such an offence if it occurred in Northern Ireland. A distinction is made between general criminal conduct and particular criminal conduct. General criminal conduct is dealt with in subsection (2). Particular criminal conduct is the species of criminality involved in this case and it is provided for in subsection (3): (3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs conduct which constitutes the offence or offences (a) concerned; (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned; (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned. The appellants argue that if the rubric, the offence or offences concerned, is given the interpretation advanced by the respondent, viz offences in respect of which confiscation orders could be made, it is clear from the terms of section 224(3)(b) that the court considering the defendants particular criminal conduct must have regard to offences which lie outside that definition, in other words, offences that were committed before 24 March 2003. This, say the appellants, makes the respondents interpretation unworkable. Despite its initial attraction, I do not accept the appellants argument on this point. The overarching consideration is that, plainly, it was Parliaments intention that offences which were committed before 24 March 2003 should not be included in the section 156 consideration. It was also Parliaments intention, in my opinion, that all offences committed after that date which could generate confiscation orders under the Act should be dealt with under section 156. It cannot have been intended that a swathe of post 2003 offences should be removed from the Acts purview simply because the defendant was convicted of an associated offence before the relevant date. If that was found to be the effect of the Act, it seems to me to be beyond question that this was a wholly unintended effect. In these circumstances, the proper approach to interpretation is to determine whether it is possible to give effect to Parliaments intention, notwithstanding the apparent incongruity of section 224(3)(b). I will explain why this is the correct way to interpret the 2002 Act in the next section of this judgment. In the meantime, however, it appears to me that subsection (3)(b) is explicable on the basis that the criminal conduct which the court may take into account under this provision is conduct on which a confiscation order might have been made under the 2002 Act but which has not been put forward by the prosecution as a potentially qualifying offence. That view is supported by a consideration of article 8 of the Commencement Order in its amended form which deals with the approach that the court should take in relation to the ascertainment of whether a defendant has a criminal lifestyle. Although the present case does not involve that question, it is argued that the amendments effected by the Order of 6 March 2003 provide an insight into the issue whether the 2002 Act can apply to offences committed after 24 March 2003, where the defendant has also been convicted of offences committed before that date. First it is necessary to set out the relevant provisions in section 223 of the Act. So far as material, it provides: 223 Criminal lifestyle (1) A defendant has a criminal lifestyle if (and only if) the following condition is satisfied. (2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests it is specified in Schedule 5; it constitutes conduct forming part of a course of (a) (b) criminal activity; it is an offence committed over a period of at least (c) six months and the defendant has benefited from the conduct which constitutes the offence. (3) Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and in the proceedings in which he was convicted he (a) was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or (b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited. In order to set in context the argument in relation to article 8 in its original and amended form, it is necessary to set out both. In its first incarnation, article 8 provided: Transitional provisions relating to criminal lifestyle Northern Ireland 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) The tests in section 223(2)(a) and (c) of the Act shall not be satisfied where the offence (or any of the offences) concerned was committed before 24 March 2003. In applying the rule in section 223(5) of the Act on the (3) calculation of relevant benefit for the purposes of section 223(2)(b) and (4) of the Act, the court must not take into account benefit from conduct constituting an offence which was committed before 24 March 2003. (4) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where the offence (or any of the offences) concerned; or (a) (b) any one of the three or more offences mentioned in section 223(3)(a), was committed before 24 March 2003. (5) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) was committed before 24 March 2003. Two weeks after its promulgation on 20 February 2003, the Commencement Order was amended in order to substitute (so far as concerns Northern Ireland) a new article 8. It was in the following terms: Transitional provisions relating to criminal lifestyle Northern Ireland 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where any of the three or more offences mentioned in section 223(3)(a) was committed before 24 March 2003. (3) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(a) of the Act, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(5)(c) of the Act which was committed before 24 March 2003. (4) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) were committed before 24 March 2003. (5) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(b) of the Act, the court may take into account benefit from conduct constituting an offence committed before 24 March 2003. (6) Where the court is applying the rule in section 223(6) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(c) of the Act is satisfied, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(6)(b) of the Act which was committed before 24 March 2003. If the appellants argument that any proceedings which involved a pre March 2003 offence would have to be brought under a statutory regime existing before the 2002 Act was correct, the new article 8(2) (and, for that matter, the original article 8(4)) would not be required. Article 8(3) is also significant. This requires that a court, which is assessing benefit under section 223(5) for the purposes of determining whether or not the test set out in section 223(2)(b) of the Act is satisfied, must leave out of account benefit from an offence committed before 24 March 2003. That stipulation again serves to illustrate the ending of the application of pre March 2003 legislation for those purposes and the currency of the 2002 Act for offences committed after that date. The proper approach to interpretation As I have said, it is my opinion that Parliament cannot have intended that a potentially extremely wide range of post 2003 offences would be excluded from the ambit of the 2002 Act. That would produce a result which would be plainly at odds with the entire scheme of the legislation. It is, of course, possible to regard section 156 as an open and simple gateway and that, on a literal interpretation, every offence of which the defendant is convicted, whether or not it preceded March 2003, must be considered. But the absurd outcome which this would produce is a strong indication against treating the section in that way. author describes as the Code, the following statements are made: In Bennion on Statutory Interpretation (6th ed) at section 312 of what the (1) The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of absurdity, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter mischief. (2) In rare cases, there are overriding reasons for applying a construction that produces an absurd result, for example where it appears that Parliament really intended it or the literal meaning is too strong. Bennion suggests that the courts have been prepared to give the concept of absurdity an expansive reach. In support of that view, he cites Lord Millett in R (Edison First Power Ltd) v Central Valuation Officer [2003] UKHL 20, [2003] 4 All ER 209 at paras 116 and 117, where he said: The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it . See also Lord Scott of Foscotes approval of this dictum in Gumbs v Attorney General of Anguilla [2009] UKPC 27, para 44. The consequence of the 2002 Act being disapplied to a wide array of offences committed after the operative date of 24 March 2003, and requiring these to be dealt with under 1996 (or even, in the case of Ms McCool, 1990) legislation, is self evidently objectionable and undesirable. It means that contemporary cases would have to be dealt with according to standards and rules which have been replaced by the 2002 Act and secondary legislation made on foot of it. I consider, therefore, that if there is a workable interpretation of the legislation which allows post 2003 offences to be dealt with under the 2002 Act, even when those are associated with pre 2003 offences, that interpretation should be adopted. For the reasons given earlier, I think that such an interpretation is entirely feasible and that the 2002 Act was correctly applied to the appellants cases. I will discuss the facts of the appellants offences and the reasons that I consider that they were properly subject to confiscation orders under the 2002 Act later in this judgment. Ahmed, Martin, Simpson, Aslam and Stapleton The Court of Appeal in this case considered a number of authorities in which transitional provisions in similar terms to those involved in the present appeal were examined. The first of these was R v Ahmed (Court of Appeal, Criminal Division, unreported 8 February 2000). In that case, the appellant had pleaded guilty to three offences of conspiracy to defraud by inflating invoices for goods supplied. The first of those offences took place at a time between January 1995 and October 2006; the second between January 1995 and June 2007; and the third between January 1997 and 30 November 2007. Section 16(5) of the Proceeds of Crime Act 1995, which was the statute under which the confiscation orders were sought, provided: Section 1 shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section. The section came into force on 1 November 1995. The Court of Appeal in Ahmed accepted that the first two conspiracy offences occurred partly before and partly after the operative date. That circumstance had been overlooked by the parties and the trial judge. If it had been adverted to, it would have been obvious that the judge had a discretion whether to make the confiscation order in the sum that he had decided upon. In the event, the Court of Appeal concluded that this would not have made a difference to his decision. But the appellants in the present case argue that the court in Ahmed effectively precluded the application of the 1995 Act because of the earlier offences. This is not what the court held, however. It was decided that the circumstance that two of the three offences had occurred before the operative date meant that the trial judge did indeed have a discretion to make a confiscation order for a lesser sum than that ordered. But the court was not required to, and did not address, the question whether the effect of section 16(5) of the 1995 Act was to preclude a confiscation order under that legislation, if an application had been made solely in relation to the offence which occurred after its coming into force. In contrast, the respondent in the present case relies exclusively on offences occurring after the coming into force of the 2002 Act. As the Court of Appeal in the present case observed (in para 9 of its judgment), it was common case that where the prosecution seeks a confiscation order in respect of an offence committed before the date of coming into force of the relevant statute, the earlier legislation will apply. The prosecution in the present case does not seek to rely on offences committed before 24 March 2003. On the contrary, it bases its claim for a confiscation order on offences committed after that date. Ahmed is therefore not in point in relation to the appellants claim in this appeal. In R v Martin [2001] EWCA Crim 2761; [2002] 2 Cr App R (S) 74, the appellant had pleaded guilty to conspiring with others to evade the payment of duty owed to HMRC. The evasion took place over the period between October 1994 and January 1997. It was held that. since the dates of the conspiracy straddled the commencement date of the 1995 Act, that legislation could not be applied to the appellants case, notwithstanding that overt acts in the perpetration of the conspiracy occurred after that date. The Court of Appeal held that Ahmed was directly in point and that it was bound to follow the decision in that case. Again, however, the situation in Martin is different from that which obtains in the present appeals. In Martin, the prosecution was relying on offences which had occurred before the commencement date for the 1995 Act, in support of its application for a confiscation order under that Act. In the present case, the prosecution places no reliance on offences committed before the coming into force of the 2002 Act. To the contrary, it says that such offences must be left strictly out of account in deciding whether confiscation orders should be made. The Court of Appeal in the present case considered that Martin did not add a great deal on [the issue arising] to Ahmed. In my view, it adds nothing to that issue. The next authority considered by the Court of Appeal in this case was R v Simpson [2003] EWCA Crim 1499, (2004) QB 118. In that case the appellant had pleaded guilty to offences involving VAT fraud. A confiscation order was made under section 71 of the Criminal Justice Act 1988. The appellant appealed against the confiscation order on the ground that the judge had no jurisdiction to make it because the notice served on the court by the prosecution was not in the form required by section 72(1) of the 1988 Act, and that, by virtue of section 16(5)(c) of the Proceeds of Crime Act 1995, since one of the offences to which he had pleaded guilty had been committed before 1 November 1995, the amendment to section 72, made by section 1 of the 1995 Act, and providing that service of a notice was no longer necessary, did not apply. He submitted that the application of section 16(5) was not limited to offences on which the confiscation order was based. The prosecution had not sought a confiscation order in respect of the sole charge of an offence that had predated the coming into force of the 1995 Act. It was common case that, if the appellant had not been convicted of the offence which had been committed before the commencement date, the 1995 Act would apply. But, because he had been convicted of that offence, it was argued that that single conviction determined that the earlier legislation was the only enactment under which a confiscation order could be sought. Lord Woolf CJ described this as an obviously absurd result. Before the Court of Appeal in the present case, Mr Hutton, and before this court, Mr Macdonald QC, on behalf of the appellants, challenged this description. It was, they said, in the nature of transitional provisions that a line had to be drawn somewhere. The choice of that line might in some cases seem arbitrary. That did not mean that the result produced was absurd. While I accept that the imposition of a cut off point will, in some instances, produce a result which might appear anomalous and that anomaly should not be equated with absurdity, for the reasons given earlier (in paras 23 26), I consider that if a significant number of offences committed after 24 March 2003 were excluded from the 2002 Acts application, solely because of the happenstance that a defendant had also been convicted of an offence committed before that date, this would indeed be an absurd outcome. The Court of Appeal in Simpson considered that section 16(5) of the 1995 Act should be applied so that, after the word offence in that section, there appears, the words in respect of which a confiscation order is or could be sought para 19. It is not clear whether the court proposed that these words be read into the section or merely that they were intended to be clarificatory of the extent of its application. Reading in words to a statute is problematic, of course. In Inco Europe v First Choice Distribution (a firm) (2000) 1 WLR 586, 592, 115, Lord Nicholls of Birkenhead said: It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross admirable opuscule, Statutory Interpretation (3rd ed, 1995) pp 93 105. He comments (p 103): In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role. This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation (see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] AC 74 at 105 106). For the reasons that I have given earlier, I consider that Parliaments intention in enacting the 2002 Act was that all offences committed after the date of its coming into force should be subject to its regime, irrespective of whether they were associated with offences committed before the commencement date. In light of the experience in this case, it would perhaps have been preferable that the 2002 Act had made it unmistakably clear that this was the intention. I am not sure, however, that the failure to do so amounts to inadvertence on the part of the draftsman. But I am entirely satisfied of the substance of the provision Parliament would have made if, indeed, the provision qualifies for the description of drafting inadvertence. The substance of the provision which Parliament intended was, as I have said, that all offences committed after March 2003, whether or not they were associated with offences that occurred before that date, should be dealt with under the 2002 Act. Whatever of that, it appears to me that it is not necessary to read in words such as those suggested in Simpson. The Act was intended to permit applications for confiscation orders for offences committed after 24 March 2003 and to exclude from its application offences which had taken place before that date. So understood, the legislation does not require the reading in of further words. Provided a clear segregation between pre and post March 2003 offences can be identified, the application of the Act does not present a problem. The next case dealt with by the Court of Appeal was R v Aslam [2004] EWCA Crim 2801; (2005) 1 Cr App R (S) 116. In that case the appellant pleaded guilty to a number of offences of dishonesty and asked for a number of others to be taken into consideration. One of the offences to which he had pleaded guilty and one of those which he had asked to be taken into consideration had occurred before the coming into force of the 1995 Act. On this account, it was argued on his behalf that the court had no jurisdiction to make a confiscation order under the 1995 legislation. That argument was rejected. At para 11, Bean J said: The legislative purpose of section16(5), as it seems to us, was to prevent the Crown from dividing convictions against a defendant in one set of proceedings into pre and post November 1, 1995 matters and then taking confiscation proceedings (concurrently or consecutively) under both statutes. So, if at the time the judge is asked to make a confiscation order under the 1995 Act on a number of counts there remains a pre commencement count on which the Crown is seeking, or could still seek, a confiscation order under the 1988 Act as amended in 1993, there is no jurisdiction to make an order under the 1995 Act. However, if the pre commencement count is one which could not be the basis of confiscation proceedings, there is no obstacle to using the 1995 Act regime. Similarly, if (as in this case) the Crown has expressly abandoned any reliance on the pre commencement count for the purposes of a confiscation order, the fact that it could have sought such an order in respect of that count seems to us entirely immaterial. In such a case also, in our judgment, there is no obstacle to using in the 1995 Act regime in respect of the post commencement counts. We do not understand Simpson to require a contrary conclusion. (Emphasis supplied) In Aslam, as in this case, the prosecution did not rely on a pre commencement offence in support of its application for a confiscation order. The court in that case referred to the approach in Simpson of treating section 16(5) as if it read in the manner described in para 36 above. It did not suggest (at least, not expressly) that words should be read into the section. For the reasons that I have given, I do not consider that this is necessary. The drawing of the line by the commencement provision is readily explicable for reasons quite different from the rationale suggested by the appellants in the present case. It is, as Bean J said, to avoid the undesirable prospect of having two sets of parallel or even consecutive proceedings under two different items of legislation, with all the undesirable consequences that would entail. It is also to provide a clear demarcation line between the effective application of the 2002 Act and preceding legislation. It is entirely consonant with common sense and good administration that the demarcation should be applied so that only those offences which were committed after it came into force were caught by the 2002 Act. It is also plainly sensible that the line should not be blurred by allowing the Act to apply solely to those cases which happened not to be associated with a pre March 2003 offence. It may be possible to construe the Act in that way but I am satisfied that this is not how it was intended to apply. The Court of Appeal in the present case also briefly considered the decision in R v Stapleton (2009) 1 Cr App R (S) 38. The appellant pleaded guilty to six offences of furnishing false information, contrary to the Theft Act 1968. She was committed to the Crown Court for sentence under the 2002 Act, with a view to a confiscation order being considered. She had made claims for housing benefit in the amount of 15,946 between July 2002 and August 2006. A confiscation order was made under the 2002 Act. On appeal, an argument was made on her behalf in broadly similar terms to those presented by the appellants in this case. Two of the offences had been committed before 24 March 2003. It was argued that the straightforward reading of the transitional provisions meant that there was no power to make an order under the 2002 Act. Reference was made to R v Clarke [2008] UKHL 8; [2008] 1 WLR 338, where it was said that where the statutory provisions were clear in their terms, the court was bound to apply them, even if the consequence was that a defendant is enabled to obtain what might be regarded as an unmerited outcome. In Clarke Lord Bingham said (at para 17): Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place. The Court of Appeal in Stapleton acknowledged the obvious authority of this statement but nevertheless considered itself bound by Aslam. The court also acknowledged that Aslam had been criticised by Professor Thomas in his commentary on the case which appeared in 2005 Criminal Law Review 154. But, Latham LJ, who delivered the judgment of the court, observed that it could not be said that Aslam was plainly wrong. It had to be followed. It is, I believe, possible to address somewhat more forthrightly than did the court in Stapleton the argument that the technical interpretation of the relevant provisions of the 2002 Act compel a result that the decision in Aslam was wrong. The correct interpretation of those provisions must be informed by the predominant purpose of the legislation. As I have said, its purpose was to provide a clear dividing line between those offences which were caught by the Act and those which were not. A sensible, workable segregation exists between offences committed before 24 March 2003 and those which occurred after that date. While it is theoretically possible to construe the Act as placing an embargo on its application to post March 2003 offences where they are associated with offences before that date, in no sense is that the only possible construction. This is not a question of the technical interpretation of the legislation compelling a particular result. Rather it is a matter of construing the legislation in a perfectly legitimate way which keeps faith with its plain and obvious purpose. Professor Thomass disapproval of Aslam, and in a second commentary in 2008 Criminal Law Review 1, of Stapleton founds on two principal criticisms. The first was that reading words into the statute was objectionable. For reasons given earlier, I do not believe that it is at all clear that the Court of Appeal in Simpson did read words into the provision but merely clarified how its interpretation should be approached by the device of instancing words that would have made its meaning clearer. In any event, if words were read into the statute, that was an unnecessary exercise. Finally, it is not in the least apparent that the Court of Appeal in Aslam did read words into the statute. The second major criticism made by Professor Thomas was that the court had no discretion to ignore offences of which the defendant has been convicted. This objection to the approach of the court in Aslam, Simpson and Stapleton was based on his consideration of section 76(3) of the 2002 Act (the equivalent of section 224(3) in Part 4). He suggested that a defendants particular criminal conduct [was] all of the defendants criminal conduct which constitutes the offence or the offences concerned, and conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned. This is the same argument as was advanced by the appellants in the present case and which, as I observed in para 17, I initially found attractive. For the reasons that I there gave, however, I consider that it is ill founded. The facts of the present cases At all material times the appellants, Ms McCool and Mr Harkin were man and wife. Ms McCool was charged with and pleaded guilty to four offences of obtaining benefit by fraud. These were of false accounting on 26 September 1990 for the purpose of obtaining income support as a single person, when in fact she was married; making a false declaration to similar effect on 28 November 2003; making the same false declaration on 20 October 2005 and again on 10 August 2010. One of the offences therefore preceded the coming into force of the 2002 Act. The other three did not. It was asserted that she had received an overpayment of 76,817.72 in the period between 11 November 2003 and 17 May 2011 and it was this sum which formed the basis of the application for the confiscation order. (It was adjusted to 84,966.30 to take account of the increase in the value of money between the time that the benefit was paid and the date of Ms McCools plea of guilty.) The available amount to meet the confiscation order was deemed to be 38.037, representing half the value of the estimated equity of a property which she owned jointly with her husband, Mr Harkin, the second appellant. The Crown Court judge held that Ms McCool had benefited in the amount of 84,996 and made a confiscation order for a sum exceeding 38,000. In the case of Mr Harkin, he pleaded guilty to making a false declaration on 16 December 1999 in relation to an application for income support, representing that he was single when he was in fact married to Ms McCool. He pleaded guilty to other offences, two of which were similar to the first offence in December 1999 and the remainder were in relation to housing benefit. In all of these cases, the offences were committed after the coming into force of the 2003 Act. The total amount of the benefits received was said to be 53,937.12, after making adjustment for the changes in the value of money. A confiscation order was made in his case in the same sum as Ms McCools. On appeal to the Court of Appeal, the appellants argued, as they have before this court, that the Crown Court did not have jurisdiction to make the orders which it did. They also argued, however, that the Crown Court should have applied Regulation 13 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations (Northern Ireland) to reduce the amount of recoverable benefit by deducting the amounts to which the appellants would have been entitled, had they made honest and accurate applications for benefit. The Court of Appeal acceded to the latter argument and reduced the sums to be recovered by way of confiscation to 5,531.95 in the case of Ms McCool and 33,624 in the case of Mr Harkin. That order has not been challenged by the respondent on this appeal. An application for leave to appeal to this court was refused by the Court of Appeal but the court certified the following question as giving rise to a point of law of public general importance: Can a confiscation order under section 156 of the Proceeds of Crime Act 2002 be made by a Crown Court in circumstances where a defendant is convicted in proceedings before that Crown Court of an offence or offences which were committed before 24 March 2003, given the stipulations of the commencement, transitional and saving provisions set out in articles 2, 4 and 11 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003? Both appellants were convicted of offences which, in all instances save one in each case, were committed after the coming into force of the 2002 Act. I have concluded that the offences committed after 24 March 2003 had to be dealt with under the 2002 Act by the Crown Court considering whether to make confiscation orders against the appellants. I have also decided that the court was obliged to leave out of account offences which occurred before that date. I would therefore answer the certified question in the affirmative. Conclusion I would dismiss the appeal. Postscript I agree with what Lord Hughes has had to say about the power of the Court of Appeal to substitute an order under a different regime see paras 108 et seq of his judgment. LORD HUGHES: (with whom Lady Black agrees) Overview Not for the first time, this case concerns a technical issue relating to the construction of confiscation legislation. The two defendants, who have at all material times been married to one another, were both convicted of a series of offences of making dishonest claims for State benefits by pretending that they were single people when they were not and, in the case of Harkin, by claiming housing benefit for a house when he was living with Ms McCool at a different one. There is and was no significant dispute as to the total amounts which they thereby obtained over a period of some years. There is and was no serious dispute that confiscation orders were appropriate, nor that substantial assets were available, from which such orders could be met: the available amount was accepted to be 38,037 each. The only issue of substance in relation to the proper sum to be confiscated arose from the contention that the amount of the order ought to be reduced, in accordance with R v Waya [2012] UKSC 51; [2013] 1 AC 294 from the gross payments received (the benefit for the purposes of the legislation) to the amount of overpayment. The Court of Appeal accepted that contention and reduced the confiscation orders accordingly. The Crown accepts the reduction, and there thus remains no dispute as to the sums. But it is said on behalf of both defendants that the orders were made under the wrong set of confiscation legislation and must for that reason be quashed. The reason why this is said relates to the commencement dates of the confiscation legislation and the transitional provisions effecting the change from one set to another. The question here arises in a Northern Ireland case, but the legislation is substantially the same in England and Wales, and indeed very largely in Scotland. For convenience, the equivalent England and Wales provisions, where identical, are noted in brackets. By way of very broad summary, confiscation legislation in the UK began with the Drug Trafficking Offences Act 1986 (DTOA 1986). Shortly afterwards, the Criminal Justice Act 1988 (CJA 1988) introduced similar provisions for non drug offending. Both statutes responded to international co operation, and treaty obligations in both fields arose at about the same time. Initially the regime affecting drug offending was more severe than that applying to other offences. The DTOA 1986 was replaced by the Drug Trafficking Act 1994 (DTA 1994). Meanwhile by the Criminal Justice Act 1993 (CJA 1993) and the Proceeds of Crime Act 1995 (POCA 1995) a number of amendments were made. Three which affected non drugs offending may here be relevant: (1) the courts discretion as to the amount of the order was removed and replaced by an obligation (in all but immaterial exceptional situations) to make an order in the sum of the benefit obtained, capped by the available (or realisable) amount; (2) the concept of a minimum benefit disappeared, and (3) provision was introduced for including benefit from past offending where there was a course of criminal conduct. Those alterations brought the non drug regime closer into line with what the drug regime had always been. There was also in the past separate legislation for confiscation in relation to terrorist offences, which it is not necessary to consider here. Then, in 2002 the legislation was re worked and consolidated in the Proceeds of Crime Act 2002 (POCA 2002), which assimilates drug and other offending. This Act contains separate but similar sections for, respectively, England and Wales, Scotland and Northern Ireland. The Northern Ireland legislation relating to confiscation for both kinds of offence has been: (i) The Criminal Justice (Confiscation)(Northern Ireland) Order 1990, 1990 No 2588 (NI 17) (the 1990 Order); this dealt with both drugs and other offences; (ii) The Proceeds of Crime (Northern Ireland) Order 1996 (SI 1996/1299) (NI 9) (the 1996 Order); this essentially mirrored the changes made in England and Wales in 1993, 1994 and 1995 and came into force on 25 August 1996; and (iii) The Proceeds of Crime Act 2002; the chiefly relevant provisions of this Act came into force for Northern Ireland (as also for England and Wales) on 24 March 2003. The issue Ms McCools indictment, to which she pleaded guilty, charged four counts. The first related to 26 September 1990. The remaining three related to November 2003, October 2005 and August 2010. Those counts reflected a continuing course of repeated false representations made between 1990 and 2010. Harkins indictment, to which he also pleaded guilty, contained counts relating to offences committed in December 1999, October 2005, April 2006, May 2007 and August 2009. Those counts reflected a course of repeated false claims made between 1997 and 2009 (income support) and between March 2003 and 2011 (housing benefit). When calculating the benefit for the purpose of the confiscation proceedings, the prosecution disclaimed reliance, in both cases, on any offending before the commencement of POCA 2002 in March 2003. In Ms McCools case, her benefit was calculated from the date of her second count (28 November 2003). The gross sums obtained were 76,817.72; adjusted for inflation this became 84,966.30. The overpayments however, were 5531.95. In Harkins case, his benefit was similarly calculated. As to income support, benefit was calculated by the prosecution as running from 20 October 2005 to 18 November 2009, and as to housing benefit from 3 April 2006 to 27 March 2011. In each case the start date for the calculation of benefit was the date of the earliest count on the indictment which related to a time after the commencement of POCA 2002. The gross payments received, adjusted for inflation, were 53,937.12. The sum overpaid was (similarly adjusted) 33,624. It follows that these net benefit figures were significantly smaller than the total overpayments dishonestly obtained from 1990 onwards in the case of Ms McCool and from 1999 onwards in the case of Harkin. They were also, but not by nearly so much, somewhat smaller than the total overpayments obtained after the commencement of POCA 2002. The confiscation orders were made under POCA 2002. The appellants contend that there was no power to make orders under that Act. They say that any order could only be made under the relevant predecessor legislation, thus the 1990 Order for Ms McCool and the 1996 Order for Harkin. This contention is founded on the terms of section 156 of POCA 2002 and of the relevant Commencement Order. Section 156 [section 6 for England and Wales] is the foundation of the power to make a confiscation order. So far as relevant, it says: 156 Making of order (1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within either of the following paragraphs (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered). (3) The second condition is that the prosecutor asks the court to proceed (a) under this section, or (b) do so. the court believes it is appropriate for it to (4) The court must proceed as follows it must decide whether the defendant has (a) a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. If the court decides under subsection (4)(b) or (c) (5) that the defendant has benefited from the conduct referred to it must (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. [exception where victim brings civil (6) proceedings]. (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. (8) [provision for absconding defendant]. (9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2). The relevant Commencement Order is the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003/333) (C20) (the Commencement Order). So far as material, it says in article 4(1) [article 3(1) E & W]: 4.(1) Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003. And by article 11, [article 10 E & W] it preserves the predecessor legislation for cases where article 4 precludes use of POCA 2002: 11. Where, under article 4 or 6, a provision of the Act does not have effect, the following provisions shall continue to have effect (e) Articles 3 to 40 of, and paragraph 18 of Schedule 3 to, the Proceeds of Crime (Northern Ireland) Order 1996. It follows that the issue in this case relates to which offences are contemplated by section 156(2) and thus referred to in article 4(1). Is it, in each case, any offence for which the defendant is before the court, or is it any such offence which is relied upon by the Crown (or the court) as justifying confiscation proceedings? Previous authority A similar problem arose (in England and Wales) in relation to the transition from the pre 1995 legislation to POCA 1995. Section 16(5) of that latter Act contained a provision very similar to the present article 4(1). It provided: Section 1 shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section. As Lord Kerr explains, the Court of Appeal (Criminal Division) confronted this question in R v Simpson, R v Aslam and R v Stapleton. It concluded that the offence(s) referred to were ones which were relied upon for the making of a confiscation order, that is to say those which the Crown was seeking, or could still seek, to bring into account for confiscation purposes. It followed that if when it came to confiscation the Crown disclaimed reliance on a pre commencement count and brought into account only post commencement offences, the new Act applied. I agree with Lord Kerr that it is not necessary to read words into the new statute to achieve this. Nor, pace the Court of Appeal (Criminal Division) in R v Simpson, is it necessary to label the alternative construction absurd. The decisions were that the new statutes applied where the relevant offences, that is to say those relied on for confiscation purposes, post dated the commencement date. There is no doubt that these decisions have consistently been followed as a matter of practice since, as is shown by the considered decision of the Crown in the present case to disclaim reliance on the counts which pre dated March 2003. The decisions have also consistently been applied in the Court of Appeal (Criminal Division); see for example R v Aniakor [2014] EWCA Crim 2171. The present appellants contend that this established line of authority, and the practice based upon it, are wrong. Of course, if this construction of the statutes, despite such general acceptance, is not permissible, then it must follow that however technical the objection raised, the orders made in the present case cannot stand. The appellants argument The argument for the appellants rests principally upon the fact that there are some differences between the POCA 2002 regime and the earlier regimes which it replaced. The confiscation legislation is, it is rightly said, penal legislation. Accordingly, it is said that it ought to be construed strictly in favour of defendants to whom its provisions are applied. It is unjust, it is said, to permit the Crown by a process essentially of election, to choose which regime is to apply to a defendant. And it is contended that the wording of article 4(1) [article 3(1) E & W] of the Commencement Order is clear and can only sensibly mean that where any offence on the indictment dates back before the commencement date of POCA 2002, the old regime applies and not the new. Differences between the regimes The appellants helpfully assembled a list of differences. By no means all of them could even arguably affect them, but their case is that all of them are relevant to deciding the principle whether POCA 2002 can be applied to those who are before the Crown Court for offences which include pre commencement offences, even if the Crown disclaims reliance on the earlier offence(s) for the purposes of confiscation. The identified differences are addressed serially below. First, the pre 1995 non drug regimes provided for confiscation to be available only where the benefit exceeded a minimum amount (set at all material times at 10,000) and moreover made the same sum the minimum amount for which a confiscation order could be made: article 4(1) of the 1990 Order [the unamended section 71(2)(b)(ii) CJA 1988 for E & W]. Allied to this rule, the pre 1995 non drug regimes required the Crown to serve notice to the effect that an order in at least the minimum amount would be possible: article 4(6) of the 1990 Order [the unamended section 72(1) CJA 1988 for E & W]. This concept of a minimum amount never applied to drugs offending, and disappeared from the legislation after POCA 1995 and the 1996 Order. Second, the pre 1995 non drug regimes vested in the court a discretion as to the amount of a confiscation order. The court was given the power to make such order as it thought fit, subject to the ceiling of the assets available/realisable: Article 4(1) of the 1990 Order [the unamended section 71(1) CJA 1988 for E & W]. Since 1995/1996 the court has been required in all but immaterial cases to make an order in the amount of the benefit which the defendant has obtained, subject again to the ceiling of available/realisable assets. There was never any discretion in the drug regimes. Third, for the non drug regimes, there was until the 1995/96 changes no provision for taking into account benefit obtained from offences other than those before the court, either as charges or as offences taken into consideration. Since then, benefit from other offences has been taken into account in prescribed circumstances. The label attached to the prescribed circumstances was, until POCA 2002, a course of criminal conduct: article 9 of the 1996 Order [new section 72AA(1) CJA 1988 inserted by POCA 1995 for E & W]. Since POCA 2002 it has been criminal lifestyle: POCA 2002 section 156(4) and 223 [sections 6(4) and 75 for E & W]. The conditions for attracting these extended provisions have not remained identical, but are very similar. The post 1995/96 conditions were satisfied if the defendant was now, or had been in the preceding six years, convicted of one other offence: article 9(1) of the 1996 Order [new section 72AA(1) CJA 1988 for E & W]. Under POCA 2002 the defendant falls within the lifestyle provisions if there are either three additional convictions (four in all) in the present proceedings, or two previous convictions in the preceding six years: section 223(3) POCA 2002 [section 75(3) for E & W]. Moreover, the course of criminal activity lifestyle rules of POCA 2002 do not apply unless the total benefit is 5,000 or more: section 223(4) [section 75(4) E & W]. In these respects the qualifying conditions are narrower under POCA 2002 than under the previous 1995/96 regime. But under POCA 2002 a defendant is also to be treated as a lifestyle offender if he is convicted of certain specific offences, or (subject to the 5,000 minimum) of an offence committed over a period of at least six months: section 223(2) [section 75(2) for E & W]. The objective seems sensibly to have been to identify more reliably those whose offending spanned a period so as to raise the realistic possibility that their lifestyle was to a significant extent supported by crime. The effect of the course of conduct and lifestyle conditions being satisfied is, in each case, to make available to the court assumptions as to benefit, each applicable unless either the defendant disproves it on the balance of probabilities, or there would be a serious risk of injustice if it were made. The assumptions are the same under both regimes, although the first has been split into two in POCA 2002: compare section 160 POCA 2002 [section 10 E & W] with article 9, 1996 Order [new section 72AA(4) CJA 1988 E & W]. The chief assumptions are that any property held by the defendant over the preceding six years, and any expenditure made by him over the same period, are the product of criminal offences, so that they count towards his benefit. Plainly the objective under both regimes is to cast the onus onto a lifestyle offender to demonstrate, on the balance of probabilities, that his assets have been legitimate. There is one difference between the 1995/96 regime and the POCA 2002 regime, in that the assumptions, which were discretionary under the former, have become mandatory under the latter. In the case of drug offending, the assumptions were always available, and the confiscation order took into account all benefit from drug offending whenever it occurred, before or after the inauguration of the confiscation legislation: see eg DTOA sections 1(3), 2(1)(a) and 2(2). Fourth, the rules as to postponement of confiscation, which were the subject of a considerable amount of litigation until the House of Lords held in R v Soneji [2005] UKHL 49; [2006] 1 AC 340 and R v Knights [2005] UKHL 50; [2006] 1 AC 368 that failure strictly to comply with them did not usually render an order invalid, have been modified from time to time. Under the 1990 Order the maximum postponement was six months: article 7. Later that was revised to six months absent exceptional circumstances: article 11 of the 1996 Order [section 72A(3) CJA 1988 inserted by section 28 CJA 1993 E & W]. Under POCA 2002 postponement can be for up to a maximum of two years, and beyond in event of exceptional circumstances: section 164 [section 14 E & W]. Fifth, all the regimes have provided for the calculation of the ceiling amount of the defendants available or realisable assets to include gifts which he has made. Under the pre POCA 2002 non drug regimes, gifts which were thus to be included were those made by the defendant after the commission of the predicate offence which the court thought it appropriate to take into account: article 3(10) of the 1990 Order and article 7(1)(a) of the 1996 Order [section 74(10) unamended CJA 1988 E & W]. Under POCA 2002 the same rule for what are now termed tainted gifts applies by section 225(5) [section 77(5) E & W], but the expression is widened in lifestyle cases, logically enough, to include gifts either made during the six year period or which were of property obtained via criminal conduct: section 225(2)(3) [section 77(2)(3) E & W]. In both cases, if gifts qualify as tainted they are now to be added into available assets, without a further requirement that the court conclude it appropriate to do so. Sixth, from time to time the provisions relating to variation of confiscation orders have been revisited and revised. It is enough to record that the 1995/96 regimes somewhat extended the power to vary an order upwards, when compared with the pre 1995 regime, in the event of fresh evidence becoming available. POCA 2002 provides for additional specific situations in which there may be variation on the basis of fresh evidence; they include cases where the Crown Court made no confiscation order at all, either because it was not invited to do so, or where at that time the evidence did not show any benefit. Seventh, there are differences in the means of enforcement of confiscation orders. It is unnecessary to set them out. Essentially the system of enforcement has remained the same throughout. Confiscation orders are enforced by the magistrates as if they were Crown Court fines: see R v Guraj [2016] UKSC 65. Additional mechanisms have however been added from time to time, such as widening the range of officials who may exercise powers of seizure, extending the powers of management receivers appointed under restraint orders, and enlarging the ability to enforce as if civil debts. The appellants identify a particular aspect of enforcement. When making a confiscation order the court has always had power to stipulate the time within which payment must be made. In Northern Ireland the power derived until POCA 2002 from the general provisions for fines, found in section 35(1) of the Criminal Justice Act (NI) 1954, which permitted extension of the period from time to time. Under POCA 2002, section 161(5) [section 11(5) E & W] time cannot be extended beyond 12 months. The charging of interest depends on the time given to pay, because it runs from default. It follows that in this respect POCA 2002 is, at least theoretically, more severe than the previous regime, under which it was at any rate legally possible for time to be extended beyond 12 months. Eighth, the early legislation placed confiscation jurisdiction in the court of trial, whether the Crown Court or the Magistrates Court. POCA 2002 restricts it to the Crown Court and therefore includes provision for the defendant who is convicted of a benefit generating offence before the magistrates to be committed to the Crown Court for confiscation to be considered: section 218 [section 70 E & W]. This power of committal is separate from, and wider than, the ordinary power which magistrates have in England and Wales to commit a defendant for sentence where he is convicted of an offence triable either way. It extends to purely summary offences, and is a power of committal available only where confiscation is a possibility. The terms of the provisions for committal are relevant context on the construction question and are considered more fully below. Ninth, the earlier legislation made no provision for a right of appeal by the Crown. The defendants right of appeal was secured from the outset because a confiscation order was, although not strictly part of the sentence, an order made when dealing with an offender and thus appealable as if a sentence under section 30 Criminal Appeal Act (Northern Ireland) 1980 [section 50 Criminal Appeal Act 1968 E & W]: see R v Johnson [1991] 2 QB 249. This was later reinforced by inserting specific provision in those statutes including a confiscation order in the definition of sentence, such as section 30(3)(a) of the Criminal Appeal Act (Northern Ireland) 1980 [section 50(1)(d) Criminal Appeal Act 1968 E & W]. There is of course no general right of appeal by the Crown against sentence (although there existed the power to refer the case under section 36 of the Criminal Justice Act 1988 as unduly lenient). A general right in the Crown to challenge either a decision not to make a confiscation order, or the amount of it if made, had to be created separately and is found in section 181 182 of POCA 2002 [sections 31 32 E & W]. The detail and technicality of the confiscation legislation, sometimes necessary and sometimes not, is such that changes from time to time of the kind set out above are to be expected. The question which matters for present purposes is whether these differences mean that the Simpson/Aslam construction of POCA 2002 is thereby rendered impermissible. That in turn involves asking whether that construction would or might result in any unfairness to defendants. If it would, or might, then the principle that penal statutes must be construed strictly in favour of those penalised would carry considerable weight. There would be unfairness, and a breach of article 7 ECHR, if this construction had the effect of applying retrospectively to defendants a regime which was not in force at the time their offences were committed. But there is no question of this retrospective operation of POCA 2002 if it is applied only to confiscation proceedings depending on offences committed after its commencement. If the Crown disclaims reliance, for confiscation purposes, on any pre commencement offence, then retrospective operation simply does not arise. The principal rationale of the impermissibility of retrospective operation of a penal statute is that a citizen is entitled to know, at the time he decides how to behave, what the legal consequences of what he does may be. If now these appellants, or other defendants like them, were to be visited with consequences by way of confiscation of a kind different from what was available to the Crown when they committed the offence(s) attracting those consequences, there would be impermissible retrospective operation of the criminal law. But these appellants have committed offences since the commencement of POCA 2002. The consequences which have been visited upon them are precisely the same as would have been applied to anyone else who committed such offences after that commencement. It is true that both of them have also committed pre commencement offences. But the orders made owe nothing to those offences and are precisely the same as would have followed if the earlier offences had never occurred. There is nothing unfair in saying to Ms McCool that she should bear the confiscation consequences of her post March 2003 offences, as required by POCA 2002, unless those consequences differ in some way from what they would have been if she had not committed her earlier offences. They do not. The same is true of Harkin. There would also be likely to be a real risk of unfairness if a defendant faced the prospect of two different confiscation regimes being applied to him, because so much of the ground covered by each regime is the same. This was the consideration underlined by the Court of Appeal, Criminal Division, in Aslam [2005] 1 Cr App R (S) 116. Speaking of the commencement provisions in POCA 1995, the courts judgment contains the following analysis: 11. The legislative purpose of section 16(5), as it seems to us, was to prevent the Crown from dividing convictions against a defendant in one set of proceedings into pre and post November 1, 1995 matters and then taking confiscation proceedings (concurrently or consecutively) under both statutes. So if at the time the judge is asked to make a confiscation order under the 1995 Act on a number of counts there remains a pre commencement count on which the Crown is seeking, or could still seek, a confiscation order under the 1988 Act as amended in 1993, there is no jurisdiction to make an order under the 1995 Act. However, if the pre commencement count is one which could not be the basis of confiscation proceedings, there is no obstacle to using the 1995 Act regime. Similarly if (as in this case) the Crown has expressly abandoned any reliance on the pre commencement count for the purposes of a confiscation order, the fact that it could have sought such an order in respect of that count seems to us entirely immaterial. In such a case also, in our judgment, there is no obstacle to using in [sic] the 1995 Act regime in respect of the post commencement counts. However, for the reasons explained in that passage, there is no question of more than a single confiscation regime being applied to these appellants or anyone in a similar position. That is because the offences which are relevant to section 156 [section 6 E & W] are those on which the Crown and thus the court will found any confiscation order. Where, as here, any earlier pre commencement offences are disclaimed by the Crown, and not relied upon by the court, there can only be the single confiscation regime established by POCA 2002. This position is true despite the various differences between the regimes which are set out above. Ms McCool, had she been dealt with in the early 1990s for her offending up to that point, would have been subject to a confiscation regime under which 10,000 was the minimum sum for which an order could be made see the 1990 Order and para 71 above. But to say that an order can now be made against her under POCA 2002, where there is no minimum, is to subject her to no injustice if the order is made exclusively on the basis of offences committed since March 2003. It is exactly the same as if she had now been prosecuted only for the post March 2003 offences. In that event, everyone agrees that POCA 2002 would be the relevant regime and there would be no minimum sum. For the same reasons, there is no injustice to Ms McCool in the fact that the regime applied to her permits of no general discretion as to the amount of the confiscation order. She is in exactly the same position as she would have been in if prosecuted only for the post March 2003 offences. It might be added that, in any event, no basis is suggested on which any court considering her case at any time under any regime might have made an order in a sum smaller than the 5,531.95 actually made. The lifestyle provisions are of some complexity but the same reasoning applies. If these appellants had been prosecuted only for the post March 2003 offences, no one suggests that the POCA 2002 provisions would not correctly have been applied to them. The slightly different lifestyle provisions of POCA 2002 are deliberately applied to anyone convicted of offences committed after the commencement of that statute. They were in force when those post commencement offences were committed, and no improper retrospectivity is involved in applying them. In considering the lifestyle provisions it is necessary to distinguish between the conditions which must be met before they can be applied, and the consequences if they are. It is certainly true that the conditions for their application may to a strictly limited extent involve looking at past convictions. There are two possible routes to a finding that there has been a course of criminal activity. The first is that the defendant is convicted in the current proceedings of at least three other offences (ie at least four in all) from which he has benefited: section 223(2)(b) with section 223(3)(a) [section 75(2)(b) with section 75(3)(a) E & W]. The second is that he has previous convictions, sustained on two or more different occasions, for benefit generating offences: section 223(2)(b) with section 223(3)(b) [section 75(2)(b) with section 75(3)(b) E & W]. As to the first route, one or more of the three other offences might of course be pre commencement. But if it is, the Commencement Order requires it to be left out of consideration: Article 8(2) [article 7(2) E & W], and nor can its associated benefit count towards the minimum benefit condition of 5,000 required by section 223(4) and (5) [section 75(4) and (5) E & W]: Article 8(3) as amended [article 7(4) E & W]. The exception of pre commencement offences for this purpose of counting three others in the present proceedings, and counting a minimum of 5,000 benefit has clearly been stipulated for in the Commencement Order to avoid any risk of retrospectivity, for under the 1995/96 regime only one other offence was sufficient and there was no minimum benefit requirement. It may or may not have been necessary, in order to avoid infringement of article 7 ECHR, to make these stipulations, given that the new conditions are tighter, not looser, for the establishment of a course of criminal activity, but this must have been the aim. Whatever the reason, the outcome is that no pre commencement offences, even if the conviction occurs in the current proceedings, can count towards the establishment of a course of criminal activity via the three other offences (four in all) rule. It is also to be noted that the fact that it was thought necessary, in order to achieve this, to include articles 8(2) and (3) in the Commencement Order is relevant to the construction of section 156: see below. As to the second route, the past convictions may clearly have been pre commencement, as was the case under the previous regime. These can and do count, as article 8(5) of the Commencement Order [article 7(5) E & W] makes clear. There is no reason why they should not. There is no offensive retrospectivity so long as the past convictions only go to the calculation of benefit in respect of confiscation based on post commencement offence(s). It is similar to taking account of previous criminal history for sentencing purposes. The rule that such pre commencement benefit might be taken into account when fixing the confiscation order was in force and available to the defendant at the time he committed the post commencement offence(s) which generate the order. POCA also introduced two new routes to the lifestyle provisions, as additions to the course of criminal activity routes. The first is that some offences specified in Schedule 5 [Schedule 2 E & W] (intended to be the kind likely to be committed by professional criminals) now automatically bring the lifestyle provisions into play. The second is that an offence committed over a period of six months or more also does so, since it is likely to involve repetition. Both these new routes are more severe on defendants than the previous regimes. Accordingly, for both of them, the Commencement Order provides by article 8(2) [article 7(2) E & W] that pre commencement offences are to be left out of consideration. There is thus no risk of objectionable retrospectivity or unfairness. When it comes to the consequences of the lifestyle provisions applying, it is necessary to go back in the statute to section 160 [section 10 E & W]. This sets out the assumptions which must be made. As with the provisions of the previous regimes, they do involve counting as benefit assets obtained before the Act was passed, if but only if the defendant cannot displace the assumptions on the balance of probabilities. But that is the position for anyone convicted of (say) a course of dishonest conduct perpetrated between June and December 2003, if he qualifies under the lifestyle provisions. The counting of past obtained benefits is not objectionably retrospective, because it applies a regime which was in force when the offences were committed. Nor, for the same reasons, is there any unfairness to a defendant if the Crown disclaims reliance on any pre commencement offence in the present indictment and proceeds in relation only to the post commencement offence(s). A defendant whose case is treated in this way by the Crown is in exactly the same position as if he had only been prosecuted for, or indeed had only committed, the post commencement offence(s). Exactly the same applies to the various other differences between the regimes which are set out at paras 75 81 above. In all cases there is no unfairness to a defendant such as these appellants if the POCA 2002 regime is applied, based only on post commencement offences, because the rules which are being applied are those which were in force, and publicly known, at the time the offence(s) generating the confiscation order were committed. Even if it were to turn out possible for circumstances to occur in which the result of this, correct, construction of POCA 2002 as applied in the Aslam series of cases was to create real risk of unfairness to the defendant, the court retains a simple method of preventing such risk eventuating. On any view, under both the present POCA 2002 regime and its predecessors, the court is given the power to embark upon the confiscation process of its own motion, even if not asked by the Crown to do so: section 156(3)(b) POCA 2002 or article 8(1)(b) of the 1996 Order [section 6(3)(b) POCA 2002 or section 71(1)(b) CJA 1988 for E & W]. On the assumption that the Aslam construction is correct, the offence(s) in respect of which the confiscation inquiry is undertaken are therefore those which either the Crown seeks to rely on or the court determines should be made part of the process. It would therefore be open to a defendant to apply to the court to determine that one or more pre commencement counts ought to be included in the process, on the grounds that if they are not he would be at demonstrated risk of unfairness. If the court acceded to that application, the earlier count would be part of the confiscation inquiry and, as the Commencement Order ordains, the relevant statutory regime would then be the earlier one. It is clear from the judgment of Lord Reed that the foregoing conclusions as to the absence of risk of unfairness is not in issue; his differing conclusions depend on his construction of the legislation. The construction of section 156 and the Commencement Order There is no basis for the appellants assertion that it is improper, or inconsistent with POCA 2002, for there to be an element of election by the Crown in relation to which offences are relied on for the confiscation process. Section 156 [section 6 E & W] does not make a confiscation order available in respect of every person who profits from criminal behaviour. It makes it available in relation to those who are convicted of one or more offences. Certainly confiscation depends on benefit from conduct rather than attaching to particular offences, but the confiscation exercise is, by section 156(2) [section 6(2) E & W] triggered by the offences there referred to. It is axiomatic that the decision to prosecute for an offence is for the Crown. An element of choice as to which offence(s) to charge is inherent in the vast majority of prosecution decisions, and in all where there is serial offending. It is positively unusual for every offence revealed to be charged. It follows that by deciding to charge only those of a series of offences which were committed after the commencement date, the Crown can achieve exactly the same result as contemplated by Aslam and similar cases, that is to say the application of the POCA 2002 regime. No one suggests otherwise. There is nothing remotely improper about it. A similar telling indication is provided by the second part of section 156(2), viz section 156(2)(b) [section 6(2)(b) E & W]. As explained at para 80 above, the magistrates power to make confiscation orders disappeared in POCA 2002. Accordingly it was replaced by a power to commit a defendant to the Crown Court for consideration of confiscation. The power is found in section 218 [section 70 E & W]. This provides: 218 Committal by magistrates court (1) This section applies if a defendant is convicted of an offence by (a) a magistrates court, and (b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156. In such a case the magistrates court (a) must commit the defendant to the Crown Court in respect of the offence, and (b) may commit him to the Crown Court in respect of any other offence falling within subsection (3). (2) (3) An offence falls within this subsection if (a) the defendant has been convicted of it by the magistrates court or any other court, and (b) the magistrates court has power to deal with him in respect of it. If a committal is made under this section in (4) respect of an offence or offences (a) section 156 applies accordingly, and (b) the committal operates as a committal of the defendant to be dealt with by the Crown Court in accordance with section 219. (5) [provision for bail]. This power is explicitly to commit with a view to confiscation. It is not the same as the ordinary (English) magistrates power to commit for sentence in an either way offence. This power extends to purely summary offences, where the magistrates could not commit for sentence, and it exists only where consideration of confiscation is the purpose. Once invoked, it does transfer also to the Crown Court the function of sentencing the defendant: see sections 218(4) and 219 [sections 70(4) & 71 E & W]. But the sentencing power to be exercised by the Crown Court is not the same as it would be in the case of committal for sentence in an either way offence, for it is limited by section 219 to whatever (more limited) power the magistrates would have had by way of sentence [section 71(3)(b) E & W, with the variant that the magistrates may in that jurisdiction indicate under section 70(5) as to an either way offence that they would in any event have committed for sentence, and then the Crown Court has its own sentencing powers under section 71(2)(b).] In both jurisdictions it is to be noted the magistrates have no power to commit of their own motion with a view to confiscation. They can do so only where the Crown asks them to do so: section 218(1)(b) [section 70(1)(b) E & W]. So the Act recognises explicitly the power of the Crown to make a decision either way about committal. It provides an election to the Crown. If some of the offences before the magistrates court are pre commencement and the Crown opts to request committal with a view to confiscation only those which are later, post commencement, offences, then only the POCA 2002 regime will apply. There is nothing at all improper in the Crown adopting this course. If it can do so in relation to convictions in the magistrates court there is no reason why it should not also do so, via the Aslam procedure, if the convictions occur in the Crown Court. It is true that the magistrates can, if asked by the Crown to commit offences A D with a view to confiscation, also do the same of its own motion in relation to offences E G. But there is no obligation to do so, and the result is that the Crowns decision as to which are to be committed is permitted to stand, and in practice in most cases will be determinative. Section 224(3) [section 76(3) E & W] deals with the non lifestyle offender. Under section 156(4)(c) [section 6(4)(c) E & W] his benefit falls to be assessed from offences constituting his particular criminal conduct. Those, by section 224(3) [section 76(3) E & W] are (a) the offence(s) concerned and (b) any other offence(s) of which he was convicted in the same proceedings. (A third element, under subsection (3)(c) is offences taken into consideration, but this provision does not assist on the present construction question.) An offence concerned is, by section 156(9) [section 6(9) E & W] to be read as an offence mentioned in section 156(2) [section 6(2) E & W]. But section 224(3(b) demonstrates that there may be offences of which the defendant is convicted in the current proceedings which are not the offence(s) mentioned in section 156(2). That is a strong pointer against the appellants argument that section 156(2)(a), and thus article 7 of the Commencement Order, means all offences of which the defendant is convicted in the current proceedings. Rather, it supports the Crowns contention, that the offence(s) concerned are throughout those on which the Crown seeks to rely for the purposes of the statute, that is to say, to justify confiscation proceedings. It may just be possible to give section 224(3)(b) [section 76(3)(b) E & W] content without this construction. That might be possible if it could be read as intended only to deal with left behind offences, that is to say ones of which the defendant was convicted in the magistrates court (and thus in the present proceedings) but in respect of which he was not committed for confiscation. But if this is all it is for, it might have been expected to refer to magistrates offences specifically. Next, the suggested eventuality is unlikely, for if the Crown asks for the defendant to be committed with a view to confiscation in respect of offences A D, and there are also benefit generating offences E G, it is highly unlikely that the Crown would not seek committal in respect of all of them, unless of course the complication exists that some of the offences are pre commencement, and it is necessary to exercise the Aslam procedure. Thirdly, it is very significant that the Scottish section of POCA 2002 includes wording identical to section 224(b)(3): see section 143(3)(b). That is because the provisions as to general and particular criminal conduct are identical for each of the three national jurisdictions. But in Scotland there is no question of committal by justices of the peace (or anyone else) for consideration of confiscation. In Scotland, confiscation follows on conviction either in the High Court or before the Sheriff: section 92, and especially section 92(13). Confiscation in Scotland is dealt with by the court of conviction, whether the High Court or the Sheriff Court: section 92(1). Since there is no question of committal there is therefore no equivalent of sections 218 (NI) and 70 (England and Wales). So 224(3)(b) cannot have been intended to refer to left behind or un committed offences because if it were, there would be no occasion for the same words in the Scottish section. I do not think that the operation of the group of provisions found in sections 163 165 [sections 13 15 E&W] is in any way impaired by the construction of the statute here explained. As a matter of general sentencing principle, a court which contemplates fining a defendant for any offence before it is bound to take into account his means to pay. A confiscation order made, triggered by whichever offences, will be relevant to those means, in relation to any offence for which a fine is being considered. Likewise, as a matter of general sentencing principle a court ought in any event to sentence a defendant for all the offences before it at the same time, unless there is a reason to do otherwise. For the reasons explained above at para 84, I do not think that the consequence of this construction of POCA is that it is mandatory for the Crown, in a case where the indictment contains both pre and post commencement offences, to exercise the Aslam election to nominate only the latter for the purposes of asking the court to proceed to confiscation. There may well be cases where this is inappropriate, for example where the great majority of offences, or the most serious, are pre commencement. But in such a situation, where the earlier offences are relied on, the court will, according to the Commencement Order, proceed under the earlier regime. To the extent that the appellants argued that the effect of section 224(3)(b) is, unless their preferred construction is correct, to defeat the aim of confining POCA 2002 to post commencement offences, this is not so because article 9 of the Commencement Order [applicable also to E & W] specifically provides that conduct which constitutes an offence committed before the commencement date is not particular criminal conduct under section 76(3) or 224(3). That provision in the Commencement Order is likewise a good indication of the assumption that there might be offence(s) of which the defendant is convicted in the current proceedings which are not the offence(s) within section 156(2) [section 6(2) E & W]. A similar indication is given by article 8(2) [article 7(2) E & W]. This provides that when considering the two new routes to treating the defendant as a lifestyle offender (commission of a specified offence or of an offence committed over a six month period) pre commencement offences are to be ignored (see para 90 above). But if, as the appellants contend, every case in which there is a pre commencement offence in the present proceedings must for that reason alone be dealt with under the old 1995/96 regime, this stipulation in the Commencement Order would simply not be necessary. The same applies to the stipulation in article 8(3) [article 7(3) E & W] which excludes pre commencement offences from the course of criminal conduct (three additional offences and thus four in all) rule. I agree of course that subordinate legislation cannot control the meaning of the primary statute, but where, as here, the primary and subordinate legislation are part of a single scheme to substitute one statutory regime for another, and are plainly intended to operate in tandem, it is not irrelevant to take account of indications of consistency between them. If the appellants contention were correct, and the earlier confiscation regime has to be applied wherever there is a single pre commencement offence on the indictment (or before the magistrates) even if it is not relied on for confiscation, it would follow that that rule would have to apply even if the pre commencement offence could never, even arguably, have generated a benefit, and thus could never, even arguably, have had the slightest relevance to the issue of confiscation. Of course, in order to appear on the same indictment, in the Crown Court in Northern Ireland or in England and Wales at least, the offences have to satisfy the rules of joinder to be found in rule 21 of the Crown Court Rules (Northern Ireland) 1979 [Criminal Procedure Rules 2014, rule 14.2(3) for E & W]. But it is not difficult to imagine circumstances in which the earlier and the later offences would be a series of offences of the same or similar character for the purpose of these rules. There simply has to be a sufficient nexus between the counts, which do not at all have to be for the same form of criminal charge; see for the proper approach see R v Kray (1969) 53 Cr App R 569 and Ludlow v Metropolitan Police Comr [1971 AC 29. Sometimes acquisitive offences are part of a series of offences of abuse for example by carers. Count 1 may well charge an assault on the elderly person in January 2003, whilst counts 2 5 charge thefts from her bank account starting in April of the same year. A fire raiser may have committed a series of arsons prior to March 2003, which are all offences from which there is no arguable benefit, but the last in the series might be setting fire to his own house, followed by an insurance claim. But in these and similar cases, if the appellants are right, the offences referred to in section 156 or E & W 6 will include the earlier non benefit ones, and the confiscation proceedings in relation to the only benefit generating offences, all committed after March 2003, would have to be conducted under the earlier regimes. Even more oddly, the same would be true of a serial fraudster whose first offence was an unsuccessful attempt, committed before March 2003, followed by a succession of similar frauds which succeeded, all committed after that date. There is no rhyme or reason for this and such an outcome might well be termed absurd. Conclusion For these reasons, I agree with Lord Kerr that the appellants arguments fail. The offences referred to in sections 156 and E & W 6 are those on which the Crown relies as relevant to the possibility of confiscation. The context of POCA 2002, considered separately, and also together with its Commencement Order, shows that the construction applied in Simpson, Aslam, Stapleton and Aniakor is correct. The important rule that penal statutes must be construed strictly so as to avoid any possible unfairness to those potentially penalised provides no reason to the contrary. The consequence is that these appeals must be dismissed. Postscript: The powers of the Court of Appeal to substitute Although the question does not, in consequence, arise, this case ought not to be concluded without some reference to it. The argument put to this court by the appellants was that if they were correct, and the order in the present cases was made under the wrong legislation, the Court of Appeal had no power to put the error right by substituting an order, if satisfied that it was in the correct sum, under the correct statutory regime. In the present case the Crown had conceded in the court below that substitution was not available, and having taken that stand did not ask this court to permit it to withdraw the concession. Since the point was in consequence not argued, it is better not to express a concluded view about it. Equally, however, it ought not to be assumed that the concession made, and the appellants supportive argument, were correct. The appellants right of appeal is given by section 8 of the Criminal Appeal Act (Northern Ireland) 1980: 8. A person convicted on indictment may appeal to the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law. The equivalent provision in England and Wales is section 9 of the Criminal Appeal Act 1968, and in that jurisdiction section 10 makes clear that the same right of appeal exists when a defendant is dealt with by the Crown Court after committal for sentence to that court by the magistrates. Section 30(3)(a) [section 50(1)(d) Criminal Appeal Act 1968 for E & W] expressly includes a confiscation order in the expression sentence for this purpose, confirming the earlier decision in R v Johnson. On an appeal against sentence, the powers of the Court of Appeal include the power, if quashing the sentence, to impose such alternative sentence as is available in law. Section 10(3) of the Criminal Appeal Act Northern Ireland 1980 provides: (3) On an appeal to the Court against sentence under section 8 or 9 of this Act the Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed by the Crown Court and pass such other sentence authorised by law (whether more or less severe) in substitution therefor as it thinks ought to have been passed; but in no case shall any sentence be increased by reason or in consideration of any evidence that was not given at the Crown Court. The equivalent provision in England and Wales is section 11(3) Criminal Appeal Act 1968 which is in the same terms except that they are subject to the proviso that the defendant shall not, taking the case as a whole, be dealt with more severely than he was below. In the particular case of confiscation orders, the Criminal Appeal Acts have been amended to enable the Court of Appeal, instead of substituting its own order, to remit the case to the Crown Court. Section 10(3A) [section 11(3A) in E & W] provides: (3A) Where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the Court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment. This power is very useful when there may be a need for the Crown Court to take fresh evidence to deal with the import of the judgment of the Court of Appeal. Where a case is thus remitted to the Crown Court, the Criminal Appeal Acts have consequential provisions. They include section 10(3C) [section 11(3D) E & W]. This provides, inter alia, that: relevant enactment in relation to a confiscation order quashed under subsection (3), means the enactment under which the order was made. The effect of this last provision, whether intended or not, is that when remitting a confiscation case the Court of Appeal is bound to direct the Crown Court to apply the same statutory regime that it did before. Section 10(3C) is the foundation of the argument of the appellants in the present case, to the effect that if their confiscation orders had had to be quashed on the grounds that they were made under the wrong statute, it would not be possible for the Court of Appeal to substitute an order under the right legislation. This, however, by no means necessarily follows. On its face, section 10(3C) only applies when the Court of Appeal is remitting the case under the new power to do so. Its longstanding and pre existing power simply to quash and substitute under section 10(3) is arguably quite unaffected. When dealing with a confiscation order which is found to contain some error justifying its quashing, it is not bound to remit the case to the Crown Court; it simply has power to do so if it wishes. If it chooses not to do so, section 10(3C) is arguably irrelevant. At least where the Court of Appeal can apply the findings of fact and the decisions on the evidence made by the Crown Court, there may be no reason at all why it should not, in a proper case, quash an order if made under the wrong legislation and substitute an order under the right statutory scheme, and it is relevant to note that this is the practice of the Court of Appeal, Criminal Division, in England and Wales see for example R v Lazarus [2004] EWCA Crim 2297; [2005] 1 Cr App R (S) 96 and R v Bukhari [2008] EWCA Crim 2915; [2009] 2 Cr App R (S) 18. LORD REED: (dissenting) (with whom Lord Mance agrees) The first appellant, Ms McCool, pleaded guilty at Derry Crown Court to four counts on an indictment. The first count was of false accounting contrary to section 17(1)(a) of the Theft Act (Northern Ireland) 1969, committed on 26 September 1990. The remaining counts were of making false declarations with a view to obtaining benefits contrary to section 105A(1) of the Social Security Administration (Northern Ireland) Act 1992, committed on dates between 28 November 2003 and 10 August 2010. The second appellant, Mr Harkin, appeared on the same indictment, and pleaded guilty to seven counts of offences under section 105A(1) of the 1992 Act, committed on 16 December 1999 (count 5) and on six other dates between 20 October 2005 and 3 August 2009. At sentencing, the court was asked by the prosecutor to proceed with confiscation proceedings pursuant to section 156(3) of the Proceeds of Crime Act 2002 (POCA). Prosecutors statements were subsequently served on the appellants. In an effort to avoid the problem which has given rise to these appeals, the statement served on the first appellant stated, in relation to the calculation of the benefit obtained: I have decided not to include the first charge on the bill of indictment (this is the first charge in relation to the defendant) for confiscation purposes and as such I have amended the Income Support overpayment period to commence from 28 November 2003. The statement served on the second appellant contained a similar statement in respect of count 5. The overpayment period was therefore calculated as if it had commenced on 20 October 2005. The explanation for this apparent generosity on the part of the prosecutor lies in the transitional provisions governing POCAs entry into force in Northern Ireland. It was thought that, by leaving out of account the offences committed before POCA came into force, the remaining offences could then be brought within POCAs ambit. The principal issue in the appeal is whether that manoeuvre has succeeded in achieving its purpose, or whether the presence of the earlier offences on the indictment means that all the offences properly fall within the scope of earlier confiscation legislation. The relevant provisions of POCA POCA contains broadly similar sets of provisions dealing with confiscation in England and Wales (Part 2: sections 6 to 91), Scotland (Part 3: sections 92 to 155) and Northern Ireland (Part 4: sections 156 to 239). Section 156 is the introductory section of Part 4, dealing with Northern Ireland: 156 Making of order (1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within either of the following paragraphs (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court in respect of an offence or offences under section 218 below (committal with a view to a confiscation order being considered). (3) The second condition is that (a) this section, or (b) the prosecutor asks the court to proceed under the court believes it is appropriate for it to do so. (4) The court must proceed as follows it must decide whether the defendant has a (a) criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. (6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct. (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. (8) The first condition is not satisfied if the defendant absconds (but section 177 may apply). (9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2). For reasons which will appear, section 156(9) is of particular importance to the issue in this appeal. It provides a definition of the phrase the offence (or offences) concerned, where it appears in Part 4: a definition which is repeated in section 236(1). The phrase is defined as referring to the offence or offences mentioned in section 156(2). Section 156(2) applies to a defendant who (a) is convicted of an offence or offences in proceedings before the Crown Court, or (b) is committed to the Crown Court in respect of an offence or offences under section 218. Where the defendant has been convicted of an offence or offences in proceedings before the Crown Court, the offence (or offences) concerned is or are therefore the offence or offences of which he has been convicted in those proceedings. Where the defendant has been committed to the Crown Court in respect of an offence or offences under section 218, the offence or offences concerned is or are the offence or offences in respect of which he has been committed. There is nothing in section 156(2) or (9) which indicates that the meaning of the words the offence (or offences) concerned is limited in any other way. Section 156 sets out the steps which the Crown Court must follow where a defendant falls within either section 156(2)(a), because he has been convicted of an offence or offences in proceedings before that court, or section 156(2)(b), because he has been committed to that court in respect of an offence or offences under section 218, and, in accordance with section 156(3), either the prosecutor asks the court to proceed under section 156, or the court itself considers it appropriate to do so. Under section 156(4), the court has first to decide whether the defendant has a criminal lifestyle, because the answer to that question affects the subsequent steps to be taken. If he has a criminal lifestyle, it must then decide whether he has benefited from what is termed his general criminal conduct. If he does not have a criminal lifestyle, it must decide whether he has benefited from what is termed his particular criminal conduct. If the defendant has benefited either from his general criminal conduct or from his particular criminal conduct, as the case may be, the court is then required by section 156(5) to decide what is termed the recoverable amount and to make a confiscation order requiring him to pay that amount. It is to be noted that the object of the statutory scheme is to deprive the defendant of the benefit obtained from conduct: not to deprive him of the benefit obtained from any particular offence or offences of which he has been convicted. The remaining provisions of Part 4 flesh out that general scheme. In particular, section 157(1) defines the recoverable amount, subject to exceptions, as an amount equal to the defendants benefit from the conduct concerned. Section 157(2) however limits the recoverable amount to the available amount (defined by section 159), where that is less than the defendants benefit from the conduct concerned. Section 158 is concerned with the defendants benefit from the conduct concerned. The court is required to take account of conduct occurring up to the time it makes its decision, and of property obtained up to that time. Section 160 applies where the court decides that the defendant has a criminal lifestyle. It requires the court to make a number of assumptions for the purpose of deciding whether he has benefited from his general criminal conduct, and deciding the amount of his benefit from the conduct. These include an assumption that any property transferred to him at any time after the relevant day was obtained by him as a result of his general criminal conduct: the transfer need not be related to any offence of which he has been convicted. The relevant day is the date six years before proceedings for the offence concerned were started against the defendant, or if there are two or more offences and proceedings for them were started on different days, the earliest of those days. In this context, the relevance of the offence (or offences) concerned, as defined in section 156(2) and (9), is therefore to fix how far back POCA can bite on property obtained by a defendant with a criminal lifestyle. It can go back six years from the date on which proceedings were started for the earliest of those offences. Section 163 explains the effect of a confiscation order on the courts other powers. Under section 163(1), if the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned. In terms of section 163(2), the court must take account of the confiscation order before it imposes a fine on the defendant, or makes any other order involving payment or forfeiture by the defendant, apart from a compensation order. Subject to that provision, the court is required by section 163(4) to leave the confiscation order out of account in deciding the appropriate sentence for the defendant. If the court makes both a confiscation order and a compensation order against the same person in the same proceedings, and it believes that he will not have sufficient means to satisfy both orders in full, section 163(5) provides for the potential shortfall in payment of the compensation order to be paid out of sums recovered under the confiscation order. The intended recipient of the compensation is thus protected against the risk of a shortfall, and the defendant is also protected against the risk of penal consequences of a failure to satisfy the confiscation order. In this context, the relevance of the offence or offences concerned is to define the scope of those protections. It is to be noted that these provisions make sense on the footing that the offences concerned encompass all the offences of which the defendant has been convicted in the proceedings in the Crown Court, or all the offences in respect of which he has been committed to that court. It makes sense to regulate the relationship between the confiscation order and any other financial orders made by the Crown Court in the same proceedings, since the confiscation order can affect the defendants ability to meet any other financial order, and vice versa. That is so, whether all of the offences concerned were offences involving financial gain or not. Section 164 allows the court either to proceed with confiscation proceedings before it sentences the defendant for the offence (or any of the offences) concerned, or to postpone confiscation proceedings for up to two years starting with the date of conviction, or potentially longer where there is an appeal or if there are exceptional circumstances. The date of conviction is defined as the date on which the defendant was convicted of the offence concerned, or if there are two or more offences and the convictions were on different dates, the date of the latest. In practice, confiscation proceedings are usually postponed, often for a substantial period. This provision again makes sense on the footing that the offences concerned encompass all the offences of which the defendant has been convicted in the proceedings in the Crown Court, or all the offences in respect of which he has been committed to that court. Like section 163, it reflects the potential relationship between the courts function of sentencing the defendant for the offences of which he has been convicted, or in respect of which he has been committed, and the confiscation order which it may also make. Section 165 explains the effect of postponement, and contains analogous provisions to section 163 in respect of the relationship between the confiscation proceedings and any sentence imposed during the postponement period for the offence (or any of the offences) concerned. This group of provisions (which is replicated elsewhere in Part 4 of POCA in a variety of contexts, and is also replicated in the corresponding provisions for the other parts of the United Kingdom) seems to me to be particularly difficult to reconcile with an interpretation of the offence (or offences) concerned which would restrict that phrase to only some of the offences before the court. The language of these provisions is prescriptive. I have difficulty seeing how they might be interpreted as excluding offences which the prosecution had elected to leave out of account for the purpose of assessing the benefit obtained by the defendant. If, however, all the offences before the court fall within the scope of the phrase in this context, then how can it be given a more restricted meaning in the context of section 156(2) and (9), given the definitional status of those provisions? Under section 166, in a case where the court is proceeding under section 156 at the request of the prosecutor, he must give it a statement of information within the period the court orders. Similarly, in a case where the court is proceeding under section 156 of its own motion, it can order the prosecutor to give it a statement of information within the period ordered. The statement must include the matters which are relevant to the making of a confiscation order, including whether the defendant has a criminal lifestyle, whether he has benefited from his general or particular criminal conduct as the case may be, and his benefit from the conduct. The defendant can then respond to the prosecutors statement in accordance with section 167. Section 218 is concerned with committal by the magistrates court. It applies if a defendant is convicted of an offence by a magistrates court, and the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156. In such a case, the magistrates court must commit the defendant to the Crown Court in respect of the offence, and may commit him to the Crown Court in respect of any other offence of which he has been convicted, and in respect of which the magistrates court has power to deal with him. The latter provision enables the Crown Court to deal with the defendant in relation to the same offences in respect of which he could be dealt with in the magistrates court, and thus enables the relationship between sentencing and confiscation proceedings to be regulated in accordance with sections 163 to 165. Section 219 confirms the power of the Crown Court to sentence the defendant for all the offences in respect of which he has been committed. Finally, in relation to the provisions of POCA, it is necessary to note a number of provisions concerned with interpretation. Section 223 defines the term criminal lifestyle. Under section 223(2), a defendant has a criminal lifestyle if the offence (or any of the offences) concerned satisfies any of the following tests: it is specified in Schedule 5; it constitutes conduct forming part of a course of (a) (b) criminal activity; it is an offence committed over a period of at least six (c) months and the defendant has benefited from the conduct which constitutes the offence. These tests are alternatives. In relation to test (a), it is sufficient that any of the offences concerned is specified in Schedule 5. That schedule specifies a number of offences, including the unlawful supply of controlled drugs, and possession of a controlled drug with intent to supply. It is irrelevant to test (a) whether the defendant has made any financial gain from an offence falling within Schedule 5, or whether he has made such a gain from any of the other offences of which he has been convicted in the proceedings in the Crown Court, or in respect of which he has been committed to that court. In relation to test (b), section 223(3) provides that conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and: (a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or (b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited. In a case where the defendant was convicted of an offence or offences in proceedings in the Crown Court, test (b) is therefore satisfied by virtue of section 223(3)(a) if the defendant benefited from conduct constituting any of those offences, and was also the convicted in those proceedings of three or more other offences constituting conduct from which he benefited. The effect of section 223(3)(b) is that he will also have a criminal lifestyle if he benefited from conduct constituting any of the offences of which he was convicted in the proceedings in the Crown Court, and in addition he was convicted on at least two separate occasions, during the six years before those proceedings were started, of another offence constituting conduct from which he benefited. Section 223(3) operates in a similar way where the defendant has been committed to the Crown Court by the magistrates court in respect of an offence or offences, and benefited from conduct constituting any of those offences. It is therefore unnecessary for the defendant to have made a financial gain from any of the other offences of which he has been convicted in the proceedings in the Crown Court, or in respect of which he has been committed to that court. The same is also true in relation to test (c). It is sufficient that any of the offences concerned was committed over a period of at least six months and the defendant benefited from the conduct which constituted that offence. In relation to both test (b) and test (c), section 223(4) provides that an offence does not satisfy the test unless the defendant obtains relevant benefit of not less than 5,000. The expression relevant benefit is defined for the purposes of test (b) by section 223(5). It means: (a) benefit from conduct which constitutes the offence; (b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted; (c) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b). A broadly similar definition (subject to the omission of paragraph (b)) applies for the purposes of test (c). Accordingly, even if the defendant has benefited from any of the offences concerned, and test (b) or (c) is potentially satisfied, it remains necessary to investigate the amount of the benefit and to ascertain whether it is at least 5,000. Section 224 defines criminal conduct, general criminal conduct, particular criminal conduct and benefit. Criminal conduct is conduct which constitutes an offence in Northern Ireland, or would constitute such an offence if it occurred there. General criminal conduct is all the defendants criminal conduct. It is immaterial whether it occurred before or after the passing of POCA, and whether property constituting a benefit from conduct was obtained before or after the passing of POCA (section 224(2)). Particular criminal conduct is all the defendants criminal conduct which falls within the following paragraphs of section 224(3): (a) conduct which constitutes the offence or offences concerned; (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned; (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned. So far as paragraph (a) is concerned, it follows from section 156(2) and (9) that the offences concerned are the offences of which the defendant was convicted in the proceedings in the Crown Court, or in respect of which he was committed to the Crown Court for confiscation proceedings. Paragraph (b) envisages a situation where the defendant has been convicted in the same proceedings of offences other than the offence or offences concerned. It must therefore be concerned with offences of which he was convicted in the magistrates court but in respect of which he was not committed to the Crown Court. Under section 224(4), a person benefits from conduct if he obtains property as a result of or in connection with the conduct. Returning to section 156, it follows from the later provisions that, at the time when the Crown Court is required to proceed under that section, it will not know the answers to all, or possibly any, of the questions which that section requires it to decide. In particular, it may not be in a position to know whether the defendants conviction in the Crown Court of the offences concerned, or his committal by the magistrates court in respect of those offences, will or may result in the making of a confiscation order, or how the order may relate to any of those offences. Section 156 simply provides for a process to be put in train, which may or may not lead to the making of such an order. The transitional provisions The relevant transitional provision is article 4 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003/333) (the Order). So far as relevant, article 4 provides: 4(1) Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003. The effect of article 4 is clear. Where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003 (which was the commencement date of the relevant provisions), section 156 does not have effect, and POCA therefore does not apply. Instead, the position is regulated by article 11 of the Order, which provides for earlier legislation to continue to have effect. The offence or offences mentioned in section 156(2), as earlier explained, are the offence or offences of which the defendant has been convicted in the proceedings before the Crown Court, if the case falls within section 156(2)(a), or the offence or offences in respect of which he has been committed to the Crown Court, if the case is one in which the defendant has been committed under section 218. It follows that section 156 does not have effect, and POCA is therefore inapplicable, where that offence, of any of those offences, was committed before 24 March 2003. Instead, the previous law continues to apply. It follows that section 156 has no application to the case of either of the appellants. Article 4 cannot be obviated by the prosecutors ignoring those of the offences concerned which were committed before POCA came into force. The fact remains that the appellants were convicted of those offences in the proceedings before the Crown Court, and they are therefore among the offences concerned. It follows that the confiscation proceedings against the appellants should have proceeded under the legislation which was in force when the earliest of the offences concerned was committed. The confiscation orders made should therefore be quashed. Since the Crown conceded in the court below that the substitution of orders under the correct legislation was not possible, and it has not sought to withdraw that concession, it follows that the appeals should be allowed. Like Lord Hughes, I would wish to reserve my opinion as to whether the concession was rightly made. The reasoning of the majority The only matter which remains to be discussed is the reasoning by which a majority of this court have reached the opposite conclusion. Their judgments must speak for themselves, but so far as I understand them, they contain a number of different strands of reasoning. Their approach appears to be based first on a purposive interpretation of the words of the statute. As I shall explain, I respectfully disagree that the statute has the purpose which they attribute to it, and I do not in any event accept that such a strained interpretation of the statutory language can be justified by a purposive approach. Secondly, they support their interpretation of the statute by reference to the transitional provisions in the Order. That appears to me, with respect, to be an impermissible use of subordinate legislation, made under powers conferred by Parliament in POCA, to interpret the meaning of the provisions enacted by Parliament in POCA itself. Thirdly, the reasoning of the majority is also based in part on previous authorities, which appear to me to be distinguishable because they were concerned with the interpretation of a transitional provision contained in the primary legislation itself. The reasoning of the earlier authorities appears to me to be unsatisfactory in any event, and it has been subjected to cogent criticism (Thomas, (2005) Crim LR 145 and (2008) Crim LR 813). Purposive interpretation of the statute As I understand their reasoning, the majority of the court consider that it would be absurd if offences committed after the commencement of POCA were subject to an earlier confiscation regime. In their view, Parliament must have intended that all offences committed after the commencement of POCA which could generate confiscation orders should be dealt with under section 156. Having decided that that must have been Parliaments intention, the majority then construe the provisions of POCA so as to fulfil that intention. I see no absurdity. Given their natural meaning, and read with article 4 of the Order, section 156(2) and (9) of POCA achieve a rational purpose, which reflects two considerations identified by Lord Hughes. In the first place, POCA cannot apply to pre commencement offences, if retrospectivity, and a consequent breach of article 7 of the ECHR, is to be avoided. Otherwise, in Lord Hughes words, there would be impermissible retrospective operation of the criminal law (para 83). In the second place, practical difficulties are liable to arise if a court is required to apply different confiscation regimes in the same proceedings, where some counts relate to offences committed before the commencement date of POCA and some to offences committed after that date. In Lord Hughes words, there would also be likely to be a real risk of unfairness if a defendant faced the prospect of two different confiscation regimes being applied to him (para 84). It follows that pre commencement offences have to be dealt with under the previous confiscation regime in force at the time when they were committed, and that it is sensible that the same regime should also be applied to post commencement offences dealt with in the same proceedings. The natural way of achieving those objectives is to provide that in any case in which the defendant has been convicted in Crown Court proceedings of an offence committed before the commencement date, all the offences of which he has been convicted in those proceedings are to be governed by the confiscation regime in force at the time when the earliest offence was committed. Similarly, mutatis mutandis, in any case in which the defendant has been committed under section 218 in respect of an offence committed before the commencement date, and also of later offences. That is the effect of section 156(2) and (9) of POCA, read with article 4 of the Order. The interpretations of section 156 to which the majority are driven by their desire to avoid the supposed absurdity appear to me, with respect, not only to be strained beyond breaking point, but also to create anomalies of their own. As I understand Lord Kerrs judgment, he considers that, as a matter of construction of the statute, section 156(2) cannot apply to any offence committed before the date fixed for the entry into force of the provisions of Part 4 (which, in the event, was 24 March 2003). With respect, I cannot understand how that construction can be derived from the statutory wording. In my view, it requires the insertion of words which are not there, as the Court of Appeal acknowledged when it arrived at the same construction of the predecessor of section 156, as explained below. Furthermore, the logic of Lord Kerrs interpretation appears to be that one and the same court could undertake two or more different confiscation exercises in the same criminal proceedings: one, in respect of offences committed on or after 24 March 2003, under POCA, and others, in respect of earlier offences, under whichever confiscation regime was in force at the relevant time. That situation, it appears to me, might justifiably be described as anomalous. As I understand Lord Hughes judgment, he takes a different approach. He appears to interpret the phrase the offence (or offences) concerned defined by section 156(9) to mean the offence (or offences) mentioned in subsection (2) as if the definition referred to any offence (or offences) mentioned in subsection (2) in relation to which the condition mentioned in subsection (3)(a) is also satisfied (that condition being that the prosecutor asks the court to proceed under this section). Bearing in mind the clarity of section 156(9), and the level of detail and technicality which characterises the drafting of POCA, I find this hard to accept. Furthermore, the logic of Lord Hughes interpretation appears to be that, if pre commencement and post commencement offences are before one and the same court, the Crown must in effect forego any confiscation proceedings in respect of the pre commencement offences, and proceed only in respect of post commencement offences for whatever benefit they may yield. That is indeed what happened in the present case. It seems to me to be much more likely that the drafter of the transitional provisions intended to bring all the offences in any set of proceedings into one statutory confiscation scheme or the other. Then, at least, no offences would fall outside all confiscation regimes. The use of subordinate legislation in the construction of primary legislation The majority of the court also rely on their construction of a number of provisions in the Order, and more particularly the fact that they were substituted by different provisions shortly after the Order was made, as supporting their interpretation of section 156(2) and (9). With respect, this appears to me to be an example of using subordinate legislation to interpret the primary legislation under which it was made: an impermissible, and indeed illogical, method of statutory interpretation. The tail is wagging the dog. Even if I agreed with the majoritys construction of the Order, and the intention attributed to it, it follows that I would nevertheless reject this aspect of their reasoning. The Order cannot affect the meaning of section 156(2) and (9). But I am not in any event persuaded by their construction of the Order. The majority rely in particular on articles 8 and 9. In its original form, article 8 provided: 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) The tests in section 223(2)(a) and (c) of the Act shall not be satisfied where the offence (or any of the offences) concerned was committed before 24 March 2003. (3) In applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of section 223(2)(b) and (4) of the Act, the court must not take into account benefit from conduct constituting an offence which was committed before 24 March 2003. (4) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where the offence (or any of the offences) concerned; or any one of the three or more offences mentioned (a) (b) in section 223(3)(a), was committed before 24 March 2003. (5) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) was committed before 24 March 2003. A different version of article 8 was substituted by the Proceeds of Crime Act 2002 (Commencement No 5) (Amendment of Transitional Provisions) Order 2003 (SI 2003/531) (the Amendment Order). The substituted provisions provide: 8.(1) This article applies where the court is determining under section 156(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) Conduct shall not form part of a course of criminal activity under section 223(3)(a) of the Act where any of the three or more offences mentioned in section 223(3)(a) was committed before 24 March 2003. (3) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(a) of the Act, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(5)(c) of the Act which was committed before 24 March 2003. (4) Conduct shall form part of a course of criminal activity under section 223(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 223(3)(b) were committed before 24 March 2003. (5) Where the court is applying the rule in section 223(5) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(b) of the Act is satisfied by virtue of conduct forming part of a course of criminal activity under section 223(3)(b) of the Act, the court may take into account benefit from conduct constituting an offence committed before 24 March 2003. (6) Where the court is applying the rule in section 223(6) of the Act on the calculation of relevant benefit for the purposes of determining whether or not the test in section 223(2)(c) of the Act is satisfied, the court must not take into account benefit from conduct constituting an offence mentioned in section 223(6)(b) of the Act which was committed before 24 March 2003. The majority argue that the changes made to article 8 are consistent with their interpretation of section 156. As I have explained, I do not accept the logic of the argument. But I am not in any event persuaded that the inferences which the majority draw from the changes are justified. As it appears to me, the problem with article 8(2) of the Order in its original form was that POCA does not apply, by virtue of article 4(1), where the offence (or any of the offences) concerned was committed before 24 March 2003. There is therefore no question of section 223 of POCA applying in those circumstances, and article 8(2) was therefore otiose. Article 8(4)(a) of the Order was also otiose, for the same reason. Article 8(4)(b), on the other hand, could have applied in cases where the defendant was committed by the magistrates court. That view is consistent with the changes made. The provisions contained in articles 8(2) and 8(4)(a) of the Order did not appear in the Amendment Order. On the other hand, the terms of article 8(4)(b) of the Order reappeared as article 8(2) of the Amendment Order. I find it much more difficult to be certain of the thinking behind the replacement of articles 8(3) and (5) of the Order by articles 8(3) to (6) of the Amendment Order. Section 223(2)(b), (3), (4) and (5) of POCA form a complex group of provisions. The same is true of article 8(3) and (5) of the Order, and a fortiori of article 8(3) to (6) of the Amendment Order. An in depth analysis of these provisions would take this court into a minefield of difficulties. It would also take it beyond the scope of the parties submissions. In the circumstances, I do not express any view. So far as article 9 of the Order is concerned, it provides: Conduct which constitutes an offence which was committed before 24 March 2003 is not particular criminal conduct under section 76(3) or 224(3) of the Act. The majority suggest that that provision also supports their interpretation of section 156(2) and (9). I am not persuaded. The explanation of article 9, as it appears to me, is that particular criminal conduct is defined by sections 76(3) and 224(3) of POCA as including not only (a) conduct which constitutes the offence or offences concerned, but also (b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned, and (c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned. Since (b), interpreted as explained in para 138 above, and more plainly (c), could otherwise apply in respect of offences committed prior to the commencement of POCA, article 9 is necessary in order to exclude that possibility, consistently with the objectives explained in paras 146 148 above. Lord Hughes also relies on section 143(3)(b) of POCA, a provision applicable in Scotland which is in similar terms to section 224(3)(b). I have to acknowledge that, although section 224(3)(b) can be interpreted consistently with the approach which I have adopted to section 156(2) and (9), it is at least not obvious that section 143(3)(b) can also be interpreted consistently with that approach. This point has not, however, been the subject of argument, and I am reluctant to express a concluded view. I would not exclude the possibility that, in such a complex and technical piece of legislation, it is possible that the provisions applicable in England and Wales may have been replicated for Scotland, as for Northern Ireland, without noticing a material distinction. I am not, in the absence of fuller argument, inclined to accept that an apparent infelicity in the drafting of one of the Scottish provisions is a sufficient reason for departing from the natural meaning of section 156(2) and (9) and their equivalents for the other parts of the United Kingdom. Previous authority The majority place some reliance on three decisions of the Court of Appeal of England and Wales concerned with section 16(5) of the Proceeds of Crime Act 1995 (the 1995 Act), a transitional provision broadly analogous to article 4 of the Order. The 1995 Act operated by amending the Criminal Justice Act 1988 (the 1988 Act). Section 1 of the 1995 Act was analogous to section 156 of POCA. Section 16(5) provided: Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section. The intended meaning and effect of section 16(5) could hardly have been made clearer. Where a person was convicted in any proceedings of an offence which was committed before the commencement of section 1, that section did not apply, with the result that it was the unamended version of the 1988 Act which generally applied. Where, on the other hand, all the offences of which the person was convicted were committed after the commencement of section 1, it was the 1995 Act (strictly speaking, the 1988 Act as amended by the 1995 Act) which applied. That straightforward interpretation of section 16(5) was however rejected by the Court of Appeal in a series of cases, on the ground that it led to absurd results: as to which, see paras 146 148 above. The first of these cases was R v Simpson [2003] EWCA Crim 1499; [2004] QB 118; [2003] 3 All ER 531; [2004] 1 Cr App R (S) 24, where a confiscation order made under the 1995 Act was challenged on the basis that one of the offences of which the appellant had been convicted in the relevant proceedings was committed before the commencement of section 1. The Court of Appeal considered it obviously an absurd result that an order could be made under the 1995 Act if a defendant were acquitted of an offence committed prior to the commencement date, but not if he were convicted of that offence. I see no absurdity: transitional provisions limiting the operation of penal provisions to offences committed after their entry into force are necessary in order to protect those who are convicted of earlier offences, not those who are acquitted of them. However, in order to avoid the supposed absurdity, the Court of Appeal read words into section 16(5): In our judgment section 16(5) has to be applied so that after the word offence there appears, the words in respect of which a confiscation order is or could be sought. (para 19) On the facts of the case, a confiscation order was not sought in respect of the offence in question; but there was no obvious reason why such an order could not be sought. The nature of the offence a VAT fraud did not in itself present any problem. More importantly, the Court of Appeals discussion of the issue was in any event obiter dictum, since it decided that the offence had actually been committed after the commencement of the 1995 Act: So in fact, the offence was committed after 1 November 1995. In any event the argument for the appellant, that the 1995 Act cannot be relied upon, fails on the facts. (para 20) The issue was considered again in R v Mohammed Aslam [2004] EWCA Crim 2801; [2005] 1 Cr App R (S) 116. In that case, the appellant had been convicted of numerous offences of dishonesty. At the confiscation hearing, it was pointed out that one of the offences had been committed before the 1995 Act came into force. The prosecution then disclaimed reliance on any benefit obtained as a result of that offence. The question was whether that cured the defect. Relying on Simpson, the Court of Appeal held that it did. The court noted that, in Simpson, a confiscation order could have been sought in respect of the offence in question. It concluded that the fact that the appellant had been convicted in the instant proceedings of a pre commencement count did not prevent the court from making a confiscation order under the 1995 Act where the pre commencement count was one which could not be the basis of confiscation proceedings, or if the prosecution had expressly abandoned any reliance on the pre commencement count for the purposes of a confiscation order. The Court of Appeal followed Aslam in R v Stapleton [2008] EWCA Crim 1308; (2009) 1 Cr App R (S) 38, stating that it could not properly say that the earlier decision was plainly wrong (para 7). The Court of Appeals approach in these cases raises a number of difficulties. First, and most importantly, it is inconsistent with the plain meaning of section 16(5) of the 1995 Act: a fact which the Court of Appeal acknowledged by effecting a judicial amendment of the provision. As amended by the Court of Appeal, section 16(5) permits the Crown to bring proceedings under the 1995 Act in circumstances where Parliament has directed that the proceedings are to be brought under the preceding legislation. That is not permissible under any canon of statutory construction. Secondly, the Court of Appeal was mistaken, as it respectfully appears to me, in thinking that the result of applying what Parliament had enacted was absurd, as explained earlier. Thirdly, the Court of Appeal was also mistaken, in my view, in thinking that the amount of a confiscation order under the 1995 Act could be restricted by the prosecution. Under the 1988 Act as amended by the 1995 Act, the court had to determine whether the defendant has benefited from any relevant criminal conduct (section 71(1A); emphasis supplied), and relevant criminal conduct was defined as meaning the offence of which the defendant had been convicted taken together with any other offences of a relevant description which are either (a) offences of which he is convicted in the same proceedings, or (b) offences which the court will be taking into consideration in determining his sentence for the offence in question (section 71(1D)). The prosecution could not, therefore, remove an offence of which the defendant had been convicted in the proceedings from the calculation by choosing not to rely on it: the court was under a statutory duty to assess the benefit arising from that offence in any event. There are at least three other difficulties with the approach of the Court of Appeal. First, it did not address the issues which arose, on its approach, from the role which the court itself has in bringing confiscation proceedings. By virtue of section 71(1)(b) of the 1988 Act, as substituted by section 1 of the 1995 Act, the court can initiate confiscation proceedings in respect of all the offences of which the defendant has been convicted in the proceedings if it considers that it is appropriate for it to do so. POCA contains an equivalent provision in section 156(3)(b). One might ask, in the first place, how that power bears on the assumption, implicit in the Court of Appeals reasoning, that the court should defer to the prosecutors decision not to proceed in respect of pre commencement offences. The whole point of the substitution of section 71(1)(b) was to enable the court to act independently of the prosecution. Further, and in any event, if in any case the court decides to exercise its power to initiate confiscation proceedings, can it too ignore certain offences so as to secure the application of the most draconian confiscation regime available? Under what power would it do so? If it cannot, does it not follow that the supposedly absurd outcome must indeed have been intended? These issues appear to me to be equally relevant to the approach adopted by the majority in the present case. Secondly, the Court of Appeal did not address the issue discussed in para 129 above, which also arose in relation to the corresponding provisions of the 1988 Act both as enacted and as amended. This issue is equally relevant to the approach adopted by the majority in the present case. Thirdly, in so far as the Court of Appeals approach, and that of the majority in the present case, is premised on the assumption that it is always possible to identify particular offences as being offences in respect of which a confiscation order can or cannot be sought (offences which would qualify for applications for a confiscation order, offences which can be dealt with under the Act, offences in respect of which confiscation orders could be made or offences which could generate confiscation orders, as Lord Kerr describes them in paras 5, 13, 16 and 17), before any inquiry has been made into whether the defendant has in fact obtained property as a result of, or in connection with, the offence, that does not appear to me to be a valid assumption. As explained earlier, a confiscation order is not sought in respect of offences, but in respect of the benefit obtained from criminal conduct, which may or may not have constituted an offence or offences of which the defendant has been convicted in the proceedings in question. Whether a given offence of which the defendant has been convicted may turn out to be one which is relevant to the confiscation order may not be readily apparent at the time when the confiscation proceedings are initiated. For example, a defendant does not usually obtain property as a result of or in connection with an assault; but sometimes he does. A defendant usually obtains property as a result of, or in connection with, the possession of a controlled drug with intent to supply; but not always. In short, the construction of section 156 of POCA, or of its equivalent in the earlier legislation, cannot be predicated on an assumption that whether a conviction of a particular offence will lead to the making of a confiscation order, or will affect the amount specified in the order, can be determined at the time when the confiscation proceedings are initiated. The proof of the pudding is in the eating. Conclusion For all these reasons, I would have answered the certified question in the negative, and allowed the appeal. |
These proceedings arise from the fact that the foundation structures of two offshore wind farms at Robin Rigg in the Solway Firth, which were designed and installed by MT Hjgaard A/S (MTH), failed shortly after completion of the project. The specific issue to be determined is whether MTH are liable for this failure. As Jackson LJ said in the Court of Appeal, the resolution of that issue turns on how the court should construe the somewhat diffuse documents which constituted, or were incorporated into, the design and build contract in this case. Accordingly, I turn first to consider the relevant provisions of the contractual documentation. The relevant provisions of the Technical Requirements and J101 In May 2006, the appellants, two companies in the E.ON group (E.ON), sent tender documents to various parties including MTH, who in due course became the successful bidders. The tender documents included Employers Requirements, Part I of which included the Technical Requirements (the TR). Section 1 of the TR set out the General Description of Works and Scope of Supply. Part 1.6 set out the so-called Key Functional Requirements, which included this: The Works, together with the interfaces detailed in Section 8, shall be designed to withstand the full range of operational and environmental conditions with minimal maintenance. The Works elements shall be designed for a minimum site specific design life of twenty (20) years without major retrofits or refurbishments; all elements shall be designed to operate safely and reliably in the environmental conditions that exist on the site for at least this lifetime. Section 3 of the TR was concerned with the Design Basis (Wind Turbine Foundations). Part 3.1 was entitled Introduction, and it included the following (divided into sub-paragraphs for convenience): (i) It is stressed that the requirements contained in this section and the environmental conditions given are the MINIMUM requirements of [E.ON] to be taken into account in the design. (ii) It shall be the responsibility of [MTH] to identify any areas where the works need to be designed to any additional or more rigorous requirements or parameters. There were other references elsewhere to the stated requirement being a minimum. Para 3.1.2 of the TR required MTH to submit a detailed Foundation Design Basis document, which was required to contain, among other things, a statement as to the Contractors design choices, including, but not limited to, departures from, or aspects not covered by, standards, if any. Part 3.2 of the TR was headed Design Principles, and para 3.2.2 was concerned with General Design Conditions, para 3.2.2.1 being directed to the Tender Stage Design, and para 3.2.2.2 to the Detailed Design Stage. Para 3.2.2.2 is of central importance for present purposes, and, for convenience, I shall treat it as divided into numbered sub-paragraphs. Para 3.2.2.2(i) required MTH to prepare the detailed design of the foundations in accordance with a document known as J101, using the integrated analysis method (which was one of the four methods addressed in J101). Para 3.2.2.2(ii) went on to state that: The design of the foundations shall ensure a lifetime of 20 years in every aspect without planned replacement. The choice of structure, materials, corrosion protection system operation and inspection programme shall be made accordingly. J101 was a reference to an international standard for the design of offshore wind turbines published by Det Norske Veritas (DNV), an independent classification and certification agency based in Norway. J101 included a statement that its objectives included the provision of an internationally acceptable level of safety by defining minimum requirements for structures and structural components, as well as being a contractual reference document, and a guideline. Section 2 of J101 contained design principles which were, among other things, aimed at limiting the annual probability of failure to be in the range of one in 10,000 to one in 100,000 - para C201. Section 7 of J101 dealt with the design of steel structures, and para K104 provided: The design fatigue life for structural components should be based on the specified service life of the structure. If a service life is not specified, 20 years should be used. Section 9 of J101 dealt with the design and construction of grouted connections. Part A included reference to shear keys, which, it was explained, can reduce the fatigue strength of the tubular members and of the grout. Part B of section 9 set out a number of equations applicable to such a design, including one (the Equation) which showed how the interface shear strength due to friction is to be calculated, namely: Precisely what the Equation actually means need not be spelled out. What is important for present purposes is that it was stated beneath the Equation that should be taken as 0.00037 Rp for rolled steel surfaces (Rp being the outer radius of the pile, and being the height of surface irregularities). Para 3.2.3.2 of the TR required MTHs design to accord with international and national rules, circulars, EU directives executive orders and standards applying to the Site and it went on to state that a defined hierarchy of standards shall apply, as listed. Ignoring those standards which were irrelevant or not in force, the first in the list was J101. Para 3.2.5 required the contractor to design and construct grouted connections in accordance with J101. Para 3.2.6 stated that [a]ll parts of the Works, except wear parts and consumables, shall be designed for a minimum service life 20 years (sic). Meteorological Mast. Para 3b.5.1 stated: Section 3b of the TR was headed Design Basis for Offshore Substations and The design of the structures addressed by this Design Basis shall ensure a lifetime of 20 years in every aspect without planned replacement. The choice of structure, materials, corrosion protection system operation and inspection programme shall be made accordingly. Para 3b.5.6 provided that [a]ll parts of the Works, except wear parts and consumables shall be designed for a minimum service life 20 years. Section 4 of the TR dealt with Approvals and Certification. Para 4.4.3 provided that MTH should obtain a Foundation Design Evaluation Conformity Statement from the Certifying Authority within six months of the commencement date. Section 10 of the TR covered Structural Design and Fabrication (Wind Turbine Foundations), and para 10.1.1 required MTH to appoint an accredited Certifying Authority to independently evaluate the adequacy of his foundation design. Para 10.5.1 was in these terms: The Contractor shall determine whether to employ shear keys within the grouted connection. If shear keys are used, the design and detailing shall take due account of their presence for both strength and fatigue design to the satisfaction of the Certifying Authority and the Engineer. If shear keys are to be omitted then the Contractor shall demonstrate with test data that the grouted connection is capable of transmitting axial loads at the grout/steel interface without dependence upon flexural (normal) contact pressures, which may not always be present, to the satisfaction of the Certifying Authority and the Engineer. Such demonstration shall also account for joint performance under different temperature conditions. Para 10.24.9 of the TR stated that the recorded potential difference exceedance was not so great as to cause accelerated anode depletion to such extent that the anode material provided is fully utilised before the end of the structure operational 20 year life. Having been selected as the contractor for the works, MTH duly set about preparing its tender in accordance with Employers Requirements and J101. MTHs design provided for (i) monopiles with a diameter of just over four metres, (ii) transition pieces about eight metres long, weighing approximately 120 tonnes, and (iii) grouted connections without shear keys. MTH explained at the time that no shear keys were specified because, taking as 0.00037 Rp, application of the Equation indicated that the grouted connections, as designed, had more than sufficient axial capacity to take the axial load. After E.ON had accepted MTHs tender, MTH duly commenced design work, and in November 2006 it submitted a detailed Foundation Design Basis document, as required by para 3.1.2 of the TR. The relevant provisions of the contract On 20 December 2006 E.ON and MTH entered into a written contract (the Contract) under which MTH agreed to design, fabricate and install the foundations for the proposed turbines. Part C of the Contract contained a List of Definitions. Fit for Purpose was defined as fitness for purpose in accordance with, and as can properly be inferred from, the Employers Requirements. Employers Requirements was stated to include the TR, which were themselves attached as Part I of the Contract. And Good Industry Practice meant those standards, practices, methods and procedures conforming to all Legal Requirements to be performed with the exercise of skill, diligence, prudence and foresight that can ordinarily and reasonably be expected from a fully skilled contractor who is engaged in a similar type of undertaking or task in similar circumstances in a manner consistent with recognised international standards. Clause 2.1 of Part D of the Contract provided that any failure by the Engineer or his Representative to spot defects or mistakes by the contractor would not exempt the contractor from liability. Clause 5.3 of Part D stated that in the event of inconsistencies, the order of precedence of the contractual documents should be as follows: (a) (b) (c) and draft programme; (d) (e) (f) volumes 2A, 2B and 3 of the contractors tender return. the form of agreement; the conditions of contact and the List of Definitions; the commercial schedules and the schedule of prices, payment profile the Employers Requirements; the annexes to the Employers Requirements; Clause 8.1 of Part D required MTH in accordance with this Agreement, [to] design, manufacture, test, deliver and install and complete the Works in accordance with a number of requirements, including (iv) in a professional manner in accordance with modern commercial and engineering, design, project management and supervisory principles and practices and in accordance with internationally recognised standards and Good Industry Practice; (viii) so that the Works, when completed, comply with the requirements of this Agreement ; (ix) so that [MTH] shall comply at all times with all Legal Requirements and the standards of Good Industry Practice; (x) so that each item of Plant and the Works as a whole shall be free from defective workmanship and materials and fit for its purpose as determined in accordance with the Specification using Good Industry Practice; (xv) so that the design of the Works and the Works when Completed by [MTH] shall be wholly in accordance with this Agreement and shall satisfy any performance specifications or requirements of the Employer as set out in this Agreement. Clause 30 of Part D of the Contract was headed Defects after taking over. Clause 30.2 provided that MTH shall be responsible for making good any defect or damage arising from defective materials, workmanship or design, any breach by [MTH] of his obligations under this Agreement or Works not being Fit for Purpose, which may appear or occur before or during the Defects Liability Period. That period was defined in clause 30.1 as being a period of 24 months from the date E.ON takes over the Works from MTH. Clause 30.3 required E.ON to give notice forthwith of any such defects to MTH. Clause 30.4 extended that Period in certain limited circumstances. Clause 30.10 required E.ON to produce a Defects Liability Certificate once the Defects Liability Period has expired and MTH has satisfied all its obligations under clause 30. Clause 33.9 of Part D of the Contract entitled MTH to apply, within 28 days of the issue of a Defects Liability Certificate, for a Final Certificate of Payment, and to accompany the application with a final account; clause 33.10 provided for the consequential issue of a Final Certificate of Payment; and clause 33.11 provided the Final Certificate of Payment is conclusive. Clause 42.3 of Part D of the Contract stated that: [E.ON] and [MTH] intend that their respective rights, obligations and liabilities as provided for in this Agreement shall alone govern their rights under this Agreement. Accordingly, the remedies provided under this Agreement in respect of or in consequence of: any breach of contract; or (a) any negligent act or omission; or (b) (c) death or personal injury; or (d) loss or damage to any property, are, save in the case of Misconduct, to be to the exclusion of any other remedy that either may have against the other under the law governing this Agreement or otherwise. Subsequent events MTH duly proceeded with the design and construction of the two wind farms (the Works), and, on its instructions, Rambll Danmark A/S supplied in June 2007 a detailed design for the grouted connections, which did not include shear keys. Pursuant to para 10.1.1 of the TR, MTH appointed DNV as the Certifying Authority, and DNV evaluated and approved MTHs foundation designs. Pursuant to para 4.4.3 of the TR, DNV issued Foundation Design Evaluation Conformity Statements for the various phases of the works. MTH began the installation of foundations in the Solway Firth in December 2007, and completed the Works in February 2009. During 2009 a serious problem came to light at Egmond aan Zee wind farm, where the grouted connections did not have shear keys. Those connections started to fail, and the transition pieces started to slip down the monopiles. DNV carried out an internal review during late summer 2009, and discovered that there was an error in the value given for in the note to the Equation mentioned in para 7 above. It was wrong by a factor of about ten. This meant that the axial capacity of the grouted connections in wind farm foundations at various locations including Egmond aan Zee and Robin Rigg had been substantially over-estimated. On 28 September 2009, DNV sent a letter to MTH and others in the industry, alerting them to the situation (and DNV subsequently revised J101 to correct the error). In April 2010 the grouted connections at Robin Rigg started to fail, as they had done a year earlier at Egmond aan Zee, and the transition pieces began to slip down the monopiles. Very sensibly E.ON and MTH deferred any legal dispute and set about finding a practical solution to the problem. It was agreed between the parties that E.ON would develop a scheme of remedial works. Those remedial works were commenced in 2014. In order to ascertain who should bear the cost of the remedial works, the parties embarked upon the present proceedings. In very summary terms, the parties respective positions were as follows. MTH contended that it had exercised reasonable skill and care, and had complied with all its contractual obligations, and so should have no liability for the cost of the remedial works. By contrast E.ON contended that MTH had been negligent and also had been responsible for numerous breaches of contract, and they claimed declarations to the effect that MTH was liable for the defective grouted connections. The parties in due course agreed the cost of the remedial works in the sum of 26.25m, leaving the court to decide which of them should bear that cost. The case came before Edwards-Stuart J, and after an eight-day hearing in November 2013, he gave judgment in April 2014 - [2014] EWHC 1088 (TCC). He rejected the suggestion that MTH had been negligent, and he also rejected a number of allegations of breach of contract made by E.ON. However, he found for E.ON primarily on the ground that (i) clause 8.1(x) of the contract required the foundations to be fit for purpose, (ii) fitness for purpose was to be determined by reference to the TR, and (iii) para 3.2.2.2(ii) (and also para 3b.5.1) of the TR required the foundations to be designed so that they would have a lifetime of 20 years. He also held that this conclusion was also supported by clauses 8.1(viii) and (xv). MTH appealed to the Court of Appeal, and after a two-day hearing in February 2015, they handed down their decision two months later, allowing the appeal for reasons given by Jackson LJ, with whom Patten and Underhill LJJ agreed - [2015] EWCA Civ 407. Jackson LJ accepted that, if one was confined to the TR, para 3.2.2.2(ii) appeared to be a warranty [on the part of MTH] that the foundations will function for 20 years. However, in the light of the provisions of the Contract, he said that there was an inconsistency between [paras 3.2.2.2(ii) and 3b.5.1 of the TR] on the one hand and all the other contractual provisions on the other hand, and that the other contractual provisions should prevail. He went on to describe paras 3.2.2.2(ii) and 3b.5.1 of the TR as too slender a thread upon which to hang a finding that MTH gave a warranty of 20 years life for the foundations. The meaning of para 3.2.2.2(ii) of the TR The central question on this appeal is whether, in the light of para 3.2.2.2(ii) (and para 3b.5.1) of the TR, which refer to ensuring a life for the foundations (and the Works) of 20 years, MTH was in breach of contract, despite the fact that it used due care and professional skill, adhered to good industry practice, and complied with J101. Before turning to that issue, however, it is appropriate to deal with an argument raised by Mr Streatfeild-James QC in the course of his excellent submissions on behalf of MTH. He suggested that it was unlikely that the parties could have intended that there should be what Jackson LJ characterised as a warranty that the foundations will function for 20 years, in the light of those parts of clauses 30, 33 and 42 of the Contract set out in paras 18 to 20 above. In summary, he argued that (i) the effect of clause 30 was that, subject to some relatively limited exceptions in clause 30.4, MTH was obliged to rectify any defect in the Works which occurred within 24 months of the Works being handed over, (ii) the effect of clause 42.3 was that any claim by E.ON in respect of a defect appearing thereafter was barred, and (iii) the notion that there was no room for claims outside the 24-month period was reinforced by clauses 33.9 and 33.10. In my opinion, there is no answer to that analysis so far as it is directed to the effect of clauses 30, 33 and 42 of the Contract. Clause 42.3 makes it clear that the provisions of clause 30 (and any other contractual term which provides for remedies after the Works have been handed over to E.ON) are intended to operate as an exclusive regime. And that conclusion appears to me to be supported by the terms of clause 33.9 and 33.10, because they tie in very well with the notion that there should be no claims after the Final Certificate, which is to be issued very shortly after the 24-month period. Accordingly, if, as E.ON argue, para 3.2.2.2(ii) of the TR amounts to a warranty that the foundations will last for 20 years, there would be a tension between that provision and clauses 30, 33 and 42 of the Contract. However, I do not consider that the tension would be so problematic as to undermine the conclusion that para 3.2.2.2(ii) amounted to warranties as described by Jackson LJ. In the light of the normal give and take of negotiations, and the complex, diffuse and multi-authored nature of this contract, it is by no means improbable that MTH could have agreed to a 20-year warranty provided that it could have the benefit of a two-year limitation period, save where misconduct was involved. It would simply mean that the rights given to E.ON by paras 3.2.2.2(ii) were significantly less valuable than at first sight they may appear, because any claim based on an alleged failure in the foundations which only became apparent more than two years after the handover of the Works would normally be barred by clause 42.3. In this case, of course, there is no problem, because the foundations failed well within the 24-month period. However, in my view, although it would therefore be possible to give effect to para 3.2.2.2(ii) of the TR as a 20-year warranty as described by Jackson LJ, the points canvassed in paras 27 to 29 above justify reconsidering the effect of para 3.2.2.2(ii). It appears to me that there is a powerful case for saying that, rather than warranting that the foundations would have a lifetime of 20 years, para 3.2.2.2(ii) amounted to an agreement that the design of the foundations was such that they would have a lifetime of 20 years. In other words, read together with clauses 30 and 42.3 of the Contract, para 3.2.2.2(ii) did not guarantee that the foundations would last 20 years without replacement, but that they had been designed to last for 20 years without replacement. That interpretation explains the reference in para 3.2.2.2(ii) to design, and it obviates any tension between the terms of para 3.2.2.2(ii) and the terms of clauses 30 and 42.3. Rather than the 20-year warranty being cut off after 24 months, E.ON had 24 months to discover that the foundations were not, in fact, designed to last for 20 years. On the basis of that interpretation, E.ONs ability to invoke its rights under para 3.2.2.2(ii) would not depend on E.ON appreciating that the foundations were failing (within 24 months of handover), but on E.ON appreciating (within 24 months of handover) that the design of the foundations was such that they will not last for 20 years. That, of course, raises the question as to what, on that reading, was precisely meant by ensur[ing] a lifetime of 20 years, given that the forces of nature, especially at sea, are such that a lifetime of 20 years, or any other period, could never in practice be guaranteed. The answer is to be found in J101. As explained in para 7 above, J101 requires the annual probability of failure to be in the range of one in 10,000 to one in 100,000, and specifically provides that, if a service life is not specified in a contract 20 years should be used, which ties in with the proposition, agreed between the parties, that an offshore wind farm is typically designed for a 20-year lifetime. This aspect could be expanded on substantially by reference to the detailed terms, requirements and recommendations of J101. In particular, one of the two so-called Limit States in terms of loadbearing requirements, FLS, is calculated by reference to the design life of the structure in question: hence para C201 of section 2 and para K104 of section 7 referred to in para 7 above. However, the simple point is that J101, while concerned with making recommendations and requirements linked to the intended life of a structure to which it applies, makes it clear that there is a risk, which it quantifies, of that life being shortened. That risk is, in my view, the risk which should be treated as incorporated in para 3.2.2.2(ii) - if it is indeed concerned with the designed life of the Works. I turn then to the central issue on this appeal. It is unnecessary to decide whether para 3.2.2.2(ii) is a warranty that the foundations will have a lifetime of 20 years or a contractual term that the foundations will be designed to have such a lifetime. The former meaning has been taken as correct by the parties and by the courts below, but, for the reasons given in paras 28 to 31 above, I am currently inclined to favour the latter meaning. On the other hand, as the TR were produced and, to an extent, acted on before the Contract was agreed, it may be questionable whether it would be right to interpret the TR by reference to clauses of the Contract. However, it is clear that, if para 3.2.2.2(ii) is an effective term of the Contract, it was breached by MTH whichever meaning it has, and therefore the issue need not be resolved. The enforceability of para 3.2.2.2(ii) according to its terms: introductory E.ONs case is that para 3.2.2.2(ii) of the TR is incorporated into the Contract, because (i) clause 8.1(x) of the Contract required the Works to be fit for purpose, (ii) Part C of the Contract equated fitness for purpose with compliance with the Employers Requirements, (iii) Part C also defined Employers Requirements as including the contents of the TR, and (iv) the TR included para 3.2.2.2(ii), which specifically refers to the foundations having a life of 20 years. On that basis, E.ON argues that para 3.2.2.2(ii) was clearly infringed, and, as it was a term of the Contract, it must follow that MTH is, as Edwards-Stuart J held, liable for breach of contract. By contrast, MTH supports the reasoning of Jackson LJ, and contends that it is clear that the Contract stipulated that the Works must be constructed in accordance with the requirements of J101 (and with appropriate care), and it is unconvincing to suggest that a provision such as para 3.2.2.2(ii) of the TR renders MTH liable for faulty construction, given that the Works were constructed fully in accordance with J101 (and with appropriate care). MTH contends that the references to a 20-year life in various provisions of the TR, including para 3.2.2.2(ii), ultimately do no more than reflect the fact that, as envisaged by J101, Part 1.6 of the TR specifies a design life for the Works. MTH also adopts Jackson LJs description of the contractual documentation as being of multiple authorship [and] contain[ing] much loose wording, and that it includes many ambiguities, infelicities and inconsistencies (quoting Lord Collins in In re Sigma Finance Corp (in administrative receivership) [2010] 1 All ER 571, para 35). More specifically, MTH makes the points that the TR are in their nature technical rather than legal, and that if the parties had intended MTH to warrant that the foundations would have a 20-year lifetime, or that they would be designed to have a 20-year life, a term to that effect would have been included in plain terms, probably as a Key Functional Requirement in para 1.6 of the TR. As already explained, it appears to me that, if one considers the natural meaning of para 3.2.2.2(ii) of the TR, it involved MTH warranting either that the foundations would have a lifetime of 20 years (as Jackson LJ accepted) or agreeing that the design of the foundations would be such as to give them a lifetime of 20 years. As Mr Streatfeild-James realistically accepted, the combination of the terms of clause 8.1(x) of the Contract and the definitions of Employers Requirements and Fit for Purpose result in the provisions of the TR being effectively incorporated into the Contract - unsurprisingly as they are included in the contractual documentation as Part I. In those circumstances, I consider that there are only two arguments open to MTH as to why the paragraph should not be given its natural effect (and while they are separate arguments, they can fairly be said to be mutually reinforcing). The first argument is that such an interpretation results in an obligation which is inconsistent with MTHs obligation to construct the Works in accordance with J101. The second argument is that para 3.2.2.2(ii) is simply too slender a thread on which to hang such an important and potentially onerous obligation. The enforceability of para 3.2.2.2(ii) according to its terms: inconsistency with J101 There have been a number of cases where courts have been called on to consider a contract which includes two terms, one requiring the contractor to provide an article which is produced in accordance with a specified design, the other requiring the article to satisfy specified performance criteria; and where those criteria cannot be achieved by complying with the design. The reconciliation of the terms, and the determination of their combined effect must, of course, be decided by reference to ordinary principles of contractual interpretation (as recently discussed in Wood v Capita Insurance Services Ltd [2017] 2 WLR 1095, paras 8 to 15 and the cases cited there), and therefore by reference to the provisions of the particular contract and its commercial context. However, it is worth considering some of the cases where such an issue has been discussed. Thorn v The Mayor and Commonalty of London (1876) 1 App Cas 120 has been treated as the first decision on this point (including in the judgments discussed in paras 39 to 43 below), although it seems to me to be only of indirect relevance. The contractor successfully tendered for work involving the replacement of the existing Blackfriars Bridge pursuant to an employers invitation, which stated that the work was to be carried out pursuant to a specification. The specification included wrought iron caissons which were to form the foundations of the piers as shewn on [certain] drawings (p 121). It subsequently turned out that the caissons as designed would not answer to their purpose, and the plan of the work was altered, causing consequential expense and delay to the contractor (p 122). The contractors claim was based on the contention that the employer had impliedly warranted that the bridge could be built according to the specification. The unanimous rejection of the existence of such a warranty by the House of Lords does not directly relate to the issue in this case. However, it is worth noting that, as reconstruction of the bridge had been completed, the employer was not responsible for the contractors losses and expenses flowing from the defective specification (at least on the basis of an implied warranty). Rather more to the point, the speeches of Lord Chelmsford (at pp 132 to 133) and Lord OHagan (at p 138) strongly indicate that a contractor who bids on the basis of a defective specification provided by the employer only has himself to blame if he does not check their practicality and they turn out to be defective. The Hydraulic Engineering Co Ltd v Spencer and Sons (1886) 2 TLR 554 appears to me to be more directly in point. In that case, the defendants contracted to make and deliver to the plaintiffs 15 cast iron cylinders. The contract provided that the cylinders would be cast according to specifications and plans provided by the plaintiffs, and also that the cylinders would be able to stand a pressure of 25 cwt per square inch. The Court of Appeal, upholding Coleridge CJ, rejected the defendants contention that, because the flaw was the inevitable result of the plan upon which the plaintiffs ordered them to do the work the defendants could not be held liable for a defect caused by that plan (to quote from the report of counsels argument). Lindley LJ said that it was manifest that the defendants thought that they could cast the cylinders on [the] pattern [sent by the plaintiffs] without defects. Although he accepted that the defect was unavoidable, he said that [t]here was no doubt that it was a defect and the [defendants] were therefore liable. Lord Esher MR and Lopes LJ agreed. A similar view was taken in Scotland by the Inner House in A M Gillespie & Co v John Howden & Co (1885) 22 SLR 527, where a customer ordered a ship from shipbuilders pursuant to a contract which required the ship to carry 1,800 tons deadweight, and which also required the ship to be built according to a model approved by the customer. The ship as built was unable to carry 1,800 tons deadweight, and the shipbuilders argued that they should not be liable for damages because it would have been impossible to construct a ship capable of carrying 1,800 tons according to the model approved by the customer. Upholding the Sheriff- Substitute, Lord Rutherfurd-Clark (with whom Lords Craighill and Young agreed) said at p 528 that this [was] no defence, as [t]he fact remains that the [shipbuilders] undertook a contract which they could not fulfil and they are consequently liable in damages for the breach. The issue has also come up in the courts of Canada. In The Steel Company of Canada Ltd v Willand Management Ltd [1966] SCR 746, the respondents were claiming for repair work to three defective roofs on buildings which they had constructed for the appellants. The respondents argued that the defects were not their fault, as they had constructed the buildings under a contract which required them to comply with the requirements of the appellants, and the defects resulted from defects in those requirements. Reversing the Ontario Court of Appeal, the Supreme Court of Canada rejected this argument on the ground that the contract also contained a term that the respondent guaranteed that all work would remain weather tight and that all material and workmanship would be first class and without defect. In the course of giving the judgment of the court, Ritchie J at p 751 rejected the respondents contention, which was supported by a decision of the courts of New York, that they guaranteed only that, as to the work done by it, the roof would be weather-tight in so far as the plans and specifications with which it had to comply would allow, and at pp 753 to 754 approved a statement in the then current (8th) edition of Hudsons Building and Engineering Contracts, p 147, to this effect: generally the express obligation to construct a work capable of carrying out the duty in question overrides the obligation to comply with the plans and specifications, and the contractor will be liable for the failure of the work notwithstanding that it is carried out in accordance with the plans and specification. Nor will he be entitled to extra payment for amending the work so that it will perform the stipulated duty. The reasoning of the Canadian Supreme Court was fairly recently applied by the Court of Appeal for British Columbia in Greater Vancouver Water District v North American Pipe & Steel Ltd 2012 BCCA 337, where a clear and unambiguous provision whereby a supplier warrant[ed] and guarantee[d] that the supplied goods were free from all defects arising from faulty design was held to apply in full, notwithstanding the immediately preceding warranty by the supplier that the goods would conform to all applicable specifications, and that those specifications were unsatisfactory and led to the defect complained of. The law on the topic was well summarised by Lord Wright in Cammell Laird and Co Ltd v The Manganese Bronze and Brass Co Ltd [1934] AC 402, 425, where he said that [i]t has been laid down that where a manufacturer or builder undertakes to produce a finished result according to a design or plan, he may be still bound by his bargain even though he can show an unanticipated difficulty or even impossibility in achieving the result desired with the plans or specification. After referring to Thorn as being [s]uch a case, he mentioned Gillespie v Howden (1885) 12 R 800, where the Court of Session held it was no defence to a shipbuilder who had contracted to build a ship of a certain design and of a certain carrying capacity, that it was impossible with the approved design to achieve the agreed capacity: the shipbuilder had to answer in damages. Lord Wright then went on to explain that [t]hough this is the general principle of law, its application in respect of any particular contract must vary with the terms and circumstances of that contract. Where a contract contains terms which require an item (i) which is to be produced in accordance with a prescribed design, and (ii) which, when provided, will comply with prescribed criteria, and literal conformity with the prescribed design will inevitably result in the product falling short of one or more of the prescribed criteria, it by no means follows that the two terms are mutually inconsistent. That may be the right analysis in some cases (and it appears pretty clear that it was the view of the Inner House in relation to the contract in A M Gillespie). However, in many contracts, the proper analysis may well be that the contractor has to improve on any aspects of the prescribed design which would otherwise lead to the product falling short of the prescribed criteria, and in other contracts, the correct view could be that the requirements of the prescribed criteria only apply to aspects of the design which are not prescribed. While each case must turn on its own facts, the message from decisions and observations of judges in the United Kingdom and Canada is that the courts are generally inclined to give full effect to the requirement that the item as produced complies with the prescribed criteria, on the basis that, even if the customer or employer has specified or approved the design, it is the contractor who can be expected to take the risk if he agreed to work to a design which would render the item incapable of meeting the criteria to which he has agreed. Turning to the centrally relevant contractual provisions in the instant case, it seems to me that MTHs case, namely that the obligation which appears to be imposed by para 3.2.2.2(ii) is inconsistent with the obligation imposed by para 3.2.2.2(i) to comply with J101, faces an insurmountable difficulty. The opening provision of Section 3, para 3.1, (i) stresse[s] that the requirements contained in this section are the MINIMUM requirements of [E.ON] to be taken into account in the design, and (ii) goes on to provide that it is the responsibility of [MTH] to identify any areas where the works need to be designed to any additional or more rigorous requirements or parameters. In those circumstances, in my judgment, where two provisions of Section 3 impose different or inconsistent standards or requirements, rather than concluding that they are inconsistent, the correct analysis by virtue of para 3.1(i) is that the more rigorous or demanding of the two standards or requirements must prevail, as the less rigorous can properly be treated as a minimum requirement. Further, if there is an inconsistency between a design requirement and the required criteria, it appears to me that the effect of para 3.1(ii) would be to make it clear that, although it may have complied with the design requirement, MTH would be liable for the failure to comply with the required criteria, as it was MTHs duty to identify the need to improve on the design accordingly. As to the facts of the present case, para 3.2.2.2(i) could indeed be said to require that (as recorded in the note to the Equation in J101) should be taken as 0.00037 Rp for rolled steel surfaces, and, as explained above, this was a mistake, in that it substantially over-estimated the connection strength. However, given the terms of para 3.1(i), this figure for was a MINIMUM requirement, and, if para 3.2.2.2(ii) was to be complied with, the value of stipulated by J101 had to be decreased (as it happens by a factor of around ten). Furthermore, para 3.1(ii) makes it clear that MTH should have identified that there was a need for a more rigorous requirement than being taken as 0.00037 Rp to ensure that the design was satisfactory, or at least complied with para 3.2.2.2(ii). It is right to add that, even without para 3.1(i) and (ii), I would have reached the same conclusion. Even in the absence of those paragraphs, it cannot have been envisaged that MTH would be in breach of its obligations under para 3.2.2.2(i) if it designed the foundations on the basis of being less than 0.00037 Rp for rolled steel surfaces. Accordingly, at least in relation to the Equation, it represented a minimum standard even in the absence of paras 3.1(i) and (ii), and therefore there would have been no inconsistency between para 3.2.2.2(i) and 3.2.2.2(ii). I also draw assistance in reaching that conclusion from the cases discussed in paras 38 to 43 above. The notion that the Contractor might be expected to depart from the stipulations of J101, where appropriate, is also supported by para 3.1.2 of the TR, which specifically envisages that the Contractors Foundation Design Basis document may include departures from standards, and J101 is expressly treated as a standard in para 3.2.3.2. In addition, given that satisfaction of the Equation is required to justify the absence of shear keys, E.ONs contention is assisted by the terms of para 10.5.1, which starts by stating that MTH shall determine whether to employ shear keys within the grouted connection; had shear keys been provided, the problems which arose would, it appears, have been averted. The enforceability of para 3.2.2.2(ii) according to its terms: too slender a thread MTH relies on a number of factors to support the contention that para 3.2.2.2(ii) of the TR is too weak a basis on which to rest a contention that it had a liability to warrant that the foundations would survive for 20 years or would be designed so as to achieve 20 years of lifetime. First, it is said that the diffuse and unsatisfactorily drafted nature of the contractual arrangements, with their ambiguities and inconsistencies, should be recognised and taken into account. The contractual arrangements are certainly long, diffuse and multi-authored with much in the way of detailed description in the TR, and belt and braces provisions both in the TR and the Contract. However, that does not alter the fact that the court has to do its best to interpret the contractual arrangements by reference to normal principles. As Lord Bridge of Harwich said, giving the judgment of the Privy Council in Mitsui Construction Co Ltd v Attorney General of Hong Kong (1986) 33 BLR 7, 14, inelegant and clumsy drafting of a badly drafted contract is not a reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used interpreted in the light of the relevant factual situation in which the contract was made, although he added that the poorer the quality of the drafting, the less willing any court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention. In this case, para 3.2.2.2(ii) is clear in its terms in that it appears to impose a duty on MTH which involves the foundations having a lifetime of 20 years (although, as discussed in paras 27 to 32, there is room for argument as to its precise effect). I do not see why that can be said to be an improbable [or] unbusinesslike interpretation, especially as it is the natural meaning of the words used and is unsurprising in the light of the references in the TR to the design life of the Works being 20 years, and the stipulation that the requirements of the TR are minimum. Secondly, MTH argues that it is surprising that such an onerous obligation is found only in a part of a paragraph of the TR, essentially a technical document, rather than spelled out in the Contract. Given that it is clear from the terms of the Contract that the provisions of the TR are intended to be of contractual effect, I am not impressed with that point. Thirdly, MTH suggests that, given the other obligations with regard to design, manufacture, testing, delivery, installation and completion expressly included, or impliedly incorporated, in clause 8.1 of the Contract, it is unlikely that an additional further and onerous obligation was intended to have been included in the TR. The trouble with that argument is that it involves saying that para 3.2.2.2(ii) adds nothing to other provisions of the TR or the contract. I accept that redundancy is not normally a powerful reason for declining to give a contractual provision its natural meaning especially in a diffuse and multi-authored contract (see In re Lehman Bros International (Europe) (in administration) (No 4) [2017] 2 WLR 1497, para 67). However, it is very different, and much more difficult, to argue that a contractual provision should not be given its natural meaning, and should instead be given no meaning or a meaning which renders it redundant. Fourthly, MTH argues that, if the parties had intended a warranty or term such as is contended for by E.ON, it would not have been tucked away in para 3.2.2.2 of the TR, but would, for instance, have been a Key Functional Requirement in Section 1.6 of the TR. Section 1.6 is concerned with general provisions about the two proposed wind farms, and there is no reference in it to any specific component, in particular the foundations. In any event, as mentioned in para 4 above, the Key Functional Requirements include a requirement for a minimum site specific design life of twenty (20) years without major retrofits or refurbishments, and there is no definition of that expression. Jackson LJ said below, in para 91, If a structure has a design life of 20 years, that does not mean that inevitably it will function for 20 years, although it probably will. Assuming (without deciding) that that is correct, it seems to me that there is a powerful case for saying that, given a Key Functional Requirement is that there is a minimum 20-year design life, it is scarcely surprising that a provision dealing with the General Design Conditions at the Detailed Design Stage includes a provision which has the effect for which E.ON contends in this case. Fifthly, MTH contends that the TR are concerned in a number of places (eg paras 1.6, 3.2.6 and 3b.5.6) with emphasising that the design life of the Works or various components of the Works should be 20 years, which does not carry with it a warranty that the Works, or foundations, will last for 20 years or that they will be designed to last for 20 years, and so it is unlikely that para 3.2.2.2(ii) was concerned with imposing a greater obligation on MTH. The points I have already made at the end of para 49 and the end of para 50 above appear to me to answer this contention. Sixthly, MTH points out that para 3.2.2.2(ii) was concerned with planned maintenance and should not be given the sort of broad effect which E.ONs case involves. It appears to me that the reference to planned maintenance at the end of the first sentence of para 3.2.2.2(ii) emphasises that the design of the foundations should not simply be such as to last for 20 years, but should be able to do so without the need for planned maintenance. Conclusion In these circumstances, I would allow E.ON’s appeal and restore the order made at first instance by Edwards-Stuart J. |
Does the Scottish Parliament have power to legislate for the continuity of laws relating to devolved matters in Scotland which are now the subject of European Union (EU) law but which will cease to have effect after the United Kingdom (UK) withdraws from the EU? That is the principal subject matter of a reference by the Attorney General and the Advocate General for Scotland (the UK Law Officers) to this court under section 33 of the Scotland Act 1998 as amended (the Scotland Act). This is the judgment of the court. Factual background On 29 March 2017 the UK Government notified the European Council of its decision that the UK would withdraw from the EU in accordance with article 50 of the Treaty on European Union (article 50 and TEU). Subject to the judgment of the Court of Justice of the European Union (CJEU) on the reference by the Inner House of the Court of Session on the revocability of article 50 or unless a withdrawal agreement were to provide otherwise or there were to be unanimous agreement of the member states of the EU to an extension of the time limit for withdrawal set out in article 50, the UK will cease to be a member of the EU on 29 March 2019. So long as the UK is a member of the EU, EU law governs matters within its sphere in each of the jurisdictions of the UK without differentiation. When the Scotland Act was enacted, the power to amend EU law, the body of rights and obligations which are binding on all EU member states, resided with the EU institutions. It still so resides. But on the UKs withdrawal from the EU (UK withdrawal), and subject to any agreement to the contrary, EU law will cease to bind the UK and its constituent jurisdictions. Many of our laws are the product of EU legislation through directly applicable EU Regulations, decisions and tertiary legislation, or are derived from EU law, for example by the implementation in our domestic legal systems of EU obligations such as those contained in EU Directives. To achieve legal continuity and to promote legal certainty it is considered necessary to incorporate direct EU legislation into domestic law and to preserve the effect of EU derived domestic legislation after UK withdrawal. On 13 July 2017 the UK Government introduced in the House of Commons the European Union (Withdrawal) Bill (the UK Bill) to repeal the European Communities Act 1972 and to achieve legal continuity within each of the jurisdictions of the UK after withdrawal from the EU. That Bill was not passed by both Houses of Parliament until 20 June 2018. It received Royal Assent on 26 June 2018, becoming the European Union (Withdrawal) Act 2018 (the UK Withdrawal Act). Both before and during the passage through Parliament of the UK Bill, the UK Government discussed its terms with representatives of devolved institutions in the UK. After proposed amendments to the UK Bill, which the Scottish Government supported, were defeated in the House of Commons, the Scottish Government introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the Scottish Bill) in the Scottish Parliament on 27 February 2018. In accordance with section 31 of the Scotland Act 1998 both the Deputy First Minister of the Scottish Government (John Swinney MSP), who introduced the Bill, and the Presiding Officer of the Scottish Parliament (Rt Hon Kenneth Macintosh MSP) issued statements on the legislative competence of the Scottish Bill when it was introduced to the Scottish Parliament. The Scottish Government expressed the view that the Bill would be within the legislative competence of the Scottish Parliament. The Presiding Officer expressed the view that it would not, because the Bill, which would be enacted before the UK withdrew from the EU, would not be compatible with EU law at the time when the Scottish Parliament passed the legislation. In short, the Presiding Officer opined that the Scottish Parliament could not seek to exercise competence before that competence had been transferred to it and that provisions in the Bill, which postponed the legal effect of the legislation until UK withdrawal, did not alter the Parliaments competence at the time when the legislation was passed. The Scottish Parliament passed the Scottish Bill on 21 March 2018. This resulted in the reference to this court under section 33(1) of the Scotland Act which provides that the Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision. The reference was made within four weeks of the passing of the Scottish Bill in accordance with section 33(2) of the Scotland Act. The Lord Advocate has responded to the reference and has submitted that the Scottish Bill would be within the legislative competence of the Scottish Parliament. The Scottish Parliament was not the only devolved legislature that sought to pass legislation to provide for domestic legal continuity after the UKs withdrawal from the EU on exit day. After the UK Parliament did not accept amendments to the UK Bill which the First Minister of Wales supported, the Welsh Assembly passed legislation to similar effect as the Scottish Bill in the Law Derived from the European Union (Wales) Bill (the Welsh Bill). This resulted in a reference by the Attorney General to this court under section 112(1) of the Government of Wales Act 2006 in relation to the Welsh Bill. But, after agreement was reached between the Welsh Government and the UK Government on 24 April 2018 which resulted in amendments to clause 11 of the UK Bill (now section 12 of the UK Withdrawal Act) and the Welsh Assembly gave legislative consent to the UK Bill, the Attorney General has withdrawn that reference. The Law Derived from the European Union (Wales) Act 2018 received the Royal Assent on 6 June 2018 and came into force on the following day by virtue of section 21. Nonetheless, the questions which this reference raises have implications not only for the Scottish Parliament but also for the other devolved legislatures of the UK. The Counsel General to the Welsh Government and the Attorney General for Northern Ireland have therefore appeared as interveners and have addressed the court. We are very grateful to them for their assistance. The role of this court Withdrawal from the EU will result in legislative powers, which are currently vested in EU institutions, being transferred to institutions in the UK. There has been and is a political debate as to which institutions within the UK should best exercise those powers in the public interest. It is not the role of this court to form or express any view on those questions of policy, which are the responsibility of our elected representatives and in which the wider civil society has an interest. Our role is simply to determine as a matter of law whether and to what extent the Scottish Bill would be within the legislative competence of the Scottish Parliament. That question is answered, as we explain below, by analysing the provisions of the Scotland Act. The Scotland Act Since the Scottish Parliament commenced its work on 2 July 1999, the courts have had occasion to interpret the law by which it is governed. The main principles may be summarised as follows. The powers of the Scottish Parliament, like those of Parliaments in many other constitutional democracies, are delimited by law. The Scottish Parliament is a democratically elected legislature with a mandate to make laws for people in Scotland. It has plenary powers within the limits of its legislative competence. But it does not enjoy the sovereignty of the Crown in Parliament; rules delimiting its legislative competence are found in section 29 of and Schedules 4 and 5 to the Scotland Act, to which the courts must give effect. And the UK Parliament also has power to make laws for Scotland, a power which the legislation of the Scottish Parliament cannot affect: section 28(7) of the Scotland Act. The Scotland Act must be interpreted in the same way as any other statute. The courts have regard to its aim to achieve a constitutional settlement and therefore recognise the importance of giving a consistent and predictable interpretation of the Scotland Act so that the Scottish Parliament has a coherent, stable and workable system within which to exercise its legislative power. This is achieved by interpreting the rules as to competence in the Scotland Act according to the ordinary meaning of the words used. These statements of the law can be found in Whaley v Lord Watson 2000 SC 340, 348 349 per the Lord President (Lord Rodger); Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, para 52 per Lord Walker of Gestingthorpe; AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46; 2012 SC (UKSC) 122; [2012] 1 AC 868, paras 45 46 per Lord Hope of Craighead, paras 146 147 per Lord Reed; Imperial Tobacco Ltd v Lord Advocate 2012 SC 297, para 58 per Lord Reed, [2012] UKSC 61; 2013 SC (UKSC) 153, paras 6 and 12 15 per Lord Hope; Attorney General v National Assembly for Wales Commission [2012] UKSC 53; [2013] 1 AC 792, paras 78 81 per Lord Hope; and In re Agricultural Sector (Wales) Bill [2014] UKSC 43; [2014] 1 WLR 2622, para 66 per Lord Reed and Lord Thomas of Cwmgiedd CJ. Section 28 of the Scotland Act provides that, subject to section 29, the Scottish Parliament may make laws. Section 29 delimits the legislative competence of the Scottish Parliament. It provides, so far as relevant: (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply (b) (c) (d) it relates to reserved matters, it is in breach of the restrictions in Schedule 4, it is incompatible with EU law, (3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. There are therefore three principal restrictions which are relevant to this reference. First, a provision is outside competence if it is incompatible with EU law (section 29(2)(d)). This restriction is what caused the Presiding Officer of the Scottish Parliament to express his view which we discussed in para 7 above. Secondly, a provision is outside competence if it relates to reserved matters (section 29(2)(b) and (3)). Section 30 and Schedule 5 define reserved matters, which include foreign affairs etc, including relations with the EU, in paragraph 7 of Schedule 5. Thirdly, a provision is outside competence if it is in breach of the restrictions in Schedule 4 (section 29(2)(c)). Schedule 4 lists enactments and rules of law which are protected from modification by an Act of the Scottish Parliament or by subordinate legislation created on its authority. It is necessary in this overview of the Scotland Act also to mention three other provisions. First, section 101 governs the approach to the interpretation of Acts of the Scottish Parliament or subordinate legislation which could be read as to be outside competence. Section 101(2) provides Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly. Since the cases to which we referred in para 13 above were decided, the UK Parliament, in the Scotland Act 2016, has enacted two important amendments to the Scotland Act, which are designed to entrench the role of the Scottish Parliament and Scottish Government in the UK constitution. Thus, secondly, it is provided in section 63A (inserted by section 1 of the 2016 Act): (1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdoms constitutional arrangements. (2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government. (3) In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum. Thirdly, in the same Act the UK Parliament has given statutory recognition to the Sewel convention by inserting into section 28 of the Scotland Act (by section 2 of the 2016 Act), immediately after the subsection preserving the power of the UK Parliament to make laws for Scotland, the following subsection: (8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament. In R (Miller) v Secretary of State for Exiting the European Union (Birnie intervening) [2017] UKSC 5; [2018] AC 61 (paras 136 137) this court explained that, although the Sewel convention cannot be enforced by the courts, it nonetheless plays an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. The Convention is embodied in a Memorandum of Understanding between the UK Government and the devolved governments which, in para 14 of the current memorandum (published in October 2013), states: the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government. The mechanism in Scotland for agreeing to such legislation by the UK Parliament is by a legislative consent motion which is put to a vote in the Scottish Parliament. As Lord Hope stated in Imperial Tobacco para 6, disputes between the Scottish Parliament and the UK Parliament as to legislative competence have been avoided, partly by the use of legislative consent motions passed by the Scottish Parliament and partly by the care which officials within the Scottish Parliament have taken to ensure that measures which the Scottish Parliament passes are within competence. On this occasion the Scottish Government opposed the enactment of the UK Bill without the amendments which it had supported and on 15 May 2018 the Scottish Parliament voted to refuse a legislative consent motion in relation to it. That vote does not affect the legal validity of the UK Withdrawal Act. But there is now a conflict between that Act and the Scottish Bill. This is the first occasion in the 19 years since the Scottish Parliament commenced its work that there has been a challenge by Law Officers of the UK Government to a Bill of the Scottish Parliament on the ground that it is outside legislative competence. The reference and the structure of this judgment The reference poses four principal questions, together with subordinate questions. The enactment of the UK Withdrawal Act poses two further questions. In this judgment we address those questions in the following manner: (1) We consider the UK Law Officers submission that the Scottish Bill in its entirety is outside competence principally because it relates to the reserved matter of relations with the EU (paras 23 36). (2) We address the challenge that section 17 of the Scottish Bill, which seeks to make the consent of the Scottish Ministers a pre condition for the legal effect of certain future subordinate legislation by Ministers of the Crown containing devolved provision which affects the operation of retained EU law, is outside competence (paras 37 65). (3) We consider whether section 33 of and Schedule 1 to the Scottish Bill, which purport to repeal references to EU law in the Scotland Act on the ground that they are spent after UK withdrawal, are outside competence (paras 66 79). (4) We address the challenge that various provisions of the Scottish Bill are outside competence because (i) they are incompatible with EU law, (ii) modify the European Communities Act 1972, and/or (iii) are contrary to the rule of law (paras 80 90). (5) We consider whether it is competent for this court to consider the effect of the UK Withdrawal Act on the legality of the Scottish Bill in the context of this reference (paras 91 97). (6) Finally, we address the extent to which the UK Withdrawal Act has put provisions of the Scottish Bill outside the legislative competence of the Scottish Parliament (paras 98 124). (1) Whether the Scottish Bill as a whole is outside the legislative competence of the Scottish Parliament The first question referred is stated in the Reference as follows: Whether the Scottish Bill as a whole is outside the legislative competence of the Scottish Parliament because: Paragraph 7 of Part 1 of Schedule 5 provides: It is contrary to the constitutional framework (a) underpinning the devolution settlement; and/or (b) It relates to the reserved matter of relations with the European Union set out in paragraph 7(1) of Part 1 of Schedule 5, falling under section 29(2)(b) of the Scotland Act; and/or (c) certainty and legality. It is contrary to the rule of law principles of legal including relations with 7(1) International relations, territories outside the United Kingdom, the European Union (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co operation are reserved matters. (2) Sub paragraph (1) does not reserve (a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under EU law, assisting Ministers of the Crown in relation to (b) any matter to which that sub paragraph applies. We begin by explaining the scope of this question as it was developed in argument, and its relationship to other referred questions. The Scottish Parliament is a legislature of unlimited legislative competence subject to the limitations in sections 28 and 29 of the Scotland Act, and in particular the five exclusions from its competence specified in section 29(2). The most significant of these exclusions are (b), (c) and (d). They are very different in nature. Exclusions (c) and (d) are concerned with specific inconsistencies, in the case of (c) with specified UK legislation or rules of law identified in Schedule 4, and in the case of (d) with the Human Rights Convention or EU law. By comparison, the effect of case (b) is to prevent the Scottish Parliament from legislating about reserved matters at all, even if there is no inconsistency between its proposed legislation and any of these UK wide sources of law. The UK Law Officers attack the Scottish Bill at two levels, one general and the other particular. The general attack, which is the subject of Question 1, is based mainly on the contention that the entire Scottish Bill relates to international relations. As a result, it is said to be beyond the competence of the Scottish Parliament quite apart from any specific inconsistency between its terms and any UK wide source of law. The UK Law Officers seek to reinforce this point by arguing that a broad view must be taken of the nature of the relationship between the Scottish Bill and relations with the EU which will serve to bring it within section 29(2)(b). This is, first, because under section 29(3) the question whether a provision of a Scottish Act relates to a reserved matter must be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. The purpose, it is said, of the Scottish Bill is to deal with relations with the EU in a manner specific to Scotland, whereas the assumption underlying Schedule 5, Part 1, paragraph 7 is that they will be dealt with on a UK wide basis, necessarily by the UK Parliament. Secondly, so it is submitted, it is because the Scottish Bill is open to review on more general grounds than those set out in section 29 of the Scotland Act, including its alleged inconsistency with the constitutional framework underpinning the devolution settlement or with the rule of law principles of legality and legal certainty. The argument is that the Scottish Bill cuts across the attempts of the UK Parliament and government to deal in a way that applies coherently and consistently across the whole of the UK with a matter within their reserved competence, namely the legal consequences of withdrawal from the EU. It is also said that the existence of parallel legislation on the same subject matter in Scotland and in the UK as a whole, undermines legal certainty. The starting point in considering these arguments is the proper scope of a reference under section 33 of the Scotland Act. There is a difference between a want of legislative competence and more general grounds for judicial review on public law grounds. The result of a want of legislative competence is that a Scottish enactment is a nullity (not law): see section 29(1) of the Scotland Act. A Scottish enactment which is held by a court to be unlawful on more general public law grounds is not necessarily a nullity. In AXA General Insurance Ltd v Lord Advocate Lord Hope at para 47 and Lord Reed at paras 149 153, with whom the rest of the court agreed, observed that since the Scottish Parliament is a statutory body owing its powers and duties to an Act of the UK Parliament, section 29 is not exhaustive of the grounds on which its legislation may be reviewed. Other grounds of challenge such as inconsistency with fundamental rights may in principle be available. They were, however, dealing with proceedings by way of judicial review on appeal from the Court of Session. It is clear, in particular from the observations of Lord Hope, that that was the context of these particular statements. A reference to this court under section 33 of the Scotland Act is concerned only with the extent of the Scottish Parliaments legislative competence: see section 33(1). This is a term of art in the Scotland Act. It refers back to section 29, which provides that a provision is outside the legislative competence of the Scottish Parliament in the five cases specified in subsection (2). For the purposes of a reference under section 33, they are exhaustive. It follows that the only relevant issue under Question 1 is whether the Scottish Bill relates to reserved matters, specifically relations with the EU, within the meaning of section 29(2)(b). Consistency with the rule of law or the constitutional framework underpinning the devolution settlement is relevant only so far as it assists in resolving that issue. They are not independent grounds of challenge available in these proceedings. In order to relate to a reserved matter, a provision of a Scottish bill must have more than a loose or consequential connection with it: Martin v Most at para 49 (Lord Walker). In Imperial Tobacco Ltd v Lord Advocate at para 26, Lord Hope observed that the question required one first to understand the scope of the matter which is reserved and, secondly, to determine by reference to the purpose of the provisions under challenge (having regard among other things to their effect in all the circumstance) whether those provisions relate to the reserved matter. The purpose of an enactment for this purpose may extend beyond its legal effect, but it is not the same thing as its political motivation. There can be no doubt about the purpose of the Scottish Bill or its effect if valid. It is accurately stated in section 1(1): (1) The purpose of this Act is to make provision (a) in connection with the prospective withdrawal of the United Kingdom from the EU in consequence of the notification given under section 1 of the European Union (Notification of Withdrawal) Act 2017 (UK withdrawal), and (b) for ensuring the effective operation of Scots law (so far as within devolved legislative competence) upon and after UK withdrawal. The decisive issue in these proceedings is accordingly the scope of the reservation for international relations. Before broaching that issue, it is necessary to say something about the legal context of the reservation for international relations. Three broad points need to be made about it: (1) In the eyes of the outside world a state is a subject of international law and as such a unitary entity. Other states or international organisations are not concerned with its internal distribution of powers, duties or competences. The UK is a member state of the EU and has all the international rights and obligations attaching to that status. Scotland is not as such a member state. It participates in the EU as an integral part of the UK. The UK is of course free to provide domestically for the observation and implementation of its EU and other international obligations by the devolved administrations and legislatures. But they remain the UKs international obligations, and the UK remains responsible at the international level for their proper discharge. (2) As a matter of domestic law, the conduct of the UKs international relations is a prerogative power of the Crown. It requires legislative authority only insofar as statute so provides, expressly or by implication. Ministers of the Crown cannot alter the law of any part of the UK by the exercise of that prerogative power. For that reason, where a treaty requires changes to the law of the UK, the long standing practice of Her Majestys Government has been to obtain legislative authority for those changes before ratifying any international engagement and thereby committing the UK internationally. (3) Reserved matters as defined in Schedule 5 are excluded from the legislative competence of the Scottish Parliament by virtue of section 29(2)(b), and also by virtue of section 29(2)(c), since Schedule 4, Part 1, paragraph 2 prevents it from legislating to modify the law on reserved matters. But it is important to appreciate that the statutory provisions for reserved matters are not only a limitation on the competence of the Scottish Parliament. Reserved matters are also excluded from the devolved competence of the Scottish Ministers by virtue (primarily) of section 54. Under section 54(3), the Scottish Ministers cannot exercise any function which it would not be competent for the Scottish Parliament to confer on them by legislation. The effect of this last provision is that the transfer from Ministers of the Crown to the Scottish Ministers of the function of exercising the prerogative powers of the Crown, which is effected generally by section 53, does not extend to the prerogative power to conduct international relations. This feature of the statutory scheme is particularly important in the case of the reservation for international relations, since the conduct of international relations is a matter for the executive, in which legislation generally plays an ancillary or implementing role. Schedule 5, Part 1, paragraph 7, distinguishes between (i) international relations, including relations with the EU, which are reserved; and (ii) the observation and implementation of international obligations and obligations under the Human Rights Convention and EU law, which are not reserved. For this purpose, EU law means all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties and all those remedies and procedures from time to time provided for by or under the EU Treaties: section 126(9). The observation and implementation of EU law is accordingly within the domestic competence of the Scottish Parliament and the Scottish Ministers unless it falls within another reserved matter, but subject always to the provisos that under section 29(2)(d) the legislature has no competence to legislate incompatibly with EU law and that under section 57(2) the Scottish Ministers have no competence to act incompatibly with EU law. The Scottish Bill is not within the carve out from the reserved matter for the observation or implementation of obligations under EU law. It has nothing to do with the observation or implementation of those obligations. If the Scottish Bill becomes law, its provisions will not affect the law of Scotland until after withdrawal, ie at a time when the UK has no EU law obligations. This point is more fully addressed at paras 80 to 90 below. The Scottish Bill is concerned with the purely domestic rules of law which at that point will replace EU law. The fact that those domestic rules may be substantially the same as the rules which previously applied as a matter of EU law does not make them obligations under EU law. Their juridical source is purely domestic. If the Scottish Bill is not within the carve out for the observation or implementation of EU law, does it fall within the general reservation for relations with the EU? The distinction between the observation or implementation of obligations under EU law and other aspects of relations with the EU means that the reservation in Schedule 5, Part 1, paragraph 7 is in practice likely to be relevant mainly to acts of the Scottish Ministers. There is relatively little scope for Scottish legislation to relate to international relations other than by way of implementation of international obligations, unless such legislation were to purport to deal with the power of Ministers of the Crown to exercise its prerogative in foreign affairs, or to create a state of law in Scotland which affected the effectual exercise of that power. An example might perhaps be the purported imposition of sanctions in Scotland on foreign countries for political purposes. It is particularly difficult to envisage Scottish legislation relating to relations with the EU other than by way of implementation of EU law obligations. This is because for as long as the UK remains in the EU they are comprehensively regulated by provisions of the European Communities Act 1972 which are protected enactments under Schedule 4, Part 1, paragraph 1(2)(c). In our judgment, the Scottish Bill does not relate to relations with the EU. It will take effect at a time when there will be no legal relations with the EU unless a further treaty is made with the EU. The Bill does not purport to deal with any legal rule affecting the power of Ministers of the Crown to negotiate such a treaty or otherwise to conduct the UKs relations with the EU. It does not purport to affect the way in which current negotiations between the UK and the EU are conducted. It simply regulates the legal consequences in Scotland of the cessation of EU law as a source of domestic law relating to devolved matters, which will result from the withdrawal from the EU already authorised by the UK Parliament. This is something that the Scottish Parliament is competent to do, provided (i) that it does it consistently with the powers reserved in the Scotland Act to the UK Parliament, and with legislation and rules of law protected under Schedule 4, and (ii) that its legislation does not relate to other reserved matters. Parts of the argument of the UK Law Officers appear to suggest a wider objection that separate Scottish legislation about the consequences of withdrawal is legally untidy, politically inconvenient or redundant in the light of the corresponding UK legislation. But we are not concerned with supposed objections of this kind, which go to the wisdom of the legislation and not to its competence. Different considerations may arise if and when further legislation is required to implement any agreement which Ministers of the Crown may negotiate with the EU governing the terms of withdrawal or the subsequent relations of the UK with the EU. But that is a matter which will have to be addressed when that legislation comes to be proposed. The UK Law Officers case on these points is not assisted by reference to the constitutional framework underlying the devolution settlement or the principles of legal certainty and legality. The constitutional framework underlying the devolution settlement is neither more nor less than what is contained in the Scotland Act construed on principles which are now well settled. And there is nothing legally uncertain or otherwise contrary to the rule of law about the enactment of legislation governing the domestic legal consequences of withdrawal at both the UK and the Scottish level, provided that they do not conflict, a question which is addressed below. Accordingly, the answer to Question 1 is No, subject in the case of Question 1(a) to the remaining questions referred. (2) Whether section 17 of the Scottish Bill is outside the legislative competence of the Scottish Parliament The second question is stated in the reference as follows: Section 17 of the Bill is headed Requirement for Scottish Ministers consent to certain subordinate legislation. Subsection (1) defines the subordinate legislation to which the section applies: Whether section 17 of the Scottish Bill is outside the legislative competence of the Scottish Parliament because: (a) It modifies sections 28(7) and 63(1) of the Scotland Act and is accordingly in breach of the restriction in paragraph 4(1) of Schedule 4, falling under section 29(2)(c) of the Scotland Act; and/or (b) It relates to the reserved matter of the Parliament of the United Kingdom set out in paragraph 1(c) of Part 1 of Schedule 5, falling under section 29(2)(b) of the Scotland Act. (1) This section applies to subordinate legislation made, confirmed or approved by a Minister of the Crown or any other person (other than the Scottish Ministers) if it contains devolved provision (whether or not it (a) also contains other provision), (b) affects the operation of the devolved provision modifies or otherwise (i) retained (devolved) EU law, or (ii) anything that would be, on or after exit day, retained (devolved) EU law, it is made, confirmed or approved under a (c) function (i) (ii) modified in accordance with subsection (3), conferred, or by or under an Act of the Parliament of the United Kingdom enacted after the date on which this section comes into force, and (d) it does not apart from this section require the consent of the Scottish Ministers before it is made, and (e) it is made by statutory instrument. Subsection (3) explains what is meant in subsections (1)(b) and (1)(c)(ii) by modifies and modified: (3) A function is modified in accordance with this subsection if it is modified in a way that enables or requires the subordinate legislation to contain devolved provision that it could not previously contain. Subsection (4) defines the expression devolved provision: (4) For the purposes of this section, devolved provision means provision that would be, if it were contained in an Act of the Scottish Parliament, within the legislative competence of the Scottish Parliament. Subsection (1) having defined the ambit of section 17, and subsections (3) and (4) having defined some of the expressions employed, the operative provision of the section is set out in subsection (2): (2) The subordinate legislation, to the extent that it contains devolved provision, is of no effect unless the consent of the Scottish Ministers was obtained before it was made, confirmed or approved. Section 28(1) of the Scotland Act confers on the Scottish Parliament the power to make laws known as Acts of the Scottish Parliament, subject to section 29. Section 28(7) provides: (7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. That provision makes it clear that, notwithstanding the conferral of legislative authority on the Scottish Parliament, the UK Parliament remains sovereign, and its legislative power in relation to Scotland is undiminished. It reflects the essence of devolution: in contrast to a federal model, a devolved system preserves the powers of the central legislature of the state in relation to all matters, whether devolved or reserved. Section 29(1) provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2) provides that a provision is outside that competence so far as, inter alia: (c) it is in breach of the restrictions in Schedule 4. Schedule 4 provides, in paragraph 4(1): (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, this Act. Subsequent provisions in paragraph 4 create a number of exceptions to that general prohibition, but there is no exception relating to section 28(7). It follows that a provision in an Act of the Scottish Parliament is outside legislative competence in so far as it purports to modify section 28(7). Section 17 of the Bill, if it received Royal Assent, would therefore be outside legislative competence in so far as it purported to do so. (a) Would section 17 of the Bill modify section 28(7) of the Scotland Act? It is submitted on behalf of the UK Law Officers that section 17 of the Bill would modify section 28(7) of the Scotland Act, since it would impose a condition limiting the power of the UK Parliament to make laws for Scotland in relation to devolved matters. Any law which the UK Parliament makes, conferring on Ministers of the Crown or other persons the power to make subordinate legislation falling within the scope of section 17, would be of no effect unless the Scottish Ministers consent to the subordinate legislation in question in accordance with that section. That would be inconsistent with the sovereign power of the UK Parliament to legislate for Scotland. Section 17 would therefore limit the continuing effect of, and thus modify, section 28(7) of the Scotland Act, in breach of the limit on legislative competence imposed by section 29(2)(c) of the Scotland Act, read together with paragraph 4(1) of Schedule 4. In response, the Lord Advocate advances a number of arguments. First, he submits that a distinction should be drawn between a provision which expressly or implicitly alters a provision in a protected enactment, and so modifies it, and one which merely adds further provision in the same field of law. Similar arguments are also advanced by the Attorney General for Northern Ireland and on behalf of the Counsel General for Wales. Counsel for the Counsel General submits that where the UK Parliament passes legislation for Wales, there is no reason in principle why the Welsh Assembly cannot legislate to the effect of adding a requirement (for example, for consultation), although no such requirement appears in the legislation enacted by Parliament. The devolution legislation recognises this, and deals with the situation by giving the UK Parliament the option of entrenching legislation by protecting it from modification. It is, he submits, inconsistent with that structure to say that legislating to add to or detract from what Westminster had enacted (or might wish to enact in the future) was itself outside legislative competence. In support of his submission, the Lord Advocate cites Martin v Most at para 110, where Lord Rodger of Earlsferry in his dissenting judgment described a provision in an Act of the Scottish Parliament which enabled sheriffs to impose a maximum sentence of imprisonment of 12 months on persons convicted on summary complaint as superseding, and so modifying, a provision in UK road traffic legislation which stipulated that the maximum term of imprisonment for a specified conviction on summary complaint was six months. The UK provision was not amended or repealed, but it was superseded in its application to Scotland, and so modified, by a provision which was inconsistent with it. The Lord Advocate also cites the judgments of the Inner House, and of this court, in Imperial Tobacco Ltd v Lord Advocate. The relevant issues in that case arose under paragraph 2(1) of Schedule 4 to the Scotland Act, which provides that an Act of the Scottish Parliament cannot modify the law on reserved matters, an expression which is defined in paragraph 2(2) as meaning any enactment or rule of law the subject matter of which is a reserved matter. One question which arose was whether provisions in an Act of the Scottish Parliament which restricted the display of tobacco products, and prohibited their sale by vending machines, modified existing UK Regulations which prohibited the sale of tobacco for oral use and the sale of cigarettes with high tar yields. The creation of additional offences was held not to modify the existing Regulations. In the Inner House, Lord President Hamilton distinguished at para 17 between a provision which, expressly or implicitly, alters another provision and one which adds a further specific restriction or restrictions to existing specific restrictions, albeit in the same field of law. The latter, he said, did not modify an existing enactment. In this court Lord Hope stated at para 44: [The provisions in question] do not seek to amend or otherwise affect anything that is set out in those Regulations. In that sense they cannot be said to modify them at all. As Lord Reed said [in the Inner House] the Regulations continue in force as before. Proceeding on that basis, the Lord Advocate advances three reasons why section 17 would not modify section 28(7) of the Scotland Act. First, he submits, Parliaments power to make laws for Scotland would remain unaffected. The subordinate legislation to which section 17 of the Bill would apply would not be made by Parliament itself, but by Ministers and other persons. To similar effect, the Attorney General for Northern Ireland submits that section 17 would not touch, far less modify, Parliaments power to enact: all it would affect was what Ministers of the Crown and other persons might do pursuant to a power that Parliament might give them. Secondly, the Lord Advocate submits that section 17 of the Bill would not modify section 28(7) of the Scotland Act because it would remain within the power of the UK Parliament subject, he submits, to the Sewel convention, set out in section 28(8) of the Scotland Act to disapply section 17 of the Bill, or to repeal it altogether. Thirdly, the Lord Advocate submits that since section 17 would not prevent the UK Parliament from conferring powers on Ministers to make subordinate legislation for Scotland, and would not affect the formal validity of any subordinate legislation made in the exercise of such powers, but is directed merely at the legal effect of such legislation, it follows that section 17 would not affect the UK Parliaments power to make laws for Scotland, and therefore would not modify section 28(7) of the Scotland Act. In that regard, the Lord Advocate draws an analogy with the distinction between a laws being on the statute book and its being in force. Considering first the meaning of modification, the expression modify is defined in section 126(1) of the Scotland Act as follows: modify includes amend or repeal. This clearly strikes at the express amendment or repeal of any provision which is protected against modification. The Lord Advocate accepts, however, that it is not confined to express amendment or repeal: a provision may also be held to modify another provision if it has the effect of amending or repealing it. He submits that, where there is no express amendment or repeal, the issue can be tested by asking whether there is an inconsistency between the provision under consideration and the protected enactment or rule of law. As appears from the authorities cited by the Lord Advocate, one enactment does not modify another merely because it makes additional provision in the same field of law. If it did, the important distinction between the protection of enactments from modification under Schedule 4 to the Scotland Act, and the inability of the Scottish Parliament to legislate in relation to reserved matters under Schedule 5, would become obscured. When the UK Parliament decides to reserve an entire area of the law to itself, it does so by listing the relevant subject matter in Schedule 5. When it has not taken that step, but has protected a particular enactment from modification by including it in Schedule 4, it is not to be treated as if it had listed the subject matter of the enactment in Schedule 5. Where the only relevant restriction on the legislative power of the Scottish Parliament is the protection of an enactment from modification under Schedule 4, the Parliament has the power to enact legislation relating to the same subject matter as the protected enactment, provided it does not modify it. Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one. Applying that approach, we are unable to accept the Lord Advocates submission that section 28(7) of the Scotland Act would not be modified by section 17 of the Bill. As the Lord Advocate acknowledges, the power of the UK Parliament to make laws for Scotland includes the power to make laws authorising the making of subordinate legislation by Ministers and other persons. An enactment of the Scottish Parliament which prevented such subordinate legislation from having legal effect, unless the Scottish Ministers gave their consent, would render the effect of laws made by the UK Parliament conditional on the consent of the Scottish Ministers. It would therefore limit the power of the UK Parliament to make laws for Scotland, since Parliament cannot meaningfully be said to make laws if the laws which it makes are of no effect. The imposition of such a condition on the UK Parliaments law making power would be inconsistent with the continued recognition, by section 28(7) of the Scotland Act, of its unqualified legislative power. Thus, in order for section 17 of the Bill and section 28(7) of the Scotland Act to operate concurrently, the former would have to be treated as impliedly amending the latter, so that it read: (7) Subject to section 17 of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Act 2018, this section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. That conclusion is not altered by the other arguments advanced by the Lord Advocate. In relation to the first argument (para 47 above), a provision which made the effect of laws made by the UK Parliament for Scotland conditional on the consent of the Scottish Ministers, unless it disapplied or repealed the provision in question, would for that very reason be inconsistent with the continued recognition of its unqualified sovereignty, and therefore tantamount to an amendment of section 28(7) of the Scotland Act. In relation to the second argument (para 48 above), the question before the court is whether, if the Bill were to receive Royal Assent, section 17 would be law. If not, there would be no question of its having to be disapplied or repealed by the UK Parliament: it would be of no legal effect whatsoever (not law, in terms of section 29(1) of the Scotland Act). It is therefore no answer to an argument that section 17 of the Bill would be outside legislative competence, to say that it could be disapplied or repealed. In relation to the third argument (para 49 above), this submission resembles the Lord Advocates first argument, and for similar reasons we are unable to accept it. A provision which imposes a condition on the legal effect of laws made by the UK Parliament, in so far as they apply to Scotland, is in conflict with the continuation of its sovereign power to make laws for Scotland, and is therefore equivalent to the amendment of section 28(7) of the Scotland Act. The suggested analogy reinforces the point. If a provision of a Bill passed by the Scottish Parliament were to prevent legislation enacted by the UK Parliament from coming into force without the Scottish Ministers consent, that provision would undoubtedly limit the UK Parliaments power to make laws for Scotland. For these reasons, we conclude that section 17 of the Bill would modify section 28(7) of the Scotland Act, contrary to section 29(2)(c) and paragraph 4(1) of Schedule 4. Having reached that conclusion, it is unnecessary for us to consider whether section 17 of the Bill would also breach the restriction in paragraph 4(1) of Schedule 4 by modifying section 63(1). (b) Does section 17 relate to the reserved matter of Parliament? The remaining question, in relation to section 17 of the Bill, is whether it relates to the reserved matter of the Parliament of the United Kingdom, set out in paragraph 1(c) of Part 1 of Schedule 5 to the Scotland Act, to which effect is given by section 29(2)(b). Reserved matters are set out in Schedule 5. Paragraph 1 is headed The Constitution, and provides: the Union of the Kingdoms of Scotland and the Crown, including succession to the Crown The following aspects of the constitution are reserved matters, that is (a) and a regency, (b) England, the Parliament of the United Kingdom, (c) (d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal, (e) as a civil court of first instance and of appeal. the continued existence of the Court of Session Paragraph 1 is qualified by paragraphs 2 to 5, but none of the qualifications affects paragraph 1(c). It is submitted on behalf of the UK Law Officers that section 17 of the Bill relates to the reserved matter of the Parliament of the United Kingdom. Its purpose is to achieve what the Scottish Government failed to achieve during the passage of the UK Withdrawal Act through Parliament, namely the enactment of a requirement that subordinate legislation made under the Act, affecting matters devolved to Scotland, would be subject to a requirement that the consent of the Scottish Government must be obtained. That purpose is made plain by the Scottish Government in the Policy Memorandum which was published to accompany the Bill, at paras 68 69: 68. While it may prove efficient or beneficial to be able to make provision on a UK wide basis, the Scottish Government considers that this should only be possible with the consent of the Scottish Ministers. Amendments to the [European Union (Withdrawal) Bill] to this effect were jointly proposed by the Scottish and Welsh Governments but were not accepted by the UK Government. 69. In order to ensure the involvement of devolved Scottish institutions in devolved Scottish law making, the Bill therefore creates a default procedural requirement under which UK Ministers must obtain the consent of the Scottish Ministers before they make, confirm or approve secondary legislation relating to devolved matters which modifies, or would modify, any retained (devolved) EU law. The effect of section 17 is consistent with that purpose. It would give the Scottish Ministers the power to prevent subordinate legislation made by a Minister of the Crown from having effect in Scotland by withholding their consent. Section 17 thus seeks to impose on a power to be granted by Parliament a limitation that Parliament itself had chosen not to impose. It is inconsistent with the power of a sovereign Parliament. In response, the Lord Advocate submits that the reservation of the Parliament of the United Kingdom is narrower in scope than the argument advanced on behalf of the UK Law Officers assumes. It comprises such matters as the existence of Parliament, its composition and its procedures. Section 17 of the Bill has no impact on any of these matters, or on the powers of Parliament. The argument advanced by the UK Law Officers fails to recognise that it is not, in general, outside the legislative competence of the Scottish Parliament to amend or repeal legislation enacted by the UK Parliament. Similar submissions are also made on behalf of the Counsel General for Wales and by the Attorney General for Northern Ireland. We are not persuaded that section 17 of the Bill relates to the matter reserved by paragraph 1(c) of Schedule 5. In deciding what that provision is intended to reserve, it is necessary to take account of its statutory context, including the heading of paragraph 1: Imperial Tobacco, para 17. As we have mentioned, paragraph 1 is headed The Constitution. It reserves five aspects of the constitution. They are all fundamental elements of the constitution of the UK, and of Scotlands place within it: the Crown, the Union, the UK Parliament, and the existence of Scotlands higher civil and criminal courts. Considered in that context, the reservation in paragraph 1(c) encompasses, amongst other matters, the sovereignty of Parliament, since that is an attribute of Parliament which is relevant indeed, fundamental to the constitution. On the other hand, the reservation in paragraph 1(c) cannot have been intended, ordinarily at least, to protect legislation enacted by Parliament from the effects of legislation passed by the Scottish Parliament, since that purpose is effected by other provisions of the Scotland Act, which reserve matters to the UK Parliament and thereby prevent the Scottish Parliament from legislating on those matters, or which protect enactments made by the UK Parliament from modification by legislation passed by the Scottish Parliament. It follows that, if the Scottish Parliament legislates in order to give effect in Scotland to a policy which has been rejected by the UK Parliament, it does not, as a general rule, thereby infringe the reservation created by paragraph 1(c). Neither the purpose nor the effect of such legislation impinges upon the constitutional functions, powers or privileges of Parliament. The point can be illustrated by the case of In re Agricultural Sector (Wales) Bill which concerned a Bill passed by the Welsh Assembly, as emergency legislation, in order to establish a scheme for setting minimum wages for agricultural workers in Wales, shortly after the previous scheme, covering England and Wales, had been abolished by an Act of Parliament. The Bill was challenged by the Attorney General on the ground that it did not relate to the devolved matter of agriculture, and was therefore outside the legislative competence of the Assembly. No challenge was brought on the ground that, since the Bill gave effect to a policy which had been rejected by the UK Parliament, the Bill therefore related to the reserved matter of the UK Parliament. Nor was there any suggestion in the judgment that such a challenge might have been brought. Similarly in the present case, the fact that section 17 of the Bill gives effect to a policy rejected by the UK Parliament does not mean that it relates to the reserved matter of Parliament. Nor are we persuaded that section 17 impinges upon the sovereignty of Parliament. Section 17 does not purport to alter the fundamental constitutional principle that the Crown in Parliament is the ultimate source of legal authority; nor would it have that effect. Parliament would remain sovereign even if section 17 became law. It could amend, disapply or repeal section 17 whenever it chose, acting in accordance with its ordinary procedures. The preferable analysis is that although section 17, if it became law, would not affect Parliamentary sovereignty, it would nevertheless impose a condition on the effect of certain laws made by Parliament for Scotland, unless and until Parliament exercised its sovereignty so as to disapply or repeal it. It would therefore affect the power of the Parliament of the United Kingdom to make laws for Scotland, and so modify section 28(7) of the Scotland Act. Conclusion in relation to section 17 For the foregoing reasons, the answer to Question 2(a) is Yes. Section 17 of the Bill would not be within the legislative competence of the Scottish Parliament, because it would modify section 28(7) of the Scotland Act, contrary to section 29(2)(c). The answer to Question 2(b) is no. (3) Whether section 33 of and Schedule 1 to the Scottish Bill are outside the legislative competence of the Scottish Parliament Section 33 of the Scottish Bill purports to repeal spent references to EU law in the Scotland Act. It provides: (1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with Convention rights or EU law) the words or with EU law are repealed. (2) In section 57(2) of that Act (no power for members of the Scottish Government to act incompatibly with Convention rights or EU law), the words or with EU law are repealed. (3) Schedule 1 contains further repeals of provisions in that Act which are spent as a consequence of the UKs withdrawal from the EU. Schedule 1 provides for the repeal of provisions in the Scotland Act concerning EU parliamentary elections, references to the Court of Justice of the EU (CJEU), obligations under EU law, and EU law. The UK Law Officers submit that these provisions are outside legislative competence because they modify provisions of the Scotland Act which Schedule 4 to that Act prohibits the Scottish Parliament from modifying. Paragraph 4 of Schedule 4 states: (1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, this Act. That prohibition is subject to exceptions listed in the remaining sub paragraphs of paragraph 4; but, as the UK Law Officers submit, of the provisions which Schedule 1 to the Scottish Bill would repeal, only sections 12(4)(a) and 82(1) fall within the listed exceptions. The other provisions, it is submitted, are protected from modification. The UK Law Officers fundamental objection to section 33 and Schedule 1 is that it is for the UK Parliament to amend the terms of the devolution settlement in the Scotland Act; it is not for the Scottish Parliament to determine its own competence. They refer to the statement of the Judicial Committee of the Privy Council in Bribery Comr v Ranasinghe [1965] AC 172, 197: A legislature has no power to ignore the conditions of law making that are imposed by the instrument which itself regulates its power to make law. The UK Law Officers point out that the repeals in section 33(1) and (2) would alter provisions (sections 29 and 57(2)) which define the competence of the Scottish Parliament and the Scottish Government. The UK Law Officers advance a second argument addressing paragraph 7 of Schedule 4 to the Scotland Act, which contains another exception to the prohibition against modification of the Scotland Act. It provides that Part 1 of Schedule 4 (which includes paragraph 4 of that Schedule) does not prevent an Act of the Scottish Parliament (b) repealing any spent enactment, or conferring power by subordinate legislation to do so. The UK Law Officers submit that the statutory references to EU law in the Scotland Act cannot be spent until the European Communities Act 1972 (the 1972 Act) has been repealed. They submit that the effect of section 33 is not suspended by section 1(2) of the Scottish Bill. That section provides: In so far as any provision of this Act, or any provision made under it, would, if it were in effect before the relevant time, be incompatible with EU law, the provision is to have no effect until the relevant time. Section 1(3) defines relevant time in section 1(2) as the time when the relevant provision of EU law ceases to have effect in Scots law as a consequence of the withdrawal of the UK from the EU. Because the repeals to be effected by section 33 of and Schedule 1 to the Scottish Bill would not by themselves be incompatible with EU law, section 1(2), it is argued, cannot have the effect of postponing the repeals until after UK withdrawal. Further, the fact that a provision has not been brought into force does not prevent it from being outside legislative competence: reference is made to the judgment of this court in Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, para 109, in which this court held that legislation, which was not within the legislative competence of the Scottish Parliament, could not be brought into force. Finally, and in any event, the UK Law Officers submit that even if references to EU law were to be seen as spent because they were meaningless after UK withdrawal, there are other provisions which are not. They refer to section 34 of the Scotland Act, which enables the Scottish Parliament to reconsider a Bill if the Supreme Court, on considering a reference under section 33, decides to make a reference to the CJEU for a preliminary ruling. Such a provision would be rendered redundant by the repeal of the European Communities Act 1972 and might then require to be repealed. But because the provision was not rendered meaningless, it could not be treated as spent. We are not able to accept those submissions. The constitutional principle in Ranasinghe is not breached if there is a provision in the Scotland Act which allows the Scottish Parliament to repeal provisions in that Act which regulate its competence. The Lord Advocate submits that paragraph 7 of Schedule 4 is such a provision, arguing that the provisions of the Scotland Act, which section 33 of and Schedule 1 to the Scottish Bill would repeal, will be spent on UK withdrawal and that it is within the competence of the Scottish Parliament to provide in advance for UK withdrawal. The central question therefore is whether he is correct in that submission. We have concluded that he is. We do not accept that the power in paragraph 7 of Schedule 4 to repeal any spent enactment is restricted to a statutory provision which is literally meaningless, as the UK Law Officers suggest. Synonyms for the adjective, spent, include exhausted, finished, used up, and no longer active. Something is spent if it has been used and is unable to be used again. In a legal context of paragraph 7 of Schedule 4 to the Scotland Act, the adjective spent means a statutory provision which has no continuing legal effect. EU law is defined in section 126(9) of the Scotland Act as (a) all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties. The constraints which EU law, so defined, place on the competence of the Scottish Parliament and the Scottish Government under sections 29(2)(d) and 57(2) of the Scotland Act will cease to have effect on UK withdrawal. Similarly, the provisions of the Scotland Act which refer to elections to the European Parliament and to procedures available to the Scottish Parliament when this court makes a reference to the CJEU under article 267 of the Treaty on the Functioning of the EU (TFEU) will cease to have legal effect on UK withdrawal. The UK Law Officers do not suggest that it would be incompatible with EU law for the Scottish Parliament now to enact section 33 of and Schedule 1 to the Scottish Bill. On the contrary, they submit that, because that would be compatible with EU law, section 1(2) of the Scottish Bill does not protect those provisions by postponing the repeal of the provisions of the Scotland Act until after the UK has withdrawn from the EU. We agree with that submission. But there is another mechanism by which the Scottish Parliament has provided for the postponement of the coming into force of section 33 and Schedule 1. Section 36(1) of the Scottish Bill provides that specified provisions of the Bill come into force on the day after Royal Assent. Those provisions do not include section 33. That section falls under section 36(2), which provides that the other provisions of the Bill come into force on such day as the Scottish Ministers may by regulations appoint. If read in isolation, section 36(2) would allow the Scottish Ministers to bring section 33 into force before the UK withdraws from the EU. But a statutory provision should not be interpreted in such isolation from its statutory context. As we have seen, section 1(1) of the Scottish Bill provides: The purpose of this Act is to make provision in connection with the prospective withdrawal of (a) the United Kingdom from the EU in consequence of the notification given under section 1 of the European Union (Notification of Withdrawal) Act 2017 (UK withdrawal), and (b) for ensuring the effective operation of Scots law (so far as within devolved legislative competence) upon and after UK withdrawal. This provides the context both for the interpretation of section 33 and for the exercise by the Scottish Ministers of the section 36(2) power. The provisions which section 33 and Schedule 1 would repeal would not be spent until UK withdrawal. The power of the Scottish Ministers in section 36(2) to make regulations to bring section 33 of the Scottish Bill into force is therefore restricted by the terms of section 33. If the Scottish Ministers were to make regulations to bring section 33 into force before UK withdrawal, they would be acting in excess of their powers as section 33 repeals provisions which are spent as a consequence of the UKs withdrawal from the EU, and those provisions will not be spent until the UK withdraws from the EU. Furthermore, if it were necessary in order to avoid a breach of paragraph 4(1) of Schedule 4 to the Scotland Act, section 101(2) of the Scotland Act, which we have set out in para 16 above, requires the court to read section 36(2) narrowly so that the apparently general power of the Scottish Ministers to bring into force provisions of the Scottish Bill can be exercised in relation to section 33 only when it is competent to do so, that is to say once the UK has withdrawn from the EU and the provisions to be repealed have become spent. Finally, we do not accept the submission that this courts judgment in Christian Institute points to the conclusion that the legislative competence of a devolved legislature must always be assessed by reference to an impugned provision of a Bill which has been passed whether or not that provision has been brought into force. In that case this court held that the information sharing provisions in Part 4 of the Children and Young People (Scotland) Act 2014 were incompatible with the rights of children, young persons and parents under article 8 of the European Convention on Human Rights both because they were not in accordance with the law as that article requires and because they might result in a disproportionate interference with those persons article 8 rights. The case was not concerned with legislation which was addressing a contingency outside the control of the Scottish Parliament which would occur on a future date. The timing of the bringing into force of the impugned provisions of the 2014 Act was irrelevant to the challenge mounted in Christian Institute. By contrast, the Scottish Bill makes provision for the contingency of UK withdrawal, which will occur on 29 March 2019 unless steps are taken by the UK Government and, through the European Council, the governments of the other 27 member states of the EU to extend the period before the UK exits the EU. It enables the Scottish Ministers to bring into force the relevant provisions from the date when that contingency occurs. We therefore conclude that section 33 of and Schedule 1 to the Scottish Bill would not be outside the legislative competence of the Scottish Parliament under section 29(2)(c) of the Scotland Act on the ground that they breach paragraph 4(1) of Schedule 4 to that Act. But this does not mean that those provisions of the Scottish Bill, if it were to receive Royal Assent, would be within the legislative competence of the Scottish Parliament. This is because we have yet to consider the application of section 29(2)(c) in the light of the enactment of the UK Withdrawal Act which, in paragraph 21(2)(b) of Schedule 3, has amended Schedule 4 to the Scotland Act by adding the UK Withdrawal Act to the statutes which the Scottish Parliament cannot modify. We address this matter in paras 98 124 below. (4) Whether various provisions of the Scottish Bill are outside competence because (i) they are incompatible with EU law, (ii) modify section 2(1) of the European Communities Act 1972, and/or (iii) are contrary to the rule of law It is argued on behalf of the UK Law Officers that provisions of the Scottish Bill are not law because they are incompatible with EU law and therefore outside the competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act or because they entail a prohibited modification of section 2(1) of the European Communities Act 1972 (the 1972 Act), contrary to section 29(2)(c) of and Schedule 4 paragraph 1(2)(c) to the Scotland Act. The UK Law Officers further submit that those provisions are contrary to the rule of law. The provisions which are said not to be law on those grounds are those (i) which incorporate or empower the Scottish Ministers to incorporate into Scots law directly applicable EU law (sections 3 5 and 13), (ii) which disapply mandatory principles of EU law (sections 6 8 and 10), (iii) which empower the Scottish Ministers to make regulations to modify retained (devolved) EU law (section 11), or (iv) which are in whole or in part parasitic upon one or more of the previously mentioned provisions (sections 13A 16, 18 19, 21, 22 and 36A in relation to sections 11 and 13, and sections 23 26 and 34 and Schedule 2 in relation to sections 3 5). These submissions rest on the premise that the Scottish Parliament does not at present have legislative competence to pass an Act containing provisions which cannot be brought into effect until current restraints on legislative competence are removed at a future date. If the provisions had come into effect on the date when the Bill was passed by the Scottish Parliament they would be outside that competence. Postponement of the coming into effect of such provisions, it is argued, does not affect legislative competence as legislative competence and legal effect are separate questions. It is submitted that the court would be placed in an impossible position if it had to assess the competence of the Scottish Parliament by reference to the future legal effect of a provision. Similar arguments that the Scottish Bill by legislating for the removal of the obligations (i) to legislate compatibly with EU law and (ii) prohibiting the modification of section 2(1) of the 1972 Act, wrongly assumes that the Scottish Parliament can make provision now for the exercise of powers which it is possible the Parliament will acquire in the future, influenced the Presiding Officer when he made his careful statement on legislative competence. The Lord Advocate in reply submits that the impugned provisions are not incompatible with EU law because they will not come into force until the TEU and the TFEU cease to apply to the UK, thereby removing the supremacy of EU law. He submits that it is not contrary to EU law and it is consistent with legal certainty for a member state, such as the UK, to pass anticipatory legislation to address the consequences to its statute book of the proposed withdrawal from the EU, provided that that is done in a way which respects the supremacy of EU law until withdrawal. A devolved legislature, such as the Scottish Parliament, may likewise enact such legislation consistently with EU law. In addressing this challenge we refer to the purpose of the Scottish Bill which is stated in section 1(1), which we have quoted in paras 28 and 76 of this judgment: it is to make provision in connection with the prospective UK withdrawal and to ensure the effective operation of Scots law so far as within devolved competence on or after that withdrawal. Section 1(2) is a critical provision. As we have seen, it provides: (2) In so far as any provision of this Act, or any provision made under it, would, if it were in effect before the relevant time, be incompatible with EU law, the provision is to have no effect until the relevant time. Subsection (3) defines the relevant time: (3) In subsection (2), the relevant time, in relation to any provision of this Act or any provision made under it, means the time at which the provision of EU law with which it would be incompatible ceases to have effect in Scots law as a consequence of UK withdrawal. The effect of these provisions is that none of the sections of the Bill to which we have referred in para 80 above can have legal effect until the provision of EU law with which it is incompatible has ceased to have effect as a consequence of the UK withdrawal. Absent such legal effect, there is no incompatibility with EU law. The challenge under section 29(2)(d) of the Scotland Act therefore fails. Similarly, the postponement of the legal effect of the impugned provisions prevents there being any modification of section 2(1) of the 1972 Act, which incorporates EU law into our domestic laws, because the UK withdrawal, which is the precondition of the bringing into legal effect of the provisions, will involve the repeal of section 2(1) of the 1972 Act. Prospective legislative provision for the consequences of the repeal of the 1972 Act, which has no legal effect until such repeal, entails no modification of that Act. The challenge under section 29(2)(c) of the Scotland Act therefore fails. The residual challenge based on the rule of law is, with respect, misconceived. The principles of legal certainty and legality when applied to the competence of the Scottish Parliament operate within the statutory framework of the Scotland Act. The rule of law in relation to the legislative competence of the Scottish Parliament is maintained through the operation of section 29 of and Schedules 4 and 5 to the Scotland Act and the scrutiny by this court under section 33 of that Act relates to the application of those provisions. That scrutiny involves an assessment whether legislation by the Scottish Parliament complies with the limitations imposed by section 29 of the Scotland Act. As we have stated (para 35 above) there is nothing legally uncertain or contrary to the rule of law about the enactment of legislation by both the UK Parliament and the Scottish Parliament, provided that they do not conflict. The remit of this court under section 33 of the Scotland Act to scrutinise Bills of the Scottish Parliament does not extend to addressing arguments which are either complaints about the quality of the drafting of a Bill or seek to raise uncertainties about the application of a Bills provisions in future circumstances which may or may not arise and which, should they occur, may require amending legislation. In our view, the Lord Advocate is correct in his submission that the possibility of the need to amend legislation to take account of changed future circumstances does not alter the competence of that legislation now. While that is a complete answer to this challenge, it is appropriate briefly to discuss one more detailed argument under this heading. The UK Law Officers assert that the mechanism by which sections 2 5 of the Scottish Bill, which are concerned with the retention of devolved EU law and devolved EU rights after exit day, may be brought into effect by regulations made by the Scottish Ministers under section 36 of the Bill involves a breach of the constitutional structure of the devolution settlement. The argument appears to be that there is uncertainty as to when the entirety or parts of the TEU and TFEU will cease to apply to the UK because that will depend on any transitional arrangements which are negotiated by the UK and the EU. The retention of existing EU law by those sections takes effect only on exit day and there is no provision for the scrutiny of the decision by the Scottish Ministers to bring those provisions into effect using their regulation making power under section 36 of the Scottish Bill. Again, we are not able to accept this submission. Section 28 of the Scottish Bill defines exit day as follows: (1) In this Act, exit day means the day that the United Kingdom leaves the EU. [sic] Where the United Kingdom leaves the EU at a (3) specific time on exit day, references in this Act to before, after or on that day, or to beginning with that day, are accordingly to be read as references to before, after or at that time on that day or (as the case may be) to beginning with that time on that day. [sic] For the purposes of this section, the United (4) Kingdom leaves the EU when the Treaty on the European Union and the Treaty on the Functioning of the European Union cease to apply to the United Kingdom as a consequence of UK withdrawal. This provision, which when introduced into the Scottish Parliament empowered the Scottish Ministers to specify by regulations what was exit day but which was subsequently amended, was enacted on the understanding that it was expected that the UK would cease to be a member of the EU at 11 pm on 29 March 2019 in accordance with the timescale set down in article 50(3) of the TEU, an understanding which was later enacted in the definition of exit day in section 20 of the UK Withdrawal Act. But it was recognised that the date could change depending on the outcome of any negotiations between the UK and the European Council. In our view, it is possible that the definition of exit day may have to be amended if, for example, in the light of negotiations between the UK and the EU, transitional arrangements were put in place so that not all of the provisions of the TEU and the TFEU ceased to have effect at the same moment. But that is of no consequence. The same may be true of the definition of exit day in the UK Withdrawal Act. What is relevant is that any power of the Scottish Ministers under section 36 of the Scottish Bill to bring into effect sections 2 to 5 will be overridden by section 1(2), which we have quoted in para 84 above. The legal validity of such subordinate legislation, if it failed to respect the restriction imposed by section 1(2), would be open to challenge by judicial review and thus subjected to the scrutiny of the courts. So also would subordinate legislation under sections 11 and 12 of the Scotland Bill to which the UK Law Officers referred in their submissions. There is no question of having to read down these provisions under section 101 of the Scotland Act. As discussed below however, there are other grounds for concern about section 11 of the Scottish Bill. Finally, the UK Law Officers assert that at the heart of the section 1(2) mechanism the Scottish Parliament is seeking to modify its own competence by making an assumption that at some future date its competence will be altered. This is said to breach constitutional principle. We do not accept that this is the effect of the Scottish Bill. Legislation by the UK Parliament has empowered the UK Government to serve a notice under article 50 of the TEU. The service of that notice currently has the consequence that the requirement that the Scottish Parliament legislate compatibly with EU law in section 29(2)(d) of the Scotland Act will cease on 29 March 2019. That will be the result of the article 50 notice unless future political decisions, such as the extension of the time limits of article 50, are made to alter the time limit. When the Scottish Parliament passed the Scottish Bill, the prospective removal of the restriction in section 29(2)(d) requiring its legislation to be compatible with EU law would enhance the legislative competence of the Scottish Parliament on 29 March 2019, unless supervening circumstances intervened. The Scottish Parliament has sought to provide for the continuity of Scots law on the UK withdrawal, by enacting provisions which can take effect only after that withdrawal thereby respecting the supremacy of EU law while it continues. That breaches no constitutional principle. (5) Whether this court can consider the effect of the UK Withdrawal Act in the context of this reference A question has arisen as to whether this court, in addressing the reference under section 33 of the Scotland Act, can have regard to the amendments made to the Scotland Act after the date on which the Scottish Parliament passed the Scottish Bill. The Attorney General for Northern Ireland submits that this court must examine both the Scottish Bill and the Scotland Act as each of them stood on 21 March 2018, when the Scottish Parliament passed the Scottish Bill. The repeated assertion by the UK Law Officers in their written case and supplementary case that the legislative competence of the Scottish Bill must be assessed as at that date is consistent with that submission. But the Advocate General for Scotland in his oral submissions presented an alternative case when he invited this court to address the effect of the UK Withdrawal Act on the Scottish Bill. We are satisfied that, when addressing the questions in the reference as to whether the Scottish Bill would be within legislative competence, this court must have regard to how things stand at the date when we decide those questions. Section 33 of the Scotland Act provides for the reference of the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament. The use of the conditional mood (would be) is significant as it points to the incomplete nature of a Bill as legislation until it receives Royal Assent. In our view, it is implicit in section 33 that this court is required to consider the competence of a Bill if it were to receive Royal Assent. In other words, section 33 instructs this court to decide whether a Bill or any provision of a Bill would be within legislative competence if the Bill were to receive Royal Assent. This interpretation is consistent with the legislative process set out in the Scotland Act. Legislation of the UK Parliament takes the form of Acts of the Crown in Parliament: Royal Assent is a necessary step in the legislative process. Section 28 of the Scotland Act uses a similar model. Subsection (2) provides: Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent. Section 33 enables a reference to be made in the four weeks after the Scottish Parliament has passed the Bill. The Presiding Officer of the Scottish Parliament may not submit a Bill for Royal Assent at any time within that period or when a reference has been made to this court but has not been decided or disposed of: section 32(2)(a) and (b). He may not submit a Bill in its unamended form for Royal Assent if this court has decided that the Bill or any provision of it would not be within the legislative competence of the Parliament: section 32(3)(a). Section 29, which defines the legislative competence of the Scottish Parliament, governs the legality of an Act of the Parliament or a provision in such an Act and not a Bill, which in section 28(2) is a proposed Act. When this court applies section 29 in a section 33 reference, it assesses the legality of the Bill if it were to become an Act. The task of this court when deciding a question in a reference under section 33 is therefore to determine whether the Bill or provision of the Bill would be within legislative competence if it were to receive Royal Assent at the time of our decision. In the rare circumstance in which there is supervening legislation by the UK Parliament which amends the Scotland Act and thereby changes the legislative competence of the Scottish Parliament after the Scottish Parliament has passed a Bill, this courts decision may be different from what it would have been if the Scotland Act had not been so amended. The amendment of the Scotland Act by the UK Withdrawal Act is such a circumstance. (6) The effect of the UK Withdrawal Act on the legislative competence of the Scottish Parliament in relation to the Scottish Bill. It is submitted on behalf of the UK Law Officers that the entirety of the Scottish Bill would modify the UK Withdrawal Act. The Scottish Bill, which addresses matters within devolved competence, is modelled on the form of what became the UK Withdrawal Act and heavily overlaps with that Act. But the intention of Parliament was to create a single body of retained EU law across the UK on withdrawal from the EU and, it is submitted, the UK Parliament did not contemplate that there would be separate bodies of retained EU law governed by separate legal regimes. In their supplementary case the UK Law Officers state: The whole and evident purpose of inserting an enactment into paragraph 1(2) of the Schedule 4 [to the Scotland Act] list is so that the Scottish Parliament is not permitted to create its own version of the same regime. We are not able to accept these contentions. We agree with the submission of the Lord Advocate that they conflate the mechanism of paragraph 1 of Schedule 4 with that under Schedule 5 to the Scotland Act. As we have stated (in para 51 above) when the UK Parliament decides to reserve an area of law to itself, it lists the relevant subject matter in Schedule 5 as a reserved matter. Parliament has not done so in relation to the subject matter of the UK Withdrawal Act. Instead, by adding the UK Withdrawal Act to the list of provisions, in paragraph 1(2) of Schedule 4 to the Scotland Act, which are protected against modification, the UK Parliament has chosen to protect the UK Withdrawal Act against subsequent enactments under devolved powers which would alter a rule in the UK Withdrawal Act or conflict with its unqualified continuation in force. As we have stated, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. It is necessary therefore to examine the individual provisions of the Scottish Bill to see whether they have that effect on provisions of the UK Withdrawal Act. To that end, we invited parties to produce a schedule setting out their contentions in relation to the provisions of the Scottish Bill. We are grateful to the UK Law Officers, the Lord Advocate and their legal representatives for cooperating in the production of that schedule which has greatly assisted our work. It is not necessary for this court to refer to the many provisions of the Scottish Bill which merely replicate provisions in the UK Withdrawal Act and which therefore involve no modification of the latter. We can confine our attention to those provisions which we are persuaded do amount to modifications and which are therefore not law in terms of section 29(1) and (2)(c) of the Scotland Act. In our view, the following provisions of the Scottish Bill would not be within legislative competence if the Scottish Bill were to receive Royal Assent. Section 2(2): Section 2 of the Scottish Bill would maintain the effect in Scots law of EU derived domestic legislation on and after exit day. Subsection (2) defines EU derived domestic legislation as including any enactment so far as relating otherwise to the EU or the EEA. Unlike section 2(2) of the UK Withdrawal Act, section 2 of the Scottish Bill does not exclude from its definition the 1972 Act. By contrast section 1 of the UK Withdrawal Act repeals the 1972 Act on exit day. This inconsistency is not removed by section 2(3) of the Scottish Bill, which defines devolved EU derived domestic legislation as EU derived legislation if and to the extent that it makes provision that is (or would be, if it were contained in an Act of the Scottish Parliament) within the legislative competence of the Scottish Parliament. That is because paragraph 1(2)(c) of Schedule 4 to the Scotland Act protects from modification only specified provisions of the 1972 Act with the result that the Scottish Parliament has power to maintain in effect in Scots law the remaining provisions of the 1972 Act. Section 5: This section would provide that the general principles of EU law and the Charter of Fundamental Rights (the Charter) would be part of Scots law on or after exit day so far as they have effect in EU law immediately before exit day and relate to EU law which sections 2, 3 and 4 would save or incorporate into Scots law. The Lord Advocate correctly conceded that this section was a modification of the UK Withdrawal Act. This is because section 5(4) of that Act provides that the Charter is not part of domestic law on or after exit day and paragraph 3 of Schedule 1 provides that there is to be no right of action based on a failure to comply with any of the general principles of EU law and no power to quash any enactment or conduct on the basis of incompatibility with any of such principles. This inconsistency, whether analysed as an implied repeal or a disapplication of those provisions of the UK Withdrawal Act, clearly amounts to a modification and section 5 therefore would not be law. Section 7(2)(b) and (3): Section 7(1) would provide that there is no right in Scots law on or after exit day to challenge any retained devolved EU law on the basis that, immediately before exit day, an EU instrument was invalid. This subsection is in identical terms to paragraph 1(1) of Schedule 1 to the UK Withdrawal Act except that it is confined to retained devolved EU law. As such, it involves no modification of the UK Withdrawal Act. But subsection (2)(b) empowers the Scottish Ministers to make regulations to describe or provide for challenges to the validity of retained (devolved) EU law to which the abolition in subsection (1) will not apply. Further, subsection (3) provides that, subject to provisions made by regulations under section 32, the abolition in subsection (1) does not apply in relation to any right of action accruing before exit day. Section 7(2)(b) of the Scottish Bill is inconsistent with and may be seen as an implied repeal or disapplication of paragraph 1(2) of Schedule 1 to the UK Withdrawal Act in which the abolition of the right of challenge in paragraph 1(1) is disapplied so far as (a) the European Court has decided before exit day that the instrument was invalid, or (b) a Minister of the Crown has made regulations to disapply the abolition in relation to a specified kind of challenge. Section 7(3) of the Scottish Bill also is similarly inconsistent with paragraph 1 of Schedule 1 to the UK Withdrawal Act, which does not preserve accrued rights of action. The Lord Advocate, correctly, conceded that these subsections were modifications because they provided for qualifications to the abolition of the right to challenge which were not contained in paragraph 1 of Schedule 1 to the UK Withdrawal Act. Section 8(2): Section 8(1) of the Scottish Bill would provide that there was no right in Scots law on or after exit day to damages in accordance with the rule in Francovich (see Francovich v Italian Republic (Joined Cases C 6/90 and C 9/90) [1995] ICR 722; [1991] ECR I 5357). This provision is materially identical to the provision in paragraph 4 of Schedule 1 to the UK Withdrawal Act. But subsection (2) disapplies the abolition of the rule in Francovich in relation to any right of action accruing before exit day, subject to provision made by regulations under section 32. This disapplication of the abolition has no equivalent in paragraph 4 of Schedule 1 to the UK Withdrawal Act and is therefore a modification of that provision. Again, the Lord Advocate correctly conceded this point. Section 9A: This section provides for the scrutiny of regulations made under section 7(2)(b). As such it is ancillary to a subsection which would not be law (paras 103 and 104 above), and it therefore itself would not be law. Section 9B: This section provides for consultation on draft proposals under section 7(2)(b) and would not be law for the same reason as section 9A. Section 10(2), (3)(a) and (4)(a): Section 10 would be concerned with the interpretation of retained (devolved) EU law. Subsection (2) provides that a court or tribunal exercising devolved jurisdiction must, where it considers it relevant for the interpretation of retained (devolved) EU law, have regard to (a) any principles laid down, or any judgments made, on or after exit day, by the European Court, and (b) anything done on or after exit day by another EU entity or the EU. The Lord Advocate correctly concedes that this, by creating a duty, is a modification of section 6(2) of the UK Withdrawal Act which makes similar provision but creates a power. Section 10(3)(a) provides: Any question as to the validity, meaning or effect of any retained (devolved) EU law is to be decided, so far as they are relevant to it (a) in accordance with any retained (devolved) EU case law. The equivalent UK provision in section 6(3)(a) of the UK Withdrawal Act provides for the decision to be taken in accordance with any retained case law and any retained general principles of EU law. The omission of reference to the retained general principles of EU law mandates a different approach to interpretation and amounts to an implied repeal of that part of section 6 of the UK Withdrawal Act. It is therefore a modification and would not be law. Section 10(4)(a) provides that subsection (3) is subject to (a) section 11(7), which permits the Scottish Ministers to provide by regulations that section 10(3) does not apply to any provision made by the regulations. This would enable the adoption by regulations of different rules of interpretation and would modify section 6 of the UK Withdrawal Act. Section 11: This section would empower the Scottish Ministers to remedy by regulations deficiencies in retained (devolved) EU law arising from the withdrawal of the United Kingdom from the EU. It is similar to section 8 of the UK Withdrawal Act but empowers the Scottish Ministers rather than a Minister of the Crown to make the regulations. The UK Withdrawal Act, in section 11 and Schedule 2, also confers powers on devolved authorities to make regulations. But Schedule 2 of the UK Withdrawal Act contains conditions and restrictions in paragraphs 3(4), 5(4), 6(1) and 7(2) on what devolved authorities may provide in regulations under those powers. Those conditions and restrictions are not mirrored in section 11 of the Scottish Bill which is prima facie the equivalent of an amendment or disapplication of Schedule 2 to the UK Withdrawal Act. The Lord Advocate submits that section 11 of the Scottish Bill would create a parallel regulation making power, which operates according to its own terms and does not modify the UK Withdrawal Act. He submits that the powers in section 11 of the Scottish Bill could, if necessary, be read down by the application of section 101(2) of the Scotland Act, which provides that a provision of an Act of the Scottish Parliament be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly. The Lord Advocate points out that section 30A of the Scotland Act, which was introduced by section 12 of the UK Withdrawal Act, prevents an Act of the Scottish Parliament from modifying or conferring power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown. If such regulations were made to limit the competence of the Scottish Parliament, they would limit the powers which the Scottish Ministers could exercise under section 11 of the Scottish Bill. Ministers of the Crown now have power under section 30A of the Scotland Act to curtail the modification of retained EU law by the Scottish Parliament or Scottish Ministers. But the difficulty with the Lord Advocates position is that unless a Minister of the Crown were to exercise that power, the Scottish Ministers would be able to exercise the parallel regulation making power in section 11 of the Scottish Bill free from conditions and restrictions which the UK Withdrawal Act has imposed. The existence of a power in a Minister of the Crown to neutralise a provision of the Scottish Bill does not alter the nature of that provision as a modification of the UK Withdrawal Act. Section 13B: This section would require the Scottish Ministers, in making provision in regulations under section 11(1), 12 or 13(1), to have regard to the guiding principles on the environment and animal welfare which are set out in subsection (3). In so far as this provision would be applied to section 11(1), which as a modification of the UK Withdrawal Act is not law, it must also be a modification but only to that extent. Section 14: This section would provide for the scrutiny by the Scottish Parliament of regulations made under sections 11, 12 and 13 of the Scottish Bill. In so far as the section would relate to regulations made under section 11 of the Scottish Bill, which as a modification is not law, it is ancillary to section 11 and itself is a modification of the UK Withdrawal Act but only to that extent. Section 14A: This section would require additional scrutiny by the Scottish Parliament of regulations made under sections 11, 12 and 13 of the Scottish Bill if the Committee on Delegated Powers and Law Reform of the Scottish Parliament so recommended. Again, in so far as the section would relate to regulations made under section 11 of the Scottish Bill, it is ancillary to the invalid section 11 and itself is a modification of the UK Withdrawal Act but only to that extent. Section 15: This section would require the Scottish Ministers to consult on the regulations which they proposed to make in response to a recommendation under section 14(5). Again, in so far as the section would apply to proposed regulations to be made under section 11 of the Scottish Bill, it is ancillary to the invalid section 11 and itself is a modification of the UK Withdrawal Act but only to that extent. Section 16: This section would require the Scottish Ministers to make explanatory statements when laying before the Scottish Parliament a Scottish statutory instrument or draft instrument containing regulations under section 11(1), 12 or 13(1) of the Scottish Bill. Again, only to the extent that the section would apply to regulations under section 11, it is ancillary to that section and is itself a modification of the UK Withdrawal Act. Section 17 does not involve a modification of the UK Withdrawal Act. But as we have explained in paras 37 65 above, this section is a modification of section 28(7) of the Scotland Act and is not law. Section 19(1): Section 19 would empower the Scottish Ministers to make regulations to provide for the charging of fees for functions which a Scottish public authority has as a result of provision made under sections 11(1), 12 and 13. Again, only to the extent as the section would apply to regulations under section 11, it is ancillary to that section and is itself a modification of the UK Withdrawal Act. Section 22: This section would provide that Part 4 of the Scottish Bill, which relates to financial matters, does not affect the power under section 11, 12 or 13 to require payment of or make other provision in relation to fees and charges. The reference to section 11 falls along with that section. Section 26A(6): Section 26A would impose a duty on the Scottish Ministers to prepare proposals on how regard is to be had to the guiding principles on the environment and on how to ensure that there continues to be effective and appropriate governance relating to the environment after the UK withdraws from the EU. Subsection (5) lists the familiar principles, such as the precautionary principle and that the polluter should pay to rectify environmental damage. Subsection (6) states: Those principles are derived from the equivalent principles provided for in article 191(2) in Title XX of the Treaty on the Functioning of the European Union and accordingly they are to be interpreted, so far as appropriate, in a manner consistent with the interpretation of those equivalent principles by the European Court from time to time. (Emphasis added) The words emphasised, by imposing a duty to give effect to the jurisprudence of the European Court, are inconsistent with section 6(1) of the UK Withdrawal Act which provides: A court or tribunal (a) is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, . The emphasised words amount to an implicit amendment of section 6(1)(a) of the UK Withdrawal Act as they disapply it in relation to the application of the environmental principles by Scottish public authorities, and as such are a modification of that section of the UK Withdrawal Act. Section 33 and Schedule 1 paragraphs 11(a) and 16: Section 33 would repeal spent references to EU law in the Scotland Act. Subsection (1) would remove the words or with EU law in section 29(2)(d) of the Scotland Act, so as to remove the existing restriction on the competence of the Scottish Parliament that it cannot legislate incompatibly with EU law. Subsection (2) would repeal the same words in section 57(2) of the Scotland Act which currently restricts the power of members of the Scottish Government by preventing them from acting incompatibly with EU law. Subsection (3) would refer to Schedule 1 which contains further repeals of spent provisions in the Scotland Act. Paragraph 11(a) of that Schedule would repeal the words or an obligation under EU law in section 106(5) of the Scotland Act. Section 106 is concerned with the power by subordinate legislation to facilitate the transfer of functions to the Scottish Ministers and provides in subsection (4) that the Scottish Ministers are to be consulted about such legislation if it modifies a function of observing or implementing an international obligation or an obligation under EU law to achieve a result by reference to a quantity which relates to the UK. Paragraph 16 of Schedule 1 to the Scottish Bill would repeal the words or with EU law in paragraphs 1(d) and (e) of Schedule 6 to the Scotland Act. Schedule 6 of the Scotland Act provides for the handling of devolution issues in legal proceedings and paragraph 1 of that Schedule defines devolution issue. These provisions involve modifications of the UK Withdrawal Act and therefore are not law. Section 33(1) of the Scottish Bill would be inconsistent with section 12(1) of the UK Withdrawal Act which not only removes the reference to EU law in section 29(2)(d) of the Scotland Act but replaces it with the words in breach of the restriction in section 30A(1) (ie the prohibition against modification of retained EU law so far as the modification is of a description specified in regulations by a Minister of the Crown). Section 33(1) could have effect only if it were brought into force before section 12(1) of the UK Withdrawal Act and would in effect be disapplying that provision of the UK Withdrawal Act in not inserting those replacement words into the Scotland Act. Section 33(2) similarly would not replace the repealed words in section 57 of the Scotland Act with the provisions set out in paragraph 1 of Schedule 3 to the UK Withdrawal Act which insert subsections (4) (15) into section 57 of the Scotland Act. Paragraphs 11(a) and 16 of Schedule 1 to the Scottish Bill (and therefore section 33(3) in giving Schedule 1 effect) also disapply provisions of the UK Withdrawal Act. Paragraph 11(a) does not replace the repealed words in section 106 of the Scotland Act with the words, a retained EU obligation which paragraph 17(2) of Schedule 3 to the UK Withdrawal Act inserts in their place. Paragraph 16 similarly does not insert into Schedule 6 to the Scotland Act the words which paragraph 23(2) and (4) of Schedule 3 to the UK Withdrawal Act insert as substitutes. Conclusion (i) The Scottish Bill as a whole would not be outside the legislative competence of the Scottish Parliament because it does not relate to reserved matters. (paras 23 36 above) (ii) Section 17 of the Scottish Bill would be outside the legislative competence of the Scottish Parliament because it would modify section 28(7) of the Scotland Act. (paras 37 65 above) (iii) Section 33 of and Schedule 1 to the Scottish Bill would not be outside the legislative competence of the Scottish Parliament on the basis that they would modify provisions of the Scotland Act. (paras 66 79 above) (iv) the specific provisions of the Scottish Bill listed in para 80 above would not be outside the legislative competence of the Scottish Parliament because (i) they are not incompatible with EU law, (ii) they do not modify the European Communities Act 1972, and (iii) they are not contrary to the rule of law. (paras 80 90 above) (v) As a result of the enactment of the UK Withdrawal Act the following provisions of the Scottish Bill would at least in part be outside the legislative competence of the Scottish Parliament: sections 2(2), 5, 7(2)(b) & (3), 8(2), 9A, 9B, 10(2), (3)(a) and (4)(a), 11, 13B, 14, 14A, 15, 16, 19(1), 22, 26A(6), 33(1), (2) & (3) and Schedule 1 paragraphs 11(a) and 16. (paras 98 124 above) We therefore answer the reference as follows: |
The appellants await trial in the Crown Court at Southwark on three counts of an indictment. Count two charges them with making funds available to Iraq, contrary to articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 and section 1 of the United Nations Act 1946. The particulars of offence allege that the appellants being directors of Mabey & Johnson Ltd, between 1 May 2001 and 1 November 2002, consented to, or connived in, the making of 422,264 available to the government of the Republic of Iraq, or a person resident in the Republic of Iraq, by Mabey & Johnson, without the authority of a licence granted by the Treasury. Mabey & Johnson Ltd were in the business of exporting pre fabricated bridges to developing countries and the essential allegation against the appellants is that they consented to the companys entering into an arrangement which facilitated the Iraqi Governments avoidance of international sanctions by allowing it indirectly to access funds held in a United Nations controlled account. The appellants have pleaded not guilty both to that count and to the other two counts, each of false accounting. The appellants have sought to have count two quashed on the basis that the Iraq (United Nations Sanctions) Order 2000 (SI 2000/3241) was ultra vires section 1 of the United Nations Act 1946. In essence they say that such an Order cannot be made under the 1946 Act unless made at or about the same time as the Security Council Resolution which it is implementing is itself made. This Order was made 10 years after the relevant Resolution. The argument failed before Judge Rivlin QC, the Recorder of Westminster, at a preparatory hearing at Southwark on 18 June 2010 (conducted pursuant to section 7 of the Criminal Justice Act 1987). It failed again on an interlocutory appeal (brought by leave of the Recorder pursuant to section 9(11) of the 1987 Act) to the Court of Appeal (Criminal Division), (Hooper LJ, Owen and Roderick Evans JJ) on 22 October 2010: [2010] EWCA Crim 2437. The Court of Appeal refused leave to appeal but certified two points of law of general public importance: (i) May the power to create criminal offences granted to Her Majesty in Council by section 1 of the United Nations Act 1946 only lawfully be exercised at or about the time of the relevant Security Council Resolution? (ii) If yes, are articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 to the extent to which they create a criminal offence, ultra vires section 1 of the United Nations Act 1946 given that the relevant Security Council Resolution was adopted in 1990? The matter came before this court on 6 December 2010 when, at the outset of the hearing, the appellants were granted permission to appeal; at the conclusion of the hearing the appeal was dismissed for reasons to be given later. These reasons now follow. It is convenient at once to set out the most material parts of the three instruments here calling for particular consideration, beginning with the Security Council Resolution (SCR) referred to in the two certified questions. (1) SCR 661 (1990) (SCR 661) was adopted by the Security Council under Chapter VII of the UN Charter on 6 August 1990 (four days after Iraq invaded Kuwait, an invasion condemned that same day by SCR 660 (1990)). The Council reaffirmed SCR 660; by article 2 they decided to take measures to secure Iraqs compliance with it; by article 3 they imposed an embargo on trade with Iraq and Kuwait; and by article 4 the Council: decides that all states shall not make available to the government of Iraq, or to any commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq or Kuwait, except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs. (2) The United Nations Act 1946 (the 1946 Act) provides by section 1(1): If, under article 41 [in Chapter VII] of the Charter of the United Nations . (being the article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majestys Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order. (3) The Iraq (United Nations Sanctions) Order 2000, made on 13 December 2000 and coming into force on 14 December 2000 (the 2000 Order), recites: Whereas under article 41 of the Charter of the United Nations the Security Council of the United Nations have, by a resolution adopted on 6 August 1990, called upon Her Majestys Government in the United Kingdom and all other states to apply certain measures to give effect to a decision of that Council in relation to Iraq: Now, therefore, Her Majesty, in exercise of the powers conferred on Her by section 1 of the United Nations Act 1946, is pleased, by and with the advice of Her Privy Council to order, and it is hereby ordered, as follows. Articles 3 and 11 (the two articles referred to in count 2 and in the second certified question) provide: 3. Any person who, except under the authority of a licence granted by the Treasury under article 5 (a) makes any funds available to the Government of the Republic of Iraq or any person who is resident in the Republic of Iraq, or, (b) otherwise remits or removes any funds from the United Kingdom to a destination in the Republic of Iraq, is guilty of an offence. 11. (1) Any person guilty of an offence under article 3 . shall be liable (a) on conviction on indictment to imprisonment for a term not exceeding seven years, or a fine, or both . (4) Where a body corporate is guilty of an offence under this Order, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Essentially the appellants argument comes to this. The 1946 Act was enacted, and the government was thereby permitted to introduce by executive order highly restrictive measures including new criminal offences and sanctions without a parliamentary majority or even parliamentary scrutiny, specifically so as to enable urgent (prompt, hasty, speedy and immediate were other words used by the appellants in the course of argument) action to be taken to implement article 41 UN Resolutions. Urgency alone justifies such wide executive power and the bypassing of the ordinary parliamentary processes and safeguards. The power, therefore, must be construed as subject to there being a need for its immediate exercise and limited, therefore, to its being exercised within a very short time scale. If not exercised at or about the same time as the Resolution being implemented, runs the argument, the power is lost by the effluxion of time. The appellants candidly acknowledge that they can find no example of any other power once given expiring by the effluxion of time (absent, obviously, legislation containing express sunset clauses). They submit, however, that, novel as their argument may be, there is support for it to be found in a number of the speeches made during the parliamentary debates leading to the passage of the 1946 Act and some support too in the judgments of this court in A v HM Treasury [2010] 2 AC 534. Principal amongst the passages from Hansard relied upon are these: (i) Subsection (4) provides that Orders in Council shall be laid forthwith before Parliament, but it excludes the application of a provision in the Rules Publication Act requiring the publication in the London Gazette of notice of the proposal to make the Order in Council for 40 days before the Order is made, it being obvious that the urgency with which decisions of the Security Council must be carried out renders any such notice quite impracticable. (Lord Jowitt LC, introducing the Bill at its second reading in the House of Lords: Hansard (HL Debates), 12 February 1946, col 376. (ii) [The Lord Chancellor] is fortunate in being able to bring forward a Bill to enable this Government to do things by Order in Council which will, I believe, have the complete, unanimous, and enthusiastic support of everybody in this House. If this organisation fails, all fails. If it is to succeed, it must be able to take effective action, and that action must be prompt and immediate. All the world must know that when it takes a decision, all the member states will be prompt and loyal in giving effect to such a decision. For the reasons the noble and learned Lord Chancellor has given, this method of Orders in Council is the only effective way by which we can do that. (Viscount Swinton, supporting the Bill at its second reading: Hansard (HL Debates), 12 February 1946, col 377. (iii) Subsection (4) provides that Orders in Council shall be forthwith laid before Parliament, but it excludes the application of a provision in the Rules Publication Act requiring publication in the London Gazette of notice of the proposal to make the Order in Council for 40 days before the Order is made. It is evident that that must be so, because, if we are to take action at all in pursuance of a decision by the Security Council, it must be taken with the least possible delay. Therefore, any such notice of 40 days would be really out of the question. (Mr Philip Noel Baker, Minister of State, introducing the Bills second reading before the House of Commons: Hansard (HC Debates, 5 April 1946, col 1516. (iv) The procedure by way of Order in Council under this Bill when it becomes an Act possesses the necessary combination of speed and authority to enable instant effect to be given to these international obligations to which we are pledged. (Mr W S Morrison, supporting the Bills second reading in the House of Commons. Hansard (HC Debates, 5 April 1946, col 1517). The terms of these debates, submit the appellants, demonstrate Parliaments clear intention that the powers granted under section 1(1) of the 1946 Act must be used with haste after the passing of the relevant United Nations Resolution requiring implementation. It was for that reason alone, they contend, that Parliament consented to the summary procedure for which the Act provides. The power must therefore be exercised speedily or not at all. As for the recent decision of this court in A v HM Treasury [2010] 2 AC 534, the appellants fix in particular upon passages in the judgments which recognise as had earlier judgments in the House of Lords, most notably in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539 and R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 that a power conferred by Parliament in general terms is not to be taken to authorise the overriding of fundamental human rights or basic legal principles unless unambiguously conferred with that intention. They rely, for example, upon Lord Hopes judgment at p 626, para 47: I would approach the language of section 1 of the 1946 Act, therefore, on the basis that Parliament did not surrender its legislative powers to the executive any more than must necessarily follow from the words used by it. The words necessary and expedient both call for the exercise of judgment. But this does not mean that its exercise is unlimited. As, however, the appellants rightly recognise, A was concerned with a very different aspect of the scope of the power under the 1946 Act than is under consideration here. Whereas A was concerned with the proper limits of the content of Orders that can be made under the Act, the present appeal seeks to impose limits upon the time within which the power is properly exercisable. It is not suggested that an Order precisely in the terms of the 2000 Order could not properly have been made at around the time SCR 661 was adopted on 6 August 1990. What is contended is rather that, by 13 December 2000, the 1946 Act had long since ceased to be an available legislative route by which to implement the 1990 Resolution; the appellants argue that the new offences created by the 2000 Order could at that stage only have been introduced by ordinary parliamentary legislation. By the same token that A demonstrates the Order making power under the 1946 Act not to be unrestricted as to content, so too, the appellants submit, this court should now hold it not to be unrestricted as to the time of implementation either. And certainly, if the urgency of the need to give effect to a United Nations Resolution were indeed a precondition of the right to exercise the power, the strength of the appellants case would be obvious: ten years elapsed before the 2000 Order gave effect to (part of) the measures required by article 4 of SCR 661. Is, then, the suggested analogy between the situation facing the court in A and that arising here a true one? In our judgment it is not. The critical feature of the Orders in Council under consideration in A was that they plainly overrode the fundamental rights of those affected. Orders of that kind, the court held, were impermissible: the 1946 Act had neither expressly nor by necessary implication conferred so extreme a power. The essential reason why the court in A was prepared, indeed anxious, to examine the parliamentary material surrounding the passage of the 1946 Act was to make sure that there had in fact been nothing said by those introducing the Bill to suggest that the executive power being conferred was intended to permit fundamental human rights to be overridden. In short, Hansard was being examined to confirm the absence of a clear statement of such intention, the argument there being that a power of the width contended for by the Minister needed to have been conferred unambiguously. In the present case, by contrast, we can see no good reason to look behind the enactment of the 1946 Act, and a real risk of breaching parliamentary privilege if one does. As already stated, it is not suggested here that the 2000 Order overrides anyones fundamental human rights or is otherwise ultra vires the order making power conferred by the 1946 Act (save as to the delay in the Order being made). Obviously it was envisaged that the order making power would ordinarily need to be exercised speedily. But that is a far cry from saying that it was Parliaments clear intention to confine it to urgent use. Had that been the intention, one would have expected it to be clearly provided for in the Act. And inevitably, if it had been, some identifiable limit of time would have been formulated: how otherwise is the Minister, or the court in the event of legal challenge, to determine what precisely is the legal limit of the power? So far from anything of this kind being found in the legislation, it is entirely silent on the question, there being no hint of any such restriction in the language of the section. Indeed, it goes somewhat further even than this: section 1(3) of the 1946 Act provides: Any Order in Council made under this section may be varied or revoked by a subsequent Order in Council. The appellants necessarily, therefore, recognise that some variations may be made to existing Orders by subsequent Orders made perhaps years later. They are thus constrained to argue rather that this power of variation cannot be invoked to create serious criminal offences. Once the initial urgency has passed, they must submit, such offences can only be created through the normal legislative process. Again, however, had Parliament intended to place such limitations upon this power of variation, one would have expected it to say so rather than leave the position entirely uncertain. We have considered the issue thus far purely as one of principle and on the barest of facts, by reference simply to the long passage of time between the United Nations Resolution requiring measures to be taken and the Order giving effect to it. The Crown, indeed, have been anxious that we should do so, concerned no doubt lest otherwise anyone wishing to contest the vires of an apparently delayed 1946 Act Order will be able to require an explanation as to how the delay came about. As will now be apparent, moreover, even on this somewhat blinkered approach, it is our clear conclusion that the appellants argument must fail. We think it right, however, briefly to sketch in something of the broader context in which the 2000 Order in fact came to be made, partly to show that the case is not simply one of inexplicable tardiness on the part of a negligent government (indeed, succession of governments), but in part also to demonstrate that there may be perfectly good reason to act as the government did here which, of course, assuming that is so, makes it yet more unlikely that Parliament on conferring the power had been intent upon tightly circumscribing the time within which it could lawfully be exercised. As already indicated, SCR 661 was adopted on 6 August 1990, four days after Iraq invaded Kuwait. In the meantime, on 4 August, the Treasury had already given directions in exercise of powers conferred by section 2 of the Emergency Laws (Re enactments and Repeals) Act 1964 forbidding (save with Treasury permission) the carrying out of orders by the Government of, or any resident in, Iraq requiring any person to make any payment or to part with any gold or securities or requiring any change to be made in the persons to whose credit any sum is to stand or to whose order any gold or securities are to be held. To an extent, therefore, these directions anticipated the requirements of SCR 661. Shortly afterwards, namely two days after SCR 661 and in substantial implementation of the measures required by it, the Government on 8 August made the Iraq and Kuwait (United Nations Sanctions) Order 1990 (SI 1990/1651) pursuant to the 1946 Act power, imposing restrictions (as the Explanatory Note put it) on the exportation of goods from Iraq and Kuwait and on supply of goods to Iraq and Kuwait as well as certain related activities and dealings, including the carriage of such goods in British ships or aircraft. This Order thus gave effect to the entirety of SCR 661 save just a part of article 4. It was then amended on 29 August to add a new article 4A so as to ban the payment of any bond given in respect of a contract whose performance was prohibited under any other article: article 4 of the Iraq and Kuwait (United Nations Sanctions) (Amendment) Order 1990 (SI 1990/1768). There followed a succession of SCRs dealing with the Iraqi situation as it continued to develop over the next ten years. Putting it very shortly, on 15 August 1991 SCR 706 (1991) authorised the setting up of an oil for food programme, a programme, however, which was then rejected by Iraq on the grounds that it interfered with their sovereignty. On 14 April 1995 SCR 986 (1995) again authorised such a programme and this finally began to operate at the end of 1996. Thereafter the programme was extended on a six monthly basis by further Resolutions, each of which re affirmed the terms of SCR 661. With the passage of time, however, the scale and complexity of the humanitarian programme grew, and oil prices increased, to the point where there was ever greater scope for the manipulation of the programme by the Iraqi government. By September 2000 there were consistent reports of Iraq demanding a surcharge on all oil sales and on the purchase of all humanitarian goods, to be paid directly or indirectly to the Government of Iraq. In December 2000 the United Nations 661 Committee agreed that the payment of all such surcharges was illegal and in breach of the UN sanctions imposed on Iraq. On 5 December 2000 SCR 1330 (2000) was adopted inter alia allow[ing] the Council to take further action with regard to the prohibitions referred to in Resolution 661 . It was in the context of this ever changing diplomatic and international landscape that on 13 December 2000 the 2000 Order came to be made. If this brief history establishes nothing else, it demonstrates surely that Security Council Resolutions are not simply one off measures requiring immediate implementation by member states and then receding into history, and that situations can develop in the course of their subsequent enforcement which call for further measures to be taken, sometimes with considerable urgency, to meet emerging problems. It would be not merely inappropriate as a matter of construction but regrettable as a matter of fact were this court now to stultify the power conferred under the 1946 Act by confining its exercise within an artificially restricted time frame. For the sake of completeness we record that, since the above judgment was written, the appellants have now been convicted on count 2, the sanctions count. We have in the result lifted the anonymity order which was earlier imposed in these proceedings. |
This is an appeal about an extradition order. The Lord Advocate appeals under paragraph 13 of Schedule 6 to the Scotland Act 1998 against the determination of a devolution issue by the Appeal Court of the High Court of Justiciary (the Appeal Court) on 23 September 2016. That court, by majority, quashed an order for the extradition of the respondent (Mr Dean) to Taiwan. The underlying question is whether his extradition to serve the residue of a prison sentence there would be compatible with his right under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), which, as is well known, provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. The Appeal Court held that his extradition would not be compatible with that article of the Convention. The appeal raises two principal questions, namely (a) the competence of the appeal and (b) whether the Appeal Court applied the correct legal test in assessing the risk of harm which Mr Dean might face in the requesting state from non state actors. If the Appeal Court did not apply the correct legal test, it is for this court to apply that test to the factual findings of the Appeal Court. It is important to make clear at the outset that the Lord Advocate argued the Crowns case in a way in which the solicitor advocate who appeared for him in the courts below had not. The Lord Advocate frankly conceded that his argument on what was the correct legal test had not been presented before the Appeal Court. It therefore involved criticising the judges of the Appeal Court for not giving effect to an argument which they did not hear. Background facts Mr Dean, a citizen of the United Kingdom, was born in Manchester. He grew up in Edinburgh but had lived and worked in Taiwan for about 19 years before he was involved in a road traffic accident on 25 March 2010. Following that accident, he was convicted after trial in the District Court of Taipei on 15 March 2011 of driving while under the influence of alcohol, negligent manslaughter and leaving the scene of an accident. The basis of his conviction was that, while under the influence of alcohol, he drove into and killed a man who was driving a motorcycle on a newspaper delivery round, that he did not stop, and that he did not report the accident. He was sentenced to imprisonment for two years and six months. He appealed against his conviction and sentence to the High Court in Taipei, which, having heard further evidence, refused his appeal and increased his sentence of imprisonment to four years. He then appealed to the Supreme Court of Taiwan. He remained on bail before and during his trial and while his appeals were pending. Before the Supreme Court of Taiwan had heard his appeal, he fled Taiwan, using a friends passport, and came to Scotland. The Supreme Court of Taiwan confirmed his conviction and sentence in his absence. The authorities in Taiwan then applied for his extradition. On 9 October 2013 the Ministry of Justice of Taiwan sought a provisional arrest warrant under section 73 of the Extradition Act 2003 (the 2003 Act), which is available if a person is accused in a category 2 territory of the commission of an offence and he is alleged to be unlawfully at large after his conviction. Because there is no extradition treaty between the UK and Taiwan, the Home Office on behalf of the United Kingdom and the judicial authorities in Taiwan entered into a memorandum of understanding in relation to Mr Dean under section 194 of the 2003 Act dated 16 October 2013. This had the result that a certificate by the Scottish Ministers enabled the 2003 Act to apply in relation to Mr Deans extradition as if Taiwan were a category 2 territory under that Act. Mr Dean was arrested in Scotland on 17 October 2013 and remained in custody for almost three years. On 28 October 2013 the Ministry of Justice of Taiwan delivered a written request for Mr Deans extradition to the Secretary of State for the Home Department. The Cabinet Secretary for Justice, Mr Kenny MacAskill, certified the request under section 70(1) of 2003 Act on 18 November 2013 and sent the request to Edinburgh Sheriff Court. An extradition hearing before Sheriff Kenneth Maciver was scheduled to commence in January 2014. Mr Dean mounted numerous challenges and lodged two devolution minutes. The completion of the hearing was delayed by his withdrawal of instructions from his legal representatives, the obtaining of an expert report and the engagement of replacement legal representatives. By Note of Decision dated 11 June 2014, the sheriff decided under section 87(1) of the 2003 Act that Mr Deans extradition would be compatible with his Convention rights within the meaning of Human Rights Act 1998, and refused the two devolution minutes. The Scottish Ministers made the extradition order on 1 August 2014. Mr Dean appealed under section 103 of the 2003 Act against Sheriff Macivers decision and under section 108 of that Act against the extradition order of the Scottish Ministers. The Appeal Court (Lady Paton, Lord Drummond Young and Lady Clark of Calton) heard challenges as to whether Taiwan was a territory within the meaning of the 2003 Act, whether Mr Deans article 6 right to a fair trial had been infringed, and whether, under section 81 of the 2003 Act, extraneous considerations barred extradition in this case whether there was a serious possibility that the request to extradite was for the purpose of punishing him by reason of his race or nationality. In its unanimous opinion dated 24 June 2015, the Appeal Court rejected those challenges. This appeal is not concerned with those issues. On the issue with which this court is concerned, namely the challenge under article 3 of the Convention concerning prison conditions in Taiwan, the Appeal Court ordered an evidential hearing. It reserved its opinion on the section 108 appeal until it had dealt with the article 3 challenge. After hearing evidence on the article 3 challenge, the Appeal Court on 23 September 2016 by a majority (Lord Drummond Young dissenting) held that Mr Deans extradition to Taiwan would not be compatible with his article 3 right and ordered his discharge. The Appeal Court, in assessing the compatibility of the extradition, applied the test set out in Saadi v Italy (2009) 49 EHRR 30, namely whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with article 3. The majority (Lady Paton and Lady Clark of Calton) concluded that there was such a risk. Because I am satisfied that the Appeal Court applied the wrong legal test and that this court must therefore make its own assessment of the facts found by the Appeal Court, I mean no discourtesy in summarising the majoritys reasoning briefly. The Appeal Court heard evidence from Mr Dean and also two legal academics, Professor Mong Hwa Chin and Dr James McManus, who had been instructed on behalf of the Lord Advocate. That evidence vouched the conclusion that Taiwanese prisons were seriously overcrowded and that Taipei prison, where the Taiwanese authorities proposed to keep Mr Dean, was both overcrowded and understaffed. The Taiwanese authorities had given written assurances to the Lord Advocate in which they undertook that Mr Dean would not be housed in the overcrowded cells in the main prison block but would be housed in a separate building in an adequately sized cell, which had a lavatory and a shower and which he would share with only one other foreign prisoner. The majority of the Appeal Court held that, if the Taiwanese authorities fulfilled their undertakings to the letter, there was still a real risk of ill treatment in accordance with the Saadi test because (a) Mr Dean suffered from some notoriety in Taiwan, the other inmates and prison staff would view the arrangements made for him as wholly exceptional, and this would give rise to animosity from other prisoners, (b) the staffing levels were not sufficient to protect Mr Dean if he were to mix with other prisoners, (c) therefore he was likely to choose to stay in his cell for most of the time and would not be able to work to earn parole, (d) he would also have only limited opportunity for outdoor exercise or interaction with others and solitary confinement was generally harmful to health, (e) the ratio of medical and pharmaceutical staff to prisoners was too low and prisoners had to pay for non emergency medical treatment and non standard drugs, (f) there was no formal system for a UK body or an international body to inspect the prison, (g) United Kingdom consular staff, who visited UK prisoners in Taiwanese prisons, did not assess prison standards, and (h) there were no established procedures by which prisoners could enforce their rights in the Taiwanese courts. Lady Clark also commented on the ad hoc nature of the assurances which the Taiwanese authorities had given and doubted the ability of the British consular staff to monitor those assurances. Lord Drummond Young in his dissenting opinion emphasised the contribution which extradition makes to the rule of law both nationally and internationally. He pointed out that the European Court of Human Rights (ECtHR) had held that article 3 was not a means by which contracting states might impose their own standards on other states: Ahmad v United Kingdom (2012) 56 EHRR 1, para 177. He argued that the court must proceed on the assumption that the Taiwanese authorities would observe in good faith the assurances they had given and he assessed the quality of those assurances against the criteria which the ECtHR set out in Othman v United Kingdom (2012) 55 EHRR 1, paras 177 190. Having assessed the evidence, Lord Drummond Young concluded that Mr Dean had failed to establish that there was any real risk of his being subject to treatment that would infringe article 3 of the Convention. After the Appeal Court (again by majority) refused to give leave to appeal, a panel of this court granted the Lord Advocate permission to appeal on 21 December 2016. Discussion I consider, first, the challenge to the competency of this appeal before discussing the correct legal test for compatibility with article 3 of the ECHR when the threat comes from the acts of third parties and applying that test to the findings of the Appeal Court. The competence of this appeal Mr Bovey, who appears for Mr Dean, challenges the competence of this appeal on the ground that the Appeal Court has not determined a devolution issue. For the reasons set out below I consider that challenge to be misconceived. The decision of the Appeal Court which the Lord Advocate has appealed is a decision whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42): section 87(1) of the 2003 Act. The decision was made in the context of an appeal under section 103 of the 2003 Act. There is no appeal to this court from a decision of a Scottish court under section 103 because the provision authorising an appeal to this court from decisions made under sections 103 and 108 (among others) does not apply to Scotland: section 114(13) of the 2003 Act. But that is not the end of the matter because an appeal from a decision under section 87(1) of the 2003 Act, which was the subject of this part of Mr Deans section 103 appeal, raises a question of the legal competence of the Scottish Government. Section 57(2) of the Scotland Act 1998 provides A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights The functions carried out by the Lord Advocate and the Scottish Ministers under Part 2 of the 2003 Act are acts that they perform as members of the Scottish Government: BH v Lord Advocate 2012 SC (UKSC) 308, paras 33 34 per Lord Hope, and Kapri v Lord Advocate 2013 SC (UKSC) 311, paras 18 23 per Lord Hope. In Schedule 6 to the Scotland Act 1998 paragraph 1(d) includes within the definition of a devolution issue: a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights The question as to whether the Scottish Governments acts in seeking to extradite Mr Dean to Taiwan are compatible with Convention rights is thus a devolution issue: BH (above), para 34, Kapri (above), para 22. Section 116(1) of the 2003 Act provides the general rule that a decision under Part 2 of the Act by a judge or the Scottish Ministers may be questioned in legal proceedings only by means of an appeal under that Part, but subsection (2) to that section excludes from that limitation an appeal against the determination of a devolution issue. When pursuing his appeal before the Appeal Court to challenge the sheriffs decision under section 87 of the 2003 Act Mr Dean had the option of proceeding either under section 103 of the 2003 Act or by means of raising a devolution issue under the Scotland Act 1998: BH (above), para 26; Kapri (above), para 19. He chose to proceed under section 103 of the 2003 Act and did not raise a devolution minute in relation to his challenge concerning prison conditions in the Appeal Court. The Lord Advocate was the respondent to Mr Deans appeal before the Appeal Court. He therefore did not need to exercise his right under paragraph 4 of Schedule 6 to the Scotland Act 1998 to institute proceedings to determine the devolution issue raised by Mr Deans appeal. Where a devolution issue arises in proceedings, intimation of the issue should be given to the Advocate General for Scotland and the Lord Advocate, unless they are already parties to the proceedings: paragraph 5 of Schedule 6 to the Scotland Act 1998. Neither Mr Deans legal advisers nor the Lord Advocate intimated the issue to the Advocate General for Scotland in relation to the proceedings before the Appeal Court. The Advocate General was thus deprived of his right under paragraph 6 of Schedule 6 to take part in the proceedings in the Appeal Court. That omission, however, does not affect the competence of any appeal to this court. Paragraph 13(a) of Schedule 6 to the Scotland Act 1998 confers a right of appeal to the Supreme Court against a determination of a devolution issue by a court of two or more judges of the High Court of Justiciary. The decision of the Appeal Court is such a determination. The Lord Advocate has informed this court that he had intimated the devolution issue, which he seeks to argue in this court, to the Advocate General for Scotland, who has indicated that he does not intend to take part in the proceedings. There is therefore no bar to this appeal. It may be that the Appeal Court would have determined the other devolution issues, which Mr Dean has raised, if it had been aware that the Lord Advocate might seek to appeal its determination of the article 3 devolution issue to this court. It did not do so. That is unfortunate because it may cause further delay, but that cannot affect the competence of this appeal. The merits of the appeal Article 3 of the Convention: summary The Lord Advocate concedes that, on the findings of fact by the Appeal Court, there are substantial grounds for believing that there is a risk that Mr Dean would suffer harm from other prisoners in Taipei prison if protective measures were not put in place. But, he submits, the ECtHR laid down the appropriate legal test in such a circumstance in HLR v France (1997) 26 EHRR 29, which the House of Lords applied in R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668 (Bagdanavicius). As I set out below, the test is whether the state has failed to provide reasonable protection against harm inflicted by non state agents. Mr Bovey acknowledges that test but submits that in substance the Appeal Court has addressed it. I do not accept that submission. In my view, the Appeal Court did not address that test. This is unsurprising, because, as Lady Paton recorded at para 8 of her opinion, counsel were agreed that the correct test was set out in Saadi, to which I have referred in para 9 above. As a result no clear distinction was drawn in her opinion (paras 8, 45, and 50 58) between the underlying threat from other prisoners, which the Appeal Court found to exist, and conduct for which the state was responsible. It is therefore incumbent on this court to apply the correct legal test to the findings of fact of the Appeal Court. In short, the court must assess, first, whether the Taiwanese authorities are undertaking to provide Mr Dean with reasonable protection against violence by third parties while he is in prison, and, secondly, if they are, whether the conditions in which he is to have such protection themselves entail an infringement of article 3. The correct legal test Article 3 of the Convention enshrines one of the fundamental values of a democratic society. It is therefore incumbent on the court to be assiduous in its assessment of a challenge on this ground. A person asserting a breach of this article must show that there are substantial grounds for believing that he faces a real risk of being subjected to treatment contrary to article 3 if he is extradited: Saadi v Italy (above), para 125. In addressing that challenge, the court can have regard to assurances given by the receiving state: Othman v United Kingdom (above), paras 187 189. In particular, the court must assess not only the quality of the assurances given but also whether they can be relied on, having regard to the general situation in that country with regard to respect for human rights. In Othman (para 189) the ECtHR set out eleven factors which, among others, a court could take into account in making that assessment. I discuss several of those factors in para 38 below. In Bagdanavicius, Lord Brown of Eaton under Heywood, who gave the leading speech in the House of Lords, observed (para 7) that it has long been established that article 3 imposes an obligation on the part of a contracting state not to expel someone from its territory where substantial grounds are shown for believing that he will face in the receiving country a real risk of being subjected to treatment contrary to that article. He cited Soering v United Kingdom (1989) 11 EHRR 439 as the initial authority for the principle that the act of expulsion in such a circumstance constitutes the proscribed ill treatment. The expulsion itself breaches article 3 if such risk in the receiving country emanates either from acts of the public authorities of that state or from persons or groups of persons who are not public officials. In the latter circumstance, it is not sufficient to show that there is a real risk of suffering serious harm at the hands of non state agents. In para 24 Lord Brown deprecated a failure in such cases to distinguish between the risk of serious harm on the one hand and the risk of treatment contrary to article 3 on the other. He said: In cases where the risk emanates from intentionally inflicted acts of the public authorities in the receiving country (the language of D v United Kingdom (1997) 24 EHRR 423, 447, para 49) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non state bodies, that is not so: any harm inflicted by non state agents will not constitute article 3 ill treatment unless in addition the state has failed to provide reasonable protection. Non state agents do not subject people to torture or to the other proscribed forms of ill treatment, however violently they treat them: what, however, would transform such violent treatment into article 3 ill treatment would be the states failure to provide reasonable protection against it. It is this test that the court must apply to the facts of this case in relation to the harm which non state actors might inflict, before asking whether the circumstances of such protection are themselves compatible with article 3. Applying the tests The Appeal Court made findings that there were problems of over crowding and under staffing in the main detention building in Taipei prison which gave rise to uncontrolled bullying of weaker prisoners. There was also evidence, which the Appeal Court accepted, of inadequate ventilation and lavatory facilities which exacerbated the discomfort caused by the over crowding, and inadequate opportunities for the prisoners to exercise in the open air (para 44). There was also a finding that Mr Dean was at particular risk of being the focus of hostility from prisoners within the prison (para 47). As against those findings, it is necessary to assess the undertakings which the Taiwanese authorities have made in support of their application for Mr Deans extradition. Lady Paton in para 10 of her opinion recorded in summary the various undertakings which the Taiwanese authorities have given. I summarise those which are most relevant to prison conditions. First, in a letter dated 25 February 2014, Mrs Chen Wen chi, the Director General of the Department of International and Cross Strait Legal Affairs in the Ministry of Justice of Taiwan and signatory of the memorandum of understanding (para 6 above), undertook that Mr Dean would be supervised by English speaking officers and that he would be housed in an appropriate cell with persons selected from among non violent foreign inmates, to avoid bullying. The authorities would treat Mr Dean as a special assignment, take account of his concerns for his safety, and assess the level of protection which he needed. They would pre screen inmates with ill intent towards him to prevent them having contact with him. If necessary, they would separate Mr Dean from group activities and restrict his interaction with other inmates. By letter dated 14 November 2014, Mr Luo Ying shay, the Minister of Justice of Taiwan, confirmed Mrs Chen Wen chis authority to give undertakings on behalf of his ministry, which supervised the Agency of Corrections which was responsible for managing prisons in Taiwan. Secondly, on 19 August 2015 Mrs Chen Wen chi described and sent photographs of the cell which she undertook to prepare for Mr Dean and which he would share with one other foreign prisoner. The cell was located on the second floor of the 11th disciplinary area in Taipei prison and had an area of 13.76 square metres. The cell was equipped with a desk, a chair, a four shelf cupboard, a bunk bed, and a bathroom with a toilet, a sink, a shower and a shower curtain. There was good natural lighting through a large window, electric lighting, an exhaust fan and an electric fan on the ceiling. Prisoners had the opportunity to spend about nine hours per day out of their cells, which included working, exercise time, rests and meals. Assurances were also given about the quality of drinking water and diet. By letter of the same date Mr Wu Man Ying, the Director General of the Agency of Corrections, confirmed that his agency would abide by those assurances. He confirmed this a second time in a letter dated 2 June 2016. Thirdly, Mrs Chen Wen chi by letter dated 25 December 2015 confirmed that if the United Kingdom consular staff raised an issue concerning a breach of an assurance about prison conditions, the Taiwanese authorities would respond to remedy any breach. Finally, on 31 May 2016, the new Minister of Justice, Mr Chui Tai san, re affirmed Mrs Chen Wen chis authority to provide the assurances and to undertake to put them into practice. Dr McManuss visit to Taipei prison in August 2015 provided further insight into the undertakings. The proposed cell measured 11.05 square metres, excluding the toilet and shower annex, giving 5.5 square metres to each of the proposed occupants. It was on the second floor of a reception area, where there were classrooms for the assessment of new arrivals. On the same floor there was an observation office and a 50 bed convalescent cell. The cell, which was proposed for Mr Dean, had been created in 2013 as a protected cell but had never been used. The proposed exercise area for Mr Dean was a tarmac basketball court adjacent to the building. The basketball court offered ample space for exercise and could be cleared of other prisoners when Mr Dean was using it. Dr McManus concluded that the accommodation met all the standards set by the Committee for the Prevention of Torture (CPT) and the ECtHR in terms of space per prisoner, light, ventilation and toilet facilities. He also recorded that assurances had been given that Mr Dean could have a minimum of one hours outdoor exercise per day and that he would be entitled to access to newspapers, radio and television. There was a work regime in the prison which, if Mr Dean engaged with it, would allow him to mix with other prisoners and to be out of his cell from 8.30 am to 5.30 pm. Understandably, it was not suggested on Mr Deans behalf that the cell accommodation was inadequate or exposed him to overcrowding if he were to share it with one non violent foreign prisoner. Nor was it suggested that he would not be reasonably safe when in that cell. In agreement with the judges of the Appeal Court, I proceed on the basis that the judicial authorities of Taiwan are acting in good faith in entering into the memorandum of understanding and in giving the assurances which they have. I also agree with the judges of the Appeal Court in so far as they proceeded on the assumption that the Taiwanese authorities responsible for the management of Taipei prison would make every effort to fulfil those undertakings. As Lord Drummond Young observed in his dissenting opinion, extradition assists in maintaining the rule of law both nationally and internationally. The United Kingdom Government has chosen to enter into extradition treaties with friendly foreign states or territories giving rise to mutual obligations in international law. In Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, Lord Brown stated (para 36): The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. The Lord Advocate acknowledges that the memorandum of understanding does not have the status of a treaty enforceable in international law. That notwithstanding, there remains a strong public interest in promoting and maintaining the rule of law by means of extradition. But that strong public interest, while carrying great weight, has no paramountcy in the face of an article 3 challenge. In Othman v United Kingdom (above) the ECtHR stated how it would assess the quality of the assurances given by a receiving country in the context of deportation. The existence of an extradition agreement whether a treaty or a memorandum of understanding does not obviate the need for such an assessment in the context of a human rights challenge. It is possible, for example, that adverse political developments in a friendly foreign state might reduce the confidence which our courts could reasonably have about an extradited persons treatment in that country, notwithstanding the continued existence of an extradition treaty. In my view, it is incumbent on a court, which is addressing an article 3 challenge, to make such an assessment in the context of an extradition; and the existence of the extradition agreement is a factor in that assessment. This is consistent with the ECtHRs guidance in Othman which identified as relevant the length and strength of bilateral relations between the sending and receiving states. In this case the assurances are given on behalf of the central government of Taiwan, which is a developed society with a tradition of respect for the rule of law. There is no suggestion that the Taiwanese authorities ill treated Mr Dean before he fled the country. The assurances are given by a senior responsible official and have been confirmed by two Ministers of Justice and by the Director General of the agency with responsibility for managing prisons. The assurances, and in particular those about his accommodation and separating him from group activities with other prisoners if that is necessary for his safety, are specific rather than general. The assurances envisage that United Kingdom consular staff will have access to Mr Dean in prison and include an undertaking to remedy any breach of the assurances which the consular staff raise with the prison authorities. The memorandum of understanding and the assurances have given a role to the consular staff which they have not had in the past in relation to United Kingdom citizens imprisoned in Taiwan. There is no reason to think that the consular staff would not perform their obligations to monitor the assurances if Mr Dean were to request their help. While there appears to have been no examination of the access which Mr Dean might have to legal advice, Dr McManus recorded the apparently successful operation of a complaints system in the prison and that some prisoners had obtained access to the domestic courts. This is the first occasion on which Taiwan has sought to extradite a United Kingdom citizen and the memorandum of understanding and the assurances are therefore untested; but that novelty is significantly outweighed by the other factors which I have mentioned in this paragraph. Mr Deans case is both that he has gained notoriety in Taiwan as a foreign businessman who was convicted of killing a local man through driving while drunk and also that other prisoners would resent his privileged status in the prison and wish to harm him. As a result, he may not be able to mix with other prisoners and work to earn parole, which in Taiwan depends in part upon a prisoners taking part in work activities in the prison. I cannot judge in advance the extent to which Mr Deans fear of being harmed by other prisoners will prevent him from mixing with them. But there is no evidence to support an inference that the Taiwanese authorities will not give him reasonable protection against harm at the hands of other prisoners: the undertakings would allow him to elect to remain in his cell and exercise outdoors by himself. There is nothing to suggest that such a regime would fail to prevent third parties from harming him. I turn then to the second question, which is whether the confinement which such a regime would entail would risk a breach of article 3. There is no issue about the quality of the cell accommodation or the fact that Mr Dean would share the cell with a non violent foreign prisoner. But the majority of the Appeal Court expressed concern that Mr Dean might have to elect to stay in his cell and thus be subjected to a form of solitary confinement, which might be harmful to his health. In Mr Deans case we are not concerned with complete sensory isolation and total social isolation which the ECtHR has recognised as constituting a form of inhuman treatment. But the Convention looks beyond such isolation. In Ahmad at paras 207 210 the ECtHR stated: 207. Other forms of solitary confinement which fall short of complete sensory isolation may violate article 3. Solitary confinement is one of the most serious measures which can be imposed within a prison and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. Indeed, as the Committees most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is. 208. At the same time, however, the Court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not itself amount to inhuman treatment or punishment. In many states parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners. 209. Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. 210. In applying these criteria, the Court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for article 3. The Court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely. In Mr Deans case, we are concerned with what the ECtHR has described as relative isolation as he would share his cell with a non violent foreign prisoner and would have access to newspapers, radio and television. There would also be opportunities for people to visit him. That relative isolation would not be imposed on him by the prison authorities but would be at his option, if he were to take the view that the risk of harm at the hands of other prisoners required him to dissociate himself from contact with them. Thus, the objective which might give rise to his relative isolation would be his own protection. Further, the period of Mr Deans imprisonment resulting from his conviction is unlikely to exceed approximately 13 months because the Taiwanese authorities have undertaken to give him credit towards his four year sentence for the period of almost three years which he has spent in prison in Scotland. When one has regard to the decisions of the ECtHR in other cases concerning solitary confinement, such as calan v Turkey (2004) 41 EHRR 45, Ramirez Sanchez v France (2007) 45 EHRR 49 and Ahmad v United Kingdom (above), and the decision of this court in Shahid v Scottish Ministers [2015] UKSC 58; 2016 SC (UKSC) 1; [2016] AC 429, the circumstances of Mr Deans possible relative isolation do not come close to a breach of article 3 of the Convention and do not contribute significantly to his assertion of such a breach when other circumstances are considered. It is necessary, of course, to take a holistic view of the circumstances of his detention in reaching a view as to whether there is a real risk of his being subject to treatment that infringes article 3 of the Convention. But the other factors which influenced the majority of the Appeal Court do not materially advance his case. First, the ratio of medical staff to prisoners, to which Lady Paton referred in para 33 of her opinion, was well below the standard advocated by the CPT, which is one doctor per 350 prisoners. But, as she also recorded, Dr McManus concluded that there appeared to be no great problem for prisoners obtaining medical attention when needed. The fact that prisoners have to pay for non emergency medical and dental treatment and also for non generic drugs is of little significance. It is important to recall that the ECtHR has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other states: Al Skeini v United Kingdom (2011) 53 EHRR 18, para 141; Ahmad v United Kingdom (above), para 177. Secondly, I do not infer from the past practice of United Kingdom consular staff of not pressing for the improvement of prison conditions for United Kingdom prisoners that they would not act to protect Mr Dean. As I have said, the existence of the memorandum of understanding and also the assurances by which the Taiwanese authorities have recognised the role of the consular staff in protecting Mr Deans interests have given the consular staff a role which to date they have not had. Thirdly, the majority of the Appeal Court was concerned both by the absence of an international system by which prison conditions in Taiwan were monitored and that there is no established route within the Taiwanese courts whereby a prisoner can seek a remedy in respect of prison conditions (paras 56 and 57). Those are among the factors which the ECtHR has identified as relevant considerations in assessing the quality of the assurances of the receiving state: Othman v United Kingdom (above) para 189. But in my view, those considerations do not outweigh the other factors which point towards accepting the assurances (para 38 above) and the role which the United Kingdom consular staff will undertake in monitoring the assurances. I am therefore satisfied (a) that the assurances of the Taiwanese authorities offer Mr Dean reasonable protection against violence by non state actors and (b) that the circumstances of his confinement, should he be unable to mix with the wider prison population, do not entail a real risk of his being subject to treatment that infringes article 3 of the Convention. Articles 5 and 8 of the Convention Mr Bovey also advances separate challenges under articles 5 and 8 of the Convention, which the Appeal Court did not need to decide. I am satisfied that those challenges are without substance and can deal with them briefly. Article 5: Mr Bovey submits that Mr Deans detention in prison would involve arbitrariness because the Taiwanese authorities would not give him credit for the time spent in custody in Scotland in the calculation of his entitlement to parole. One of the assurances which Mrs Chen Wen chi gave (in a letter dated 23 December 2013) was that all periods of detention in Scotland arising from the extradition request would be deducted from the total period which he would have to serve in Taiwan. That undertaking did not include any reference to entitlement to parole and, contrary to counsels submission, I detect nothing in it that was objectively misleading. In a later letter, dated 1 June 2016, Mrs Chen Wen chi explained that only periods of imprisonment in Taiwan would count towards the service of a minimum part of the sentence for entitlement to parole. It appears therefore that Mr Dean would have to serve two thirds of the residue of his sentence in Taiwan before he would be eligible to be considered for parole. I detect nothing arbitrary in this regime. The Convention does not require United Kingdom courts to expect foreign states to have similar sentencing practices to ours or a particular form of parole system. Article 3 would be breached by extradition to serve a sentence, which the receiving state imposed, only if the sentence was grossly disproportionate: Willcox v United Kingdom (2013) 57 EHRR SE 16, para 74. Mr Deans inability to obtain credit towards parole for the time he has spent in custody in Scotland is the result of his flight from justice in Taiwan. This involves no injustice. Article 8: Counsel also argues that Mr Deans extradition to and imprisonment in Taiwan would interfere with his right to respect for his private life. I agree that there would be such interference but am satisfied that it is justified because it is necessary in a democratic society both for the prevention of crime and for the protection of the rights and freedoms of others (article 8(2)). This court has recognised the strength of the public interest in extradition in the context of an article 8 challenge: Norris v Government of the United States of America (No 2) [2010] 2 AC 487; H (H) v Deputy Prosecutor of the Italian Republic (Official Solicitor intervening) [2013] 1 AC 338. Mr Dean has been convicted of a serious offence committed in Taiwan where he had resided for 19 years. A term of imprisonment for such an offence was clearly justified both as a punishment and to deter such behaviour by others. It may be that the special protective measures which are proposed will prevent Mr Dean from earning credit towards parole while serving the residue of his sentence. But that does not undermine the justification of the extradition. Conclusion I would allow the appeal on the devolution issue and remit the case to the Appeal Court to deal with Mr Deans appeal under section 108 of the 2003 Act and his devolution minute in that appeal. |
The respondent stood trial at the Central Criminal Court on a charge of entering into or becoming concerned in a money laundering arrangement, contrary to section 328(1) of the Proceeds of Crime Act 2002. The particulars of the offence were that he and another between the first day of August 2011 and the 13th day of January 2012 entered into or became concerned in an arrangement which they knew or suspected would facilitate the retention, use or control of criminal property, namely money received into a Lloyds Bank account and a Barclays bank account from the sale of motor insurance through the [AM Insurance] website, by or on behalf of [B]. At the close of the evidence, the respondent submitted that there was no case to answer because at the time that the respondent entered into the arrangement no criminal property was yet in existence. The trial judge, Recorder Greenberg QC, upheld the submission. The prosecution appealed against her ruling pursuant to section 58 of the Criminal Justice Act 2003. The appeal was dismissed. The Court of Appeal (Lloyd Jones LJ and Irwin and Green JJ) held in summary that under section 328 it is not necessary for criminal property to exist at the moment when parties come to a prohibited arrangement, but that the arrangement must relate to property which is criminal property at the time when the arrangement begins to operate on it; and that on the facts of this case the property had not become criminal property at the time when the arrangement began to operate on it. The court certified that the case involves the following point of law of general public importance: Where, by deception, A induces the payment of money to a bank account opened for that purpose by B (pursuant to an arrangement with A to receive and retain that money, then may B commit an offence contrary to section 328 of the Proceeds of Crime Act 2002, on the basis that the arrangement to receive and retain the money in that bank account can be treated as both 8. rendering the property criminal property and facilitating its retention, use or control? The prosecution was given leave to appeal by this court. In order to avoid the possibility of prejudice in the event of a new trial, I will avoid using the names of the parties involved. The case arose from the activities of a fraudster, B, who pleaded guilty to a number of offences. He established four ghost websites falsely pretending to offer cut price motor insurance and recruited associates to open bank accounts for channelling the proceeds. One of the websites was established in the name of AM Insurance. It operated from 1 September 2011 to January 2012. Shortly before the website went live, H opened two bank accounts, one with Lloyds Bank and the other with Barclays. B took control of the documentation and bank cards relating to them. During the short active lifetime of the website, unsuspecting members of the public were duped into paying a total of 417,709 into the Lloyds Bank account and 176,434 into the Barclays account for non existent insurance cover. The prosecution opened the case to the jury on the basis that H may not have known the details of Bs fraud, but that the circumstances in which the accounts were opened were such that H must have known or at least suspected that B had some criminal purpose. POCA money laundering offences Part 7 of the Proceeds of Crime Act (POCA) is concerned with money laundering as defined in section 340(11). The expression includes any act which constitutes an offence under sections 327, 328 or 329. Those sections criminalise various forms of dealing with criminal property, as defined in section 340. Section 340(3) provides that property is criminal property if (a) it constitutes a persons benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. 9. Section 340(5) provides that a person benefits from conduct if he obtains property as a result of or in connection with the conduct. 10. Criminal conduct is defined in section 340(2) as conduct which (a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there. 11. Section 340(4) provides that It is immaterial (a) who carried out the conduct; (b) who benefited from it; (c) whether the conduct occurred before or after the passing of the Act. The respondent relies on the use of the past tense, for the purposes of an argument to which I will come. 12. Section 340(9) provides that property includes money; all forms of property, real or personal, heritable or moveable; and things in action and other intangible or incorporeal property. 13. Section 329 deals with acquisition, use and possession of criminal property. Section 327 deals with concealing or transferring criminal property and the like. Section 328, with which we are directly concerned, deals with arrangements facilitating the acquisition, retention, use or control of criminal property by or on behalf of another person. 14. Together, sections 327, 328 and 329 form the principal money laundering offences and they cover a wide range of conduct. There are supplementary offences relating to tipping off and to businesses operating in the regulated financial sector (who have positive reporting duties if they have cause to suspect money laundering). 15. The material words of section 328 for present purposes are in subsection (1). This states: A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person. 16. Although on a literal interpretation these words could be read as creating criminal liability if the defendant suspects that the effect of the arrangement is to facilitate the acquisition, etc, of criminal property, even where his suspicions are misplaced and the property concerned is not criminal, that is not its accepted or correct interpretation. The actus reus of the offence is entering or being concerned in an arrangement which in fact facilitates the acquisition etc of criminal property, and the mens rea required is knowledge or suspicion. (See R v Montila [2004] UKHL 50, [2004] 1 WLR 3141, a decision of the House of Lords regarding different but analogous wording in earlier legislation.) 17. The present case arises under section 328 but the arguments advanced on either side effect also sections 327 and 329. Subject to immaterial exceptions, a person commits an offence under section 327 if he (a) conceals criminal property; (b) disguises criminal property; (c) converts criminal property; (d) transfers criminal property; (e) removes criminal property from England and Wales or from Scotland or from Northern Ireland. 18. Subject to similar exceptions, a person commits an offence under section 329 if he (a) acquires criminal property; (b) uses criminal property; (c) has possession of criminal property. 19. As the Court of Appeal explained in Bowman v Fels (Bar Council intervening) [2005] EWCA Civ 226, [2005] 1 WLR 3083, POCA gave effect to Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering (as amended by Council Directive 2001/97/EC), but the Directive set minimum requirements and in some respects POCA was more stringent. For example, money laundering as defined in POCA includes dealing with property known or suspected to constitute or represent a benefit from criminal conduct; by contrast, the definition in the Directive required knowledge. The current version of the Directive is 2005/60/EC. This repealed and replaced 91/308/EEC. Case law on criminal property 20. There is an unbroken line of Court of Appeal authority that it is a prerequisite of the offences created by sections 327, 328 and 329 that the property alleged to be criminal property should have that quality or status at the time of the alleged offence. It is that pre existing quality which makes it an offence for a person to deal with the property, or to arrange for it to be dealt with, in any of the prohibited ways. To put it in other words, criminal property for the purposes of sections 327, 328 and 329 means property obtained as a result of or in connection with criminal activity separate from that which is the subject of the charge itself. In everyday language, the sections are aimed at various forms of dealing with dirty money (or other property). They are not aimed at the use of clean money for the purposes of a criminal offence, which is a matter for the substantive law relating to that offence. 21. The first authority was the decision of the Court of Appeal Criminal Division (Clarke LJ, Hughes and Dobbs JJ) in R v Loizou [2005] 2 Cr App R 618. 22. The defendants were charged under section 327 with transferring a large quantity of cash, knowing or suspecting that it constituted a persons benefit from criminal conduct. The defendants were under police surveillance and the transfer took place in the car park of a hotel. The prosecution put its case in alternative ways. The first was that the money represented the proceeds of earlier criminal conduct. That approach was legally uncontroversial. The prosecutions alternative case was that the money became criminal property at the moment of the transfer because it was paid for a criminal purpose, namely the purchase of smuggled cigarettes. At a preliminary hearing the judge ruled that so long as the prosecution could prove that the money was transferred for a criminal purpose, the actus reus of the offence was established by the act of transfer, at which moment the money became criminal property. His ruling was reversed by the Court of Appeal. The court held that criminal property within section 327 meant property which was already criminal at the time of the transfer, by reason of constituting or representing a benefit from earlier criminal conduct and not the conduct which was the subject of the indictment. In Kensington International Ltd v Republic of Congo (formerly Peoples Republic of Congo) (Vitol Services Ltd, Third Party) [2007] EWCA Civ 1128 [2008] 1 WLR 1144, the question arose whether a person who commits a criminal offence of bribery also thereby commits an offence under section 328. It was argued that the giving of a bribe necessarily involves the briber entering into an arrangement which he knows facilitates the acquisition of criminal property by the recipient, since the bribe, once received, constitutes the latters benefit from criminal conduct. The argument was rejected. Moore Bick LJ said at para 67: 23. I accept that section 328 is of broad application, but in my view that seeks to stretch its scope too far. As section 340(3)(b) makes clear, the mental element of the offence includes knowledge or suspicion on the part of the defendant that the property in question is criminal property, but that cannot be the case until it has been acquired by means of criminal conduct. In order for an offence under section 328 to be committed, therefore, the arrangement into which the defendant enters, or in which he becomes involved, must be one which facilitates the acquisition, retention, use or control by another of property which has already become criminal property at the time when it becomes operative. That requirement is not satisfied if the only arrangement into which he enters is one by which the property in question first acquires its criminal character. 24. 25. 26. In R v Geary [2010] EWCA Crim 1925, [2011] 1 WLR 1634, another case under section 328, a further argument was raised which is relevant in the present case. The defendant agreed to help a friend named Harrington to hide some money for a period. Under the arrangement Harrington transferred around 123,000 into the defendants bank account. The defendant used some of it to make some purchases for Harrington and, after an interval, he repaid the balance to Harrington less about 5,000. The prosecutions case was that the money represented proceeds of a fraud carried out by a bank official, who stole it from dormant accounts. The stolen money was laundered through a network of recipients, each of whom retained a small sum as payment for his services. The recipients included Harrington and the defendant. The defendants case was that he was approached by Harrington with a story that he was about to become involved in divorce proceedings, and that the defendant was asked to help Harrington to hide the money from Mrs Harrington (and the court), which he agreed to do. He denied any knowledge that the money had a criminal source. In the course of the trial the judge was invited to indicate how he proposed to direct the jury. He said that in his view the defendants account of the facts did not provide him with a defence to the charge under section 328. The defendant then pleaded guilty on the basis of the facts alleged by him, which the prosecution perhaps surprisingly were content to accept, and he appealed against his conviction on the ground that the judges ruling was wrong. The Court of Appeal allowed his appeal and quashed the conviction. It was argued by the prosecution that the arrangement on the accepted version of the facts involved a conspiracy to pervert the course of justice. The money transferred was therefore criminal property at the moment of being paid into the defendants account. Alternatively, the arrangement involved not merely the receipt of the money but also its retention, use or control, and so constituted the offence. Both parts of the argument were rejected. Moore Bick LJ said at para 19: In our view the natural and ordinary meaning of section 328(1) is that the arrangement to which it refers must be one which relates to property which is criminal property at the time when the arrangement begins to operate on it. To say that it extends to property which was originally legitimate but became criminal only as a result of carrying out the arrangement is to stretch the language of the section beyond its proper limits. An arrangement relating to property which has an independent criminal object may, when carried out, render the subject matter criminal property, but it cannot properly be said that the arrangement applied to property that was already criminal property at the time it began to operate on it. Moreover, we do not accept that an arrangement of the kind under consideration in the present case can be separated into its component parts, each of which is then to be viewed as a separate arrangement. In this case there was but one arrangement, namely, that the appellant would receive money, hold it for a period and return it. To treat the holding and return as separate arrangements relating to property that had previously been received is artificial. 28. 27. Moore Bick LJ added, obiter, at para 39 that, on the assumption that the purpose for which the money was transferred to the defendant involved perverting the course of justice, it became criminal property in his hands on its receipt, and he could therefore have been charged with an offence of converting or transferring criminal property contrary to section 327 by returning most of it to Harrington, together with the goods which he had purchased with part of it. In R v Amir and Akhtar [2011] EWCA Crim 146, [2011] 1 Cr App R 464, Akhtar entered into an arrangement with a mortgage broker to obtain money from mortgage companies by submitting false mortgage applications on behalf of third parties. He was prosecuted under section 328. The particulars of the offence in the indictment do not appear from the report, but the prosecution argued that Akhtar was guilty because he entered into an arrangement which he knew would facilitate the acquisition of property for third parties by deception, and, as an alternative submission, that the funds had the character of criminal property at the time when the arrangement began to operate on them. The Court of Appeal quashed Akhtars conviction. As to the first part of the argument advanced by counsel for the prosecution, Elias LJ said at para 21: On his analysis an offence is committed where a defendant becomes concerned in an arrangement which facilitates the criminal acquisition of property. The statute requires an arrangement facilitating the acquisition of criminal property. There is a material distinction. He also rejected the argument that the funds had the character of being criminal property at the time when the arrangement began to operate. Issues 29. The following issues arise: (1) Does the commission of an offence under section 328 require the property to constitute criminal property prior to the arrangement coming into operation? (2) Does the property have to exist at the time when the defendant enters into or becomes concerned in the arrangement? (3) Did the sums received into the respondents accounts constitute criminal property before being paid into those accounts? (4) Was the actus reus of the offence committed by reason of the arrangement facilitating the retention, use or control of the money paid into the respondents accounts? Does the commission of an offence under section 328 require the property to constitute criminal property prior to the arrangement coming into operation? 30. Mr Kennedy Talbot submitted that the Court of Appeal authorities to which I have referred were wrong, and that the same conduct could both cause property to become criminal and simultaneously constitute the offence charged under section 328. He made the same submission in relation to sections 327 and 329, correctly recognising that the three sections have to be construed coherently. So, he submitted, a thief who steals legitimate property is necessarily at the same time guilty of acquiring criminal property contrary to section 329. 31. As Elias LJ pithily put it, this argument elides the distinction between a person who acquires criminal property and one who acquires property by a criminal act or for a criminal purpose. 32. The Court of Appeals interpretation of criminal property in the various money laundering sections as meaning property which already has the quality of being criminal property, as defined in section 340, by reason of criminal conduct distinct from the conduct alleged to constitute the actus reus of the money laundering offence itself, accords not only with the natural meaning of the sections but also with the purpose underlying them. 33. Paragraph 6 of the Explanatory Notes to POCA describes money laundering as the process by which the proceeds of crime are converted into assets which appear to have a legitimate origin, so that they can be retained permanently or recycled into further criminal enterprises. That is a fair description of the ordinary meaning of the expression. With reference to the individual offences, para 469 of the explanatory notes states: Section 327 creates one of three principal money laundering offences. The other two are to be found in sections 328 and 329. Because of the definition of criminal property at section 340, all three principal money laundering offences now apply to the laundering of an offenders own proceeds as well as those of someone else. The reference to proceeds of crime is clearly a reference to the proceeds of an earlier offence. 34. The Court of Appeals interpretation is also consistent with the definition of money laundering in the Council Directive. The version of the Directive which was in force at the date of enactment of POCA defined money laundering as meaning the following conduct, when committed intentionally: the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action; the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from criminal activity or from an act of participation in such activity; the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from criminal activity or from an act of participation in such activity; participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the actions mentioned in the foregoing indents. 36. 35. The 2005 Directive retains this wording but extends the scope of the Directive by a separate provision relating to terrorist financing. This expression is defined to include the provision or collection of funds with the intention that they should be used or the knowledge that they are to be used, to carry out certain offences identified in the Council Framework Decision of 13 June 2002 on combatting terrorism (2002/475/JHA). In the UK, the Terrorism Act 2000 contains provisions relating to terrorist property which are similar to, but wider than, the money laundering offences under POCA. Terrorist property is defined in section 14(1) as meaning: (a) money or other property which is likely to be used for the purposes of terrorism (including any resources of a proscribed organisation), (b) proceeds of the commission of acts of terrorism, and (c) proceeds of acts carried out for the purposes of terrorism. In para (a) the definition includes words which are forward looking, to use Mr Tim Owen QCs description, whereas the definition of criminal property in Part 7 of POCA looks backward. 37. Sections 327, 328 and 329 were aptly described by Moses LJ in JSC BTA Bank v Ablyazov [2009] EWCA Civ 1124, [2010] 1 WLR 976, at para 14, as parasitic offences, because they are predicated on the commission of another offence which has yielded proceeds which then become the subject of a money laundering offence. A wider interpretation would have serious potential consequences for third parties including banks and other financial institutions. They already have an onerous reporting obligation if they know or suspect, or have reasonable grounds for knowing or suspecting, that another person is engaged in money laundering. That obligation would be considerably enlarged and its limits potentially difficult to gauge if they are required, on pain of criminal sanctions, to report any suspicion, or reasonable grounds for suspicion, of a customers intended use of property either in connection with an offence within the UK or in connection with conduct elsewhere in the world which would be an offence if committed within the UK. In HKSAR v Li Kwok Cheung George [2014] HKCFA 48, a similar issue arose on the wording of a Hong Kong money laundering ordinance. Ribeiro and Fok PJJ said in their joint judgment with which the other members of the Court of Final Appeal agreed, at para 84: It is one thing to criminalise dealing with funds where the dealer knows or has reasonable grounds to believe that they are the proceeds of crime, it is quite a different matter to stigmatise as a money launderer, a lender dealing with its own clean funds because of what the borrower does or intends to do with them. However, that would be the consequence if property obtained in connection with criminal conduct (section 340(5)) bears the extended meaning for which the prosecution contends. Does the property have to exist at the time when the defendant enters into or becomes concerned in the arrangement? 38. The Court of Appeal held in the present case that there is no basis on the plain meaning of the words used in section 328 for restricting the offence to a case where the criminal property is already in existence at the time at which a defendant enters into or becomes concerned in the arrangement. Mr Owen argued that the court was wrong. He relied on the use of the present tense in sections 327, 328 and 329, which he contrasted with the use of the past tense in the definition of criminal property in section 340(4). (See paras 8 10, 15, 17 and 18 above.) He observed that sections 327 and 329 presuppose the existence of the relevant criminal property at the time of the actus reus. Similarly, he submitted that under section 328 the court must take a snapshot view of the position at the moment when the defendant entered into the arrangement. There must at that moment have been criminal property to which the arrangement related. The words in section 328 an arrangement which he knows or suspects facilitates the acquisition, retention, use or control of criminal property are not to be read, in his submission, as an arrangement which he knows or suspects will facilitate. 39. That submission is right inasmuch as the offence requires actual facilitation of the acquisition etc, of criminal property as well as the requisite knowledge or suspicion. As a matter of strict English, the way in which the section has been drafted may be criticised for condensing the separate ingredients of actus reus and mens rea into one. But it places no undue strain on the language to read the section as providing that a person commits an offence if a) he enters into or becomes concerned in an arrangement which facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person, and b) he knows or suspects that it does so. It has sensibly to be read in that way or else a party might be guilty by reason of having the necessary mens rea even if it transpired that the property was not criminal. The offence is complete when the arrangement becomes one which facilitates the acquisition, etc, of criminal property and the defendant knows or suspects that this is so. At that point he becomes a participant in an arrangement which is made criminal by section 328. 40. The Court of Appeal was therefore right in the present case to hold that it does not matter whether criminal property existed when the arrangement was first hatched. What matters is that the property should be criminal at a time when the arrangement operates on it. To take a practical example, if defendants make arrangements for the transportation and warehousing of a quantity of illegally imported drugs, it would make no difference for the purposes of section 328 whether the vessel carrying the goods were still on the high seas or had entered UK territorial waters, ie whether the act of importation had occurred, at the moment when the arrangements were made, save that the offence would not become complete until the goods were imported. The contrary interpretation would not accord either with a natural reading of the words used or with the obvious purpose of this section. Did the sums received into the respondents account constitute criminal property before being paid into those accounts? 41. Mr Talbot submitted that the money paid by the victims into the respondents accounts was criminal property at the time of payment because it represented a chose in action, namely the obligation of the purchasers of insurance to pay the price. The fact that the contracts were procured by fraud and therefore voidable made no difference, in his submission, because the contracts were valid until avoided. This argument was first advanced in the Court of Appeal and was rejected. It appears from the judgment of the Court of Appeal that the argument presented to it was put in a slightly different form. The prosecution is recorded as having argued that B had acquired a proprietary interest in a chose in action, but the argument does not appear to have been developed as to how this fed through into the charge made against the respondent. Lloyd Jones LJ, delivering the judgment of the Court of Appeal, said that the argument did not assist the prosecution in this case because the particulars in the indictment identified the criminal property as money received into the accounts opened by the respondent. He added that the court did not consider it necessary to express a view on whether the fraud transactions may have given rise to property of another character, which he said was only touched upon and not fully argued before the court. In this court Mr Talbot took the point that property will amount to criminal property if it constitutes or represents a benefit from criminal conduct; and so, if there was an underlying chose in action which the money paid into the account represented, the money paid would satisfy the definition of being criminal property. 42. That argument is sound as far as it goes, but the appellant faces a more fundamental problem in seeking to identify the alleged chose in action. POCA defines property as including a thing in action, but, if the prosecution is going to advance a case on that basis, it has to identify and prove the nature of the proprietorial right. Mr Talbot suggested initially that B had some sort of contractual right against the victims of his fraud, but any supposed contract would presumably have been between AM Insurance and the victims, and there is no evidence before the court to show what form any such putative contract may have taken. The prosecution would have to establish the existence of a prior bilateral contract (ie a contract which bound the purchaser in advance of paying the supposed premium), rather than a unilateral contract (ie an offer by AM Insurance which was available for acceptance by the would be insured paying the premium quoted). Other questions might arise as to whether there was any legal chose in action prior to the payments made by the victims, but it is sufficient to say that there is a stark absence of material before this court to substantiate a case of the nature suggested. There may be cases properly founded on the laundering of property in the form of a chose in action, but it is not a subject with which jurors or, for that matter, judges of the Crown Court are likely to be readily familiar. If the prosecution is going to advance a case on that basis, it has not only to consider whether the case is capable of being presented in a readily comprehensible way (or whether there might be a different and simpler method of approach) but also to ensure that its tackle is properly in order. Abstract references to a chose in action, without the basis being clearly and properly identified and articulated, are a recipe for confusion. Was the actus reus of the offence committed by reason of the arrangement facilitating the retention, use or control of the money paid into the accounts? 43. The particulars in the indictment made no reference to the acquisition of criminal property. They alleged that the respondent and another entered into or became concerned in an arrangement which they knew or suspected would facilitate the retention, use or control of criminal property. As a matter of pleading, the Court of Appeal rightly criticised the form of the particulars for including the words would facilitate. It should have been alleged that the defendants entered into or became concerned in an arrangement which, as they knew or suspected, facilitated the retention, use or control of criminal property (or words to that effect). 45. 44. Looking at the substance of the matter, the money paid by the victims into the accounts was lawful money at the moment at which it was paid into those accounts. It was therefore not a case of the account holder acquiring criminal property from the victims. But by the arrangement the respondent facilitated also the retention, use and control of the money by or on behalf of B. Did the arrangement regarding the facilitation of the retention, use and control of the money fall foul of section 328 on the basis that it was criminal property at that stage, since it was the proceeds of a fraud perpetrated on the victims? It was submitted on behalf of the prosecution before the Court of Appeal and in this court that in that respect the arrangement fell squarely within the ambit of section 328. The Court of Appeal treated the case as indistinguishable from Geary and rejected the argument. Lloyd Jones LJ said at para 39: Although the arrangement particularised in count two is limited to facilitation of the retention, use and control of criminal property, facilitation of the acquisition of the money via those accounts is, on the Crowns factual case, an integral part of that arrangement. It seems to us that in these circumstances it is both artificial and illegitimate to seek to sever one element of an integral arrangement (facilitation of acquisition) in order to leave other elements (facilitation of retention, use and control) which, if considered in isolation to constitute the arrangement, would relate to criminal property. Moreover, the position cannot be improved by artificially limiting the particulars of offence alleged in count two to certain elements of the wider arrangement which the Crown maintains was in fact entered into. 46. There is an important distinction between the facts of Geary and the present case. In Geary it would indeed have been artificial to regard the property as changing its character between the defendant receiving it and repaying it. The property belonged to Harrington at all times and, more importantly, his interest in it was lawful on the facts known to the defendant. It was not a case of the defendant holding proceeds originating from a crime independent of the arrangement made between them. It was Harringtons lawfully owned property when it was paid to the defendant, and it remained his lawfully owned property throughout the time that the defendant had possession of it. It bore no criminal taint apart from the arrangement made between them. The fact that the arrangement involved a conspiracy to pervert the cause of justice did not mean that the money had a criminal quality independent of the arrangement. 47. The present case is different. The character of the money did change on being paid into the respondents accounts. It was lawful property in the hands of the victims at the moment when they paid it into the respondents accounts. It became criminal property in the hands of B, not by reason of the arrangement made between B and the respondent but by reason of the fact that it was obtained through fraud perpetrated on the victims. There is no artificiality in recognising that fact, and I do not see it as illegitimate to regard the respondent as participating in (or, in the language of section 328, entering into or becoming concerned in) an arrangement to retain criminal property for the benefit of another. For that reason, the ruling that the respondent had no case to answer was erroneous and this appeal should be allowed. 48. The same reasoning applies to sections 327 and 329. A thief is not guilty of acquiring criminal property by his act of stealing it from its lawful owner, but that does not prevent him from being guilty thereafter of an offence under one or other, or both, of those sections by possessing, using, concealing, transferring it and so on. The ambit of those sections is wide. However, it would be bad practice for the prosecution to add additional counts of that kind unless there is a proper public purpose in doing so, for example, because there may be doubt whether the prosecution can prove that the defendant was the thief but it can prove that he concealed what he must have known or suspected was stolen property, or because the thiefs conduct involved some added criminality not just as a matter of legal definition but sufficiently distinct from the offence that the public interest would merit it being charged separately. Brinks Mat Ltd v Noye [1991] 1 Bank LR 68 provides a notorious example of the laundering of the proceeds of the theft of gold bars from a warehouse, but the conduct of thieves in laundering property stolen by them would not have to be on such a grand scale to merit them being prosecuted for it. 49. The courts should be willing to use their powers to discourage inappropriate use of the provisions of POCA to prosecute conduct which is sufficiently covered by substantive offences, as they have done in relation to handling stolen property. A person who commits the offence of handling stolen property contrary to section 22 of the Theft Act 1968 is also necessarily guilty of an offence under section 329 of POCA, but the Court of Appeal has discouraged any practice of prosecuting such cases under POCA instead of charging the specific statutory offence under the Theft Act (see R (Wilkinson) v Director of Public Prosecutions [2006] EWHC 3012 (Admin) and R v Rose [2008] EWCA Crim 239, [2008] 1 WLR 2113, para 20). It is unlikely that the prosecution would fail to respect the view of the court in such a matter and it is unnecessary to consider what power the court might have in such an unlikely event. I have some doubt about the correctness of Moore Bick LJs obiter dictum in Geary that on the facts of that case the defendant could have been charged with an offence of converting or transferring criminal property contrary to section 327, for the same reasons as I have given in differentiating that case from the present. However, the object of Moore Bick LJs observation was to make the broader point that it is undesirable to give a strained and unduly broad interpretation to section 328, particularly where the conduct would fall within another section of the Act, and with that broad proposition I am in full agreement. 50. The phrasing of the certified question is not entirely apt because it asks whether the arrangement to receive and retain money in a bank account can be treated as both rendering the property criminal property and facilitating its retention, use or control. What rendered the property which the respondent received from the victims criminal property was not the arrangement made between B and the respondent, but the fact that it was obtained from the victims by deception. For the reasons explained, the arrangement between B and the respondent for its retention is capable of constituting an offence under section 328. |
This litigation arises from alleged toxic emissions from the Nchanga Copper Mine in the Chingola District of Zambia. The claimants, who are the respondents to this appeal, are a group currently consisting of some 1,826 Zambian citizens who live in four communities within the Chingola District. They are, by any standards, very poor members of rural farming communities served by watercourses which provide their only source of water for drinking (by themselves and their livestock) and irrigation for their crops. They say that both their health and their farming activities have been damaged by repeated discharges of toxic matter from the Nchanga Copper Mine into those watercourses, from 2005 to date. The Nchanga Copper Mine (the Mine) consists, in part, of an open cast mine, said to be the second largest in the world, and in part of a deep mine. Its immediate owner is the second defendant Konkola Copper Mines plc (KCM), which is a public company incorporated in Zambia. KCM is the largest private employer in Zambia, employing some 16,000 people, mainly at the Mine. The first defendant Vedanta Resources plc (Vedanta) is the ultimate parent company of KCM. It is the parent of a multinational group, listed on the London Stock Exchange, with interests in minerals, power, oil and gas in four continents. Vedanta is incorporated and domiciled in the United Kingdom. Although Vedanta claims only to have 19 employees of its own, eight of whom are its directors, the Vedanta Group employs some 82,000 people worldwide. KCM is not a 100% subsidiary of Vedanta, since the Zambian government has a significant minority stake, but materials published by Vedanta state that its ultimate control of KCM is not thereby to be regarded as any less than it would be if wholly owned. The claims against both defendants are pleaded in common law negligence and breach of statutory duty. Those causes of action are pursued against KCM on the basis that it is the operator of the Mine. As against Vedanta, the same causes of action are said to arise by reason of the very high level of control and direction that the first defendant exercised at all material times over the mining operations of the second defendant and its compliance with applicable health, safety and environmental standards: (Particulars of Claim, para 79). This appeal is all (and only) about jurisdiction; that is, the jurisdiction of the courts of England and Wales to determine those claims against both defendants. As against Vedanta, the claimants rely upon article 4 of the Recast Brussels Regulation (Regulation (EU) 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters). As against KCM the claimants rely upon what may loosely be called the necessary or proper party gateway of the English procedural code for permitting service of proceedings out of the jurisdiction, now to be found mainly in para 3.1 of CPR Practice Direction 6B. The procedural background to this appeal is, in outline, as follows. The claimants issued the Claim Form in July 2015. Vedanta was served within the jurisdiction. Service was effected on KCM out of the jurisdiction pursuant to permission obtained on a without notice application on 19 August 2015. Both Vedanta and KCM applied to challenge jurisdiction, in September and October 2015 respectively. Their applications were heard together, over three days in April 2016, by Coulson J, who delivered a comprehensive reserved judgment dismissing them on 27 May 2016 [2016] EWHC 975 (TCC). The defendants appeals were heard over two days in July 2017 and dismissed, again in a comprehensive reserved judgment, in October 2017 [2018] 1 WLR 3575. The defendants further appeals to this court were heard, again over two full days, in January 2019. Proportionality It is necessary to say something at the outset about the disproportionate way in which these jurisdiction issues have been litigated. In Spiliada Maritime Corpn v Cansulex Ltd (the Spiliada) [1987] AC 460, 465, Lord Templeman said this, about what was, even then, the disproportionate manner in which jurisdiction challenges were litigated: In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre eminently a matter for the trial judge. Commercial Court judges are very experienced in these matters. In nearly every case evidence is on affidavit by witnesses of acknowledged probity. I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere. That dictum is, in my mind equally applicable to all the judges in what are now the Business and Property Courts of England and Wales, including, as in this case, the Technology and Construction Court. That requirement for proportionality, and for respect to be given to first instance decisions on jurisdiction, has been repeated, perhaps in less colourful terms, in numerous subsequent cases. In VTB Capital plc v Nutritek International Corpn [2013] 2 AC 337, Lord Neuberger of Abbotsbury said this, at paras 82 to 83: 82. The first point is that hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost. There is also a real danger that, if the hearing is an expensive and time consuming exercise, it will be used by a richer party to wear down a poorer party, or by a party with a weak case to prevent, or at least to discourage, a party with a strong case from enforcing its rights. 83. Quite apart from this, it is simply disproportionate for parties to incur costs, often running to hundreds of thousands of pounds each, and to spend many days in court, on such a hearing. The essentially relevant factors should, in the main at any rate, be capable of being identified relatively simply and, in many respects, uncontroversially. There is little point in going into much detail: when determining such applications, the court can only form preliminary views on most of the relevant legal issues and cannot be anything like certain about which issues and what evidence will eventuate if the matter proceeds to trial. At para 84 Lord Neuberger cited dicta to the same effect by Waller LJ in Cherney v Deripaska (No 2) [2010] 2 All ER (Comm) 456, para 7, in which he concluded that it would have been better for both parties and better use of court time if they had expended their money and their energy on fighting the merits of the claim. Jurisdiction challenges frequently raise questions about whether the claim against one or more of the defendants raises a triable issue. As it is now common ground, this broadly replicates the summary judgment test. Issues of this kind are, regardless whether contained within jurisdiction disputes, subject to a similar requirement for proportionality, the avoidance of mini trials and the exercise of judicial restraint, in particular in complex cases, as was emphasised in the following well known passage from the speech of Lord Hope of Craighead in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1: 94. For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is what is to be the scope of that inquiry? I would approach that further question in this way. The 95. method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman [[2001] 1 All ER 91], at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. 96. In Wenlock v Moloney [1965] 1 WLR 1238 the plaintiffs claim of damages for conspiracy was struck out after a four day hearing on affidavits and documents. Danckwerts LJ said of the inherent power of the court to strike out, at p 1244B C: this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power. The extent to which these well known warnings have been ignored in this litigation can be measured by the following statistics about the materials placed before this court. The parties two written cases (ignoring annexes) ran to 294 pages. The electronic bundles included 8,945 pages. No less than 142 authorities were deployed, spread over 13 bundles, in relation to an appeal which, on final analysis, involved only one difficult point of law. A particular reason for the requirement to exercise proportionality in jurisdiction disputes of this kind is that, in most cases, they involve a contest between two competing jurisdictions in either of which the parties could obtain substantial justice. The exception, an issue whether substantial justice is obtainable in one of the competing jurisdictions, may require a deeper level of scrutiny, not least because a conclusion that a foreign jurisdiction would not provide substantial justice risks offending international comity. Such a finding requires cogent evidence, which may properly be subjected to anxious scrutiny. Nonetheless, the fact that such an issue arises in a particular case (as in this appeal) is no excuse for ignoring the requirement for proportionality in relation to all the other issues. Judicial restraint is of particular importance in relation to jurisdiction disputes which, wholly exceptionally, reach this court, in particular in cases such as the present, where the Court of Appeal has already concurred with the fact finding and evaluative analysis of the first instance judge. The essential business of this court is to deal with issues of law, rather than fact finding or the re exercise of discretion. The pursuit of detailed matters of factual (or evaluative) analysis in this court is therefore inappropriate, both because it is likely to involve a needless and useless misapplication of the parties time and resources, and because it distracts this court from its proper focus upon real issues of law. Nor is it permissible to dress up what is in reality a factual dispute as if it were, or involved, a misdirection in law by the first instance judge. As will appear, a telling example in the present case is the appellants assertion that Coulson J applied an insufficiently rigorous or detailed analysis of the claimants pleaded case against Vedanta, for the purpose of deciding whether it disclosed a real issue to be tried. Within every jurisdiction dispute, or embedded question whether there is a triable issue, the first instance judge faces a typical quandary: how to balance the requirement for proportionality against the need to ensure that resources are not wasted on an unnecessary trial. The choice, at how deep a level of detail to conduct that analysis and then in how much detail to express conclusions in a judgment, are matters for the experienced first instance judge, with which an appellate court should be slow to interfere. The fact that it has been necessary, despite frequent judicial pronouncements to the same effect, yet again to emphasise the requirements of proportionality in relation to jurisdiction appeals, suggests that, unless condign costs consequences are made to fall upon litigants, and even their professional advisors, who ignore these requirements, this court will find itself in the unenviable position of beating its head against a brick wall. The issues on this appeal Although technically there are two appeals, one by each of the defendants, they are closely interrelated and the proceedings before this court are best understood as a single appeal. The issues, and the interrelationship between them, can most easily be summarised by reference to the structure applicable to the establishment of jurisdiction in claims against defendants one of which is domiciled within, and the other without, the jurisdiction of the English court. The defendant domiciled here will be referred to as the anchor defendant. The defendant domiciled abroad will be referred to as the foreign defendant. The essential structure is common ground and may therefore be briefly summarised. the Recast Brussels Regulation, which provides that: Jurisdiction against the anchor defendant derives directly from article 4.1 of Subject to this Regulation, persons domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state. That basic provision is designed not only for the protection of EU domiciliaries, but also to enable a claimant to know, with reasonable certainty, where he may sue. In Owusu v Jackson (Case C 281/02) [2005] QB 801 the Court of Justice held, contrary to earlier English jurisprudence, that this conferred a right on any claimant (regardless of their domicile) to sue an English domiciled defendant in England, free from jurisdictional challenge upon forum non conveniens grounds, even where the competing candidates for jurisdiction were England (part of a member state) and some other non member state such as, here, Zambia. The decision related to article 2 of the earlier Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, which was in identical terms to the present Recast Brussels Regulation. This does not, of course, prevent any defendant from seeking to have a claim struck out as an abuse of process or as disclosing no reasonable cause of action, or from seeking reverse summary judgment upon the basis that the claim discloses no triable issue against that defendant. Vedanta has not pursued a strike out or summary judgment application of that kind, but both it and KCM assert that the claimants pleaded case and supporting evidence disclose no real triable issue against Vedanta, because Vedanta cannot be shown to have done anything in relation to the operation of the Mine sufficient either to give rise to a common law duty of care in favour of the claimants, or a statutory liability as a participant in breaches of Zambian environmental protection, mining and public health legislation. Vedanta was, it is said, merely an indirect owner of KCM, and no more than that. Secondly, Vedanta maintains that, even if the pleaded claim discloses a triable issue against it, nonetheless the claim should be stayed as an abuse of EU law, because the claimants are using a claim against Vedanta in England purely as a vehicle for attracting English jurisdiction against their real target defendant, KCM, by means of the necessary or proper party gateway. Both these submissions were rejected by the judge, and by the Court of Appeal, but are pursued here, with the requisite permission of this court. Further, the appellants submit that the issue as to abuse of EU law deserves a reference to the Court of Justice. The claimants invocation of English jurisdiction as against KCM depends, as already noted, upon the necessary or proper party gateway. This forms a long established part of English private international law which, pursuant to article 6.1 of the Recast Brussels Regulation, is determinative of the jurisdiction of the English courts against a defendant, like KCM, not domiciled in a member state. The necessary or proper party gateway long ante dates the Civil Procedure Rules but is now enshrined in Part 6 Practice Direction B para 3.1 as follows: The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where (3) A claim is made against a person (the defendant) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and there is between the claimant and the (a) defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim. The express terms of the Practice Direction set out only part of what a claimant relying upon the necessary or proper party gateway must show. It is common ground that, by reference to those terms and well settled authority, the claimant must demonstrate as follows: that the claims against the anchor defendant involve a real issue to be if so, that it is reasonable for the court to try that issue; that the foreign defendant is a necessary or proper party to the claims i) tried; ii) iii) against the anchor defendant; iv) success; v) that, either, England is the proper place in which to bring the combined claims or that there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place, or the convenient or natural forum. that the claims against the foreign defendant have a real prospect of As already noted, the question whether the claims disclose a real triable issue against Vedanta is a main issue on this appeal. It is however accepted that, if the claimants surmount this hurdle, it would be reasonable for the English court to try that issue, and that KCM would be at least a proper party to the claims against Vedanta. It is also (now) common ground that the claims against KCM have a real prospect of success. Both the judge and the Court of Appeal found in the claimants favour on real issue and proper place. In addition, they both found that, even if Zambia would otherwise have been the proper place in which to bring the claims, there was a real risk that the claimants would not obtain substantial justice in the Zambian jurisdiction. Those questions remain in issue on this appeal. In the remainder of this judgment, the issues will be addressed in the following order: i) Abuse of EU law. ii) Real issue as against Vedanta. iii) Proper place. iv) Substantial justice. Abuse of EU law The essence of the appellants case under this heading may be summarised as follows. First, it is an abuse of EU law to use article 4 of the Recast Brussels Regulation as a means of enabling claimants to establish jurisdiction against an anchor defendant for the collateral purpose of attracting a member states international jurisdiction against foreign defendants, who are the real targets of the claim. It is said that, whereas article 4 is designed to protect defendants domiciled within the EU, this abuse exposes to litigation domiciled parent companies who would not, apart from their status as anchor defendants, otherwise be sued at all. The judges response was to acknowledge that there might be an abuse if the pursuit of the anchor defendant had been for the sole purpose of attracting jurisdiction as against the foreign defendant, but not otherwise. He found, on the facts, that although the prospect of attracting jurisdiction against KCM was a substantial reason why the claimants sued Vedanta in England, it was not their only reason. They had a bona fide claim, disclosing a real issue for trial, against Vedanta and a desire to obtain judgment against Vedanta rather than merely against KCM, because of a perception, supported by some evidence, that KCM might prove to be of doubtful solvency. Faced with those findings of fact as to the claimants motivation, the appellants pursue this ground of appeal upon the basis that the judges application of a sole purpose test for abuse of EU law was too narrow or, at least, not acte clair, thereby necessitating a reference to the Court of Justice. For the purposes of analysis, the abuse of EU law claim needs to be approached upon the assumption, but without at this stage deciding, that the claim discloses a real triable issue as against Vedanta. If it does not, then Vedanta falls away as an anchor defendant, and the necessary or proper party gateway, as against KCM, closes. Furthermore, as will appear, I consider that the judges conclusion that the claim discloses a real triable issue as against Vedanta cannot be overturned in this court. Nor can the judges conclusion that Vedanta was not sued by the claimants in England for the sole purpose of attracting English jurisdiction over KCM be challenged on this appeal. His conclusion that Vedanta was sued in England for the genuine purpose of obtaining damages, albeit that attracting English jurisdiction over KCM was an important contributor to that decision, was a finding of fact. Although arrived at by a necessarily summary process which did not permit cross examination of the claimants witness evidence as to motive, it was well supported by evidence that the claimants risked finding, after obtaining judgment against KCM, that it was unable to pay the judgment debt. The judges findings of fact on this issue were endorsed by the Court of Appeal (at para 38 per Simon LJ). They were final findings, in the sense that those factual issues will not be revisited at any later stage in the proceedings. It is contrary to the practice of this court to re open concurrent factual findings made in both the courts below. To be fair, counsel for each of the appellants made no significant effort to do so. basis that: a) b) Vedanta; but, c) one of the principal reasons (although not the sole reason) why the claimants sued Vedanta in England was so as to be able, by the use of article 4 and the necessary or proper party gateway in conjunction, to sue KCM in England as well. the claimants have pleaded a real triable issue against Vedanta; the claimants genuinely desire to obtain judgment for damages against I therefore approach the legal analysis of this abuse of EU law issue on the On that factual basis, I am satisfied, to the extent that the point is acte clair, that the EU principle of abuse of law does not avail the appellants. The starting point is the need to recognise that, following Owusu v Jackson, what is now article 4.1 lays down the primary rule regulating the jurisdiction of each member state to entertain claims against persons domiciled in that state. The Recast Brussels Regulation itself (like its predecessors) contains a number of express provisions which derogate from that primary rule. As exceptions to it, they are all to be narrowly construed. If, therefore, the Recast Brussels Regulation also contains (as it probably does) an implied exception from the otherwise automatic and mandatory effect of article 4, based upon abuse of EU law, then that is also an exception which is to be narrowly construed. The centrality of article 4, as the basis of member states jurisdiction over their own domiciliaries, is laid down not only in Owusu v Jackson itself, but in a series of later authorities, and fully recognised by academic writers, even those who, prior to Owusu v Jackson, had taken the opposite view where the relevant competition between jurisdictions lay between a member state and a non member state. Decisions of the Court of Justice which have re emphasised the centrality of article 4, and the need to construe any exceptions or derogations from it restrictively, include Melzer v MF Global UK Ltd (Case C 228/11) [2013] QB 1112, at paras 23 to 24 of the judgment. Dicta in the English courts to the same effect include, in this court, A v A (Children: Habitual Residence) [2014] AC 1, per Lady Hale at para 31 and, more recently, AMT Futures Ltd v Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft mbH [2018] AC 439, per Lord Hodge at para 13. Distinguished academics who are (now) of the same view include Professor Adrian Briggs who in Private International Law in English Courts (2014), at para 4.362, concludes that, since Owusu, the ship has now sailed and in Civil Jurisdiction and Judgments, 6th ed (2015), at para 2.304, that the answer is clear, and debate has moved on. Of the same view are (now) the editors of Dicey, Morris & Collins on Conflict of Laws, 15th ed (2012), at para 12 020. There are a small number of cases in the Court of Justice where either the Court or the Advocate General has addressed specifically the question of abuse of law in the context of the Recast Brussels Regulation and its predecessors. They mainly concern the alleged abusive use of article 8.1 (formerly article 6.1) as a means of circumventing article 4 (formerly article 2). Article 8.1 contains provision (in a much more mechanical form than the English forum conveniens doctrine) for a limited departure from article 4, by providing that: A person domiciled in a member state may also be sued: 1) Where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings; It is therefore a limited form of necessary or proper party gateway out of the strictures of article 4. When read with the enabling words of article 5, it gives the claimant a choice to sue an EU domiciled defendant in a member state other than that of its domicile in order to avoid the risk of irreconcilable judgments. It is of no direct relevance in the present case because there is no co defendant to the claim against Vedanta domiciled in another member state. Since article 8.1 is itself to be restrictively interpreted because it derogates from the primary rule of jurisdiction in article 4, it might be thought that the Court of Justice would liberally apply an abuse of law principle where it perceived that article 8 was being misused as a means of circumventing article 4. Nonetheless the cases show that abuse of EU law has been restrictively interpreted, even in that context. In Freeport plc v Arnoldsson (Case C 98/06) [2008] QB 634 the claimant sought to use article 6.1 of the Judgments Regulation (EC) No 44/2001 (the predecessor of article 8.1) as a means of invoking the jurisdiction of the Swedish courts over a claim against an English company, because a Swedish company was a co defendant. One of the objections raised by the English defendant was that the claimant was making an abusive use of article 6.1, by joining the Swedish company as a vehicle for that purpose, so as to disable the primary rule (then in article 2) requiring the English company to be sued in England. At para 66 of his opinion, Advocate General Mengozzi said that in order to disapply article 6.1 it would be necessary to show not merely that the claimant had joined the Swedish defendant for the sole object of removing one of those defendants from the courts of his own domicile but also that it would be necessary to show, not merely fraudulent or wrongful intent, but that the action bought against the defendant domiciled in the forum member state appears to be unfounded manifestly unfounded in all respects to the point of proving to be contrived or devoid of any real interest for the claimant. Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (Evonik Degussa GmbH intervening) (Case C 352/13) [2015] QB 906 was another case about an alleged abuse of article 6.1 in an international cartel case against defendants domiciled in a number of member states. It was said that the claimants had deliberately delayed settlement of a claim against a German defendant for the purpose of attracting the jurisdiction of the German courts against co defendants domiciled in other member states, thereby committing an abuse of article 6.1. Advocate General Jskinen advised, at para 84 of his opinion, that: In accordance with the courts consistent case law, the rule [on jurisdiction laid down in article 6(1) of the Brussels I Regulation] cannot be interpreted in such a way as to allow a plaintiff to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the member state in which that defendant is domiciled (my emphasis). In its judgment, the Court of Justice expressly affirmed that opinion in para 27, adding at para 33 that in the context of cartel cases nothing short of collusion between the claimant and the anchor defendant would be sufficient to engage the abuse of law principle. Those decisions of the Court of Justice show that, even before the Freeport case, there was an established line of authority which limited the use of the abuse of EU law principle as a means of circumventing article 6 (now article 8) to cases where the ability to sue a defendant otherwise than in the member state of its domicile was the sole purpose of the joinder of the anchor defendant. Even though there appears to be no authority directly upon abuse of EU law in relation to article 4 itself (or its predecessors), the need to construe any express or implied derogation from article 4 restrictively would appear to make the position a fortiori in relation to article 4, as indeed the judge himself held. But the matter does not stop there. Such jurisprudence as there is about abuse of EU law in relation to jurisdiction suggests that the abuse of law doctrine is limited to the collusive invocation of one EU principle so as improperly to subvert another. In the present case the position is quite different. The complaint is that article 4 is being used as a means of circumventing or misusing the English national regime for the identification of its international jurisdiction over persons not domiciled in any member state: ie the forum conveniens jurisprudence and, specifically, the necessary or proper party gateway. This complaint forms a central theme in the appellants submissions not only about abuse of EU law, but also about the necessary or proper party gateway itself. It is worth close examination at this stage because, to the extent that it is well founded, it raises the question whether the remedy (if any) for its adverse consequences is to be found in EU law or in the English private international law traditionally called the forum conveniens doctrine. Prior to Owusu v Jackson (although, as is now recognised, illegitimately once the UK had become a member state) the English courts took a two handed approach to any attempt to use the ability to serve an anchor defendant (domiciled in England) as of right, coupled with invocation of the necessary or proper party gateway as the basis for obtaining permission to serve a foreign defendant out of the jurisdiction in cases where, leaving aside the risk of irreconcilable judgments, the natural forum was the jurisdiction where the foreign defendant was domiciled. With one hand, the court could refuse (or set aside) permission to serve the foreign defendant out of the jurisdiction. With the other hand the court could stay the proceedings against the anchor defendant, in both cases on the basis that the foreign jurisdiction was the forum conveniens (or using the CPR English equivalent, the proper place) for the conduct of the litigation as a whole. By dealing with the claims against both defendants, the English court thereby neatly avoided the risk of irreconcilable judgments or multiplicity of proceedings. Following Owusu v Jackson the English court has one hand tied behind its back. No more can it stay the proceedings against the anchor defendant on forum conveniens grounds. This is the precise ratio of Owusu v Jackson, and the Court of Justice was fully aware of the difficulties which that conclusion would be likely to cause in the traditional exercise of the English courts forum conveniens jurisprudence in such cases. The result is, in a case (such as the present) where the English court is persuaded that, whatever happens to the claim against the foreign defendant, the claimants will in fact continue in England against the anchor defendant, the risk of irreconcilable judgments becomes a formidable, often insuperable, obstacle to the identification of any jurisdiction other than England as the forum conveniens. Thus not only is one of the courts hands tied behind its back, but the other is, in many cases, effectively paralysed. In the context of group litigation about environmental harm, the appellants say that it has the almost inevitable effect that, providing a minimum level of triable issue can be identified against an English incorporated parent, then litigation about environmental harm all around the world can be carried on in England, wherever the immediate cause of the damage arises from the operations of one of that groups overseas subsidiaries. Two consequences flow from that analysis. The first is that, leaving aside those cases where the claimant has no genuine intention to seek a remedy against the anchor defendant, the fact that article 4 fetters and paralyses the English forum conveniens jurisprudence in this way in a necessary or proper party case cannot itself be said to be an abuse of EU law, in a context where those difficulties were expressly recognised by the Court of Justice when providing that forum conveniens arguments could not be used by way of derogation from what is now article 4. The second is that to allow those very real concerns to serve as the basis for an assertion of abuse of EU law would be to erect a forum conveniens argument as the basis for a derogation from article 4, which is the very thing that the Court of Justice held in Owusu v Jackson to be impermissible. In my view, if there is a remedy for this undoubted problem, it lies in an appropriate adjustment of the English forum conveniens jurisprudence, not so as to permit the English court to stay the proceedings against the anchor defendant, if genuinely pursued for a real remedy, but rather to temper the rigour of the need to avoid irreconcilable judgments which has, thus far, served to disable the English court from concluding that any jurisdiction other than its own is the forum conveniens or proper place for the litigation of the claim against the foreign defendant. As will appear, I consider that there is a solution to this difficulty along those lines, where the anchor defendant is prepared to submit to the jurisdiction of the domicile of the foreign defendant in a case where, as here, the foreign jurisdiction would plainly be the proper place, leaving aside the risk of irreconcilable judgments. For those reasons I would resolve the abuse of EU law issue in favour of the claimants, without any need for a reference to the Court of Justice. Real issue to be tried as against Vedanta The single task of the judge under this heading was to decide whether the claim against Vedanta could be disposed of, and rejected, summarily, without the need for a trial. This is because, although Vedanta made no reverse summary judgment application of its own, the assertion by a foreign defendant seeking to set aside permission to serve outside the jurisdiction under the necessary or proper party gateway that the claim against the anchor defendant discloses no real issue to be tried involves, as is now agreed, a summary judgment test: see Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804, per Lord Collins of Mapesbury at para 82. That was a case about the civil procedure rules of the Isle of Man but the Judicial Committee of the Privy Council treated those provisions as in substance no different in their effect from those in the English Civil Procedure Rules: see para 67. Summary judgment disputes arise typically, and real triable issue jurisdiction disputes arise invariably, at a very early stage in the proceedings. In the context of a jurisdiction challenge the court will, typically, have only the claimants pleadings. Proportionality effectively prohibits cross examination and neither party will have had the benefit of disclosure of the opposing partys documents, albeit that in exceptional circumstances a direction for limited specific disclosure may be given: see Rome v Punjab National Bank (No 1) [1989] 2 All ER 136, per Hirst J, para 141 and Flatela Vava v Anglo American South Africa Ltd [2012] EWHC 1969 (QB). No order for limited disclosure was sought or made in the present case. The extent to which the absence of disclosure of defendants documents may impede claimants in demonstrating a triable issue depends of course upon what are said to be the defects in its case. In the present case the critical question is whether Vedanta sufficiently intervened in the management of the Mine owned by its subsidiary KCM to have incurred, itself (rather than by vicarious liability), a common law duty of care to the claimants or, (on the claimants expert evidence), a fault based liability under the Zambian environmental, mining and public health legislation in connection with the escapes of toxic materials from the Mine alleged to have caused the relevant harm. The level of intervention in the management of the Mine requisite to give rise to a duty of care upon Vedanta to persons living, farming and working in the vicinity is (as is agreed) a matter of Zambian law, but the question whether that level of intervention occurred in the present case is a pure question of fact. I make no apology for having suggested during argument that it is blindingly obvious that the proof of that particular pudding would depend heavily upon the contents of documents internal to each of the defendant companies, and upon correspondence and other documents passing between them, currently unavailable to the claimants, but in due course disclosable. This poses a familiar dilemma for judges dealing with applications for summary judgment. On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue: see Tesco Stores Ltd v Mastercard Inc [2015] EWHC 1145, per Asplin J at para 73. The main thrust of the appellants case under this heading was that a conclusion that Vedanta had incurred a duty of care to the claimants would involve a novel and controversial extension of the boundaries of the tort of negligence, beyond any established category, calling for a cautious incremental approach by analogy with established categories, which therefore required a detailed investigation of the claimants case, which neither the judge nor the Court of Appeal carried out. It was submitted therefore that this court needed to carry out that detailed analysis. For that purpose Mr Charles Gibson QC for KCM undertook, mainly in writing, a thorough review of the appellants published documents describing their relationship, and Mr Richard Hermer QC for the claimants responded in kind, albeit to some extent under protest that this was not an exercise which this court ought to undertake. It might be thought that an assertion that the claim against Vedanta raised a novel and controversial issue in the common law of negligence made it inherently unsuitable for summary determination. It is well settled that difficult issues of law of that kind are best resolved once all the facts have been ascertained at a trial, rather than upon the necessarily abbreviated and hypothetical basis of pleadings or assumed facts. The appellants submission that this case involves the assertion of a new category of common law negligence liability arises from the fact that, although the claimants chose to plead their case by seeking to fit its alleged facts within a series of four indicia given by the Court of Appeal in Chandler v Cape plc [2012] 1 WLR 3111, it was submitted that this was by no means a Chandler type of case. It may, like the claim in the Chandler case, loosely be categorised as a claim that a parent company has incurred a common law duty of care to persons (in this case neighbours rather than employees) harmed by the activities of one of its subsidiaries. But the liability of parent companies in relation to the activities of their subsidiaries is not, of itself, a distinct category of liability in common law negligence. Direct or indirect ownership by one company of all or a majority of the shares of another company (which is the irreducible essence of a parent/subsidiary relationship) may enable the parent to take control of the management of the operations of the business or of land owned by the subsidiary, but it does not impose any duty upon the parent to do so, whether owed to the subsidiary or, a fortiori, to anyone else. Everything depends on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary. All that the existence of a parent subsidiary relationship demonstrates is that the parent had such an opportunity. Mr Gibson and Mr Hermer were eventually ad idem in commending to the court the pithy and in my view correct summary of this point by Sales LJ in AAA v Unilever plc [2018] EWCA Civ 1532, para 36: There is no special doctrine in the law of tort of legal responsibility on the part of a parent company in relation to the activities of its subsidiary, vis vis persons affected by those activities. Parent and subsidiary are separate legal persons, each with responsibility for their own separate activities. A parent company will only be found to be subject to a duty of care in relation to an activity of its subsidiary if ordinary, general principles of the law of tort regarding the imposition of a duty of care on the part of the parent in favour of a claimant are satisfied in the particular case. The legal principles are the same as would apply in relation to the question whether any third party (such as a consultant giving advice to the subsidiary) was subject to a duty of care in tort owed to a claimant dealing with the subsidiary. Helpful guidance as to relevant considerations was given in Chandler v Cape plc; but that case did not lay down a separate test, distinct from general principle, for the imposition of a duty of care in relation to a parent company. He continued, at para 37: Although the legal principles are the same, it may be that on the facts of a particular case a parent company, having greater scope to intervene in the affairs of its subsidiary than another third party might have, has taken action of a kind which is capable of meeting the relevant test for imposition of a duty of care in respect of the parent. He proceeded then to provide typical examples, which included this case, which had already by then been decided by the Court of Appeal. Sales LJ thought that cases where the parent might incur a duty of care to third parties harmed by the activities of the subsidiary would usually fall into two basic types: (i) Where the parent has in substance taken over the management of the relevant activity of the subsidiary in place of or jointly with the subsidiarys own management; (ii) Where the parent has given relevant advice to the subsidiary about how it should manage a particular risk. For my part, I would be reluctant to seek to shoehorn all cases of the parents liability into specific categories of that kind, helpful though they will no doubt often be for the purposes of analysis. There is no limit to the models of management and control which may be put in place within a multinational group of companies. At one end, the parent may be no more than a passive investor in separate businesses carried out by its various direct and indirect subsidiaries. At the other extreme, the parent may carry out a thoroughgoing vertical reorganisation of the groups businesses so that they are, in management terms, carried on as if they were a single commercial undertaking, with boundaries of legal personality and ownership within the group becoming irrelevant, until the onset of insolvency, as happened within the Lehman Brothers group. Mr Gibson sought to extract from the Unilever case and from HRH Emere Godwin Bebe Okpabi v Royal Dutch Shell plc [2018] EWCA Civ 191; [2018] Bus LR 1022, a general principle that a parent could never incur a duty of care in respect of the activities of a particular subsidiary merely by laying down group wide policies and guidelines, and expecting the management of each subsidiary to comply with them. This is, he submitted, all that the evidence thus far deployed in the present case demonstrated about the Vedanta Group. Again, I am not persuaded that there is any such reliable limiting principle. Group guidelines about minimising the environmental impact of inherently dangerous activities, such as mining, may be shown to contain systemic errors which, when implemented as of course by a particular subsidiary, then cause harm to third parties. In the Chandler case, the subsidiary inherited (by taking over a business formerly carried on by the parent) a system for the manufacture of asbestos which created an inherently unsafe system of work for its employees, because it was carried on in factory buildings with open sides, from which harmful asbestos dust could, and did, escape. As a result, and after a full trial, the parent was found to have incurred a duty of care to the employees of its subsidiary, and the result would surely have been the same if the dust had escaped to neighbouring land where third parties worked, lived or enjoyed recreation. It is difficult to see why the parents responsibility would have been diminished if the unsafe system of work, namely the manufacture of asbestos in open sided factories, had formed part of a group wide policy and had been applied by asbestos manufacturing subsidiaries around the world. Even where group wide policies do not of themselves give rise to such a duty of care to third parties, they may do so if the parent does not merely proclaim them, but takes active steps, by training, supervision and enforcement, to see that they are implemented by relevant subsidiaries. Similarly, it seems to me that the parent may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not in fact do so. In such circumstances its very omission may constitute the abdication of a responsibility which it has publicly undertaken. Once it is recognised that, for these purposes, there is nothing special or conclusive about the bare parent/subsidiary relationship, it is apparent that the general principles which determine whether A owes a duty of care to C in respect of the harmful activities of B are not novel at all. They may easily be traced back as far as the decision of the House of Lords in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, in which the negligent discharge by the Home Office of its responsibility to supervise Borstal boys working on Brownsea Island in Poole Harbour led to seven of them escaping and causing serious damage to moored yachts in the vicinity, including one owned by the plaintiff. The essence of the claimants case against Vedanta is that it exercised a sufficiently high level of supervision and control of the activities at the Mine, with sufficient knowledge of the propensity of those activities to cause toxic escapes into surrounding watercourses, as to incur a duty of care to the claimants. In the lengthy Particulars of Claim (in which this allegation of duty of care, together with its particulars, occupied 13 pages) the claimants make copious reference, including quoted highlights, to material published by Vedanta in which it asserted its responsibility for the establishment of appropriate group wide environmental control and sustainability standards, for their implementation throughout the group by training, and for their monitoring and enforcement. The claimants have exhibited the underlying published materials to witness statements, and relied, in addition, upon a management services agreement between Vedanta and KCM and a witness statement of a Mr Kakengela, a middle manager of KCM who gave evidence about changes in the mode of management of the Mine after KCM became part of the Vedanta Group. The judges approach to this issue may be summarised as follows. First, he accepted that it was arguable that the Zambian courts would identify the relevant principles of Zambian common law in accordance with those established in England. It is now common ground that he was entitled on the evidence to do so. Secondly, he accepted the invitation of counsel on both sides to treat Caparo Industries plc v Dickman [1990] 2 AC 605, and its three ingredients of foreseeability, proximity and reasonableness, as the starting point. This assumed, contrary to my view, that he was dealing with a novel category of common law negligence liability, but he can hardly be criticised for having done so in the light of the parties joint invitation. Thirdly he was guided by the claimants own pleaded case to focus upon the question whether the indicia in the Chandler case were satisfied. In my view, and that of the Court of Appeal in this case, the Chandler indicia are no more than particular examples of circumstances in which a duty of care may affect a parent. They were so described by Arden LJ when setting them out in the Chandler case. Although this if anything imposed an unnecessary straitjacket, both upon the claimants and the judge, it did not lead to the identification of a wider basis in law for the recognition of the relevant parental duty of care than that which, in my view, the law actually provides, by reference to basic principle. Next, the judge reminded himself, correctly in my view, that the answer to the question whether Vedanta incurred a duty of care to the claimants was likely to depend upon a careful examination of materials produced only on disclosure, and in particular upon documents held by Vedanta: see para 118. He cautioned himself against embarking on any sort of mini trial. At para 119 he said this: In the light of that view, it is unnecessary for me to identify in any detail the evidence [on] which the claimants rely in support of their case that Vedanta, as the parent company, owed a relevant duty of care. He then identified in four short sub paragraphs the particular material which supported his view that the claimants case was arguable. They included part of the published material, namely a report entitled Embedding Sustainability which, he said, stressed that the oversight of all Vedantas subsidiaries rested with the board of Vedanta itself, made particular reference to problems with discharges into water and to the particular problems arising at the Mine. He relied upon the management services agreement between Vedanta and KCM to which I have referred, upon a decision of the Irish High Court about the group (Elmes v Vedanta Lisheen Mining Ltd [2014] IEHC 73) and upon the witness statement of Mr Kakengela. He concluded by recognising the need for a cautious approach to the relevant evidence filed by KCMs principal witness Mr Ndulo, whose credibility he said had been subject to serious adverse comment (including a finding of dishonesty) by a Commercial Court judge in an earlier case: see U & M Mining Zambia Ltd v Konkola Copper Mines plc (No 3) [2014] EWHC 3250 (Comm). For its part the Court of Appeal followed a broadly similar course, while reminding itself that the Chandler indicia were no more than examples, and making a slightly different selection from the voluminous evidence of those parts of Vedantas published statements indicative at least of an arguable case for having undertaken a sufficiently close intervention into the operation of the Mine to attract the requisite duty of care. In my view the appellants primary submission under this heading, that the judge and the Court of Appeal failed to apply sufficient rigour to their analysis of the claimants pleadings and evidence on this question, fails in limine. This was not a case of the assertion, for the first time, of a novel and controversial new category of case for the recognition of a common law duty of care, and it therefore required no added level of rigorous analysis beyond that appropriate to any summary judgment application in a relatively complex case. Nor does the judges judgment disclose any lack of appropriate rigour. The question as to triable issue as against Vedanta was one of a significantly larger number of contentious issues than those which have survived in this court. The reason which the judge gave for the relative brevity of his analysis of the underlying materials in para 119 of his judgment said nothing about the depth and rigour of his own review of those materials. He was merely seeking to explain why, in what was necessarily a long and detailed judgment, having formed a clear view that the case against Vedanta was arguable, it was unnecessary to burden his judgment with a lengthy and detailed description of his own analysis. For the reasons I have already given, his legal analysis may have departed slightly from the ideal, but only in respects in which either he followed the parties joint invitation, or by imposing a straitjacket derived from the Chandler case which, if anything, increased rather than reduced the claimants burden in demonstrating a triable issue. But in that respect those imperfections were largely cleared up by the Court of Appeal which, rightly in my view, recognised that they did not undermine the judges conclusion. This court has, again, been taken at length through the relevant underlying materials. For my part, if conducting the analysis afresh, I might have been less persuaded than were either the judge or the Court of Appeal by the management services agreement between the appellants, or by the evidence of Mr Kakengela. But I regard the published materials in which Vedanta may fairly be said to have asserted its own assumption of responsibility for the maintenance of proper standards of environmental control over the activities of its subsidiaries, and in particular the operations at the Mine, and not merely to have laid down but also implemented those standards by training, monitoring and enforcement, as sufficient on their own to show that it is well arguable that a sufficient level of intervention by Vedanta in the conduct of operations at the Mine may be demonstrable at trial, after full disclosure of the relevant internal documents of Vedanta and KCM, and of communications passing between them. It matters not whether this court would have reached the same view as did the judge about triable issue. It is sufficient that, for the reasons which I have given, there was material upon which the judge could properly do so, and that his assessment was not vitiated by any error of law. Breach of statutory duty by Vedanta The claimants plead that, regardless whether Vedanta owed any common law duty of care to them, its intervention in the operation of the Mine caused it to commit breaches of duties imposed by Zambian statutes, even though KCM was the sole licensed operator of the Mine. They are the Mines and Minerals Development Act 2008, the Environmental Management Act 2011 and the Environmental Protection and Pollution Control Act 1990. Generally speaking they impose strict liability on KCM but, according to the opinion of the claimants Zambian law expert, they also impose a fault based liability on a wider range of persons. For example, section 4 of the Environmental Management Act 2011 enables the court to compel the person responsible for any environmental degradation to restore the environment to its status quo ante and to provide compensation to any victim for the harm caused. In paras 91 and following of the Particulars of Claim the same facts are repeated as are relied upon for the assertion of a common law duty of care against Vedanta by the repeated use of this rubric: In the light of the matters pleaded above and the First Defendants direction and control over the operations of the Second Defendant I must admit having some difficulty with the concept of a fault based liability which does not depend upon the existence of a prior legal duty to take care. Nonetheless, it is reasonably clear from the claimants Zambian law experts evidence (which for the purposes of testing an arguable case it is agreed must be accepted, although vigorously challenged) that substantially the same inquiry as to the extent of Vedantas intervention in the operation of the Mine is required for the purpose of establishing breach by it of statutory duty, as is required for the identification of a common law duty of care to the claimants. It follows that no useful purpose is served by a minute examination of issues about that statutory duty. Furthermore, once it is concluded that there is no basis for going behind the judges conclusion that the claimants had an arguable case in common law against Vedanta, the question whether or not the claimants have an arguable statutory claim as well can make no difference to the outcome of this appeal. For much the same reasons, both the judge and the Court of Appeal dealt with the statutory basis of claim with commendable brevity. Is England the proper place in which to bring the claim against KCM? important question of law. CPR 6.37(3) provides that: I have found this to be the most difficult issue in this appeal. It does raise an The court will not give permission [to serve the claim form out of the jurisdiction] unless satisfied that England and Wales is the proper place in which to bring the claim. (my emphasis) The italicised phrase is the latest of a series of attempts by English lawyers to label a long standing concept. It has previously been labelled forum conveniens and appropriate forum, but the changes in language have more to do with the Civil Procedure Rules requirement to abjure Latin, and to express procedural rules and concepts in plain English, than with any intention to change the underlying meaning in any way. The best known fleshed out description of the concept is to be found in Lord Goff of Chieveleys famous speech in the Spiliada case, summarised much more recently by Lord Collins in the Altimo case at para 88 as follows: The task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice; That concept generally requires a summary examination of connecting factors between the case and one or more jurisdictions in which it could be litigated. Those include matters of practical convenience such as accessibility to courts for parties and witnesses and the availability of a common language so as to minimise the expense and potential for distortion involved in translation of evidence. Although they are important, they are not necessarily conclusive. Connecting factors also include matters such as the system of law which will be applied to decide the issues, the place where the wrongful act or omission occurred and the place where the harm occurred. Thus far, the search for these connecting factors gives rise to no difficult issues of principle, even though they may not all point in the same direction. The problems thrown up by this appeal all arise from the combination of two factors. The first is that the case involves multiple defendants domiciled in different jurisdictions. The second is that, following Owusu v Jackson, the court is disabled from the exercise of its traditional common law power to stay the proceedings against the domiciled anchor defendant by reason of article 4: see paras 23 to 41 above. There can be no doubt that, when Lord Goff originally formulated the concept quoted above, he would have regarded the phrase in which the case can be suitably tried for the interest of all the parties as referring to the case as a whole, and therefore as including the anchor defendant among the parties. Although the persuasive burden was reversed, as between permission to serve out against the foreign defendant and the stay of proceedings against the anchor defendant, the court was addressing a single piece of multi defendant litigation and seeking to decide where it should, as a whole, be tried. The concept behind the phrases the forum and the proper place is that the court is looking for a single jurisdiction in which the claims against all the defendants may most suitably be tried. The Altimo case also involved multiple defendants. Although it was decided after Owusu v Jackson, it concerned the international jurisdiction of the courts of the Isle of Man, so that the particular problems thrown up by this appeal did not arise. An unspoken assumption behind that formulation of the concept of forum conveniens or proper place, may have been (prior to Owusu v Jackson) that a jurisdiction in which the claim simply could not be tried against some of the multiple defendants could not qualify as the proper place, because the consequence of trial there against only some of the defendants would risk multiplicity of proceedings about the same issues, and inconsistent judgments. But the cases in which this risk has been expressly addressed tend to show that it is only one factor, albeit a very important factor indeed, in the evaluative task of identifying the proper place. For example, in Socit Commerciale de Rassurance v Eras International Ltd (The Eras Eil Actions) [1992] 1 Lloyds Rep 570, Mustill LJ said this, at p 591: in practice the factors which make the party served a necessary or proper party will also weigh heavily in favour of granting leave to make the foreigner a party, although they will not be conclusive. In cases where the court has found that, in practice, the claimants will in any event continue against the anchor defendant in England, the avoidance of irreconcilable judgments has frequently been found to be decisive in favour of England as the proper place, even in cases where all the other connecting factors appeared to favour a foreign jurisdiction: see eg OJSC VTB Bank v Parline Ltd [2013] EWHC 3538 (Comm), per Leggatt J at para 16. That is a fair description of the judges reasoning in the present case. Having found that, looking at the matter as between the claimants and KCM, all the connecting factors pointed towards Zambia, the judge concluded that, factoring in the closely related claim against Vedanta, which he found as a matter of fact that the claimants were likely to pursue in England in any event, the risk of irreconcilable judgments arising from separate proceedings in different jurisdictions against each defendant was decisive in identifying England as the proper place: see paras 160 to 168. He said that: The alternative two trials on opposite sides of the world on precisely the same facts and events is unthinkable. It is obvious from his analysis (assuming that substantial justice could be obtained in Zambia) that, had the English court retained its jurisdiction to stay the proceedings as against Vedanta, as it was thought it did prior to Owusu v Jackson, the judge would have done so, and thereby ensured that the case was brought to trial against both defendants in Zambia. The appellants submitted that the judges approach took insufficient account of the fact that the language of CPR 6.37(3) requires the court to be satisfied that England and Wales is the proper place in which to bring the claim, rather than the proper place for trial of the case as a whole. By the claim it was submitted that the rule meant only the claim against the foreign defendant. It is evident that, if the judge had confined himself to that analysis, he would have set aside service against KCM, subject to the substantial justice issue. The appellants contrasted the wording of the predecessor rule, RSC Order 11 rule 4(2) which provided that: No such permission shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order. (my emphasis) I have not been persuaded that this change of language from the case to the claim was intended to effect any change in the previously clearly stated requirement for the court to consider the proper place for the case as a whole. In particular, the phrase the claim is used in CPR Practice Direction 6B paragraph 3.1(3) in a way which suggests that the foreign defendant must be a necessary or proper party to that claim, which is the claim which has been or will be served on the anchor defendant. I have however been much more troubled by the absence of any particular focus by the judge upon the fact that, in this case, the anchor defendant, Vedanta, had by the time of the hearing offered to submit to the jurisdiction of the Zambian courts, so that the whole case could be tried there. This did not, of course, prevent the claimants from continuing against Vedanta in England, nor could it give rise to any basis for displacing article 4 as conferring a right to do so upon the claimants. But it does lead to this consequence, namely that the reason why the parallel pursuit of a claim in England against Vedanta and in Zambia against KCM would give rise to a risk of irreconcilable judgments is because the claimants have chosen to exercise that right to continue against Vedanta in England, rather than because Zambia is not an available forum for the pursuit of the claim against both defendants. In this case it is the claimants rather than the defendants who claim that the risk of irreconcilable judgments would be prejudicial to them. Why (it may be asked) should that risk be a decisive factor in the identification of the proper place, when it is a factor which the claimants, having a choice, have brought upon themselves? Although this is not a question which the judge addressed in terms, he plainly regarded the OJSC VTB Bank case as in substance indistinguishable from this case, and there is to be found an analysis of that very question by Leggatt J, at paras 8 to 10: 8. The two other arguments on which Mr Moverley Smith places greater weight are, first, an argument that it is a matter of choice on the claimants part to bring the proceedings against the first and third defendants here. Those defendants, he says, could equally well have been sued in Russia. There is no evidence before the court that that is the case, but I am prepared to assume for the purposes of argument today that it is the case, and in any event Mr Moverley Smith has confirmed, albeit only in the course of his oral submissions, that if necessary the first and third defendants will give undertakings to submit to the jurisdiction of the Russian courts. 9. The argument, therefore, is, in substance, that although the claimant has chosen to sue the first and third defendants in this country, it has an alternative forum available, a forum which is much more convenient when one considers all the connecting factors, and that if the claimant chooses still to pursue claims against the first and third defendants in England even if unsuccessful in joining the second defendant to those claims so that the second defendant can only be pursued in Russia, then that is a choice which it has made, and the fact that it is a matter of choice negates, or substantially diminishes, the weight that would otherwise be given to the importance and desirability of avoiding duplication of proceedings and the risk of inconsistent judgments. 10. I see the force of that point but it does not seem to me to answer the fact that it is a matter of entitlement on the claimants part to sue the first and third defendants in England. There is no reason why the claimant should be expected or required to relinquish that right in order to avoid duplication of proceedings. Rather, it seems to me that the existence of that right and the fact that it is being exercised is the starting point and the background against which I ought to consider the question of whether England is also the appropriate forum for the claim against the second defendant. Coulson J was, in the present case, no doubt aware that Vedanta had made the same offer as had been made by the anchor defendant before Leggatt J to submit to the jurisdiction of the relevant foreign court, but the question is whether Leggatt Js analysis is or is not right in principle. If it is, then I consider that the judges analysis of the proper place question in the present case cannot be faulted. But if it is not, then there is a need to consider whether the force of the risk of irreconcilable judgments ought to be either eliminated or at least reduced in the balancing of all relevant factors, below a level which the judge regarded as decisive. Mr Gibson submitted that, if Leggatt Js analysis is right, then the risk of irreconcilable judgments is likely to be decisive in every case where the claimants have a right to sue the anchor defendant in England under article 4, regardless of the strength of the other connecting factors with the foreign jurisdiction. It would, he said, be hard to imagine stronger connecting factors than those in either the OJSC VTB Bank case or in this case, and I am inclined to agree with him. The result would be, as outlined in paras 38 to 40 above, that the English court would not merely have one hand tied behind its back because of its inability to stay the proceedings against the anchor defendant, but the other hand paralysed by the almost inevitable priority to be given to the risk of irreconcilable judgments, where claimants chose to exercise their right to continue against the anchor defendant in England. After anxious consideration, I have come to the conclusion that Leggatt Js analysis of this point, followed by the judge, is wrong. At the heart of it lies the proposition that, because a claimant has a right to sue the anchor defendant in England, there is no reason why the claimant should be expected or required to relinquish that right in order to avoid duplication of proceedings. In my judgment, there is good reason why the claimants in the present case should have to make that choice, always assuming that substantial justice is available in Zambia (which is a necessary but hypothetical predicate for the whole of the analysis of this issue). There is nothing in article 4 which can be interpreted as being intended to confer upon claimants a right to bring proceedings against an EU domiciliary in the member state of its domicile in such a way that avoids incurring the risk of irreconcilable judgments. On the contrary, article 4 is, as was emphasised in Owusu v Jackson, blind to considerations of that kind. The mitigation of that risk is available in a purely intra EU context under article 8.1 (where that risk is expressly recognised). But it is unavailable where the related defendant is (as here) domiciled outside any of the member states. Looking at the matter from an intra member states perspective, a person wishing to bring related claims against a number of defendants which, if litigated separately, would give rise to a risk of irreconcilable judgments, has a choice. The claimant may bring separate proceedings against each related defendant in the member state of that defendants domicile, thereby incurring a risk of irreconcilable judgments. Or the claimant may bring a single set of proceedings against all the defendants in the member state of the domicile of only one of them, so as to avoid that risk. That choice is what article 8.1 expressly permits. If the risk of irreconcilable judgments is one which, as in the present case, exists to the prejudice only of the claimants, I can see no possible reason why a right to sue in England under article 4 should not give rise to the same choice, where the alternative jurisdiction lies outside that of the member states, in a place where the claimant may sue all the defendants, not because of article 8.1, but because they are all prepared to submit to that jurisdiction. The alternative view (as expressed by Leggatt J) that the right conferred by article 4 should not expose the claimants to the need to make such a choice would appear to convert the right conferred by article 4 to an altogether higher level of priority, where the alternative forum lies outside that of the member states, than it does where the alternative forum lies inside, under article 8. In short, if the article 4 right is not a trump card for the purpose of avoiding irreconcilable judgments within the confines of the member states, why should it become a trump card outside those confines? The recognition that claimants seeking to avail themselves of their article 4 rights to sue an anchor defendant are nonetheless exposed to a choice whether to do so at the risk of irreconcilable judgments, even in cases where article 8 is not available, but another proper, convenient or natural forum is available for the pursuit of the case against all the defendants is, to my mind, the answer to the conundrum posed in para 40 above. It does not in any way bring into play forum conveniens considerations as a reason for denying the claimants access to the jurisdiction of England as a member state, against the anchor defendant. It simply exposes the claimants to the same choice, whether or not to avoid the risk of irreconcilable judgments, as is presented by the combination of article 4 and article 8 in an intra EU context. That analysis does not mean, when the court comes to apply its national rules of private international law to the question whether to permit service out of the jurisdiction upon KCM, that the risk of irreconcilable judgments is thereby altogether removed as a relevant factor. But it does in my view mean that it ceases to be a trump card, and that the basis upon which the judge, following Leggatt J in the OJSC VTB Bank case, regarded it as decisive, involved an error of principle. Since the Court of Appeal appears to have adopted the same approach as the judge on this issue, I would regard it as incumbent upon this court to carry out that balancing of connecting factors and risk of irreconcilable judgments afresh. Like the judge, it seems to me sensible first to do so without regard to any risk that the claimants would not obtain substantial justice if required to proceed, at least against KCM, in Zambia. It is unnecessary to do more than barely summarise the connecting factors with Zambia which led the judge to the conclusion that, putting aside the risk of irreconcilable judgments, Zambia was overwhelmingly the proper place for the claim to be tried. He described those factors as relevant to a trial as between the claimants and KCM, but the only factor to the contrary which he identified for the purposes of a notional trial as between the claimants and Vedanta was the risk of irreconcilable judgments. In fact, almost all the connecting factors with Zambia identified by the judge are equally applicable to the case as a whole (ie as against KCM and Vedanta). In summary: i) The allegedly wrongful acts or omissions occurred primarily in Zambia. This is plainly true of the claim against KCM, but since the liability of Vedanta depends mainly upon the extent to which it intervened in the operation of the Mine, it is likely to be true of Vedanta as well. ii) The causative link between the allegedly negligent operation of the Mine and the damage which ensued is of course the escape of noxious substances into waterways, which also occurred within Zambia. iii) The Mine was operated (whether by KCM alone, or by KCM and Vedanta together, as the claimants allege) pursuant to a Zambian mining licence and subject to Zambian legislation. In any event, it is common ground that all the applicable law is Zambian, even if that country may prove to follow the common law of England and Wales in material respects. iv) The claimants are all poor persons who would have real difficulty travelling to England to give evidence, for example of their injuries, or of the damage to their land and livelihoods. Although English is an official language in Zambia, many of the claimants only speak a local dialect which would require translation in order to be understood by an English judge or advocate, but not by their Zambian equivalents. v) KCMs witnesses of fact are all based in Zambia. They far outnumber the potential witnesses employed by Vedanta, some (but by no means all) of whom may be supposed to be domiciled in England. vi) Although relevant disclosable documents will be likely to be found in England and in Zambia (in the possession or control of Vedanta and KCM respectively), many of KCMs documents would, like the evidence of their witnesses, require translation for use in an English court, but not in a Zambian court, which has the considerable advantage in this context of being effectively bilingual. vii) All the regulatory and testing records and reports relevant to the alleged emissions from the Mine are likely to be based in Zambia, as is the responsible regulator. viii) Against all those factors it may, as already noted, be the case that significant relevant documents are located in England. In an age when documents may be scanned (if not already in electronic form) and then transmitted easily and cheaply round the world, this does not seem to me to be a powerful factor. Some of the relevant conduct which the claimants may allege against Vedanta or upon which Vedanta may wish to rely by way of defence, may well have occurred in England, for example at board meetings of Vedanta. But its relatively small number of employees are likely to find it much easier to travel to Zambia than their counterparts in KCM, let alone the claimants themselves, would find it for the purposes of travel to England, if only because of the enormous disparity in the number who would be required to travel in each case. ix) A judgment of the Zambian court would be recognisable and enforceable in England, against Vedanta. Zambian judgments are enforceable in England under Part II of the Administration of Justice Act 1920. Zambia is specifically listed as a relevant Commonwealth jurisdiction for the purposes of the 1920 Act by the Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) (Consolidation) Order (SI 1984/129). I would not ignore, or downplay, the mitigation of those factors which good case management of an English claim might be able to achieve. For example, as has happened in the past, the English judge may arrange for sittings in Zambia, for Zambian evidence to be taken by video conference, and for a Zambian court room or building to be continuously available to the claimants and the Zambian public to listen to and to view on screen those parts of the trial being conducted in England. As already noted, even if the volume of documents located in Zambia greatly exceeds those located in England (as is likely), modern facilities for their transmission should, to a considerable extent, reduce the inconvenience which might otherwise arise from their current location. In conclusion, it is sensible to stand back and look at the matter in the round. This case seeks compensation for a large number of extremely poor Zambian residents for negligence or breach of Zambian statutory duty in connection with the escape within Zambia of noxious substances arising in connection with the operation of a Zambian mine. If substantial justice was available to the parties in Zambia as it is in England, it would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England, if the risk of irreconcilable judgments arose purely from the claimants choice to proceed against one of the defendants in England rather than, as is available to them, against both of them in Zambia. For those reasons I would have concluded that the claimants had failed to demonstrate that England is the proper place for the trial of their claims against these defendants, having regard to the interests of the parties and the ends of justice. Substantial justice Even if the court concludes (as I would have in the present case) that a foreign jurisdiction is the proper place in which the case should be tried, the court may nonetheless permit (or refuse to set aside) service of English proceedings on the foreign defendant if satisfied, by cogent evidence, that there is a real risk that substantial justice will not be obtainable in that foreign jurisdiction. The same test was, prior to Owusu v Jackson, applicable in the context of an application for a stay of English proceedings against a defendant served within the jurisdiction. The question whether there is a real risk that substantial justice will be unobtainable is generally treated as separate and distinct from the balancing of the connecting factors which lies at the heart of the issue as to proper place, but that is more because it calls for a separate and careful analysis of distinctly different evidence than because it is an inherently different question. If there is a real risk of the denial of substantial justice in a particular jurisdiction, then it seems to me obvious that it is unlikely to be a forum in which the case can be tried most suitably for the interests of the parties and the ends of justice. In the present case the judge described this as an access to justice issue. By this he meant that the real risk (in his view a probability) that substantial justice would be unavailable in Zambia had nothing to do with any lack of independence or competence in its judiciary or any lack of a fair civil procedure suitable for handling large group claims. Rather, it derived essentially from two factors: first, the practicable impossibility of funding such group claims where the claimants were all in extreme poverty; and secondly, the absence within Zambia of sufficiently substantial and suitably experienced legal teams to enable litigation of this size and complexity to be prosecuted effectively, in particular against a defendant (KCM) with a track record which suggested that it would prove an obdurate opponent. The judge acknowledged that in the large amount of evidence and lengthy argument presented on this issue there was material going both ways, giving rise to factual issues some of which he had to resolve, but others of which he could not resolve without a full trial. Nonetheless he concluded not merely that there was a real risk but a probability that the claimants would not obtain access to justice so that, in his view, and notwithstanding the need for caution and cogent evidence, this reason for preferring the English to the Zambian jurisdiction was established by a substantial margin beyond the real risk which the law requires. There is no satisfactory substitute for a full reading of the judges careful analysis of this issue, to which he gave his full and detailed attention notwithstanding the fact that he had already concluded, without regard to the access to justice issue, that he should refuse the defendants applications upon the basis that England was the proper place for the trial of the case. I will confine myself to a bare summary of his reasoning, sufficient to make sense of the analysis which follows. The judge found that the claimants were at the poorer end of the poverty scale in one of the poorest countries of the world, that they had no sufficient resources of their own (even as a large group) with which to fund the litigation themselves, that they would not obtain legal aid for this claim and nor could it be funded by a Conditional Fee Agreement (CFA) because CFAs are unlawful in Zambia. Nonetheless he acknowledged that there was some evidence that lawyers would be prepared to pursue such claims on the basis of the up front payment of a modest deposit to fund disbursements, but otherwise on the basis that the lawyers would recover payment for their work from costs ordered to be paid (without a success fee) from the defendants, if the claim succeeded. He acknowledged also that the evidence did not demonstrate that no lawyers would be prepared to offer to undertake the litigation on that basis, but rather that those who might offer would simply lack the resources, in terms of numbers in the legal team, or experience, with which to be able to conduct complex litigation of this kind with the requisite degree of competence and efficiency. Finally, he acknowledged that there was some evidence of group environmental litigation of a similar kind being conducted before the Zambian courts, but he considered, upon the basis of detailed evidence about those cases that they supported, rather than detracted from, a view that the Zambian legal profession lacked the resources and experience with which to conduct such litigation successfully. As the Court of Appeal observed when affirming the judges decision on this issue, the appellants face formidable difficulties in asking any appellate court to overturn this detailed fact finding exercise, by an experienced judge who stated in terms (and there is no reason to doubt) that he had read all the relevant materials and carefully considered the detailed opposing arguments. Nonetheless, and supported by a written intervention by the Attorney General of Zambia, the appellants mounted a full frontal attack on the judges conclusions which, they submitted, this court ought to entertain because of flaws in the judges application of the relevant law. In outline, these were as follows: The judge failed to heed judicial warnings that funding issues will only i) in exceptional cases justify a finding of lack of substantial justice. ii) The judge failed to acknowledge that substantial justice required the claimants to take their forum as they found it. iii) The judge failed to pay due regard to considerations of comity, and a requirement for cogent evidence. I will take those in turn. There are indeed judicial warnings of undoubted authority that the English court should not in this context conclude, otherwise than in exceptional cases, that the absence of a means of funding litigation in the foreign jurisdiction, where such means are available in England, will lead to a real risk of the non availability of substantial justice: see Connelly v RTZ Corpn plc (No 2) [1998] AC 854, 873 per Lord Goff and Lubbe v Cape plc [2000] 1 WLR 1545, 1555 per Lord Bingham of Cornhill. They were in fact both cases in which that hurdle of exceptionality was surmounted, in the first in relation to exposure to radiation at a uranium mine in Namibia and the second in relation to exposure to asbestos from mining and processing in South Africa. The judge plainly had those considerations well in mind, since he regarded the Lubbe case as one of three authorities which set out the relevant law, and Lord Goffs dicta in the Connelly case are quoted in full by Lord Bingham in the Lubbe case. Of course, a judge may cite all the relevant authorities and yet still misapply the law, but in this case the judge came nowhere near treating the absence of particular forms of litigation funding in Zambia, such as legal aid and CFAs, as conclusive. He conducted a searching analysis of all possible forms of funding, and found that most were unavailable but that the one which was in principle available would not attract a legal team which was both prepared to act, and able to do so with the requisite resources and experience. Although the judge did not refer to it expressly, the evidence included the possibility of funding cases of this kind, or the necessary underlying research, by contribution from locally based NGOs, but the absence of reference to a matter of detail in a judgment about an issue which the judge only dealt with for completeness comes nowhere near to demonstrating that he left this evidence out of account. The gist of the appellants second point is that the judges denigration of the accessibility of substantial justice in Zambia was too heavily based upon a comparison between the relatively rudimentary way in which a case of this kind could be litigated in Zambia, and its likely elaborate treatment by well resourced legal teams (in particular on the claimants side) in England. The judge plainly regarded this litigation as both complex and weighty. As an experienced judge of the Technology and Construction Court his assessment deserves respect. It is also in my view objectively justified. In the absence of any admissions from the appellants which might serve to narrow the issues (and there are none), large aspects of the claimants collective and individual claims will depend upon the presentation of expert evidence. They will include identifying the emissions which actually occurred, and their toxicity, establishing whether the system of operation of the Mine (both in its planning and implementation) fell short of that requisite to satisfy a duty of care, tracing the emissions through to watercourses in the vicinity of the claimants, proving (during a considerable period of time) that these emissions caused damage to particular claimants land, business and health, and quantifying (save perhaps in relation to personal injuries) the diminution in the value of business and property thereby caused. Much of that expert work will, from the perspective of the claimants legal team, have to be paid for as disbursements, but it will still need to be supervised by competent and experienced lawyers. As is evident from the decision of the Supreme Court of Zambia in Nyasulu v Konkola Copper Mines plc [2015] ZMSC 33, it will be necessary for each individual claimant to prove both causation and loss, and to value their loss unless (which did not happen in that case and has not been volunteered here) KCM were to agree that issues of that kind could be determined either on the basis of typical claimants or by means of an out of court claims management process. It is of course possible, indeed likely, that the litigation of all those issues in Zambia would, even if funding and the necessary legal resources were available, be undertaken on a simpler and more economical scale than would be likely if undertaken in the Technology and Construction Court by large, sophisticated legal teams, without necessarily depriving the claimants of substantial justice. But the judge did not address this question by way of a comparison between litigation in England and in Zambia. His enquiry was directed to the question whether the unavoidable scale and complexity of this case (wherever litigated) could be undertaken at all with the limited funding and legal resources which the evidence led him to conclude were available within Zambia. His judgment does not therefore disclose the misdirection about the meaning of substantial justice which is suggested by the appellants. Finally, the judges analysis positively demonstrates that he had due regard to considerations of comity and the requirement for cogent evidence. He referred to the need for cogent evidence in express terms, at para 174. He identified the evidence which he found persuasive and quoted from some of it. Cogent evidence does not mean unchallenged evidence. on grounds of comity. At para 198 he said this: It is also evident that the judge was conscious of the need to exercise restraint I am conscious that some of the foregoing paragraphs could be seen as a criticism of the Zambian legal system. I might even be accused of colonial condescension. But that is not the intention or purpose of this part of the judgment. I am not being asked to review the Zambian legal system. I simply have to reach a conclusion on a specific issue, based on the evidence before me. And it seems to me that, doing my best to assess that evidence, I am bound to conclude that the claimants would almost certainly not get access to justice if these claims were pursued in Zambia. My conclusion that the judge did not misdirect himself in law in any of the respects contended for by the appellants is sufficient to dispose of this issue since, otherwise, the appellants case in relation to it is no more or less than a challenge to judicial fact finding. But for completeness I will say something about what appeared to be the strongest point in the appellants challenge. This was that the judge failed to have sufficient regard to the evidence constituted by a series of Zambian cases, comparable in differing extents to this case, in which groups of claimants had managed to litigate issues about pollution and environmental damage all the way to a fair trial and even to a success on liability in the Nyasulu case referred to above. The judge studied each of those cases (of which the Nyasulu case is the most relevant) in some detail and was presented with significant evidence about the underlying reasons why, save for 12 claimants out of 2,000 in that case, the claimants were almost routinely unsuccessful. There was one case against KCM which settled, but there was an issue, which the judge could not decide, as to whether many of the claimants received their share of the settlement sum. It is a sufficient example of the lack of foundation for this factual challenge on appeal to look at the appellants best two examples. In the Nyasulu case, 2,000 claimants joined in group litigation about a discharge from the Mine in 2006 into the Mushishima stream and thereby into the Kafue river. Medical reports evidencing personal injuries were put in evidence only in relation to 12 claimants. The trial judge found in favour of the claimants on liability, and was content to award general damages to all 2,000 claimants on the base of medical evidence about only 12 of them. In the Supreme Court ([2015] ZMSC 33) the judge was upheld on liability but the claim by the remaining 1,989 claimants was dismissed for want of medical evidence to prove that they had suffered any loss. At first sight this might appear to have been a disaster attributable to a difference of view between the first instance and appellate judges, but Coulson J was provided with evidence about how the case had been prepared, both from one of the claimants and from the lawyer who conducted the claimants defence of KCMs appeal in the Supreme Court. The judge was entitled to conclude from that evidence that the reason why so few of the claimants had medical evidence deployed on their behalf was that this would have required funding from the claimants which they could not afford, for disbursements which the lawyers instructed would not have been able to pay for out of their own resources. In Shamilimo v Nitrogen Chemicals of Zambia Ltd (2007/HP/0725), a case about radiation emissions, there was evidence which entitled Coulson J to find, as he did, that this claim failed on causation because the claimants could not fund the necessary expert evidence to prove it. In conclusion therefore, there was in relation to both those cases evidence from which the judge was entitled to conclude that they supported rather than detracted from his overall finding that funding and local legal resources were insufficient to enable the claimants to obtain substantial justice in Zambia. It is irrelevant whether an appellate court might, upon a review of the same evidence, reach a different conclusion, even with the assistance from the Attorney General of Zambia, for which the court is grateful. The result is that the appellants fail on this issue of substantial justice. Conclusion Having rejected the appellants case on abuse of EU law and real triable issue, but having upheld their case on proper place, I would, but for their failure on the issue as to substantial justice, have been minded to allow their appeal. As it is however I consider that this appeal should be dismissed, on the substantial justice issue. |
The Palmers Wood Oil Field is a naturally occurring reservoir of petroleum and petroleum gas, the north eastern part of which extends beneath the Oxted Estate of which the appellant Bocardo (Bocardo) is the freehold owner. The rest of the Oil Field lies under land in different ownerships. Petroleum cannot be recovered from an underground reservoir without carrying out works of some kind below the surface of the land. An oil company such as the first respondent, Star Energy Weald Basin Ltd, which has a licence under section 2 of the Petroleum (Production) Act 1934 (now repealed and replaced by section 3 of the Petroleum Act 1998, Schedule 3, para 4 of which preserves pre existing licences) to search, bore for and get petroleum will have to sink wells into the substratum by means of drilling in order to recover it. It may have to do this by means of wells that are drilled diagonally rather than vertically from the well head. A particular feature of this case is that the apex of the Oil Field lies beneath Bocardos land. The most efficient means of recovering the petroleum is to sink a well as close to the apex as possible. If this is not done, and the well is sunk to a point that is substantially below the apex, much of the oil that could otherwise be recovered will be lost. It was for this reason that the respondents predecessors sunk three wells from the well head by what is known as deviated or directional drilling from one of the two drilling sites that were created for the extraction of petroleum from the Palmers Wood Oil Field. The wells enter the substrata below the Oxted Estate at depths of about 1,300, 800 and 950 feet beneath the surface respectively. Two of them are known as PW5 and PW8. They are used to extract petroleum and petroleum gas from the reservoir beneath the Oxted Estate and terminate at about 2,900 and 2,800 feet below the surface of its land respectively. The third, known as PW9, passes through the substrata beneath the Oxted Estate at a depth of about 950 feet below the surface and ends beyond its perimeter at a point in the reservoir at about 1,400 feet below ground level. It is used for injecting water into the Oil Field to maximise and speed recovery. The respondents predecessors, Conoco (UK) Ltd, did not seek to negotiate any contractual licence or wayleave from Bocardo to drill the wells, lay the casing and tubing within them or extract the petroleum and petroleum gas by this means from the Oil Field. Nor did they apply for any statutory right to do this under the Mines (Working Facilities and Support) Act 1966 or the Pipelines Act 1962. The respondents in their turn did not seek to do this when they acquired the petroleum production licence from their predecessors. It appears to have been assumed all along that this was not necessary. The evidence at the trial of the respondents expert was that, although deviated or directional drilling has been common industry practice for some years, he was not aware that any onshore oil company had applied for ancillary rights to permit deviated drilling on UK onshore operations. Bocardo was unaware until July 2006 that petroleum and petroleum gas was being extracted by this means from beneath its land. The issues that this case raises fall into two parts. First, there is the question whether the drilling of the three wells under Bocardos land was an actionable trespass. Peter Smith J held that it was: [2008] EWHC 1756 (Ch); [2009] 1 All ER 517. His decision was affirmed by the Court of Appeal (Jacob, Aikens and Sullivan LJJ): [2009] EWCA Civ 579; [2009] 3 WLR 1010; [2010] Ch 100. Secondly, if there was an actionable trespass, there is the question what is the correct measure of damages. The measure that was adopted by the trial judge was rejected by the Court of Appeal, which made a very substantial reduction in the award of damages. Bocardo appeal to this court on the damages issue, and the respondents cross appeal on the issue of trespass. (a) Trespass On 21 July 2006 Bocardo commenced proceedings against the respondents for trespass. The question which this issue raises is whether an oil company which has been granted a licence to search, bore for and get petroleum in the licensed area which is beneath land belonging to another, and drills wells at depth beneath that land in order to recover petroleum from within the licensed area without obtaining the landholders agreement or an ancillary right under the Mines (Working Facilities and Support) Act 1966 to do so, is committing a trespass. The respondents accept that, if a trespass was committed by drilling the wells in the first place, it will have continued until now. In the Court of Appeal Aikens LJ said that it was logical to examine the question of whether there was a trespass as at July 2000 when, having taken account of the fact that the limitation period under section 2 of the Limitation Act 1980 for a claim in trespass is six years, the cause of action arose: [2009] 3 WLR 1010, [2010] Ch 100, para 48. But I agree with him that nothing turns on the precise date at which the issue is considered. It is common ground that a trespass occurs when there is an unjustified intrusion by one party upon land which is in the possession of another: Blackstone, Commentaries on the Laws of England, vol 3, p 209; Clerk & Lindsell on Torts, 19th ed (2006), para 19.01. It is common ground too that Bocardo did not, and does not, own any of the petroleum in the reservoir that is situated beneath its land. Nor does it possess, or have the right to possess, any of that petroleum. Those rights belonged to the holder of the licence granted by the Secretary of State under section 2 of the Petroleum (Production) Act 1934, Conoco (UK) Ltd. They now belong to the respondents (currently the first respondent, Star Energy Weald Basin Ltd) as the original holders assignees. By virtue of section 1 of the 1934 Act, which vested the property in petroleum existing in its natural condition in strata in Great Britain in the Crown, at no time did Bocardo have any right to search, bore for or get that petroleum from the reservoir beneath its land. Only the Crown or its licensee had the right to do so. The question whether the drilling of the three wells under Bocardos land, and the continued presence of the well casing and tubing within them, was an actionable trespass raises the following issues: (1) whether Bocardos title to the land extends down to the strata below the surface through which the three wells and their casing and tubing pass; (2) whether possession or a right to possession is a pre condition for bringing a claim for trespass and, if so, whether Bocardo has or is entitled to possession of the subsurface strata through which these facilities pass; (3) whether the respondents have a right under the 1934 Act (and subsequently the 1998 Act) to drill and use the three wells and their casing and tubing to extract petroleum from beneath Bocardos land which gives them a defence to a claim in trespass. Ownership: how far below the surface? There is, of course, nothing new in one person carrying out works under land whose surface is in the ownership or the possession of another. Operations of that kind have been familiar since at least Roman times. They ranged from great public works such as catacombs on the one hand to modest cellars for the storage of wine or other commodities on the other. What is new is the depth at which the operations that are said to constitute a trespass in this case have been carried out. The advance of modern technology has led to the discovery of things below the surface, and the desire to obtain access to and remove them, that were unimaginable when the depths to which people could go were limited by what manual labour could achieve. Bocardos case is that it is trite law that a conveyance of land includes the surface and everything below it, unless there have been exceptions from the grant such as commonly occurs in the case of minerals. The respondents do not dispute this proposition as a general rule that applies where the rights of the surface owner are interfered with. But they maintain that it does not extend to the depth at which the operations were and are being carried out in this case. The minimum depth was 800 feet, while for the most part the depths were greatly in excess of this. Mr Driscoll QC for the respondents said that he accepted that in law the surface owner owned the substrata to some depth, but not that far. He submitted that the wells and their tubes and casing did not interfere with or enter upon land in any meaningful way at all. Moreover the right to search, bore for and get the petroleum was vested in the Crown. Bocardo did not own, and had no right to possess, the petroleum. It has often been said that prima facie the owner of the surface is entitled to the surface itself and everything below it down to the centre of the earth: see, for example, Rowbotham v Wilson (1860) 8 HL Cas 348, 360, per Lord Wensleydale; Bowser v Maclean (1860) 2 De G F & J 415, 419, per Lord Campbell LC; Pountney v Clayton (1883) 11 QBD 820, 838, per Bowen LJ; Elwes v Brigg Gas Co (1886) 33 Ch D 562, 568, per Chitty J; and National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675, 708, per Lord Russell of Killowen. The proposition that prima facie everything below the surface belongs to the surface owner is often linked to the proposition that everything above it belongs to him too: everything up to the sky, as Sir William James VC put it in Corbett v Hill (1870) LR 9 R 671, 673, or everything under the sky in the words of Bowen LJ in Pountney v Clayton. In Mitchell v Mosley [1914] 1 Ch 438, 450, Cozens Hardy MR said that the grant of the land includes the surface and all that is supra houses, trees and the like and everything that is infra mines, earth and clay, etc. Agreeing with him, Swinfen Eady and Phillimore LJJ said that this was a recognised rule of law. Plainly, the source for these remarks was the well known Latin brocard cuius est solum, eius est usque ad coelum et ad inferos. The soundness of this brocard as a proposition of law was questioned in Commissioner for Railways v Valuer General [1974] AC 325. The subject of the appeal was a property in the centre of Sydney beneath which there had been extensive excavations to a depth of 40 feet or more. The question was how the property was to be valued for rating purposes. The statute proceeded on the basis that it was a parcel of land that had to be valued. The Commissioner said that this meant land defined only by vertical boundaries land usque ad coelum et ad inferos, in other words. The Valuer General said that it was only possible to value as land that which had a recognisable connection with the surface. Otherwise it had to be valued as stratum, to which special provisions applied. As Lord Wilberforce explained at p 351, the question that the Valuer Generals argument gave rise to was whether there was a complete dichotomy between land and strata beneath it and, if so, what that dichotomy was. The statutory definition did not answer the question how, in the context of the legislation, layers defined by horizontal boundaries were to be treated. It is in relation to this question, he said, that the Latin tag usque ad coelum et ad inferos has been introduced and given a prominent place in the argument. Lord Wilberforce did not think much of the brocard, or tag as he called it. As he explained at p 351: It is well known that this brocard cannot be traced in the Digest or elsewhere in Roman Law. The first recognised appearance is in the 13th century gloss of the Bolognese Accursius upon Digest VIII.2.1. It appears there in the form cuius est solum eius esse debet usque ad coelum (cf in the law of Scotland Stairs Institutions II.7.7). In the form of a maxim, it only has authority at common law in so far as it has been adopted by decisions, or equivalent authority. The earliest recognition appears to be recorded in Bury v Pope (1587) Cro. Eliz 118 where reference is made to its use Temp. Ed I in the form cuius est solum, eius est summitas usque ad coelum, but the context of this statement in the reign of Edward I has not been identified. Then, after referring to Coke Litt. 4a, which he said contained an uncritical adoption of the maxim, and to Blackstone, Commentaries II, 21st ed (1844) c2, p 18 who followed Coke, he said: There are a number of examples of its use in judgments of the 19th century, by which time mineral values had drawn attention to downwards extent as well as, or more than, extent upwards. But its use, whether with reference to mineral rights, or trespass in the air space by projections, animals or wires, is imprecise and it is mainly serviceable as dispensing with analysis: cf Pickering v Rudd (1815) 4 Camp 219 and Ellis v Loftus Iron Co (1874) LR 10 CP 10. In none of these cases is there an authoritative pronouncement that land means the whole of the space from the centre of the earth to the heavens: so sweeping, unscientific and unpractical a doctrine is unlikely to appeal to the common law mind. At most the maxim is used as a statement, imprecise enough, of the extent of the rights, prima facie, of owners of land: Bowen LJ was concerned with these rights when, in a case dealing with rights of support, he said: Prima facie the owner of the land has everything under the sky down to the centre of the earth: Pountney v Clayton (1883) 11 QBD 820, 838 In the Court of Appeal Aikens LJ, referring to Lord Wilberforces remarks in Commissioner for Railways v Valuer General, said that he had no doubt that Accursiuss maxim or brocard was not part of English law: [2009] 3WLR 1010, [2010] Ch 100, para 59. Asking himself what the general rule is at common law about the ownership of the substrata below the surface of land, he said that he found it in Mitchell v Mosley [1914] 1 Ch 438, but shorn of its references to Accursiuss maxim. In short, he said, the registered freehold proprietor of the surface will also be the owner of the strata beneath the surface of his land, including the whole minerals, unless there has been some express or implied alienation of the whole or a particular part of the strata to another. In his view, at para 60, Bocardos title certainly extended to the strata (other than the petroleum) to be found at the depth of the wells up to 2,800 feet below the surface of the Oxted Estate. Precisely how much further into the earths crust that ownership might go was a question that he did not need to decide. But if it carried to the centre of the earth landowners, he said, all have a lot of neighbours. I think, with respect, that Aikens LJ was perhaps a little too hasty in asserting that the brocard is not part of English law. It is true that Lord Wilberforce appears to have had little enthusiasm for it. He regarded it as an excuse for dispensing with analysis. But those remarks were made in a case where the question was what was meant by the word land in the statute. He seems to have been prepared to accept it as having some relevance as a statement, imprecise though it is, of the rights, prima facie, of owners of land: see his reference to Bowen LJs observation in Pountney v Clayton (1883) 11 QBD 820, 838. Furthermore, although Aikens LJ adopted what Cozens Hardy MR said in Mitchell v Mosley [1914] 1 Ch 438, 450 as an accurate statement of the law if shorn of his references to Accursiuss maxim, it must be acknowledged that it was by reference to that maxim that Cozens Hardy MR said what he did. As Lord Wilberforce pointed out, the maxim only has authority at common law in so far as it has been adopted by decisions, or equivalent authority. I am inclined to think that the observations by the Court of Appeal in Mitchell v Mosley, seen against the background of various dicta in the 19th Century cases including Pountney v Clayton, measure up to that requirement. In the present context, therefore, I believe that the brocard does have something to offer us. The particular relevance of the brocard to the dispute in this case is that, taken literally, it answers Mr Driscolls point that the wells in question were too deep for the landowners interest in his land to be affected. If the brocard is accepted as a sound guide to what the law is, there is no stopping point. This makes it unnecessary to speculate as to how it can be applied in practice as one gets close to the earths centre. The depths to which the wells in question were drilled in this case do not get anywhere near to approaching the point of absurdity. The fact that there were substances at that depth which can be reached and got by human activity is sufficient to raise the question as to who, if anybody, is the owner of the strata where they are to be found. The Crown has asserted ownership of the petroleum, but it does not assert ownership of the strata that surround it. The only plausible candidate is the registered owner of the land above, which is exactly what the brocard itself indicates. Mr Driscoll was unable to point to any contrary authority. It is perhaps worth looking more closely at the words used by the glossator. The earliest source that we have for them is the Glossa Ordinaria which was compiled by Accursius, a professor at the University of Bologna, in the 13th century. He set for himself the task of collecting and arranging a vast number of annotations to the Digest that had been made by his predecessors in one great work. He supplemented these with annotations of his own. For the most part at least, the authors of these annotations are not identified. The gloss that led to the brocard with which we are all familiar is not attributed to anybody. We have no means of knowing when it was first written down. Francis Lyall, The maxim cuius est solum in Scots Law [1978] JR 147, 148, observed that the history of its development is obscure. It may have been one of Accursiuss own annotations, but it seems just as likely that it was much older. All we can say with confidence is that it was not part of Roman law but that it had been recognised by 1250 when the Glossa Ordinaria was completed. The wording of the gloss itself is instructive. Paulus, speaking of urban praedial servitudes, is quoted in the Digest, 8.2.1.pr, as follows: Si intercedat solum publicum vel via publica, neque itineris actusve, neque altius tollendi servitutes impedit; sed immitendi protegendi prohibendi item fluminum et stillicidiorum servitutem impedit: quia coelum quod supra id solum intercedit, liberum esse debet. The words quia coelum are then glossed in this way: Quia coelum. Nota. Cujus est solum ejus debet esse usque ad coelum. Lyall says that in later editions of the Glossa Ordinaria this gloss itself is noted with the comment: cujus solum, ejus coelum: [1978] JR 147, 148. I think that it is significant that the glossator took as his starting point the rule that applied to the underlying strata and then applied it to what took place above the surface. The context for the annotation was the proposition that, while the owner may erect structures as high as he likes on the solum of land in his ownership, his freedom to do so is restricted by the praedial servitude non altius tollendi which protects his neighbours right to light and prospect. The owner of the dominant tenement is entitled to insist that there should be no interference with the sky over his land. The assumption appears to have been that it was generally understood that the ownership of land carried with it the right to everything that lay below the surface. The point that the glossator was making, as an explanation for the praedial servitude, was that the existing rule as to what lay below (cuius est solum) should be (debet esse) applied to the air space above it. The rule that applied to the underlying strata appears to have been of greater antiquity. The problems that a rule in these terms might give rise to as mans understanding of the earths structure improved, airspace began to be used for the passage of aircraft and means were developed to penetrate deep below the surface were not, of course, obvious in the 13th century. But the simple notion that each landowner is the proprietor of a column or cylinder of land that stretches down to the centre of the earth and upwards indefinitely into outer space is plainly no longer tenable. The earth is not flat, as the glossator may have supposed. A greater understanding of geology has taught us that most of the earths interior, due to extremes of pressure and temperature, is a complex and inhospitable structure that is beyond mans capacity to enter or make use of. It has been observed that anything that is drilled below a depth of about 8.7 miles or 14 kilometres would be crushed by the earths pressure of 50,000 pounds per square inch and vaporised by a temperature of 1,000 degrees Fahrenheit: see John G Sprankling, Owning the Center of the Earth, (2008) 55 UCLA L Rev 979, 993, fn 84. As Sprankling explains at p 994, productive human activity is possible only within the shallowest portion of the earths crust, and humans have never penetrated below it. As for that portion of it, the development of heat mining and carbon capture, storage and sequestration technologies to reduce greenhouse gas emissions, which he discusses at pp 1030 1032, would be difficult to achieve if the subsurface within which it is sought to carry out these activities in the public interest were to be broken up into columns of rock owned by the surface owners. As for the position above the surface, the development of powered flight has made it impossible to apply the brocard usque ad coelum literally. In Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 Baron Bernstein failed in his claim that the defendants, who had flown over his land to take an aerial photograph of his property which they then offered to sell to him, were guilty of trespass. Griffiths J noted at p 485 that the proposition that an owner has certain rights in the air space above his land was well established by authority. In Kelsen v Imperial Tobacco Co (of Great Britain and Northern Ireland) Ltd [1957] 2 QB 334, for example, a mandatory injunction was granted ordering the defendants to remove a sign which projected 8 inches over the plaintiffs property on the ground that, applying the brocard, this was a trespass. Griffiths J was willing to accept, as a sound and practical rule, that any incursion into air space at a height which may interfere with the ordinary user of land was a trespass. But he said that wholly different considerations arise when considering the passage of aircraft at a height which in no way affects the user of the land. In his judgment, at p 488, the balance was best struck by restricting the rights of the owner to such height as necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public. The respondents say that this analysis should be applied to subsurface ownership too. They submit that a sensible and pragmatic solution would be for each surface owner to own directly down beneath the boundaries of his land as far down as is necessary for the use and enjoyment of the surface, the buildings on the surface and any minerals which have not been excluded from his ownership by conveyance, common law or statute which lie beneath it. Mr Driscoll was unable to point to any English authority that provided direct support for this approach to the position beneath the surface. But there is some support for it in the United States. In Boehringer v Montalto 142 Misc 560 (1931) the New York Supreme Court held that a sewer laid 150 feet below the surface was not included in the surface owners title. The judge said that title above the surface was now limited to the extent to which the owner of the soil might reasonably make use of it, and that by analogy his title was not to be extended to a depth below ground beyond which the owner might reasonably make use of it. In US v Causby 328 US 256 (1946) the US Supreme Court held that there was a taking of the respondents property within the meaning of the Fifth Amendment by frequent and regular flights of army and navy aircraft over their land at low altitudes. But in para 3, at p 261, of the courts opinion Douglas J said that the doctrine expressed in the brocard has no place in the modern world: The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognise such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. That was a case about limitations on the absolute rights of surface owners above the surface, as was Willoughby Hills v Corrigan 278 NE2d 658, 664 (Ohio 1972) in which the court said that the doctrine of the common law that the ownership of land extends to the periphery of the universe has no place in the modern world. But in Chance v BP Chemicals Inc 670 NE2d 985 (Ohio 1996) the Supreme Court of Ohio took the same approach to subsurface ownership rights. In para 8, at p 992, of the courts opinion the judge said: we do not accept the appellants assertion of absolute ownership of everything below the surface of their property. Just as a property owner must accept some limitations on the ownership rights extending above the surface of the property, we find that there are also limitations on property owners subsurface rights. We therefore extend the reasoning of Willoughby Hills, that absolute ownership of air rights is a doctrine which has no place in the modern world, to apply as well to ownership of subsurface rights. The court held that some type of physical damage or interference with the use of the land must be shown for the owner to recover for a trespass and that the use of lateral migration of injection technology to dispose of refining by products below the surface did not meet this test. Sprankling, Owning the Center of the Earth, (2008) 55 UCLA L Rev 979, 991 992, points out however that most modern US legal texts continue to endorse the centre of the earth theory and that almost all modern cases continue to embrace it too: see, for example, Kankakee County Board of Review v Property Tax Appeal Board 871 NE2d 38 (Illinois 2007) and Orr v Mortvedt 735 NW2d 610 (Iowa 2007). Addressing himself to the question, how far below the earths surface do property rights extend, he asserts at p 1033 that the surface owner should certainly hold property rights to a portion of the subsurface. After exploring four alternative models ownership of the entire crust, ownership based on first in time exploitative use, ownership for reasonable and foreseeable uses and ownership to a specified depth he comes down in favour of a specified depth such as 1000 feet, but he acknowledges that reasonable minds may differ as to the appropriate extent. The goal of his article, he said, was to ignite that debate, not to extinguish it: p 1039. Spranklings article suggests that the debate as to the extent of subsurface rights remains alive in the United States. In Canada, Griffiths Js approach in Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 to the right to use air space above the land was described by the Alberta Court of Appeal as most persuasive in Didow v Alberta Power Ltd [1988] 5 WWR 606, 613. But we were not referred to any Canadian or Australian authority that extends that approach to ownership below the surface. In Todd, The Law of Torts in New Zealand (5th ed, 2009), p 426, it is stated that it appears to be generally accepted that any intrusion into the subsoil beneath the owners land will constitute trespass, and that there appears to be no case in the Commonwealth where a plaintiff has failed on the basis that the area of subsoil invaded was so deep that the surface occupiers possessory rights did not extend that far. In a footnote to that passage, in which Spranklings article is referred to, the editors note that American authority points both ways: see fn 22. Coming closer to home, Dr Jean Howell, Subterranean Land law: Rights below the Surface of Land, (2002) 53 Northern Ireland Legal Quarterly 268, 270 acknowledges that it might be argued that the same test as that which Griffiths J applied in Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 should be used for land below the surface. But, as she also notes, it was implicit in that case that even above the notional height at which the land owners usable rights stop, there is not a free for all in the airspace above. To characterise the surface owners rights as following technological advances as to the depth at which land can be exploited, she says, would offend against all notions of property whose defining quality in land is certainty. She concludes, at p 285, that any intrusion into land which is not sanctioned by some countervailing property right will be a trespass and that, although the surface owner will not usually wish to or be able to utilise the ground below the surface, he has rights in the land which could be valuable. In my opinion the brocard still has value in English law as encapsulating, in simple language, a proposition of law which has commanded general acceptance. It is an imperfect guide, as it has ceased to apply to the use of airspace above a height which may interfere with the ordinary user of land: Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479. The position in Scotland may be different: see Stair Memorial Encyclopaedia, vol 19, Property, para 198, where the question is seen as relating to the extent of ownership rather than the balancing of rights in the airspace. But I think that the reasons for holding that the brocard has no place in the modern world as regards what goes on below the surface, even in England, are not by any means as compelling as they are in relation to the use of airspace. In US v Causby 328 US 256 (1946) the US Supreme Court regarded the airspace as a public highway to which only the public had a just claim. The same cannot be said of the strata below the surface. As Aikens LJ said in the Court of Appeal, it is not helpful to try to make analogies between the rights of an owner of land with regard to the airspace above it and his rights with regard to the strata beneath the surface: [2009] 3 WLR 1010, [2010] Ch 100, para 61. Although modern technology has found new ways of making use of it in the public interest, there is no question of it having become a public highway. The test applied in Chance v BP Chemicals Inc 670 NE2d 985, that some type of physical damage or interference with the use of the land must be shown, would lead to much uncertainty. It overlooks the point that, at least so far as corporeal elements such as land and the strata beneath it are concerned, the question is essentially one about ownership. As a general rule anything that can be touched or worked must be taken to belong to someone. The better view, as the Court of Appeal recognised [2009] 3 WLR 1010, [2010] Ch 100, para 59, is to hold that the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else. That was the view which the Court of Appeal took in Mitchell v Mosley [1914] 1 Ch 438. Much has happened since then, as the use of technology has penetrated deeper and deeper into the earths surface. But I see no reason why its view should not still be regarded as good law. There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the wells that are at issue in this case, extending from about 800 feet to 2,800 feet below the surface, are far from being so deep as to reach the point of absurdity. Indeed the fact that the strata can be worked upon at those depths points to the opposite conclusion. I would hold therefore that the appellants title extends down to the strata through which the three wells and their casing and tubing pass. Possession The next question is whether possession or a right to possession is a pre condition for bringing a claim in trespass. The respondents maintain that possession, not ownership, is essential and that the claim should fail because the appellant is not in possession of the substrata where the wells entered the substrata at least 800 feet below the surface of its land. In Powell v McFarlane (1977) 38 P & CR 452, 470 Slade J said: In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. In Pye (JA) (Oxford) Ltd v Graham [2003] UKHL 30, [2003] 1 AC 419, para 40 Lord Browne Wilkinson approved of this definition, making the point that, without the requisite intention, in law there can be no possession. This is highly relevant if the law is to attribute possession of land to a person who cannot establish a paper title to possession. But in this case the appellant has the paper title. That, in the absence of evidence to the contrary, is enough for it to be deemed to be in possession of the land. As Aikens LJ said in the Court of Appeal, it is difficult to say that the appellant has actual possession of the strata below the Oxted Estate as it has done nothing to reduce those strata into its actual possession: [2009] 3 WLR 1010, [2010] Ch 100, para 66. But he held that the appellant, as the paper title owner to the strata and all within it (other than any gold, silver, saltpetre, coal and petroleum which belong to the Crown at common law or by statute), has the prima facie right to possession of those strata so as to be deemed to be in factual possession of them. I think that he was right to conclude that this was the effect of Slade Js dictum. As the paper title carries with it title to the strata below the surface, the appellant must be deemed to be in possession of the subsurface strata too. There is no one else who is claiming to be in possession of those strata through the appellant as the paper owner. Does either common law or the 1934 Act provide a defence to the claim in trespass? There remains the question whether the respondents have a defence to the claim of trespass either under the common law or under the statute. I think that there is nothing in the argument that there is a defence at common law. It would be different, as Aikens LJ said in the Court of Appeal [2009] 3 WLR 1010, [2010] Ch 100, para 74, if the right to extract the petroleum had been granted to the respondents by the appellant. The principle of non derogation from grant would prevent the appellant from doing anything that would hamper the respondents use of the strata for the purpose that both parties contemplated at the time of the grant. But the right to search and bore for and get the petroleum was obtained by the respondents under licence from the Crown. I do not think that there is any common law principle that the respondents can invoke in that situation to regulate their position in relation to a landowner who was not a party to that arrangement. This leaves the question whether the matter can be said to have been regulated by the statute. Section 10(3) of the Petroleum (Production) Act 1934 (now repealed and re enacted as section 9(2) of the Petroleum Act 1998) provided: Nothing in this Act shall be construed as conferring, or as enabling the [Secretary of State] to confer, on any person, whether acting on behalf of His Majesty or not, any right which he does not enjoy apart from this Act to enter on or interfere with land. The respondents say that they had a right under the licence granted under section 2(1) of the 1934 Act to search and bore for and get the petroleum to penetrate the strata under Bocardos land and that as a matter of ordinary language drilling the pipelines diagonally into the substrata would not be considered as entering on it or as interfering with Bocardos use and enjoyment of it. They were not sunk on the surface of Bocardos land, but were justified by the statutory right to search and bore for and get the petroleum. Moreover there were no minerals which were capable of being enjoyed as such under the surface of Bocardos land that were entered on or interfered with. In the Court of Appeal Aikens LJ, albeit with some reluctance, concluded that it was impossible to say that the 1934 Act, when read with the Mines (Working Facilities and Support) Act 1923 (later replaced by the 1966 Act) and the existing common law, granted a licensee under the 1934 Act the express or implied right to bore pipelines at depth through the land of another within the licensed area in the absence of agreement or the grant of an ancillary right under those Acts: [2009] 3 WLR 1010, [2010] Ch 100, paras 80 83. His reasoning was based in part on the wording of section 10(3) itself. In his opinion the words enter on land were intentionally general and broad enough to include entering land beneath the surface. It was also based on the provisions of section 3(1) of that Act read with section 3(2)(b) of the 1923 Act. The opening words of section 3(1) of the 1934 Act provided that the 1923 Act was to apply for the purpose of enabling a person holding a licence under this Act to acquire such ancillary rights as may be required for the exercise of the rights granted by the licence, and shall have effect accordingly. Section 3(2)(b) of the 1923 Act provided that the expression ancillary right in relation to minerals was to include a right of air way, shaft way or surface or underground wayleave. The word wayleave, he said, was broad enough to encompass a right to bore a pipe through strata as well as create and use a passage to get to and carry minerals such as coal. The wording of section 10(3) indicated that the licensee could continue to enjoy such rights as he already has to enter on or interfere with land, but that it was not within the power of the Secretary of State to confer on him any other right to do so. Despite Mr Driscolls submissions to the contrary, I have not been able to detect any flaw in this reasoning. The subsurface strata through which the wells and pipelines were sunk is Bocardos land. There is nothing in section 10(3) or the context in which it was enacted that restricts the reference to land in that subsection to things that happen only on the surface. In the context of a statute which is concerned with the right to search for and bore for and get petroleum existing in its natural condition in strata below ground, the words enter on in that subsection are apt to apply to underground workings as well as workings on the surface itself. The words interfere with are not restricted, as was suggested, to interfering with the owners use and enjoyment of the land for the time being. The owner of the subsurface is entitled to say that his land is being interfered with when it is bored into by someone else. His right to object is inherent in his right of ownership of the land. It is nothing to the point that he is not making any use of it. The fact that an underground wayleave is included in the ancillary rights referred to in section 3(2)(b) of the 1923 Act reinforces the conclusion that is to be drawn from the provisions of the 1934 Act that a licensee who does not already enjoy a right to enter upon someone elses land needs to acquire an ancillary right from the owner of that land if he wishes to do this. For all these reasons I would hold, in agreement with the Court of Appeal, that the respondents have trespassed on Bocardos land and that, subject to their submissions as to the amount of the damages, they have no defence to Bocardos claim. I would dismiss the cross appeal. (b) Damages The parties are agreed that, if damages are to be assessed on a wayleave or user basis, their measure is the price that reasonable persons in the position of the parties would have negotiated for a grant of a contractual right for the licensee to extract the oil through the sub strata below the Oxted Estate using wells PW5, PW8 and PW9: Statement of Facts and Issues, Principal Issue 2, para 2(a). It is also agreed that, in assessing the price that reasonable parties would have negotiated, the negotiation must be assumed to have taken place against the relevant statutory background, which at the relevant date would have included the Petroleum (Production) Act 1934 and the Mines (Working Facilities and Support) Act 1966. I gratefully adopt Lord Clarkes description of the general background and the statutory framework. Section 8(2) of the 1966 Act provides that the compensation or consideration is to be assessed on the basis of what would be fair and reasonable between a willing grantor and a willing grantee, having regard to the conditions subject to which the right is, or is to be, granted. The word consideration is included in this subsection because the rights that may be granted under section 1 of the Act include the right to search for, work and take away minerals such as coal. In the present case, however, the relevant word is compensation. This is because the transaction which is in issue is the acquisition of the right to sink the wells under Bocardos land which, as Lord Brown says in para 62, Bocardo had no option but to allow the respondents to do. Had it refused to grant them a wayleave, the respondents would have been able to go to the court for an order granting them the necessary ancillary rights under section 3(2)(d) of the 1966 Act. I agree with Lord Walker, Lord Brown and Lord Collins, for the reasons they give, that this must be taken to be a case of compulsory acquisition. So the general principles of compulsory acquisition law must be applied, including the value to owner principle and the no scheme rule in particular: see Lord Collins, paras 101 and 102. Accordingly, an increase in value which is consequent on the scheme for which the land is being acquired must be disregarded. The basis on which compensation is awarded is the value of the land to the owner, not its value when taken by the promoter of the scheme. But if the land has a special value because it is the key to the development of other land, that will represent part of its value to the owner which may be taken into account in the assessment of compensation in just the same way as it would if the owner was negotiating to realise its value in the open market: Waters v Welsh Development Agency [2004] UKHL 19, [2004] 1 WLR 1304, paras 64 65 per Lord Nicholls of Birkenhead. It would be wrong to approach bringing this element of value into account as amounting to the exercise of a right of veto, as Harman LJ suggested in Edwards v Minister of Transport [1964] 2 QB 134, 156; see also Logan v Scottish Water [2005] CSIH 73, 2006 SC 178, para 102 where his approach was adopted. It is a legitimate element of the value of the land to the owner, so long as it is justified by the facts of the case. What then is one to make of the facts of this case? In respectful disagreement with Lord Walker, Lord Brown and Lord Collins, I would not attribute the key value of Bocardos land in the hypothetical negotiation that must be imagined entirely to the scheme underlying the acquisition by the respondents of the right to obtain access to the petroleum. It seems to me that the key to its value lies in the geographical position which it occupies on top of the apex to the reservoir. It is, of course, clear that after the coming into force of the 1934 Act only the Crown or someone holding a licence from the Crown had the right to search, bore for and get the petroleum. The market that has to be envisaged was therefore a limited one. There could be only one licence holder at any one time. But this does not mean that the respondents must be taken to be the only possible bidder in the hypothetical market for the right to obtain access to the apex of the reservoir. The scheme which the respondents devised was dictated by the position of the drilling sites which they had created, but it has not been suggested that it was the only way that access could be obtained to it. I agree with that part of Lord Clarkes judgment in which he examines this question on the assumption that the Pointe Gourde principle applies to the assessment of compensation under section 8(2): see paras 158 163. Support for Lord Clarkes reasoning is to be found in the decision of the Lands Tribunal in Chapman, Lowry & Puttick Ltd v Chichester District Council (1984) 47 P & C R 674, to which Lord Clarke refers in para 161. Lord Walker sees that case differently: para 55. But I prefer Lord Clarkes interpretation of it. The approach which the Tribunal took was to ask itself whether the acquiring authoritys need for the strip of waste land as access for the land which it owned to the rear was special or peculiar to the authority itself. This question could not be determined unless the needs of other possible owners of the rear land were considered and taken into account. It was reasonable to assume that such hypothetical owner or developer could expect to receive precisely the same planning permission for precisely the same residential development as that obtained by the acquiring authority and subject to the same constraints in relation to the highway. From this it followed that any owner of the rear land would have precisely the same need for the waste strip as had the acquiring authority: pp 679 680. I think that exactly the same points can be made in this case. Anyone who had obtained a licence to search, bore for and get the petroleum under Bocardos land would have had precisely the same need to obtain a wayleave to obtain access to it if it was not to commit a trespass. So it was not the respondents scheme that gave the relevant strata beneath Bocardos land its peculiar and unusual value. It was the geographical position that its land occupies above the apex of the reservoir, coupled with the fact that it was only by drilling through Bocardos land that any licence holder could obtain access to that part of the reservoir that gives it its key value. I agree with Lord Clarke that this case is on the side of the line identified by Mann LJ in Batchelor v Kent County Council (1989) 59 P & CR 357, 361 in which the land has a key value which was pre existent to the scheme proposed by the respondents for their development. I do not think that it would be right to take into account what Viscount Hailsham said during the Second Reading of the Bill which became the 1934 Act as reported in Hansard (HL Debates), 19 April 1934, cols 691 692. What he said does not fall within the limited exception to the general rule that resort to Hansard is inadmissible which was recognised in Pepper v Hart [1993] AC 593. This is available to prevent the executive seeking to place a meaning on words used in legislation which is different from that which ministers attributed to those words when promoting legislation in Parliament; see R v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 AC 349, 407 408. Viscount Hailsham was the Secretary of State for War, but he was not the promoter of the Bill. That task was being undertaken by the Secretary of State for Air, the Marquess of Londonderry, in whose support Viscount Hailsham spoke when the Bill was being debated. Moreover this is not a case where the executive is seeking to put a different meaning on words used in the 1934 Act from that which the Minister attributed to those words when promoting the Bill. Nor do I find clear and convincing support in the wording of the 1934 Act for the argument that all that was to be compensated for was the amenity value of the land. The 10% uplift in the compensation provided for by section 3(2)(b) of the 1934 Act as an allowance on account of the acquisition being compulsory appears to me to be a neutral factor, for the reasons that Lord Clarke gives in para 142. On all the remaining issues, including the way the amount of the damages ought to have been quantified, I agree with Lord Clarke. I think that the trial judge went too far in applying his figure of 9% to all the oil extracted or to be extracted during the period covered by his award until the oil and gas extraction was exhausted. In my opinion the sum of 621,180 plus interest that he awarded as damages was excessive, as it was not restricted to the amount that was attributable to the key value of the land. I would not be averse to using his figure of 9%, so long as it was applied only to the extra amount of oil and gas that was obtained by drilling into the apex of the reservoir. If this had been a live issue it would have been necessary to remit the case to the High Court so that it could assess the amount of the extra value and complete the exercise of calculating, on this much more limited basis, the amount of the damages. Having dismissed the cross appeal on the trespass issue, I would allow the appeal and remit the issue of damages to the High Court. LORD WALKER I agree with the judgment of Lord Hope on the trespass issue and with that of Lord Brown on the damages issue. What follows should be read as no more than footnotes to Lord Browns judgment. It is common ground (see para 2.2 of the Statement of Issues) that if damages are to be assessed on a wayleave basis, the measure of damages is the price that reasonable persons in the position of the parties would have negotiated for a grant of the appropriate contractual rights, against the statutory background of the Petroleum (Production) Act 1934 and the Mines (Working Facilities and Support) Act 1966. I am inclined to think that that starting point might have been open to argument, on the lines indicated in the comprehensive and scholarly judgment of Warren J in Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) [2009] 1 P & CR1, paras 55 99. But I put that aside. The starting point, therefore, is (in the words of section 8(2) of the 1966 Act): What would be fair and reasonable between a willing grantor and a willing grantee, having regard to the conditions subject to which the right is or is to be granted. The statute requires the adjudicator to predict the outcome of a hypothetical negotiation, between willing negotiators, which reaches a concluded agreement. In my opinion this statute (in conjunction with section 3 of the 1934 Act) is plainly concerned with compulsory acquisition of rights in or over land. Indeed section 3(2) of the 1934 Act (requiring an uplift of at least 10%) says as much. I cannot accept the appellants submission that there is a fundamental distinction between a statute which gives a public authority a right to acquire property and one which regulates property rights between private parties. The whole law of compulsory purchase began and developed with infrastructure projects (first canals, then railways) undertaken by companies in the private sector. The oldest of the statutory formulae was in section 63 of the Land Clauses Consolidation Act 1845. It was also the simplest: . The value of the land to be purchased or taken by the promoters . (There was also compensation for injurious affection). There was then a long period of judicial interpretation of this simple phrase, resulting in the firmly established value to the owner principle. This was explained by Lord Collins in Transport for London v Spirerose Ltd [2009] 1 WLR 1797, paras 119 129, in his exposition of the Pointe Gourde principle (see Pointe Gourde Quarrying & Transport Co Ltd v Sub Intendent of Crown Lands [1947] AC 565). It is a principle of statutory construction, and in the Transport for London case I suggested (at para 24) that the principles vigour is now channelled and restrained by a much more complex statutory scheme (especially sections 14 17 of and Schedule 1 to the Land Compensation Act 1961). One way of looking at the principle is to see it as an answer (at least in part) to the question: in the hypothetical negotiation called for by the statute, how far are the actual purpose and circumstances of the compulsory purchase to be taken into account? The principle tells us that compensation cannot include an increase in value which is entirely due to the scheme underlying the acquisition (Lord MacDermott in Pointe Gourde at p572, emphasis supplied). Similarly Lord Nicholls in Waters v Welsh Development Agency [2004] 1 WLR 1304, para 18 referred to the disregard of enhancement in the value of land attributable solely to the particular purpose for which it is being compulsorily acquired (emphasis supplied). This can be summarised, with some loss of precision, by saying that the hypothetical negotiation takes place in a no scheme world. Statutory hypotheses are notoriously troublesome. In East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109 the issue was whether a hypothetically rebuilt block of flats would have been subject to the Rent Restriction Acts. Lord Asquith of Bishopstone said (at pp132 133, a passage that has since been cited in many different contexts), If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. But the need for the case to go to the House of Lords suggests that there was room for argument about what were the inevitable corollaries of the hypothesis. There is no difficulty about extreme cases such as Stebbing v Metropolitan Board of Works (1870) LR 6 QB37, the graveyards case. The hypothetical sale of the graveyards was not to take place in a world in which hundreds of graves containing human remains (whose presence precluded any normal development) were to be exhumed so that a road could be built. The enhancement in value was entirely due to the road building scheme. But other cases are more difficult. One such case is the so called Indian case [1939] AC 302. It is difficult partly because of the unusual facts (the proposed anti malarial works consisted of closing unhealthy wells which supplied several different villages, and the spring was seen as a source of fresh water both for the new harbour undertaking and for the villages) and partly because of Lord Romers rather discursive discussion of an imaginary auction. I agree with Lord Brown that it may not be necessary, or helpful, to refer to the Indian case again. Another case which illustrates the tangles which hypothesis can lead to is Porter v Secretary of State for Transport [1996] 3 All ER 693, considered by Lord Collins in Transport for London at paras 115 118. The no scheme rule required the actual proposal for a by pass round Evesham to be disregarded, but because the town really did need a by pass somewhere, the valuation was made on the basis that a relief road would be built on another route. So the court posited a world in which the scheme actually proposed did not exist, but an imaginary scheme did exist. This convoluted approach was altered for the future by amending legislation. The case now before the Court is on very unusual facts, but its unusual facts do not to my mind make it more difficult. It is an extreme case in that Star Energys operations did not (in the words of Peter Smith J) interfere one iota with Bocardos enjoyment of its land. Subject to a contrary argument put forward by Bocardo, the value of the right granted to Star Energy was entirely due to the scheme, which was (as Aikens LJ said in the Court of Appeal, para 111) the exploitation of the petroleum licence in the specified area. The contrary argument (picking up the well known observations of Mann LJ in Batchelor v Kent County Council (1989) 59 P & CR 357, 361) is that the value was not entirely due to the scheme underlying the acquisition but was pre existent. It is true that the natural petroleum was pre existent. It had been there, no doubt, for tens of thousands of years. But the petroleum did not belong to Bocardo. It is true that Bocardo held a key (not, I think, the only possible key) to the most efficient exploitation of the petroleum by diagonal drilling to the apex of the oilfield. But the keys value depended entirely on the scheme, unlike a ransom strip for which there might have been a variety of possibilities of profitable realisation, some not involving compulsory purchase, as in Chapman, Lowry & Puttick Ltd v Chichester District Council (1984) 47 P & CR 674. For these reasons, and for the fuller reasons in the judgment of Lord Brown, I would dismiss this appeal. LORD BROWN What sum would the Court have assessed as the proper compensation to be paid by Star to secure their right to install deviated wells or pipelines beneath Bocardos land had Star sought to enforce that right pursuant to the Mines (Working Facilities and Support) Act 1966 (the 1966 Act)? Agreeing, as I do, with Lord Hopes judgment on all the issues raised by Stars cross appeal on liability, and concerned, as I am, to address only the issues arising on Bocardos appeal as to damages, that is what I regard as the ultimate question for the Courts determination. For this purpose I shall take as my starting point the scenario described in the next 4 paragraphs (based partly on a somewhat simplified account of the facts and partly on what I understand to be common ground between the parties as to the proper measure of damages for trespass in this particular case given that Bocardo succeed on all issues of liability). Pursuant to section 2 of the Petroleum (Production) Act 1934 (the 1934 Act) Star held a licence issued by the Secretary of State on behalf of the Crown giving them the exclusive right to search and bore for and get the petroleum lying underground (the property in which section 1 of the 1934 Act had vested in the Crown) in a part of Surrey including the Palmers Wood oil field. Under the licence Star are required to pay royalties to the Crown equal to 5% of the market value of the petroleum won (potentially rising, depending upon the amount won, to 12.5%). The apex of this oil field lies at a depth of some 2,800 ft below ground within the Oxted Estate, land in Bocardos freehold ownership. To win the petroleum, Star needed to drill and install three pipelines, two (PW5 and PW8) down towards the apex, one (PW9) so as to inject water into a different part of the oil field (not within the Oxted Estate) to maximise petroleum recovery. These three pipelines were drilled diagonally from a site (known as the Coney Hill well head) outside Bocardos Oxted Estate: PW5 entering the estate at about 1300 ft below ground level, running for about 500m and terminating at about 2,900 ft below; PW8 entering at about 800 ft below, running for about 700m and terminating at about 2,800 ft below; PW9 entering at about 950 ft below, crossing a corner of the estate and exiting deeper still after about 250m. The pipelines are variously of 8 inches and 12 inches diameter and lined with steel casing. Their drilling and installation occasioned no harm whatsoever to the estate. It did not interfere with Bocardos use or enjoyment of its land one iota. Pursuant to section 3 of the 1934 Act, Part I of the Mines (Working Facilities and Support) Act 1923 (the 1923 Act) applied and, upon the replacement of the 1923 Act as amended by the 1966 Act, the 1966 Act applied to enable Star as licence holder to acquire such ancillary rights as they required in order to win the petroleum. The ancillary right which Star required was, or was akin to, that described in section 2(1)(b) of the 1966 Act, as amended by section 27 of the Petroleum Act 1987, as a right of . shaft way . or underground way leave, or other right for the purpose of access to or conveyance of minerals. Section 3(2)(d) of the 1966 Act (replacing section 4(1)(d) of the 1923 Act) provided that, had Bocardo unreasonably refused to grant Star such ancillary right or demanded unreasonable terms for its grant, Star was entitled to ask the Minister to refer the matter to the court both for it to grant the right and to assess the compensation or consideration payable for it under section 8(2) of the 1966 Act (section 9(2) of the 1923 Act). Section 8(2) provides, so far as material in the present context: The compensation or consideration in respect of any right . shall be assessed by the court on the basis of what would be fair and reasonable between a willing grantor and a willing grantee . By section 3(2)(b) of the 1934 Act it was provided that: in determining the amount of any compensation to be paid in respect of the grant of any right, an additional allowance of not less than 10% shall be made on account of the acquisition of the right being compulsory. In the light of those basic facts and those governing statutory provisions I return to the question I posed at the outset, what sum should the court have assessed as proper compensation to be paid to Bocardo for having no option but to allow Star to install their pipelines under Bocardos land? The answer to that question ultimately determinative of this appeal must in turn depend upon the answers to two fundamental other questions. First, do the principles ordinarily governing the approach to valuation in the field of compulsory land purchase apply equally to the construction and application of section 8(2) of the 1966 Act with regard to the compulsory acquisition of ancillary rights over (or, as here, under) land? Secondly, even assuming (contrary to Bocardos argument) that compulsory purchase principles do apply in this context, do they operate to deny Bocardo what would otherwise be regarded as the powerful bargaining position of a landowner able to control access to a valuable oil field partially sited beneath their land? Bocardos core argument is to be found in their printed case (para 48) as follows: This is a classic key case. The second party does not own the treasure but he does own the key to the treasure chest. The key has little or no intrinsic value. Its value is what it gives access to. What the owner of the key has is purely a bargaining position. He is in the position of the owner of land which is needed to give the access necessary for the exploitation of a valuable asset. Bocardo then contend (para 53) that, there being no direct comparables, in order to determine a fair and reasonable price, [i]t was accordingly necessary to approach the valuation by enquiring what would be a fair share of the spoils for the landowner to receive for granting a right of access to the oil deposit. It was an acceptance of essentially this argument that led Peter Smith J at first instance to assess Bocardos damages at 621,180 (being 9% of the gross revenue from the oil extracted during the relevant period up to trial) plus interest (together with 9% of all future revenue derived from the pipelines the price of suspending an injunction otherwise imposed in respect of their further use). The Court of Appeal by contrast held that ordinary compulsory purchase principles apply to the assessment of compensation under section 8(2) and that pursuant to these Bocardo had no key value to exploit, were suffering no loss whatever, and would be amply compensated by an award of 1,000 (to include the 10% uplift under section 3(2)(b) of the 1934 Act) in respect of both past and continuing trespass. I turn then to the first of the two underlying questions earlier identified: do compulsory purchase principles of valuation apply to section 8(2)? First and foremost of these principles is what is commonly known as the no scheme rule or the Pointe Gourde rule. This rule was stated by Lord MacDermott in Pointe Gourde Quarrying & Transport Co Ltd v Sub Intendent of Crown Lands [1947] AC 565, 572 as follows: It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition. The two most authoritative recent decisions on the proper approach to compensation for compulsory purchase are Waters v Welsh Development Agency [2004] 1 WLR 1304 (Waters) and Transport for London v Spirerose Ltd [2009] 1 WLR 1797 (Spirerose). Waters was concerned principally with the correct identification of the extent of the scheme whose effect in increasing the value of the land is to be disregarded; Spirerose was concerned rather with the value of the acquired lands pre existing potential for development and more particularly with whether that has to be discounted for future uncertainties. Whilst it is unnecessary to traverse again most of the ground covered by those cases, it is important to note, first, Lord Nicholls of Birkenheads description of the Pointe Gourde principle (at para 42 of Waters) as no more than the name given to one aspect of the long established value to the owner principle; secondly, Lord Walkers observation (at para 12 of Spirerose) that the Pointe Gourde principle is essentially concerned with statutory construction . not . with the meaning of a particular word or phrase which has appeared in a succession of statutes dealing with the same subject matter, but with the general attitude and expectation with which the Court should approach a statute dealing with compensation for the compulsory acquisition of land [operating, as it is put in Bennion, Statutory Interpretation, 5th ed (2008), p442, as a special interpretative convention]; and, thirdly, as was clearly held by the majority in Waters, that it is the Pointe Gourde principle as explained in the cases, rather than the statutory rules for assessing compensation contained in section 5 of the Land Compensation Act 1961 (rules originally enacted in section 2 of the Acquisition of Land (Assessment of Compensation) Act 1919), which nowadays principally governs the approach to compensation in compulsory purchase cases although it nonetheless seems to me worth noting too the terms of section 5(3) of the Land Compensation Act 1961 (as amended by Schedule 15(I) of the Planning and Compensation Act 1991): The special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the requirements of any authority possessing compulsory purchase powers. The policy underlying the principle is, of course, that identified by Lord Nicholls in Waters (para 18): When granting a power to acquire land compulsorily for a particular purpose Parliament cannot have intended thereby to increase the value of the subject land. Parliament cannot have intended that the acquiring authority should pay as compensation a larger amount than the owner could reasonably have obtained for his land in the absence of the power. For the same reason there should also be disregarded the special want of an acquiring authority for a particular site which arises from the authority having been authorised to acquire it. As Lord Nicholls then added (para 19): This approach is encapsulated in the time hallowed pithy, if imprecise, phrase that value in this context means value to the owner, not value to the purchaser. Bocardo contend that section 8(2) is simply not subject to the compulsory purchase principles of valuation exemplified by the Pointe Gourde rule. There is no mention, either in the 1923 Act or the 1966 Act, of the statutory rules governing the approach to compensation to be found in the 1919 Act or the 1961 Act, in contrast to a number of other statutes similarly conferring compulsory powers to acquire subterranean land or rights: notably, the Channel Tunnel Act 1987, the Water Resources Act 1991, the Electricity Act 1989, the Pipelines Act 1962 and the Gas Act 1986. Instead there is in section 8(2) an unadorned provision for fair and reasonable compensation as between a willing grantor and a willing grantee without even an entitlement to seek the Courts assessment unless and until it is shown to be not reasonably practicable to obtain the right by private arrangement because the person with power to grant the right unreasonably refuses to grant it or demands terms which, having regard to the circumstances, are unreasonable (section 3(2)(d) of the 1966 Act). Accordingly, submit Bocardo, they are in no worse negotiating position under the 1966 Act than they would be at common law indeed better placed because under the Act a willing seller cannot merely hold out for a price which properly reflects the value of the right to the purchaser but can also act so as to delay the acquisition of the right and (pursuant to section 3(2)(c) of the 1934 Act) put the purchaser to considerable expense by way of irrecoverable costs. And, of course, the seller gets a minimum 10% uplift. Ably though these arguments were presented, for my part I cannot accept them. That the present context is one of compulsory acquisition of rights over land seems to me indisputable. How, indeed, could this be more clearly demonstrated than by the express requirement under section 3(2)(b) of the 1934 Act for a 10% or greater uplift in compensation on account of the acquisition of the right being compulsory? Quite why the 1923 Act (and, in turn, the 1966 Act) do not incorporate the statutory rules contained in the general land compensation legislation is unclear, but it may be because the 1923 Act (and the 1966 Act) provide not only (as is directly relevant here) for compensation for rights over land to win minerals not in the landowners ownership, but also for consideration, for example for the working of coal whereby the property in the mineral passes from the grantor to the grantee and so calls for a valuation of that property right on an ordinary commercial basis. For the life of me, however, I can think of no sound reason why Parliament in 1934 should have intended an ancillary right of the kind under consideration here to be valued on a different and altogether more generous basis than comparable rights acquired under general compulsory purchase powers or, indeed, under the several Acts mentioned above. Quite the contrary. A strongly arguable case in fact arises here for saying that Stars diagonal wells are actually to be regarded as pipelines within the meaning of the Pipe lines Act 1962 (in which event the ordinary approach to compensation for compulsory acquisition most obviously applies). Like the Court of Appeal I think it unnecessary to reach my conclusion on the argument. But the mere fact that it arises to my mind underlines the oddity of the proposition that an entirely different compensation requirement exists for the ancillary right here in question depending upon whether it is enforceable under the 1923/1966 legislation or under the Pipe lines Act 1962. It would seem to me most odd had Parliament in 1934 expropriated with no compensation whatever the property in all subterranean petroleum together with the exclusive right to search, bore for and win it, and yet at the same time intended that the landowner, beneath whose land the Crowns licence holder must necessarily bore to achieve the statutory purpose of maximising petroleum recovery in the national interest, should thereby become entitled to a fair share of the spoils as the appellants contend. And to my mind such a supposition becomes more bizarre still when one recognises that Parliament expressly stipulated for not less than a 10% uplift in the statutory compensation payable on account of the landowner being powerless to deny the licence holder the ancillary right he requires. Why would Parliament both allow him to exploit his bargaining position for all the world as if the parties negotiation was taking place in a routine commercial context beyond the reach of legislation and then add upwards of 10% simply because he cannot at the end of the day refuse to grant the ancillary right required and is unable to charge for it more than is fair and reasonable? Is the licence holder, as Peter Smith J held, really required to pay not merely a 5% (rising to 12 %) royalty to the Crown but in addition compensation amounting to a further 9% of the value of the petroleum won in order to be able to avail himself of his statutory entitlement to win the petroleum? This issue cannot be resolved by reference simply to the language of section 8(2): what is fair and reasonable compensation as between a willing grantor and a willing grantee must inevitably depend upon whether the willing grantee is or is not entitled in the notional negotiation between the parties to exploit the position he would be in but for the grant of compulsory purchase powers to deny the licence holder access to the petroleum he is statutorily empowered to win. It depends, in short, upon whether the Court construing section 8(2) should approach it with the same general attitude and expectation as ordinarily it brings to the construction of statutory provisions dealing with compensation for compulsory land acquisition. If so, the Pointe Gourde principle applies: the landowners compensation should not be assessed at more than he could reasonably have attained for the grant of the ancillary right had the licence holder not enjoyed a statutory power to acquire it compulsorily for a particular purpose (plus, of course, upwards of 10%). I recognise, of course, that the word value (which had appeared in section 63 of the Land Clauses Consolidation Act 1845) is not to be found in section 8(2). But, as Lord Walker observed in Spirerose (see para 12 above), the Pointe Gourde approach is not dependant on a particular word or phrase but rather on the correct approach to statutory construction in this particular context. If the Court is to construe section 8(2) consistently with other legislative provisions governing compulsory acquisition, it falls to be approached on the basis that what is fair and reasonable depends not on what the grantee is gaining but rather on what the grantor is losing. It is for this reason too that the wealth of authority concerning damages for trespass (user damages) damages measured by the benefit received by the trespasser, namely, by his use of the land, as Lord Nicholls put it in AG v Blake [2001] 1 AC 268, 278 seems to me of no assistance in the present case, Bocardo having conceded throughout that their entitlement to damages can be no more than they would have received as compensation under section 8(2). As already indicated, it seems clear to me that Parliament in 1934 must have intended compensation under the 1923 Act to be assessed on similar principles to the assessment of compensation under other compulsory purchase legislation (save only that there was to be added the 10% or greater uplift payable for such ancillary rights as were required to win petroleum, notwithstanding that by section 2(1) of the 1919 Act Parliament had abolished the 10% addition for compulsory purchase that had earlier characterised compensation awards). Were, however, Parliaments intention in 1934 to be unclear and resort to be had to the Hansard Reports of the day as Bocardo themselves pray in aid the speech of the Marquess of Londonderry, the Secretary of State for Air and the Minister promoting the Bill, in support of their contention (which indeed I accept) that section 10(3) was inserted into the Act to remove any possible doubt as to whether a licence holder wishing to enter upon or interfere with land needed to obtain an ancillary right to do so under the 1923 Act; clearly they did it could only serve to support my understanding of the position with regard to the intended basis of compensation. It is sufficient for this purpose to set out a passage from the speech of Viscount Hailsham, the Secretary of State for War supporting the Bill on its second reading in the House of Lords (see Hansard (HL Debates),19 April 1934, cols 691 692): Now it is said . You are not compensating the owners for the value of the oil which is under their land. It is quite true we are not. We are not compensating them for the value of the oil that is under their land, or, for the matter of that, for the value of oil which is under their neighbours land. But it is fair to remember that at this moment and that is one reason why the Bill to be introduced and passed, as we think, at this stage there is no value in the oil under their land, or under their neighbours land. In the three cases in which licences have been granted and are being worked [licences under the Petroleum (Production) Act 1918 pursuant to which landowners were demanding royalty payments for the right to drill for oil under their land] we have been careful to exclude those areas altogether from the provisions of the Bill, because we recognise that, in accordance with our principles it would not be right to say that, where vested interests have been created and there is a chance of land having appreciated by the possibility of oil being found there, that value should be taken away without due compensation being given. In the cases with which this Bill deals the rest of the country there is no value at all today in the possible oil rights, in the chances of finding oil under the soil. But we have been careful to provide that where in any particular place arrangements are made, or asked for, for the sinking of wells or for bore holes, or in any way interfering with the actual rights that exist, interfering with the surface rights, there shall be paid not merely full compensation in the sense of the full market value, not merely full compensation for any loss of amenity value, but in addition to that it is expressly provided in the Bill that there shall be an addition of 10% because the acquisition is a compulsory one and the owner may not necessarily desire to realise that asset. So that we are careful to give full compensation in every case in which any valuable right is interfered with. All we do is to say before there is any value established, before any vested right is created, that the oil if it exists which nobody knows shall belong to the state in future; but that any interference with the rights of property on the soil, or with the value of the property under which the oil is situated, shall be fully compensated for to the owner whose property is interfered with. It seems to my mind perfectly clear that the compensation and the only compensation contemplated by Parliament in enacting the 1934 Act was for any loss of amenity value consequent on interference with actual rights that exist, in particular the surface rights. For any such loss full compensation in the sense of the full market value was to be paid, plus 10% because the owner may not necessarily desire to realise that asset. Compensation was to be for interference with any valuable right. Landowners, however, had no right at all in the oil or in the chances of finding oil under the soil. It seems clear that Parliament in 1934 was not contemplating the boring of deep wells diagonally beneath land but that, had they done so, they would not have regarded that as an interference with any actual existing right or as involving any loss of amenity value or at any rate not such an interference as required more than essentially nominal compensation. I pass now to the second of the two fundamental questions arising: even supposing ordinary compulsory purchase principles apply to the assessment of compensation under section 8(2), can Bocardo nevertheless assert and benefit from the key value of the ancillary right which Star needed to acquire here? Bocardo submit that their control over the necessary right of passage of wells through their land is in principle indistinguishable from the ownership of a ransom strip of land giving necessary access to other land: in the latter case, without acquisition of the ransom strip, the second plot is landlocked; here, without acquisition of the required ancillary right of passage, the petroleum is earth locked. For my part I readily acknowledge the closeness of the parallel between the two situations. But to point to the parallel is by no means to answer the question arising. It merely invites the posing of the question in another form: suppose a 1934 Act licence holder needs to acquire a strip of wasteland to be able to exploit his statutory right to search, bore for and get petroleum, would the owner of that strip be entitled to its key value? said there under the heading Ransom value: It is convenient at this stage to return to Waters to see what Lord Nicholls 64 One last point should be noted before returning to the present case. This concerns so called ransom value or, less pejoratively, key value. I have already mentioned that under the value to the owner principle or the Pointe Gourde principle, whichever nomenclature is preferred, the pressing need of an acquiring authority for the subject land as part of a scheme should be disregarded when assessing its value for compensation purposes. The value of the land is not the price a driven buyer would be prepared to pay. But a strip of land may have special value if it is the key to the development of other land. In that event this feature of the land represents part of its value as much for purposes of compensation as on an actual sale in the open market. 65. The intersection of these two principles was identified neatly by Mann LJ in Batchelor v Kent County Council (1989) 59 P &CR 357, 361: If a premium value is entirely due to the scheme underlying the acquisition then it must be disregarded. If it was pre existent to the [scheme] it must in my judgment be regarded. To ignore the pre existent value would be to expropriate it without compensation and would be to contravene the fundamental principle of equivalence . 66. In the present case the claimants contend their land had key value because of its importance as compensatory wetlands required for completion of the Cardiff Bay barrage project. Whether this contention is well founded for compensation purposes depends, in accordance with the principle enunciated by Mann LJ, on the ambit of the scheme of which the subject lands acquisition was an integral part. In reality Bocardo are advancing here essentially the same argument as was advanced by the owners of the wetlands in Waters which I there identified (at para 153) as their second argument and (at para 156) rejected, observing that: If correct, it would emasculate the no scheme rule to the point of extinction. Like Lord Nicholls, I too (at para 157) cited Mann LJs judgment in Batchelor v Kent County Council and (at para 158) concluded: Assuming, however, that any premium value, or indeed any other particular value, of the land were entirely due to the scheme underlying the acquisition (or, if one prefers Lord Nicholls formulation in Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111, 136, due to the very scheme of which the [acquisition] forms an integral part), then in my judgment, notwithstanding that it represents the lands unrealised potentiality . , it clearly falls to be disregarded. To my mind there can be no doubt as to what constitutes the scheme in the present case: the Court of Appeal (para 111) correctly identified it as: The exploitation of the petroleum licence in the specified area. Nor can there be any doubt that, whatever particular value existed in the ancillary right here required to facilitate that exploitation (any premium or key or ransom value), it existed exclusively (entirely or solely are other words used in this context) because of the scheme. But for the scheme, there was no potential use or value whatever in the right being granted. It thus fell to be disregarded under the Pointe Gourde principle as, indeed, to my mind, had it been a ransom strip of land, it would no less obviously have fallen to be disregarded whether under that principle or under section 5(3) of the 1961 Act: the purpose served by the suitability of such land for providing access could only have been achieved in pursuance of statutory powers, there being no market for such right of access apart from the requirements of the statutorily empowered licence holder. To my mind it is impossible to characterise the key value in the ancillary right being granted here as pre existent to the scheme. There is, of course, always the chance that a statutory body with compulsory purchase powers may need to acquire land or rights over land to accomplish a statutory purpose for which these powers have been accorded to them. But that does not mean that upon the materialisation of such a scheme, the key value of the land or rights which now are required is to be regarded as pre existent. This is well illustrated by Fletcher Moulton LJs judgment in In Re Lucas & Chesterfield Gas and Water Board [1909] 1 KB 16 where land had been compulsorily purchased for the construction of a reservoir. Having stated (pp29 30) the absolute rule that the landowner is only to receive compensation based upon the market value of his lands as they stood before the scheme was authorised by which they are put to public uses, the Lord Justice turned to consider the question of the special adaptability of land for purposes for which lands are required only when used for works of public utility and continued (pp30 31): Ought the owner to be entitled to higher compensation by reason of the, to him, useless peculiarities which the lands possess? No better example of the problem could be found than that which we have in the present case. The land in question is by its position and conformation marked out as a favourable site for an impounding reservoir to collect water for the public supply of a district. The peculiarities which make it suitable for that purpose add nothing to its value as agricultural or grazing land, which I will assume to be the only alternative uses. A public authority obtains powers to take it for a reservoir; ought it to pay any higher price than is represented by its agricultural or grazing value? Is not any price in excess of this a violation of the canon that you are only to give that which represents its worth to the seller, and that you are to disregard all questions of its worth to the buyer? The decided cases seem to me to have hit upon the correct solution of this problem. To my mind they lay down the principle that where the special value exists only for the particular purchaser who has obtained powers of compulsory purchase it cannot be taken into consideration in fixing the price, because to do otherwise would be to allow the existence of the scheme to enhance the value of the lands to be purchased under it. But when the special value exists also for other possible purchasers, so that there is, so to speak, a market, real though limited, in which that special value goes towards fixing the market price, the owner is entitled to have this element of value taken into consideration, just as he would be entitled to have the fertility or the aspect of a piece of land capable of being used for agricultural purposes. Towards the end of his judgment (p35) Fletcher Moulton LJ concluded: The scheme which authorises the new reservoir only entitles the owner of the land to receive as compensation the value of the land unenhanced by that scheme, and, unless its situation and peculiarities create a market for it as a reservoir site for which other possible bidders exist, I do not think that the single possible purchaser that has obtained parliamentary powers can be made to pay a price based on special suitability merely by reason of the fact that it was easy to foresee that the situation of the land would lead to compulsory powers being some day obtained to purchase it. Now it is perfectly true to say that subsequently, in Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302 (the Indian case) the Privy Council preferred the view expressed in the Lucas case by Vaughan Williams LJ (p28), namely that in assessing the award for the land the Umpire may value the possibility of the site going into the market as being required for the enlargement of the waterworks, [albeit] not on the basis of a realised possibility, or on account of the promoters having obtained from Parliament compulsory powers. But there are two important points to be made. The first is that the Indian case affords no assistance at all as to how much the acquiring authority should be regarded as willing to pay for the particular value of the land to him. Although the Board was critical of Rowlatt Js view in Sidney v North Eastern Ry. Co. [1914] 3 KB 629, 637 that the acquiring authority should pay for the lands existing use value or development potential no more than the highest price realisable from any competing prospective purchaser, there is certainly nothing to suggest that they disagreed with his view that compensation was plainly not to be assessed on the basis of the owner obtaining for himself a share in [the] value [of the land to the promoter for his scheme]. As Lord Nicholls said in Waters (para 36) with regard to the Indian case: Potentiality is part of the market value of land and must be taken into account when assessing compensation. Potentiality should be valued even if the only likely purchaser is the acquiring authority itself. That was decided in the Indian case. But market value does not include enhanced value attributable solely to the particular use proposed to be made of the land under a scheme of which compulsory acquisition of the subject land is an integral part. This element of value is not part of market value because it is not an element the owner could have realised in the open market. That is the traditional view, which has long been acted upon in this country. In practice, it appears, a more or less token increase on what otherwise would be assessed as the lands market value tends to be made in deference to the Indian case for example, in BP Petroleum Developments Ltd v Ryder [1987] 2 EGLR 233, 248, an increase from 40 per annum per acre to 45 for the rights over the additional land sought by the special purchaser there (the increase being made for him to be certain that he will acquire the rights he seeks); and, indeed, the increase from 50 to 75 which the Court of Appeal in para 116 of the present case suggested would be made by a court assessing compensation here to account for the fact that Star, as the holder of the petroleum licence, was a special purchaser. The basic 50, I should note, is the standard compulsory purchase compensation paid for a deep tunnel. The second point to be made, to my mind more important still, is that made by Lord Nicholls in paragraph 38 of Waters: The legislation under consideration in the Indian case contained no equivalent of rule 3. Rule 3 is expressed in absolute terms which appear to leave no room for taking into account a potential use of the land where the acquiring authority is the only person who could turn this potentiality into an actuality. In this regard rule 3 is more restrictive of compensation than the value to the owner principle as clarified on this point by the decision of the Privy Council in the Indian case. Indeed, as Lord Nicholls had earlier noted (para 28), rule 3 in section 5 of the 1919 Act (section 5(3) of the 1961 Act see para 12 above), constituted legislative affirmation of the approach adopted on this point by Fletcher Moulton LJ in [the Lucas case] an observation reiterated by Lord Walker in Spirerose (para 18). In my opinion, therefore, it is now to be regarded as clearly established in English law that the Fletcher Moulton (or rule 3) approach is to apply to the assessment of compensation for compulsory purchase, whether of land or rights over land, and that this approach must be recognised as an integral part of the Pointe Gourde principle. I go so far as to question, therefore, whether it will be necessary, or indeed helpful, ever again to refer to the Indian case. Lord Clarke suggests (para 140) that, had the owners of the Oxted Estate before the 1934 Act been aware of the oilfield and its potential, the key value of their land as the necessary (or best) access route to the apex of the field would already have been apparent. He then asks (para 158) whether Parliament increased the key value of the land when it enacted the 1934 Act and (para 161) concluded not: the key value was not created or enhanced by the scheme or the 1934 Act because the Oxted Estate already had a key value in the market. To my mind, however, this approach is to overlook the true effect of the 1934 Act. It must be recognised that by this Act, Parliament in terms (a) vested the property in all petroleum in the Crown, (b) gave the Crown the exclusive right of searching and boring for and getting such petroleum (a right that could be licensed to others, as here to Star) and (c) enabled any licencee compulsorily to acquire any necessary ancillary right (as here to access the petroleum through Bocardos land). The correct analysis seems to me to be this: that by these provisions Parliament was at one and the same time extinguishing whatever pre existing key value Bocardos land might be thought to have had in the open market and creating a new world in which only the Crown and its licencees had any interest in accessing the oilfield and in which they had been empowered to do so (to turn the key if one wants to persist in the metaphor) compulsorily and thus on terms subject to the Pointe Gourde approach to compensation. As from 1934 all exploitation of petroleum was pursuant to the new statutory licensing scheme; all, that is, save for the petroleum won pursuant to the three licences previously granted under the 1918 Act which consistently with the first of the two paragraphs quoted above (para 76) from Viscount Hailshams speech promoting the 1934 Bill was expressly excluded from the 1934 Act Scheme (by the proviso to section 1(1)). As, however, the second quoted paragraph from the speech makes plain, save for those previously licensed areas, there was to be no value at all in possible oil rights or the chances of finding oil under the soil. The 1934 Act marked the end of key values and the payment of royalties. As I have sought to explain, compensation thereafter was to be paid on the usual basis in compulsory acquisition cases (with, of course, a 10% uplift). In summary, I reject Bocardos contentions, first, that the principles governing the approach to valuation in compulsory purchase cases have no application to the assessment of compensation under section 8(2); second, that in any event there is here no relevant scheme to be discounted under the Pointe Gourde principle; third, that Bocardos power of control over the passage by wells or pipes through their land gave a pre existing key value to the ancillary rights which Star needed to acquire from them; and, fourth, that for purely geographical reasons the land through which access was required always had potential value so long as petroleum resources lay underground. Each contention is in reality a re formulation of the same essential argument, namely that Bocardo are entitled to some share of the value of the petroleum being accessed through their land. If they are, then no doubt substantial damages such as those awarded here at first instance are appropriate (although there are detailed criticisms to be made of the precise calculation arrived at). If not, however, then the 1,000 awarded by the Court of Appeal can be regarded as positively generous: compensation under section 8(2) would have been assessed at no more than 82.50 including the 10% uplift. There is frankly no coherent basis for any intermediate award. As will already be apparent, the Court of Appeals approach here (following as it does Peter Gibson Js decision in very similar circumstances in BP Petroleum Developments v Ryder) is to my mind strongly to be preferred. I would dismiss this appeal. LORD COLLINS I agree with Lord Hopes reasons for concluding that Stars cross appeal should be dismissed, and with Lord Browns reasoning on the quantum of damages. The principles for the award of damages in cases such as this are fully canvassed in Pell Frishmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45, [2010] Bus LR 73, per Lord Walker at [46] [54]. It is common ground that the measure of damages is to be assessed by reference to the amount which Bocardo would have been awarded under section 8(2) of the Mines (Working Facilities and Support) Act 1966, had Star obtained an order from the court granting it the necessary ancillary rights over Bocardos land. The statutory scheme is simple. The issues would now be regulated by the Petroleum Act 1998 and the Mines (Working Facilities and Support) Act 1966, but the licence to Star in the present case was issued pursuant to the Petroleum (Production) Act 1934. Section 1 of the 1934 Act vested in the Crown the property in petroleum existing in its natural condition in strata in Great Britain and gave the Crown the exclusive right to search and bore for and get such petroleum. By section 2 the Crown had the power to grant licences to search and bore for and get petroleum. Star held a licence from the Crown under the 1934 Act which gave it the exclusive right to search and bore for and get the petroleum lying under (among other land) Bocardos land. The royalty payable by Star to the Crown is 5% of the market value of the petroleum extracted, rising, depending on the amount of petroleum, to 12.5%. By section 3 of the 1934 Act, Part I of the Mines (Working Facilities and Support) Act 1923 applied to enable a person holding a licence under the 1934 Act to acquire such ancillary rights as may be required for the exercise of the rights granted by the licence. The 1923 Act as amended was replaced by the Mines (Working Facilities and Support) Act 1966, a consolidating Act. By section 1 of the 1966 Act the court may confer any ancillary right on a person having the right to work minerals, who is working or desirous of working the minerals, if the right is required in order that the minerals may be properly and conveniently worked by the licensee, and the proper and efficient working of the minerals is unduly hampered by his inability or failure to obtain that right. Among the relevant ancillary rights are a right of . shaft way . or underground way leave, or other right for the purpose of access to or conveyance of minerals (section 2(1)(b)). By section 3 no such right is to be granted under section 1 unless the court is satisfied that the grant is expedient in the national interest, and it is not reasonably practicable to obtain the right by private arrangements because (among other reasons) the person with power to grant the right unreasonably refuses to grant it or demands terms which, having regard to the circumstances, are unreasonable (section 3(2)(d)). The licensee may then apply to the Secretary of State for Energy, who may refer the matter to the court: section 4. The court may grant the right and such compensation or consideration as in default of agreement may be determined by the court shall be paid or given by the applicant (section 5(1), (2)). By section 8(1), where a right is granted under section 1, the court may determine the amount and nature of compensation or consideration to be paid or given. By section 8(2): The compensation or consideration in respect of any right . shall be assessed by the court on the basis of what would be fair and reasonable between a willing grantor and a willing grantee Section 3(2)(b) of the 1934 Act provided that in determining the amount of any compensation to be paid in respect of the grant of any right, an additional allowance of not less than ten per cent. shall be made on account of the acquisition of the right being compulsory. Even without the express reference in section 3(2)(b) to the acquisition of the right being compulsory, there can be no doubt that this would have been a case of compulsory acquisition and that any general principles of compulsory acquisition law are applicable. For present purposes the most plainly relevant is the value to the owner principle, expressed in the first edition of Cripps on Compensation (1881) as follows (at 144): The basis on which all compensation for lands required or taken should be assessed, is their value to the owner, and not their value when taken to the promoters. The question is not, what the persons who take the land will gain by taking it; but what the person from whom it is taken will lose, by having it taken from him. One aspect of the value to the owner is the principle known as the Pointe Gourde rule or the no scheme rule, namely that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition (Pointe Gourde Quarrying & Transport Co Ltd v Sub Intendent of Crown Lands [1947] AC 565, 572 (PC, per Lord McDermott), extensively discussed in Waters v Welsh Development Agency [2004] UKHL 19, [2004] 1 WLR 1304, especially at [40] et seq by Lord Nicholls and [124] et seq by Lord Brown, and in Transport for London v Spirerose Ltd [2009] UKHL 44, [2009] 1 WLR 1797, at [19] et seq by Lord Walker, and at [119] et seq by myself). It is not necessary to repeat what is said there, except to say that it has long been recognised that increase in value consequent upon the execution of the undertaking for or in connection with which the purchase is made must be disregarded (South Eastern Ry Co v London County Council [1915] 2 Ch 252, at 258, per Eve J). In this case there can be no doubt that Bocardo will have suffered no quantifiable physical loss. It has no property rights in the petroleum. The most that it can say is that the ancillary right which Star would have asked the court to value was the ransom value or key value in the hypothetical negotiation. Plainly a strip of land may have special value if it is the key to the development of other land, but if the premium value is entirely due to the scheme underlying the acquisition then it must be disregarded: Waters v Welsh Development Agency at [64] [65], per Lord Nicholls, approving Batchelor v Kent County Council (1989) 59 P &CR 357, 361, per Mann LJ. Put differently, the question in this case is whether the legislature intended the landowner, under whose land petroleum was discovered but who did not hold a licence to exploit the petroleum and in relation to whose land the licence holder needed access, to have a share in the enterprise or in the prospective value of the petroleum. In my judgment the whole scheme of the legislation against the background of well established principles of compensation for compulsory acquisition demonstrates that that was not the intention. The 10% uplift in the compensation would make no sense if the landowner were entitled to rely on the ransom value of the ancillary right. In Edwards v Minister of Transport [1964] 2 QB 134, 156 (applied in Logan v Scottish Water, [2005] CSIH 73, 2006 SC 178, at [102]) Harman LJ said: I do not find anywhere in the textbooks or in any of the authorities any suggestion that a kind of ransom value, to which a man having a power of veto might hold the promoting authority, was the measure of his damage; for in fact he does not have a right of veto and the question, therefore, does not really arise. In this case Bocardo would have had no right of veto, and is not entitled on the hypothetical valuation to compensation for a right which it would never have had. The true key to the oil is not Bocardos ownership of the land, but Stars licence, which gives it alone the right to bore for and produce petroleum: see Peter Gibson J in BP Petroleum Developments Ltd v Ryder [1987] 2 EGLR 233, at 247. I have come to this conclusion in the light of the legislation and general principles of law applicable to compulsory acquisition. It is true that what was said on the second reading of what became the 1934 Act (quoted by Lord Brown at [76]) supports the view that what was envisaged was loss of amenity value. But I prefer not to take that into account in the light of the continuing controversy over Pepper v Hart [1993] AC 593 and its limits: Kavanagh, Pepper v Hart and Matters of Constitutional Principle (2005) 121 LQR 98; Sir John Baker, Our Unwritten Constitution (2010) 167 Proceedings of the British Academy 91, 99 100. LORD CLARKE Introduction I. This appeal raises two questions of some interest and, perhaps, importance. The first is whether the principle sometimes known by the proposition that a landowner owns the land usque ad coelum et ad inferos is part of English law (and, if so, to what extent) and the second is the measure of damages for trespass in circumstances in which the trespasser could have sought a licence to acquire ancillary rights under section 3 of the Petroleum (Production) Act 1934 (the 1934 Act) and, if it had obtained such a licence, would have had to pay compensation under section 8(2) of the Mines (Working Facilities and Support) Act 1966 (the 1966 Act). In a judgment given on 24 July 2008 Peter Smith J (the judge) held that the respondents had committed a trespass and awarded the appellant damages in the sum of 621,180 plus interest. The Court of Appeal (Jacob, Aikens and Sullivan LJJ) reduced the damages to 1,000. Permission to appeal against the quantum of damages was refused by the Court of Appeal but granted by this Court. The respondents were subsequently granted permission to cross appeal against the finding that they were liable in trespass. The facts The appellant is and has since 1974 and 1988 been the freehold owner of Barrow Green Court and Barrow Green Farm respectively. They are near Oxted in Surrey and form the Oxted Estate. The Palmers Wood Oil Field (the Oil Field) is a naturally occurring reservoir of petroleum and petroleum gas, the north eastern part of which extends beneath the Oxted Estate. The remainder of the Oil Field lies under land in different ownerships. The respondents (Star) were successive holders of a petroleum production licence (the licence) issued by the Secretary of State for Energy on behalf of the Crown on 17 November 1980 under the 1934 Act. The licence granted the licensee exclusive licence and liberty to search and bore for, and get, petroleum in an area which included the Oil Field. The licence incorporated specified clauses of the then model clauses and required the licensee to pay royalties to the Crown as percentages of the market value of the petroleum obtained as follows: 5 per cent in respect of the first 100,000 tonnes won in any half year, 7.5 per cent of the next 50,000 tonnes, 10 per cent of the next 50,000 tonnes and 12.5 per cent of the tonnes in excess of 200,000 tonnes, all in the same half year. There are two drilling sites for the extraction of petroleum from the Oil Field, although we are concerned only with that at Coney Hill, which is immediately next to the Oxted Estate. The three wells which are the subject of this dispute are PW5, PW8 and PW9. They were drilled by Stars predecessors from the Coney Hill site. Importantly, they were not drilled vertically down from Coney Hill but diagonally so that they entered the substrata under the Oxted Estate at substantial depths beneath the surface. The wells were lined with steel casing with tubing inserted. The casing of PW5, PW8 and PW9 is of 8 inches and 12 inches in diameter. PW5 and PW8 begin at the Coney Hill site and then deviate, entering the substrata below the Oxted Estate at about 1,300 and 800 feet respectively below ground level and continue until termination at about 2,900 feet and 2,800 respectively below ground level. They run under the Oxted Estate for distances of about 0.5 and 0.7 kilometres respectively. Both wells are production wells to extract petroleum and petroleum gas from the reservoir which lies beneath the Oxted Estate and neighbouring lands. PW9 passes between the substrata beneath the Oxted Estate at about 950 feet below ground level and ends beyond it terminating at a point on the reservoir at about 1,400 feet below ground level. PW9 is used for injecting water into the Oil Field so as to maximise and speed recovery. PW5 was first drilled as an exploration well in 1986. PW8 and PW9 were drilled in July 1992. Production from PW5 began in October 1990 and from PW8 in September 1992. PW9 was used to inject water into the Oil Field from August 1992. The reason the wells were drilled diagonally under neighbouring land rather than vertically under Stars land was to maximise recovery of oil from the north eastern part of the Oil Field. Since oil is lighter than water, in order to maximise recovery it is necessary to drill the well into or close to the apex of the field, which lay under the Oxted Estate. The experts at the trial agreed that, if the wells had not been drilled under the Oxted Estate, the recovery of the petroleum from the Oil Field would not have been maximised. At no stage was permission sought from the appellant to drill beneath its land. The issues There are two principal issues in this appeal, namely whether the appellant is in principle entitled to recover damages in trespass and, if so, what is the measure of damages. Trespass Both the judge and the Court of Appeal held that the appellant is in principle entitled to recover damages in trespass. This issue has been considered in detail by Lord Hope, who has answered the question in the affirmative, as both the judge and the Court of Appeal did. I agree with his conclusion and his reasons and there is nothing I wish to add in this regard. V. Limitation of action As explained by Aikens LJ (with whom Jacob and Sullivan LJJ agreed) at para 9, the judge held that the appellants claim was time barred in respect of any trespass committed before 22 July 2000. He held that it was only entitled to damages for the trespass committed by Star from 22 July 2000 until the trial and to damages (in lieu of an injunction) for the continued trespass until the oilfield was exhausted. The judges conclusions on limitation have been accepted both in the Court of Appeal and in this Court. Damages at common law The appellants case is that it is entitled to damages on what has sometimes been called the user (or here the wayleave) basis. It is and has throughout been accepted by and on behalf of the appellant that it has suffered no damage or loss as a result of the trespass. As Aikens LJ stressed at para 112, the drilling of three pipelines at depths of 800 to 2,800 feet below the appellants land would not disturb or detract from its use of the land (to use the judges phrase) one iota. However Mr Gaunt submitted on behalf of the appellant that it does not follow from that that it is not entitled to substantial damages because it is now well settled that, where a claimant cannot show loss or damage, he may be entitled to user damages. For my part, I would accept Mr Gaunts analysis of the position at common law. The courts have held that, in the case of trespass to land, damages may be recovered equal to the value to the defendant of the use he has made of the claimants land even though the claimant has suffered no consequential loss and the value of his land has not been diminished. The principle originated in cases not unlike this, where the defendant trespassed by carrying coals along an underground way through the claimants land. The damages were assessed by determining what the claimant would have received if he had been paid for a wayleave: se eg Stoke on Trent City Council v W&J Wass Limited [1988] 1 WLR 1406 at 1410G to 1411E and the cases there cited. Those principles were then applied to cases of wrongful trespass on the surface of land and wrongful retention of the possession of land in circumstances where the claimant would not otherwise have made use of the land: see Whitwham v Westminster Brymbo Coal and Coke Co [1896] 2 Ch 538 per Rigby LJ at 543. Much more recently Lord Nicholls put the principle thus in AG v Blake [2001] 1 AC 268 at 278: A trespasser who enters anothers land may cause the landowner no financial loss. In such a case damages are measured by the benefit received by the trespasser, namely by his use of the land. The same principle is applied where the wrong consists of use of anothers land for depositing waste, or by using a path across the land or using passages in an underground mine. In this type of case the damages recoverable will be, in short, the price a reasonable person would pay for the right of user. Lord Nicholls restated the principle in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 at paras 87 to 90 and in Sempra Metals Limited v IRC [2008] 1 AC 561 at para 116; see also Lord Scott at para 140 and Lord Mance at para 230. The same principle applies where a landowner is awarded mesne profits, whether or not he would have re let the property during the relevant period: Swordheath Properties Limited v Tabet [1979] 1 WLR 285, which was applied by the Privy Council in Inverugie Investments Limited v Hackett [1995] 1 WLR 713. The same principles have been applied in assessing damages in lieu of an injunction: see eg Bracewell v Appleby [1975] Ch 408 and Jaggard v Sawyer [1995] 1 WLR 269, both of which were cases of obtaining access to a newly built house, and Horsford v Bird [2006] 1 EGLR 75, per Lord Scott at paras 12 and 13. It was in this connection that Lord Nicholls said in AG v Blake at page 281G that the measure of damages is often analysed as a loss of a bargaining opportunity or, which (he said) comes to the same, the price payable for the compulsory acquisition of a right. Many other examples could be given, including the leading case of Wrotham Park Estate Co Limited v Parkside Homes Limited [1974] 1 WLR 798, where damages were awarded on this basis in respect of an unlawful act which had been committed and it was too late to restrain it by injunction. It was a case where land had been developed in breach of a restrictive covenant and where the existence of the new houses did not diminish the value of the benefited land by one farthing, which is perhaps not very different from the iota referred to by both the judge and Aikens LJ. Other well known examples are Experience Hendrix LLC v PPX Enterprises Inc [2003] 1 All ER (Com) 830, WWF World Wide Fund for Nature v World Wrestling Federation Entertainment Inc [2008] 1 WLR 445 and Lunn Poly Limited v Liverpool and Lancashire Properties Limited [2006] 2 EGLR 29. Finally, the most recent case in this area is the decision of the Privy Council in Pell Frischmann Engineering Limited v Bow Valley Iran Limited [2009] UKPC 45, [2010] BLR 73, where Lord Walker, giving the judgment of the Board, reviewed the principles in detail at paras 46 to 54. At para 48 he set out five general principles established by the authorities. They included the following (omitting the case references): 1. Damages (often termed user damage) are readily awarded at common law for the invasion of rights to tangible moveable or immoveable property (by detinue, conversion or trespass). 2. 3. Damages under Lord Cairns's Act are intended to provide compensation for the court's decision not to grant equitable relief in the form of an order for specific performance or an injunction in cases where the court has jurisdiction to entertain an application for such relief. Most of the recent cases are concerned with the invasion of property rights such as excessive user of a right of way. The breach of a restrictive covenant is also generally regarded as the invasion of a property right since a restrictive covenant is akin to a negative easement. the decision of the House of Lords in Blake decisively covers what their Lordships have referred to as a non proprietary breach of contract. 4. Damages under this head (termed negotiating damages by Neuberger LJ in Lunn Poly at para 22) represent such a sum of money as might reasonably have been demanded by [the claimant] from [the defendant] as a quid pro quo for [permitting the continuation of the breach of covenant or other invasion of right] (Lunn Poly at para 25). 5. Although damages under Lord Cairns's Act are awarded in lieu of an injunction it is not necessary that an injunction should actually have been claimed in the proceedings, or that there should have been any prospect, on the facts, of it being granted: Lord Walker added at para 49: 49. Several of the recent cases have explored the nature of the hypothetical negotiation called for in the assessment of Wrotham Park damages. It is a negotiation between a willing buyer (the contract breaker) and a willing seller (the party claiming damages) in which the subject matter of the negotiation is the release of the relevant contractual obligation. Both parties are to be assumed to act reasonably. The fact that one or both parties would in practice have refused to make a deal is therefore to be ignored: I recognise that it is common ground that the measure of damages in this case must have regard to the statutory context and thus to the 1934 and 1966 Acts in particular. However, subject to that, the correct measure of damages for the trespass on the facts here would be to award the appellant user or wayleave damages and to assess them by reference to a hypothetical negotiation of the kind referred to by Lord Walker in para 49 of the judgment of the Board in Pell Frischmann. The question would be what would be a fair and reasonable figure for Star to agree to pay and for the appellant to agree to receive for the use of the part of the appellants land which was in fact used by Star as described above. That figure would reflect the key value of the wayleave. It is inconceivable that it would be only the 1,000 awarded on the facts here by the Court of Appeal. Since both the reservoir which forms the Oil Field and the Oxted Estate have been there for very many years and long before the enactment of any of the statutes relevant in this appeal, it follows that, if Star or their predecessors in title had committed the trespass that was in fact committed in order to remove oil from the Oil Field before, say, 1934, the correct measure of damages would have been user or wayleave damages calculated as stated above. I turn to the statutory framework. The statutory framework The property in petroleum existing in its natural condition in strata in Great Britain was originally vested in the owner of the land above it: see eg the decision of the Court of Appeal in Singapore in NV De Bataafsche Petroleum Maatschappij v The War Damage Commission, (1956) 23 ILR 810. However, by section 1(1) of the 1934 Act the property in such petroleum was vested in the Crown, which was given the exclusive right of searching and boring for and getting such petroleum. By section 2(1) the Board of Trade (later the Secretary of State for Energy) was given the power, on behalf of the Crown, to grant licences to search and bore for and get petroleum. By section 2(2) any such licence was to be granted for such consideration (whether by way of royalty or otherwise) as the Board of Trade with the consent of the Treasury may determine, and upon such other terms and conditions as the Board of Trade think fit. Section 3(1) provided that Part 1 of the Mines (Working Facilities and Support) Act 1923 (the 1923 Act) should apply for the purposes of enabling a person holding such a licence to acquire such ancillary rights as might be required for the exercise of the rights granted by the licence. Those rights were stated to include a right to enter upon land and to sink bore holes therein for the purpose of searching for and getting petroleum and a right to use and occupy land for the erection of such buildings, the laying and maintenance of such pipes as may be required for the purpose of searching and boring for and getting, carrying away, storing, treating and converting petroleum. Section 3(2)(b) of the 1934 Act provided that, in determining the amount of compensation to be paid in respect of the grant of any right, which included any ancillary right, an additional allowance of not less than ten per cent was to be made on account of the acquisition of the right being compulsory. Section 10(3) provided: Nothing in this Act shall be construed as conferring, or as enabling the Board of Trade to confer, on any person, whether acting on behalf of His Majesty or not, any right which he does not enjoy apart from this Act to enter on or interfere with land. Part 1 of the 1923 Act, which contained provisions for ancillary rights in section 3 and for compensation in section 9, was repealed and consolidated by the Mines (Working Facilities and Support) Act 1966 (the 1966 Act), which provided that the reference to Part 1 of the 1923 Act in section 3 of the 1934 Act was now a reference to the 1966 Act. Section 1 of the 1966 Act empowered the court to confer any rights described in a Table, which included in paragraph 5 ancillary rights, which were defined in section 2 and included by section 2(1)(b) a right of airway, shaft way or surface or underground wayleave or other right for the purpose of access to or conveyance of minerals or the ventilation or drainage of the mines. It is clear from these provisions that a grant of a petroleum licence under the 1934 Act did not itself entitle its licensee to enter land belonging to another party and that the Act did not empower the Secretary of State to grant a licence to enter such land. If the licensee wished to drill a deviated well beneath another persons land, he needed to negotiate or apply under the 1966 Act for an ancillary right, here an underground wayleave. This is important because it shows that Parliament was drawing a distinction between the oil on the one hand and the access to the oil on the other. It provided for the licensee to pay a royalty to the Crown for the oil but provided a different scheme in relation to access to the oil. That scheme involved the obtaining of ancillary rights. Section 4 of the 1966 Act provided for applications for ancillary licences to be made to the Minister, who is now the Secretary of State for Energy, and for him to refer the matter to the court. Section 5(1) of the 1966 Act provides that, where the matter is referred to the court, the court may grant an ancillary licence. Section 5 (2) provides: (2) Where a right is granted, such compensation or consideration as in default of agreement may be determined by the court shall be paid or given by the applicant in respect of the acquisition of the right to such persons as the court may determine to be entitled thereto. Section 8 provides, so far as relevant: 8 Compensation (1) Where a right is granted under section 1 of this Act, the court may determine the amount and nature of compensation or consideration to be paid or given and the persons to whom it is to be paid or given, either at the time when it determines whether the right should be granted or the restrictions imposed or at any subsequent time. (2) The compensation or consideration in respect of any right, , shall be assessed by the court on the basis of what would be fair and reasonable between a willing grantor and a willing grantee, having regard to the conditions subject to which the right is or is to be granted. Section 8 thus replaced section 9 of the 1923 Act, which was in similar terms. VIII. The correct approach to section 8(2) It is, to my mind, striking that the negotiation contemplated by section 8(2) is, at any rate on the face of it, essentially the same as is deployed by the common law in assessing wayleave damages. Its purpose is, again on the face of it, the same, namely to ascertain what would be a fair and reasonable figure for Star to agree to pay and for the appellant to agree to receive for the use of the part of the appellants land which was in fact used by Star as described above. There is nothing in the language of the subsection about the value of the land used or taken and there is no suggestion that the purpose for which the right is to be acquired is to be ignored during the postulated negotiation. Nor is there any reference in section 8(2) or elsewhere in the 1934 or 1966 Acts to the basis upon which compensation is to be assessed, as for example in section 63 of the Land Clauses Consolidation Act 1845 (the 1845 Act), section 2 of the Acquisition of Land (Assessment of Compensation) Act 1919 (the 1919 Act) or section 5 of the Land Compensation Act 1961 (the 1961 Act). See also the Pipe lines Act 1962, the Gas Act 1986, the Channel Tunnel Act 1987, the Electricity Act 1989 and the Water Resources Act 1991. In particular section 2 of the 1919 Act provided detailed rules for the assessment of compensation in respect of land acquired compulsorily. It is to my mind striking that those rules were not incorporated into the 1923 Act. Moreover, section 5 of the 1961 Act in turn set out detailed rules for the assessment of compensation, which again were not incorporated into the 1966 Act. There are many different types of compulsory acquisition legislation. The 1934 and 1966 Acts are one example and the 1919 and 1961 Acts are another. I can see no principled basis for applying the provisions of the latter Acts to the assessment of compensation under the former. If Parliament had intended those provisions to apply it would have so provided in 1923 and 1966. In this regard I agree with the reasoning of Judge Hague QC in Mercury Communications Ltd v London & India Dock Investments Ltd [1994] 1 EGLR 229. If section 8(2) of the 1966 Act is given its ordinary and natural meaning, it postulates a negotiation in which it is assumed that both parties are willing to reach agreement and that they both act reasonably. In such a negotiation, the seller will naturally stress the value of the right being sold (here the wayleave) to the purchaser. On the facts of this case, that value is the key to unlocking the oil in the reservoir because it was necessary to dig diagonal tunnels in order to maximise the oil recovered from the reservoir. On this approach, the figure agreed at the postulated negotiation would be the same as it would be at common law. Moreover, it would, as I see it, be the same whether it is treated or described as compensation or consideration. That is because what is being negotiated is a fair price for the wayleave. In the absence of authority to the contrary, I would approach the matter in that way. In the particular context of the 1934 and 1966 Acts, I see no reason not to do so. The position can be tested by a comparison between the position immediately before and after the 1934 Act came into force. Before the Act, assuming that the parties were aware of the reservoir of petroleum and its potential, and the owner of the reservoir and its oil wanted to exploit it, he would need to obtain a wayleave through the Oxted Estate. If he acted lawfully, he would have to seek a wayleave from the owner and would (it is assumed) pay a fair price. If he acted unlawfully and committed trespass, the measure of damages at common law would be the notional price of the wayleave, which is to be a fair and reasonable price arrived at after a postulated negotiation between a willing seller and a willing buyer. The strength of the sellers position (and the price or damages arrived at) would depend upon the existence and physical position of the oil on the one hand and the existence and position of the land through which it was necessary to obtain a wayleave in order to be able to exploit it on the other. Why, so far as the wayleave is concerned, should the position be any different after the 1934 Act? The effect of the Act is to transfer the oil to the Crown without compensation. That was no doubt a political decision. After the Act the Crown is in the same position as the owner of the reservoir was in before the Act. It now has the right to exploit the oil, either itself or by granting a licence. In order to exploit the oil to its full extent, it (or its licensee) needs to obtain a wayleave. It is entitled to do so but only if it pays compensation under section 8(2). That compensation is to be assessed by postulating a negotiation as described above. As I see it, the seller of the wayleave is in the same position before and after the Act. The reason it is in that position is not because of the Act, and certainly not solely because of the Act, but because of the physical position of the sellers land in relation to the reservoir. In these circumstances, absent authority to the contrary, I would hold that the measure of compensation under the Act is the same as at common law. It is true that section 3(2)(b) provides for an additional allowance of ten per cent but that is expressed to be because the acquisition of the right was compulsory. It was at one time common for such a provision to be included in statutory provisions which provided for compensation for compulsory purchase. By section 2(1) of the 1919 Act, the ten percent allowance was abolished in respect of cases to which the 1919 Act applied. That very fact, coupled with the enactment of section 3(2)(b) of the 1934 Act, demonstrates clearly that the 1919 regime does not apply to the new provisions of the 1934 Act. It appears that Parliament took the view that in this different regime an additional payment should be made over and above the amount arrived at in the postulated negotiation, which of course assumes that there is a willing seller and a willing buyer and thus that the seller (or more accurately the grantor) cannot refuse to sell. This factor tells us nothing about what would be a fair and reasonable figure to arrive at as a result of the negotiation. It is said that the approach I have described is the wrong approach to the construction of the subsection because of the Pointe Gourde principle to which I now turn. The Pointe Gourde principle This principle, which is also known as the no scheme rule, takes its name from the decision of the Privy Council in Pointe Gourde Quarrying and Transport Co Ltd v Sub Intendent of Crown Lands [1947] AC 565. The principle has been considered in some detail in two comparatively recent cases in the House of Lords. They are Waters v Welsh Development Agency [2004] UKHL 19, [2004] 1 WLR 1304, and Transport for London v Spirerose Ltd [2009] UKHL 44, [2009] 1 WLR 1797 (TFL). In both Waters and TFL the compensation fell to be calculated in accordance with the 1961 Act. Lord Brown summarised the principle thus in one sentence in Waters at para 125: Pointe Gourde has long been regarded as authority for the principle that compensation for compulsory purchase cannot include any increase in value which is entirely due to the scheme underlying the acquisition There are two questions which arise under this head. The first is whether this principle applies to compensation assessed under section 8(2) of the 1966 Act. The second is, if so, whether there has been an increase in the value of the wayleave entirely or solely due to the scheme. There has been some discussion in the cases as to the juridical basis of the principle. However, it is in my opinion now clear that it is a principle of statutory construction. This is clear from paras 127 and 128 of the speech of Lord Collins in TFL with which the other members of the appellate committee agreed. He put it thus: 127. What is the juridical basis of the Pointe Gourde principle? Lord Nicholls said in Waters para 42 that the principle is no more than the name given to one aspect of the long established value to the owner principle. 128. In my opinion it is a principle of statutory interpretation, mainly designed and used to explain and amplify the expression value. It is in this sense that it has sometimes been referred to as a common law principle: see e.g. Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307, 315, per Lord Hope of Craighead; Waters para 142, per Lord Brown of Eaton under Heywood. In Rugby Joint Water Board v Shaw Fox [1973] AC 202, 213 215 Lord Pearson reviewed the authorities and concluded, at p 214, that although the Pointe Gourde principle had been described as a common law principle", it could not be such a principle because compulsory acquisition and compensation for it are entirely creations of statute. He went on, at pp 214 215: The Pointe Gourde principle in my opinion involves an interpretation of the word value in those statutory provisions which require the compensation for compulsory acquisition to include the value of the lands taken. I am satisfied that this the right approach and that there is nothing in Lord Nicholls speech in Waters which is inconsistent with this view. It is clear from those conclusions that the question is whether the Pointe Gourde principle applies to compensation under section 8(2) of the 1966 Act as a matter of construction of that sub section. In Waters Lord Nicholls gave the leading speech in which he analysed in some detail the approach to compensation under the various different statutes referred to above, although he did not analyse the position under the 1934 or 1966 Acts. All the statutes he analysed either expressly referred to value or contained a compensation code. Thus from para 15 he discussed the meaning of value in section 63 of the 1845 Act. He recognised at para 17 that land may have a special value and gave an example based on Inland Revenue Commissioners v Clay [1914] 3 KB 466: Thus a house, worth 750 as a house but 1,000 as an annex to an adjoining nursing home, has a market value of 1,000. Lord Nicholls then said this at para 18: 18. In principle, subject to one qualification, this approach is equally applicable when assessing value for the purposes of compensation. It is this qualification which has given rise to difficulty. The qualification is that enhancement in the value of the land attributable solely to the particular purpose for which it is being compulsorily acquired, and an acquiring authority's pressing need of the land for that purpose, are to be disregarded. If statute authorises an authority to acquire some ancient graveyards in the City of London and use the land for new buildings and a new street from Blackfriars to the Mansion House, the increased value the land will have when applied to these more profitable secular purposes should be left out of account. This is implicit in the yardstick of 'value' in the Lands Clauses Consolidation Act 1845. When granting a power to acquire land compulsorily for a particular purpose Parliament cannot have intended thereby to increase the value of the subject land. Parliament cannot have intended that the acquiring authority should pay as compensation a larger amount than the owner could reasonably have obtained for his land in the absence of the power. For the same reason there should also be disregarded the 'special want' of an acquiring authority for a particular site which arises from the authority having been authorised to acquire it. Lord Nicholls added at para 19 that it was in this context that the cases distinguish between value to the owner and value to the purchaser, which he further described at para 21: Drawing a distinction between value to the owner and value to the purchaser makes it necessary to distinguish the one from the other. It is necessary to separate from the market value of land any enhancement in value attributable solely to the presence of the acquiring authority in the market as a purchaser of the land in exercise of its statutory powers. It is important to recognise that, for this purpose, it is not the existence of a power of compulsory acquisition which increases the value of land. What is relevant, because this may affect the value of the land, is the use the acquiring authority proposes to make of the land it is acquiring. Accordingly, in identifying any enhanced value which must be disregarded it is always necessary to look beyond the mere existence of the power of compulsory purchase. It is necessary to identify the use proposed to be made of the land under the scheme for which the land is being taken. Hence the introduction of the concept of the 'scheme' or equivalent expressions such as project or undertaking. Lord Nicholls then considered the 1919 Act, The Indian Case, namely Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302, the Pointe Gourde principle and the 1961 Act. In the context of the Pointe Gourde principle he said it was one aspect of the value to the owner principle. In TFL Lord Collins summarised the position thus in part of a section of his speech entitled Principles of valuation: 88. It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition": Pointe Gourde [1947] AC 565, 572, per Lord MacDermott. 89. Some elementary principles of the law of compensation for compulsory acquisition provide a starting point. First, the underlying principle is that fair compensation should be given to the owner claimant whose land has been compulsorily taken. The aim of compensation is to provide a fair financial equivalent for the land taken. The owner is entitled to be compensated fairly and fully for his loss, but the owner is not entitled to receive more than fair compensation: Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111, 125; Waters para 4. 90. Second, the basis of compensation is the value to the owner, and not its value to the public authority. In the first edition of Cripps (later Lord Parmoor), Principles of the Law of Compensation (1881) it was said, at p 144: The basis on which all compensation for lands required or taken should be assessed, is their value to the owner, and not their value when taken to the promoters. The question is not, what the persons who take the land will gain by taking it; but what the person from whom it is taken will lose, by having it taken from him. 91. The classic example mentioned by Cripps is Stebbing v Metropolitan Board of Works (1870) LR 6 QB 37, 42 where Cockburn CJ said that it was intended that the landowner should be compensated to the extent of his loss and his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it. 92. Third, and directly in point on this appeal, one plainly relevant element in the value to the owner is the prospect of exploiting the property. I have already mentioned R v Brown [(1867)] LR 2 QB 630, in which Cockburn CJ, at p 631, said that the jury assessing compensation under the 1845 Act had to consider the real value of the land, and may take into account not only the present purpose to which the land is applied, but also any other more beneficial purpose to which in the course of events at no remote period it may be applied, just as an owner might do if he were bargaining with a purchaser in the market. In cases where those principles apply, the critical question is what was the value to the owner, which is arrived at by excluding the value to the acquirer. This is not, however, to say that the value to the owner may not have regard to the use which will be made of the land. In a case like this, where the value of the land is that it has a ransom or key value because it is needed by the buyer to exploit his land, as I see it, the value to the owner is (or includes) the ransom or key value. Both this principle and its relation to the Pointe Gourde principle can be seen from paras 64 and 65 of Lord Nicholls speech in Waters. Lord Nicholls said at paras 64 and 65: 64. One last point should be noted before returning to the present case. This concerns so called 'ransom' value or, less pejoratively, 'key' value. I have already mentioned that under the 'value to the owner' principle or the Pointe Gourde principle, whichever nomenclature is preferred, the pressing need of an acquiring authority for the subject land as part of a scheme should be disregarded when assessing its value for compensation purposes. The value of the land is not the price a 'driven' buyer would be prepared to pay. But a strip of land may have special value if it is the key to the development of other land. In that event this feature of the land represents part of its value as much for purposes of compensation as on an actual sale in the open market. 65. The intersection of these two principles was identified neatly by Mann LJ in Batchelor v Kent County Council (1989) 59 P & CR 357, 361: If a premium value is "entirely due to the scheme underlying the acquisition" then it must be disregarded. If it was pre existent to the [scheme] it must in my judgment be regarded. To ignore the pre existent value would be to expropriate it without compensation and would be to contravene the fundamental principle of equivalence. ' The part of para 64 which I have italicised shows that the key value is part of the value to the owner. This view was also expressed by Lord Brown in Waters at para 140, where he said this: 140. True it is that in the Indian case [1939] AC 302, 312, Lord Romer said: The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy must alike be disregarded. Neither must be considered as acting under compulsion. It by no means follows, however, that the open market value to the seller will exclude whatever key value the land may have. On the contrary, any such value properly falls to be taken into account, as it was in Stokes v Cambridge Corpn (1961) 13 P&CR 77, Land is not to be valued merely by reference to the use to which it is being put at the valuation date but by reference to any unusual features or potentialities it may have: see the Indian Case per Lord Romer, giving the judgment of the Privy Council at page 312 313. Thus value to owner includes or potentially includes key value but is to be disregarded in the circumstances identified if, as Mann LJ put it in Batchelor, at p 361, the premium or key value is entirely due to the scheme underlying the acquisition. As I see it that approach encapsulates the Pointe Gourde principle and is a gloss on or modification (or perhaps explanation) of the value to owner principle. On the other hand, if on the facts of the particular case, the premium value or key value was pre existent to the scheme it is taken into account and not disregarded. The question is whether these principles apply to compensation under section 8(2) of the 1966 Act. It is difficult to see how they do as a matter of construction of the Act. I have already expressed the view that the codes in the 1919 and 1961 Acts do not form part of the approach identified in section 8(2) of the 1966 Act and thus in the 1934 Act. There is moreover no reference to value in that subsection. In these circumstances, although it is a compensation provision, as Lord Pearson put it in the passage approved by Lord Collins in para 128 of his speech in TFL quoted above (and thus by the House), the Pointe Gourde principle involves an interpretation of the word value. Since the word value does not appear in section 8(2), it is difficult to see why it should be construed as if it did. For these reasons I would hold that the subsection should be construed by the application of the language used in it as explained above without reference either to the codes or to the Pointe Gourde principle. In this regard I prefer the reasoning of Judge Hague in Mercury Communications to that of Peter Gibson J in BP v Ryder [1987] 2 EGLR 233. I should, however, say a word about the Hansard materials relied upon by the respondents. I agree with Lord Hope for the reasons he gives in para 43 that there is no legitimate basis for using Hansard as an aid to construction of the simple terms of the 1923, the 1934 or the 1966 Acts. Like section 9 of the 1923 Act, section 8(2) of the 1966 Act is in simple terms. It can readily be applied to the facts of this case. It is true that there is no reference to key value in the Hansard materials; nor is there any reference to the Pointe Gourde principle. There is accordingly no reference to the distinction drawn in Batchelor; so that no assistance can be obtained from Hansard as to the principles the court must apply to the postulated negotiation other than those stated in the sub section. It appears to me that no consideration was given at all to the problems that have arisen in this connection and that the correct approach is for the court to construe the statute in accordance with its language and having regard to its statutory purpose. This can readily be done without the assistance of Hansard. I recognise that others do not take the same view of the subsection. I therefore turn to the question what, on the assumption that the Pointe Gourde principle applies to the assessment of compensation under section 8(2), is the correct approach to the key value. Again, in a case of this kind the starting value is the key value, which must only be disregarded if it represents an increase in value which is entirely due to the scheme underlying the acquisition. I take this to refer to the acquisition of the wayleave. The contrast is that identified by Mann LJ in Batchelor as approved by Lord Nicholls in para 65 of Waters. The question is whether the key value was entirely due to the scheme underlying the acquisition or whether it was pre existent to the scheme. Another way of putting what seems to me to be essentially the same question is to ask, as Lord Nicholls does in para 18 of Waters, whether Parliament increased the key value of the land when it enacted the 1934 Act. It is important to note that this approach does not disregard the key or ransom value but encapsulates it. It is expressly accepted as relevant by Lord Nicholls in para 64 of Waters set out above. In this connection I should mention two cases which are referred to by Lord Collins at para 105 but which were not I think relied upon in argument. They are Edwards v Minister of Transport [1964] 2 QB 134, per Harman LJ at page 156, and Logan v Scottish Water [2005] CSIH 73, 2006 SC 178, which applied his analysis. Harman LJ there said that the possibility of assessing damages by reference to a ransom value did not really arise because such a value would only be relevant if the postulated seller had a right of veto, which he does not because the rights are being compulsorily purchased. In my opinion that approach cannot be correct in the light of Waters, at any rate under section 8(2). The figure to be arrived at as a result of the postulated negotiation in a case of this kind is the key or ransom value of the wayleave, that is a fair and reasonable price for the access to the oil reservoir, but on the assumption of a willing seller or grantor and a willing buyer or grantee. Thus the value reflects the importance of the particular access to the particular oil. I note in passing that, in these circumstances, it seems to me that the ten per cent uplift is also understandable as reflecting the fact that the seller was compelled to sell. The critical question is thus that stated above, namely whether the key value was entirely due to the scheme underlying the acquisition or whether it was pre existent to the scheme. In my opinion the key value was not created or enhanced by the scheme or the 1934 Act because the Oxted Estate already had a key value in the market. As I see it, this is a case like Chapman, Lowry & Puttick Limited v Chichester District Council (1984) 47 P&CR 674, where the acquiring authority owned a plot of housing land to the rear of a small quantity of waste land which was necessary to gain access to the housing land. The question was whether the purpose for which the land was required was to be taken into account. It was held that it was. The Tribunal (VG Wellings QC) said at page 680: It appears to me that the reference land is the key which unlocks the development value of the rear land in whosoevers hands the rear land happens to be. By reason of that fact the reference land has acquired naturally a value in excess of its existing use value. The matter can be tested by analogy with the Pointe Gourde principle as was done by the Court of Appeal in Lambe v Secretary of State for War [[1955] 2 QB 612]. It is not the scheme underlying the acquisition which gives value to the reference land in excess of its existing use value; it is its geographical position, coupled with the fact that there is no other suitable access for residential development on the rear land. I would accept the appellants submission that that is essentially the position on the facts here. This a case which is on the side of the line identified by Mann LJ in Batchelor in which the land had a key value which was pre existent to the Act and the scheme. That key value depended upon the juxtaposition of two physical features of the land, namely the existence of the reservoir of oil and the existence of the land which was part of the Oxted Estate and which was above the apex of the oil deposit and, given the absence of any other suitable or optimal access to that apex, would be needed by anyone who exploited the oil in the reservoir in order to maximise the recovery of the oil. Moreover it had and has this key value even if, as is likely, there is only one owner or licensee who wishes to exploit the oil. In these circumstances, the key value cannot in my opinion fairly be described as solely or entirely due to the scheme because it pre existed it. Whenever the owner of the oil chose to exploit it fully he would need a wayleave over the Oxted Estate. That is so, whether the owner was a private landowner before the oil was nationalised or was the Crown after the 1934 Act and, in that case, whether the Crown exploited the oil itself or granted a petroleum licence to another to do so. In short, the key value was not created by the 1934 Act or the grant of the petroleum licence to Star. It was pre existing key value. For my part, save perhaps for BP v Ryder, I would not accept the submission that, if that is the case here, it must follow that any of the decided cases was wrongly decided. There was no equivalent of the existing reservoir in Waters or TFL. In these circumstances, assuming (contrary to my view) that the no scheme rule derived from Pointe Gourde applies to the assessment of compensation under section 8(2) of the 1966 Act and thus to the 1934 Act, I do not accept that this approach would emasculate the no scheme rule to the point of extinction. Whether the relevant value falls to be disregarded depends upon which side of the line drawn by Mann J in Batchelor and approved in Waters the facts of a particular case falls. If this case does not fall on what may be called the appellants side of the line, it is difficult to see what case would. For these reasons I have reached a different conclusion from the Court of Appeal on this part of the case. Since writing the above paragraphs I have seen Lord Browns response at paras 89 to 91. I remain unpersuaded. The key value attaches to the access land and not to the oil. Both before and after the 1934 Act it was or would have been necessary for the person seeking to exploit the oil to obtain access through the Oxted Estate by acquiring ancillary rights. It would thus have been necessary for that person to obtain such rights, whether as owner of the oil or licensee from the Crown. In both cases he would have needed a wayleave and in both cases he would have had to pay a price that reflected the key value of the access land (not the oil). In these circumstances I remain of the view that the key value was not solely attributable to the scheme. It was at least in part attributable to the physical juxtaposition of the access land and the reservoir. The Pipe lines Act 1962 The respondents rely in the alternative on the Pipe lines Act 1962 (the 1962 Act). They say that it is part of the background of statutory legislation against which the hypothetical negotiation would have taken place and that they could have obtained a right to drill or maintain oil wells and pipelines through the appellants land under sections 11 and 12 of the 1962 Act, which provided for compensation under the 1961 Act. The appellants response is two fold. The first is that, since neither the respondents nor their experts or lawyers thought of this point when they were considering the matter in detail before the judge or when they prepared the grounds of appeal to the Court of Appeal upon which permission to appeal was granted, it is hardly likely to have played any part in hypothetical negotiations in the 1980s. It was certainly never suggested in evidence that it would have done, although that is hardly surprising since nobody thought of the point until it appeared in the respondents revised skeleton argument in the Court of Appeal. I would be reluctant to rest a decision on this analysis. The appellants second response is that the 1962 Act does not apply. Section 65 provides, so far as relevant: (1) In this Act pipe line (except where the context otherwise requires) means a pipe for the conveyance of any thing other than air, water, water vapour or steam It is submitted that the pipes in this case were not for the conveyance of substances and that this can be seen from section 57 of the 1962 Act, which amended section 3(2)(b) of the 1923 Act. In its unamended form section 3(2)(b) provided that ancillary rights included (b) [a] right of underground wayleave, or other right for the purpose of access to or conveyance of minerals or the ventilation or drainage of the mines; Section 57 of the 1962 Act amended section 3(2)(b) of the 1923 Act by excluding from it rights for the conveyance of minerals by means of a pipe, thus (as Mr Gaunt puts it) leaving all other ancillary rights, including the right to bore wells, to be covered by the 1923 Act. Section 57 was repealed in 1966 when the amendment to the 1923 Act was reflected in the definition of ancillary rights in section 2(1)(b) of the 1966 as quoted above. He submits that, in these circumstances, the correct conclusion is that the 1962 Act was not intended to apply to pipes constituting the oil well itself. That seems to me to be correct. A third point has occurred to me under this head. Where it applies, the effect of the 1962 Act is to apply the compensation scheme under the 1961 Act; so that, if it applies here, those principles, including the Pointe Gourde principles would apply. It seems to me to follow that compensation would be payable for the reasons given in section IX above, namely that the key value was not solely or entirely due to the scheme. The Human Rights Act The appellant sought permission to rely upon the Human Rights Act 1998 on the basis that compensation of so little as was awarded by the Court of Appeal would infringe its rights under Article 1 of Protocol 1 of the European Convention on Human Rights. However, since, if the conclusions I have already expressed were correct, the appellant would be no better off in terms of damages than he would be under section 8(2), there is no need for me to express a view under this head. Measure of damages This topic would of course only arise if I were right so far. Since the majority of the court take a different view on that question, the measure of damages is not relevant. It seems to me that, if it were relevant, the correct approach would be to assess a fair and reasonable amount to reflect the key value of the wayleave, in the words of section 8(2), as between a willing grantor and a willing grantee, and to add ten per cent in accordance with the statute. However, as I see it, that key value would not reflect the value of the access to all the oil in the reservoir. Its particular value was to provide access to the apex (or attic) oil. I am not, at least at present, persuaded that that was the basis upon which the figure was arrived at by the judge. In these circumstances, if this were a live issue, I would remit it to the High Court for determination. CONCLUSION For the reasons I have given I would allow the appeal and would remit the issue of damages to the High Court. |
A father applies under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention), set out in Schedule 1 to the Child Abduction and Custody Act 1985 (the 1985 Act), for a summary order for the return of his young daughter from England to Israel. The mother opposes the application but a High Court judge grants it. On the mothers appeal the Court of Appeal rules that it had not been open to the judge to make an order under the Convention. So it sets his order aside. But the Court of Appeal then proceeds to invoke the inherent jurisdiction of the High Court (the inherent jurisdiction) and, pursuant to it, the court makes a summary order analogous to that made by the judge, namely for the immediate return of the child to Israel, in substitution for his order under the Convention. The overall question raised before us by the mothers further appeal has been whether the Court of Appeal was entitled to make the summary order for the childs return to Israel under the inherent jurisdiction. But the question has been broken down into two parts. First, was the inherent jurisdiction in principle available to be exercised in the making of a summary order for the childs return? Second, if so, was the Court of Appeals approach to the exercise of the jurisdiction flawed? This court has already answered the overall question. It heard the appeal on 18 July 2019 and received the last of the parents further written submissions on 1 August. It was conscious of the urgency of the decision. The aspiration set out in Practice Direction 3.4.5(c), annexed to the Supreme Court Rules 2009, is for the result of an appeal in a Convention case to be given within two weeks of the end of the hearing; and the court considered that the aspiration should apply equally to the instant appeal. On 14 August 2019 it therefore made its order, which was that the mothers appeal be allowed and that the Court of Appeals order under the inherent jurisdiction be set aside. By todays judgments, the court will explain its reasons for having made that order. In doing so it will explain why its answer to both parts of the overall question is yes. The mother and father are Israeli nationals, aged 31 and 29 respectively. They married in 2013 and have only the one child to whom I have referred. She is now aged almost three. They lived in Israel with the fathers parents. The father worked as a police officer. The marriage ran into difficulties and, partly as a result of them, the parties decided to move, with the child, to England. The move took place on 25 November 2018. They rented a flat in North London. The father found employment as a waiter and the child started to attend nursery school. Although both parents regarded it as possible that, were the marriage to break down, they would return to live separately in Israel, there was no agreement that they would necessarily do so. In London the marriage quickly broke down. On 10 January 2019 the father told the mother that he intended to return to live in Israel; and he sought to insist that, with the child, the mother should also return there, where issues between them could be resolved. While accepting that the marriage had broken down, the mother replied that she proposed to remain with the child in London. On 14 January 2019 the mother called the police and alleged to them that the father intended to kidnap the child. The police advised the father to leave the flat. He thereupon returned to Israel, where he continues to live. The mother continues to live with the child in London. Acting by lawyers, the father quickly issued proceedings for divorce and custody of the child in the Rabbinical Court of Jerusalem, which remained pending at the date of the hearing before the judge. Judgment at First Instance The factual allegation which formed the basis of the fathers application under the Convention was that, on the day when the marriage finally broke down, namely 10 January 2019, the mother had wrongfully retained the child in England and Wales. The first of the mothers three contentions by way of defence was that the child had become habitually resident in England and Wales by 10 January 2019. By his written judgment handed down on 17 April 2019, [2019] EWHC 1310 (Fam), [2019] 3 FCR 82, following a hearing on 15 April, the judge (MacDonald J) rejected this contention and the Court of Appeal refused to permit the mother to appeal against his rejection of it. For present purposes it is therefore an established fact that, at any rate until 10 January 2019, the child remained habitually resident in Israel. The second of the mothers contentions was that her retention of the child on 10 January 2019 had not been wrongful. She linked this contention with an assertion pursuant to article 13(a) of the Convention that the father had given a relevant consent. Although in earlier presentations of her case she had alleged that he had consented both to the childs removal from Israel on 25 November 2018 and to the retention of her in England on 10 January 2019, her case of consent became properly focussed in the position statement laid on her behalf before the judge: it was simply that he had consented to her retention of the child on 10 January. For the fathers consent to the childs removal from Israel on 25 November was irrelevant to his claim of wrongful retention. As the Court of Appeal was later to hold, the proper focus of the mothers case of consent for some reason became lost during the hearing before the judge. Her case was taken to be that the father had consented to the childs removal from Israel on 25 November. In relation to that point, the judge received brief oral evidence from the mother, from a male friend of hers and from the father; and it is important to note that the judge received no oral evidence on any other aspect of the case. In the event he held that the fathers consent had been operative at the time of the childs removal from Israel; that the mother had therefore established a defence under article 13(a) of the Convention; and that the defence yielded to him a discretion not to order the childs return to Israel. The third of the mothers contentions, made pursuant to article 13(b) of the Convention, was that there was a grave risk that a return to Israel would expose the child to physical or psychological harm or would otherwise place her in an intolerable situation. In this regard the mother, in her written evidence, made what appeared to be serious allegations of domestic abuse against the father. She alleged that his work as an Israeli policeman had in effect brutalised him; that during the marriage he had pushed or hit her every two or three weeks; that he had once held a gun to her head and had frequently demonstrated how he could crush her skull with his hands; and that once in Israel and again on an underground train in London he had even assaulted the child. The judge weighed the mothers allegations of domestic abuse against the fathers written denials and, in particular, against other material which on any view raised substantial concern about her credibility in that respect. For, in text messages sent to the mother on 13 January 2019, the male friend who gave oral evidence on her behalf had suggested that, in any approach on her part to the Rabbinical Court in London, she should play the game; should dress modestly; should pretend that she was religious; and should express fear that the father would kidnap the child. He had also suggested that she should offer the father greater contact with the child than she genuinely intended to afford to him in order to induce him to give her a Jewish get. Indeed it was on the day following her receipt of these messages that the mother had alleged to the police that the father intended to kidnap the child. The judge was fully entitled to observe that, in the light of the above material, he should approach the mothers allegations of domestic abuse with caution. He then evaluated them in accordance with the approach recommended for Convention cases in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. He therefore heard no oral evidence in relation to them and made no findings about them. Instead he sought to make a reasonable assumption about the maximum level of risk to the child in the light of all the available evidence. On this basis his assumption was of some risk to the mother, but not directly to the child, of physical and verbal abuse on the part of the father. The judge then addressed a series of undertakings offered to him by the father, including not to molest the mother in Israel, not to remove the child from her care in Israel without an order of the Israeli court and to provide reasonable financial support for both of them there until that court might otherwise order. The judges conclusion was that, in the light of the undertakings, the risk to the child, if returned to Israel, did not reach the level of gravity required by article 13(b). So that defence failed. The judge did not consider, because he was not asked to consider, whether the undertakings would be enforceable against the father in Israel. The Court of Appeals view, however, was that the judge would have been unlikely to have overlooked the well recognised concern about the enforceability in a foreign state of undertakings given to the English court. Then the judge turned to the discretion whether to order the childs return to Israel, to which his finding that the father had consented to her removal from Israel appeared to him to have given rise. In this regard he reminded himself that he was entitled to have regard to the policy aims of the Convention. He regarded them as based on the recognition that it is of manifest benefit to a child to have decisions regarding their welfare taken in the jurisdiction of their habitual residence. It was by those steps that the judges order for the childs return to Israel was The judge surveyed the multitude of features which connected the child to Israel and, by contrast, her connection with the UK for less than five months prior to the hearing; and he concluded that he should not exercise his discretion to decline to order her return to Israel. made under the Convention. But then the judge added a postscript. It was based on passing observations which he had made earlier. He had there reminded himself that, under article 18 of the Convention, its provisions for the return of children did not limit the domestic powers of a contracting state to order their return at any time; and he had referred to the decision of this court in In re L (A Child) (Custody: Habitual Residence) [2013] UKSC 75, [2014] AC 1017 (the L case), as for which see para 43 below. His postscript was: As I have made clear above, I am satisfied that had I concluded that [the child] was habitually resident in this country, I would have reached the same decision under the inherent jurisdiction The father had issued no application for an order for the childs return to Israel to be made under the inherent jurisdiction. Indeed no reference had been made to that jurisdiction in the course of the hearing, whether by counsel for either party in the course of their written or oral submissions to the court or by the judge himself. No doubt many judges (at any rate I speak for myself) have occasionally been guilty of including in judgments ill considered, off the cuff, remarks which later prove highly unfortunate. The counterfactual hypothesis of the judges postscript was that the child had been habitually resident in England on 10 January 2019, with the result that the Convention would, for that reason alone, not have applied to a retention on that date. But, apart from the wider principles applicable to the making of an order under the inherent jurisdiction addressed below, the hypothesis of the childs habitual residence in England should by itself have generated substantial questions, never addressed by the judge, about the propriety of such an order. One question would of course have surrounded recognition of the fact that (to use the judges own words quoted in para 13 above) it is of manifest benefit to a child to have decisions regarding their welfare taken in the jurisdiction of their habitual residence. Judgment of the Court of Appeal On 18 June 2019 the Court of Appeal (Flaux, Moylan and Haddon Cave LJJ) not only heard the mothers appeal but determined it, by a judgment delivered by Moylan LJ with which the other members of the court agreed: [2019] EWCA Civ 1065, [2019] 3 FCR 49. The courts order is however dated 24 June 2019. There is no need to consider in detail the courts reasons for setting aside the judges order under the Convention. They will already be apparent in any event. In summary the court held that there had been no focus in the judgment on the fathers foundational assertion that there had been a wrongful retention of the child by the mother on 10 January 2019; and it held that, once the judge had found that there was no agreement between the parties to return to Israel if the marriage broke down, there was no ground for concluding that the mothers retention of the child in England on and after that date had been wrongful. Therefore the Convention had not been engaged. There is, by contrast, every need to consider in detail the courts reasons for substituting an order for the childs return to Israel under the inherent jurisdiction. In this regard the court in para 63 identified the following two issues: (i) whether the mother was prejudiced by the absence of any application [for the exercise of the inherent jurisdiction] and by the other matters relied on by her so as to make the judges determination unfair; and (ii) whether the judge was in a position to make a sufficient welfare assessment necessary to the proper exercise of the inherent jurisdiction. (Emphasis supplied) It is worthwhile to note the courts use of the word determination in its formulation of the first issue. In at least six places in the judgment the court referred to the judges determination or decision to make an order under the inherent jurisdiction. The court well knew that he had made no such determination or decision but it clearly regarded it as appropriate to deem him to have done so. In what follows, however, it is as well to remember that the order under the inherent jurisdiction was made not by the judge on 17 April 2019 but by the Court of Appeal on 18 June 2019. This leads to the second issue identified by that court. If the Court of Appeal, always invested with the powers of the judge against whose judgment an appeal is brought and thus in this case invested with his inherent jurisdiction, was considering whether to make a fresh order on a different basis, it had to survey the relevant evidence for itself; indeed, as is agreed between the parties, it had to satisfy itself that the evidence was sufficiently up to date to form the basis of an order which could be made that day by reference to circumstances which then existed. On the contrary, however, in its formulation of the second issue, the court asked whether the judge had been in a position to make the requisite welfare assessment. Central to the mothers objections in the Court of Appeal to the making of any order under the inherent jurisdiction was a contention that the courts exercise of that jurisdiction had to be conducted by reference to an overarching consideration, namely the paramountcy of the childs welfare, entirely different from the considerations by reference to which the jurisdiction under the Convention would fall to be exercised. The Court of Appeals answer was to rely on the judges analysis of the discretion not to make an order under the Convention which, however mistakenly, he had considered to have arisen from the fathers consent to the childs removal from Israel. In the judgment the Court of Appeal reasoned as follows: 65. there were no additional matters of substance which would not be relevant to the exercise of that discretion but would be relevant to the discretion under the inherent jurisdiction. 66. it could be argued that the inherent jurisdiction has a wider canvas based, as it is, on welfare being the courts paramount consideration but, when the court is deciding whether to exercise its discretion to make a return order under the 1980 Convention once a ground for opposing the return has been established, the court will consider the wider canvas, in particular when the ground is other than grave harm. The Court of Appeals resolution of the two issues set out in para 22 above was therefore as follows, at para 68: the mother was not significantly prejudiced in this case (i) so as to make the judges determination unfair; and (ii) assessment. (Emphasis supplied) the judge was in a position to make a sufficient welfare Their resolution led to the courts overall conclusion as follows, at para 73(c): The judge was entitled to make an order for [the childs] return under the courts inherent jurisdiction and his summary welfare decision to do so is fully supported by the reasons he gave. (Emphasis supplied) Inherent Jurisdiction Available The first basis of the mothers assault on the Court of Appeals summary order for the childs return to Israel under the inherent jurisdiction is that it was not open to that court, and would not have been open to the trial judge, to deploy the inherent jurisdiction in that way. Her case is that a summary order for the childs return outside the Convention could have been made only as a specific issue order under the Children Act 1989 (the 1989 Act). Section 10 of the 1989 Act empowers the court to make the orders specified in section 8(1). They include a specific issue order, there defined as an order giving directions for the purpose of determining a specific question which has arisen in connection with any aspect of parental responsibility for a child. An order for the return of a child to a foreign state falls within that definition; and a specific issue order to that effect can be made not only after a full inquiry into the merits of the case but also on a summary basis; see paras 34 and 35 below. Had it been otherwise appropriate for the Court of Appeal to make a summary order in the circumstances of the present case, it could have been made as a specific issue order. There would have been jurisdiction to make such an order in relation to this child. For, had the child remained habitually resident in Israel on the date when, in the absence of an application, the court was considering whether to make the order (18 June 2019), her presence in England and Wales, coupled with the absence of her habitual residence in any part of the United Kingdom, would have endowed the court with jurisdiction to make it: sections 2(1)(b)(ii) and 3(1)(b) of the Family Law Act 1986 (the 1986 Act). If, alternatively, the child had become habitually resident in England by that date, article 8(1) of Council Regulation (EC) No 2201/2003 (Regulation B2R), which applies even when the other possible jurisdiction is not a member state as there defined, would, as confirmed by section 2(1)(a) of the 1986 Act, have endowed the court with jurisdiction to make it. But could a summary order for the childs return to Israel also have been made under the inherent jurisdiction? In principle the inherent jurisdiction was as fully available in relation to this child as was the jurisdiction to make a specific issue order. For, had she remained habitually resident in Israel on 18 June 2019, a summary order for the childs return there under the inherent jurisdiction, not being an order which gives care of a child to any person, would have fallen neither within section 1(1)(d) of the 1986 Act nor otherwise within Part 1 of it; and the result would have been the application of the bases of jurisdiction under common law, including that of the childs presence in England. If, alternatively, she had become habitually resident in England by that date, article 8(1) of Regulation B2R would, as in the case of a specific issue order, have endowed the court with jurisdiction to deploy the inherent jurisdiction in relation to her. The mother accepts that, prior to the advent of the 1989 Act, a summary order for the return of a child abroad could be made by the High Court in the exercise of its inherent jurisdiction. She reminds the court of the classic exposition of Buckley LJ in In re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250. It is easy to forget that, before ordering the return of the child to Germany in that case, the High Court judge had conducted a full merits based inquiry into what the childs welfare required. Strictly speaking, the remarks of Buckley LJ at pp 264 265 were therefore only passing observations. Nevertheless he there convincingly explained why an order under the inherent jurisdiction for a prompt return of children wrongly taken from a foreign state, in order that the courts there might determine their future, might well be in their best interests at that stage; and that a full investigation of the merits of the parental dispute in the English courts might be incompatible with them. These remarks formed the basis of a number of decisions in the following decade, beginning with that of In re C (Minors) (Wardship: Jurisdiction) [1978] Fam 105. On 1 August 1986 the 1985 Act, to which the Convention was scheduled, came into force. It is a fair working assumption that application of the Convention will generally identify the circumstances in which it is, and is not, in the interests of a child to be the subject of a summary order for return to another contracting state. The court should look critically at any application for a summary order, whether as a specific issue order or as an order under the inherent jurisdiction, for the return to a contracting state of a child who as in the present case has been held not to be susceptible, or who would probably be held not to be susceptible, to the making of an order under the Convention. In her judgment in the Irish High Court in KW v PW [2016] IEHC 513, OHanlon J went further: 57. This Court finds that the inherent jurisdiction is not applicable in this case. The inherent jurisdiction exists to fill a lacuna in the law and there is no lacuna here. To use the inherent jurisdiction to make an order returning these children to Australia after holding that they are habitually resident in Ireland would be to circumnavigate the content and the principles of the Hague Convention. One has considerable sympathy for the judges approach; but I respectfully suggest that it would be better for our approach in England and Wales to be less categorical. For, as I will explain in para 53 below, the principles of the Convention are not constructed by reference to the paramountcy of the childs welfare and so we must recognise, as being at any rate a possibility, that a childs welfare will require a summary order for his return to a contracting state even when the Convention does not so operate as to require it. On 14 October 1991 sections 8 and 10 of the 1989 Act came into force. It was, according to the mother, at this moment, which marked the advent of the specific issue order, that it became impermissible for a summary order for the childs return abroad to be made instead under the inherent jurisdiction. The mother cites the decision of the appellate committee of the House of Lords in Richards v Richards [1984] AC 174. It held that, following an enactment in 1967 which conferred specific jurisdiction to order a spouse to leave the home, a court could no longer make such an order pursuant to its general jurisdiction to grant an injunction. Lord Hailsham of St Marylebone, Lord Chancellor, said at pp 199, 200: where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus choose to apply a different jurisprudence from that which the Act prescribes. Lord Brandon of Oakbrook spoke at p 221 to similar effect. The mother also relies heavily on the decision of the appellate committee in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80. The issue was whether, as his father contended, there should be a summary order for the return of a five year old boy to Saudi Arabia, which was not (and is not) a contracting state under the Convention. The committee set aside the summary order made by the Court of Appeal and restored the order by which the judge had refused to make it. Baroness Hale of Richmond made the only substantive speech. She observed at para 5 that, had the Convention applied, the mothers retention of the boy in England would probably have been categorised as wrongful. She said at para 28: It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child. In concluding that the Court of Appeal had not been entitled to interfere with the judges order, Baroness Hale referred at paras 39, 40 and 46 not only to the relevance of the effect of an order for the childs return on his primary carer but also to the occasional relevance of differences in the criteria applied by the rival courts to resolution of the substantive issues in relation to the child and, in particular, to any absence of a power in the foreign court to authorise the primary carer to relocate with the child back to England. The decision in In re J was, says the mother, impeccable. And her point is this: the application by the father under consideration in all three courts was for a specific issue order for the childs return to Saudi Arabia, not for an order to that effect under the inherent jurisdiction. It was thus in relation to a specific issue order that, for example, Baroness Hale stressed the facility in principle for an order for return to be made summarily. We now reach the high point of the mothers case that the inherent jurisdiction is no longer available for the making of a summary order for a childs return abroad. It is Practice Direction 12D, which supplements Chapter 5 of Part 12 of the Family Procedure Rules 2010 (the 2010 Rules) and which is entitled Inherent Jurisdiction Proceedings. Paragraph 1.2 emphasises the width of the jurisdiction: The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the childs protection of which the following are the most common (e) orders for the return of children to and from another state. For the purpose of the 2010 Rules, the phrase family proceedings has the broad meaning ascribed to it by section 75(3) of the Courts Act 2003 (the 2003 Act). But the mothers case focusses on para 1.1 of the Practice Direction which provides: It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989. (Emphasis supplied) An application for a specific issue order for the return of a child to a foreign state cannot be issued in the High Court. It has to be issued in the Family Court: rule 5.4(1) of the 2010 Rules. It can then, however, be allocated to be heard by a judge of High Court level sitting as a judge of the Family Court or it can indeed be transferred to the High Court. There are strong reasons of policy, applied to all areas of civil justice, to confine claims to the lowest court which has jurisdiction to hear them in order to preserve the ability of the higher courts, in particular the High Court, to address only the claims strictly identified as deserving their attention. Is the italicised instruction in para 1.1 of the Practice Direction nevertheless too categorical? Does it have to be clear that the issues cannot be resolved under the 1989 Act before the inherent jurisdiction can be invoked? The 2010 Rules are made pursuant to section 75(1) of the 2003 Act and so have legislative force. But practice directions, even including those which are stated to supplement the 2010 Rules, are not made pursuant to that or any other statutory authority. As Brooke LJ said in U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657, at para 48: a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all. The question therefore is whether the categorical instruction in para 1.1 of Practice Direction 12D is wrong. One of the major achievements of the 1989 Act was to streamline the procedure for ordering a child to be placed in the care of a local authority. One of the former procedures for doing so had been by way of exercise by the High Court of its inherent jurisdiction. Section 100 of the 1989 Act provides: (2) No court shall exercise the High Courts inherent jurisdiction with respect to children (a) so as to require a child to be placed in the care of a local authority; What is significant is that, in making the 1989 Act, Parliament, by contrast, nowhere sought to preclude exercise of the inherent jurisdiction so as to make orders equivalent to those for which sections 8 and 10 of it provide, including specific issue orders. In the absence of any statutory provision which the instruction in para 1.1 of Practice Direction 12D could be said to reflect, the court should turn to consider case law. In A v A (Children: Habitual Residence) [2013] UKSC 60, [2014] AC 1, the trial judge had invoked the inherent jurisdiction to make a summary order of the obverse kind, namely for the return of four children from abroad, specifically from Pakistan, to England and Wales. By the time of the arrival of the case in the Supreme Court, the issue surrounded only the order in relation to the youngest child, who was a British national but who had been born in Pakistan and, unlike his siblings, had never lived or even been present in England. The majority of this court expressed doubt as to whether in these circumstances the trial judge had been right to ascribe to him habitual residence in England. But it perceived a different basis for the possible exercise of the inherent jurisdiction in relation to him, namely the basis at common law of his British nationality; and it remitted the case to the judge to determine whether it was appropriate to exercise it. In that a specific issue order cannot be made on the basis only of nationality, it could be said that the decision in the A case does not carry the present inquiry much further. It is however worthwhile to note that, at para 26 of her judgment, Baroness Hale rejected the submission that the judges order, based on the childs perceived habitual residence, had been a specific issue order and observed that there were many orders relating to children which could be made either under the 1989 Act or under the inherent jurisdiction. In the L case, cited in para 15 above, the mother brought a boy, then aged seven, from Texas to England with the permission of a federal court. A year later a federal appeal court reversed the trial courts ruling; and the latter then made a revised order for the mother to return the boy to Texas. The father thereupon applied to the High Court for an order under the Convention and alternatively under the inherent jurisdiction for the boys return to Texas. On appeal this court held that the trial judge had been entitled to find that, by the time of the revised order made by the trial court, the boy had acquired habitual residence in England; and that therefore the mothers retention of him had not been wrongful and that the application under the Convention failed. Nevertheless this court proceeded to hold that in all the circumstances the boys welfare required a summary order to be made under the inherent jurisdiction for his return to Texas. In that the child was habitually resident in England, there is no doubt that his return to Texas could equally have been made the subject of a specific issue order. But it was not made the subject of such an order; and it was never suggested that it should have been so made. The instruction in para 1.1 of Practice Direction 12D goes too far. There is no law which precludes the commencement of an application under the inherent jurisdiction unless the issue cannot be resolved under the 1989 Act. Some applications, such as for a summary order for the return of a child to a foreign state, can be commenced in the High Court as an application for the exercise of the inherent jurisdiction. But then, if the issue could have been determined under the 1989 Act as, for example, an application for a specific issue order, the policy reasons to which I have referred will need to be addressed. At the first hearing for directions the judge will need to be persuaded that, exceptionally, it was reasonable for the applicant to attempt to invoke the inherent jurisdiction. It may be that, for example, for reasons of urgency, of complexity or of the need for particular judicial expertise in the determination of a cross border issue, the judge may be persuaded that the attempted invocation of the inherent jurisdiction was reasonable and that the application should proceed. Sometimes, however, she or he will decline to hear the application on the basis that the issue could satisfactorily be determined under the 1989 Act. Why has the mother been so concerned to argue that the Court of Appeals consideration of the making of a summary order for the childs return to Israel needed to take place within the framework of a specific issue order? The answer is that, although the childs welfare is the paramount consideration in the making of such an order whether made under the inherent jurisdiction or as a specific issue order, the mother considers that a specific issue order could be made only following a more extensive inquiry into the childs welfare. Where an application for the same order can be made in two different proceedings and falls to be determined by reference to the same overarching principle of the childs welfare, it would be wrong for the substantive inquiry to be conducted in a significantly different way in each of the proceedings. Of course, when in each of the proceedings it is considering whether to make a summary order, the court will initially examine whether the childs welfare requires it to conduct the extensive inquiry into certain matters which it would ordinarily conduct. Again, however, it would be wrong for that initial decision to be reached in a significantly different way in each of them. The mother refers to the list of seven specific aspects of a childs welfare, known as the welfare check list, to which a court is required by section 1(3) of the 1989 Act to have particular regard. She points out, however, that, by subsections (3) and (4), the check list expressly applies only to the making of certain orders under the 1989 Act, including a specific issue order, as is confirmed by the seventh specific aspect, namely the range of powers under that Act. The first six specified aspects of a childs welfare are therefore not expressly applicable to the making of an order under the inherent jurisdiction. But their utility in any analysis of a childs welfare has been recognised for nearly 30 years. In its determination of an application under the inherent jurisdiction governed by consideration of a childs welfare, the court is likely to find it appropriate to consider the first six aspects of welfare specified in section 1(3) (see In re S (A Child) (Abduction: Hearing the Child) [2014] EWCA Civ 1557, [2015] Fam 263, at para 22(iv), Ryder LJ); and, if it is considering whether to make a summary order, it will initially examine whether, in order sufficiently to identify what the childs welfare requires, it should conduct an inquiry into any or all of those aspects and, if so, how extensive that inquiry should be. The mother also refers to Practice Direction 12J, which supplements Part 12 of the 2010 Rules and which is entitled Child Arrangements and Contact Orders: Domestic Abuse and Harm. By para 4, the Practice Direction explains that harm is suffered not only by children who are the direct victims of domestic abuse but also by children who live in a home in which it is perpetrated. When disputed allegations of domestic abuse are made, the Practice Direction makes detailed requirements of the court, in particular to consider whether to conduct a fact finding hearing in relation to them (para 16), whether to direct the preparation of a report by a CAFCASS officer (para 21) and whether to order a child to be made a party and be separately represented (para 24). The mother points out, however, that, by para 1, the Practice Direction applies only to proceedings under the relevant parts of the 1989 Act (which would include an application for a specific issue order) or of the Adoption and Children Act 2002. Therefore it does not expressly apply to the determination of any application under the inherent jurisdiction, including of an application governed by consideration of a childs welfare in which disputed allegations of domestic abuse are made. Nevertheless, as in relation to the welfare check list, a court which determines such an application is likely to find it helpful to consider the requirements of the Practice Direction; and if it is considering whether to make a summary order, it will initially examine whether, in order sufficiently to identify what the childs welfare requires, it should, in the light of the Practice Direction, conduct an inquiry into the allegations and, if so, how extensive that inquiry should be. Exercise of Inherent Jurisdiction Flawed The Court of Appeal did not conduct for itself an inquiry into whether the welfare of the child required her to be the subject of a summary order for return to Israel. It considered that the judge had conducted such an inquiry and had determined that her welfare did so require; and it held that his perceived determination was not wrong. With great respect, I find it impossible to agree that the judge had conducted any such inquiry or had made any such determination. The judge had not purported to make any determination at all under the inherent jurisdiction; and he had not conducted any inquiry in relation to which the childs welfare was the paramount consideration; still less had he conducted what was commended by the Court of Appeal as a sufficient welfare assessment. The Court of Appeal held that, in determining not to exercise the discretion so as to decline to order the childs return to Israel, which he perceived to have arisen under the Convention, the judge had considered the wider canvas based on welfare being the courts paramount consideration. But the discretion which arises under the Convention lacks that basis. It has been best explained by Baroness Hale in In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] AC 1288 as follows: 42. In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one anothers judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states. 43. My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the childs rights and welfare. The judges determination not to exercise the discretion perceived to have arisen under the Convention cannot stand as a determination that the childs welfare required her return to Israel. The initial question for the Court of Appeal was whether the mother had had sufficient notice of its intention to make a summary order under the inherent jurisdiction. The fact that the father had not applied for an order under the inherent jurisdiction did not, of itself, inhibit the Court of Appeal from making the order; and, had the judge made such an order, the absence of an application would not, of itself, have inhibited him from doing so. Section 10(1)(b) of the 1989 Act provides that a specific issue order can be made even though no application for it has been made; and there is no reason to doubt that an order under the inherent jurisdiction, the flexibility of which is a key feature of it, can also be made of the courts own motion. But in such circumstances a heavy duty lies upon a court to ask whether the effective respondent has had notice of the courts intention sufficient to afford to her (or him) a reasonable opportunity to mount opposition to it. In the present case the Court of Appeal did address this initial question; and it answered it affirmatively. It is correct that, upon her receipt of the fathers skeleton argument three weeks prior to the hearing in the Court of Appeal, the mother became aware that, in the event of the success of her appeal against the order under the Convention, the father aspired to persuade that court to make an order under the inherent jurisdiction; and respect must be given to the Court of Appeals observation that Mr Twomey QC, on behalf of the mother, had at its hearing (unlike at ours) struggled to identify any additional evidence which he might have adduced, or submission which he might have made, had such notice been given to him prior to the conclusion of the hearing before the judge. But, since it was the Court of Appeal which made the order, the real question was whether the mother had had sufficient notice of the intention of that court to do so. It is sufficient to record significant doubt whether the mother could reasonably have anticipated that, in the event of the success of her appeal, an appellate court, instead of, at most, remitting to the judge consideration of the exercise of the inherent jurisdiction, would itself exercise it even in the absence of material with which to analyse what the childs welfare required. I respectfully suggest, however, that, before making a summary order under the inherent jurisdiction for this child to be returned to Israel, the Court of Appeal should have given (but did not give) at least some consideration to eight further, linked, questions. First, the court, which was sitting on 18 June 2019, should have considered whether the evidence before it was sufficiently up to date to enable it then to make the summary order. The mothers statement in answer to the claim under the Convention was dated 29 March 2019. In it she had devoted seven out of 67 paragraphs to assertions of the childs habitual residence in England and of particular circumstances said to demonstrate how happy and settled she had become. In his statement in reply dated 11 April the father had joined issue with the mothers assertions. The oral evidence given by the parties to the judge on 15 April had been limited to the issue of consent to the childs removal from Israel and so had not addressed these matters. Second, the court should have considered whether the judge had made, or whether it could make, findings sufficient to justify the summary order. The only relevant finding made by the judge had been that on 10 January 2019, only seven weeks after her arrival in England, the child had retained habitual residence in Israel. Was that sufficient to justify the making of a summary order five months later? In the light of the policy in favour of the making of substantive welfare determinations by the courts of habitual residence, did there need to be inquiry into the childs habitual residence at the relevant date, which, in the absence of an application, was in this case the date of the proposed order? Third, the court should have considered whether, in order sufficiently to identify what the childs welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act and, if so, how extensive that inquiry should be: see para 49 above. It might in particular have considered that the third of those aspects, namely the likely effect on [the child] of any change in [her] circumstances, merited inquiry. Fourth, the court should have considered whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by the mother of domestic abuse and, if so, how extensive that inquiry should be: see para 50 above. The judge had made no findings about them. Instead, in accordance with the E case cited in para 12 above, he had, for the purposes of the claim under the Convention, made a reasonable assumption in relation to the maximum level of risk to the child arising out of any domestic abuse to be perpetrated by the father and had considered that such risk would be contained within acceptable limits by undertakings offered by the father, the enforceability of which in Israel the judge had not explored. Consideration should therefore have been given to whether, in a determination to be governed by the childs welfare, the judges approach to the mothers allegations remained sufficient. Fifth, the court should have considered whether, without identification in evidence of any arrangements for the child in Israel, in particular of where she and the mother would live, it would be appropriate to conclude that her welfare required her to return there. Sixth, the court should have considered whether, in the light of its consideration of the five matters identified above, any oral evidence should be given by the parties and, if so, upon what aspects and to what extent. Seventh, the court should have considered whether, in the light of its consideration of the same matters, a CAFCASS officer should be directed to prepare a report and, if so, upon what aspects and to what extent. It is noteworthy that in the L case discussed in para 43 above, a CAFCASS report had been prepared. It had been designed to ascertain the boys wishes and feelings and so was apparently made as if pursuant to section 1(3)(a) of the 1989 Act: see para 14 of Baroness Hales judgment. In her careful weighing, in paras 34 to 37 of her judgment, of the welfare considerations which militated both in favour of, and against, the boys return to Texas, Baroness Hale relied to a significant extent upon the content of the CAFCASS report. Eighth, the court should have considered whether it needed to compare the relative abilities of the Rabbinical Court in Jerusalem and the Family Court in London to reach a swift resolution of the substantive issues between the parents in relation to the child and to satisfy itself that the Rabbinical Court had power to authorise the mother to relocate with the child back to England: see para 34 above. The effect of the above is not to submerge efficient exercise of the inherent jurisdiction to make a summary order within an ocean of onerous judicial obligations. The linked obligations are obligations only to consider the eight specified matters. There is no need for us to contemplate what the proper outcome of the Court of Appeals consideration of them might have been. It is the fact that it failed even to consider them which yields the conclusion that it conducted no defensible analysis of the childs welfare prior to its determination to make the summary order and which led this court to uphold the mothers appeal. |
The issue in this appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the control fingerprints thus taken inadmissible in any subsequent court proceedings? Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (the Northern Ireland Order) sets out the powers of the police to take fingerprints without consent. Similar (but not in every respect identical) provision is made for England and Wales by section 61 of the Police and Criminal Evidence Act 1984. These powers are exhaustively defined; otherwise prints may only be taken with consent see article 61(1) and, in England and Wales, section 61(1). The cases where prints may be taken without consent have been varied a little from time to time and do not need to be set out seriatim here. One of the principal cases, however, was and is where a person is in police detention having either been arrested for a reportable offence, or charged with, or informed that he will be reported for, such. Another is where he has been convicted of such an offence. Generally, fingerprints may be taken once only in the course of any single investigation, although there are now provisions permitting replacement prints to be required if the first ones were of insufficient quality to allow satisfactory analysis, comparison or matching. Between 1 March 2007 and 12 January 2010 article 61(8B) of the Northern Ireland Order provided: Where a persons fingerprints are taken electronically, they must be taken only in such manner, and using such devices, as the Secretary of State has approved for the purposes of electronic fingerprinting. That provision matched an intended section 61(8A) of the Police and Criminal Evidence Act 1984, which latter provision was inserted into the 1984 Act by the Criminal Justice and Police Act 2001 but was never brought into force. Both article 61(8B) and section 61(8A) were later repealed as redundant by section 112 and schedule 8 of the Policing and Crime Act 2009, with effect from 12 January 2010, and with that repeal there disappeared from England and Wales and from Northern Ireland all requirement for statutory approval of fingerprinting devices. However, although the requirement for approval existed in Northern Ireland (but not in England and Wales) from 1 March 2007, such approval was, by oversight, not given to any device until it was belatedly provided on 29 March 2009 after the omission had been noticed. It follows that for the two years from March 2007 to March 2009 article 61(8B) was in force but no device had been approved as contemplated by it. The two appellants were defendants charged with theft in Northern Ireland. The offence was alleged to have taken place on 6 October 2007, during the two year period mentioned. A stack of building materials had been found removed from the owners depot and placed apparently ready for collection by the thieves. The appellants were found nearby in a van but said that they were there innocently and had not been near the stolen materials. Their fingerprints were taken when they were detained in the police station after their arrest. A fingerprint matching Elliotts left thumb was found on the packaging of the stolen materials. The match of fingerprints was relied upon by the Crown and proved in the magistrates court. The defendants were convicted. The device used in the police station to collect the control sample of the fingerprints of each appellant was a combination of camera, scanner and computer, known as Livescan. No one noticed that no type approval had been given for its use as required by article 61(8B). When this was appreciated, the appellants appealed to the County Court, where the appeal proceeded by way of fresh hearing ab initio. The preliminary point was taken that the evidence of comparison was inadmissible because of the absence of approval. That argument succeeded before the County Court judge but on further appeal by the Crown, by way of case stated, the Court of Appeal ruled against it. The Livescan process was and is generally used by the police throughout Northern Ireland, as well as throughout England and Wales and Scotland and, indeed, worldwide. It has very largely superseded the traditional process of ink pad and paper. It is possible to have mobile devices as well as those located in police stations. Both are linked directly to computerised storage and searching equipment located centrally. Amongst the advantages is the ease of electronic transmission, storage and sorting of the prints taken. One aspect of that is that a set of fingerprints given at a scene or in the street can now often almost instantaneously verify or refute the identity of the person tested. Another is that international exchange of data is made much easier. Livescan devices were in general use in Northern Ireland from 2006 and throughout the two year period 2007 2009 when type approval was required by article 61(8B). For the appellants, the first and principal submission of Mr McMahon QC is that the language of article 61(8B) unequivocally renders a nullity any fingerprints taken by a device which has not been approved. Therefore, no legal use can be made of them. For this reason, there is, he submits, no occasion to investigate what consequences Parliament must have intended should follow from a failure to use an approved device. That would be necessary only if there were an ambiguity in the wording. There is none, and it necessarily follows that the product of an unapproved fingerprinting process is inadmissible. Any other conclusion would, he submits, leave article 61(8B) a dead letter. The difficulty with this attractively simple submission is that the statute says nothing at all about the consequences of failure to use an approved device. There is ample precedent for such a statutory provision to be accompanied by an express provision that evidence shall only be admissible if obtained in accordance with it. An example is afforded by the statutory rules relating to evidence of speed provided by speed guns. Section 20 of the Road Traffic Offenders Act 1988 provides, for England and Wales: (1) Evidenceof a fact relevant to proceedings for an offence to which this section applies may be given by the production of a record produced by a prescribed device, and (a) (b) (4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless the device is of a type approved by the Secretary (a) of State, and (b) any conditions subject to which the approval was given are satisfied. Identical provisions are contained in the equivalent Northern Ireland legislation: article 23(1) and (4) of the Road Traffic Offenders (Northern Ireland) Order 1996. There are provisions to similar effect in section 6 of the Noise Act 1996, and in section 45 of the Antisocial Behaviour etc (Scotland) Act 2004, in respect of noise meters. The absence of this kind of explicit statutory provision from article 61(8B) thus raises the question of what consequence was intended to follow from non approval. This legislation was enacted against the background of the well understood general common law rule that evidence which has been unlawfully obtained does not automatically thereby become inadmissible. That has been clear since at least the decision of the Judicial Committee of the Privy Council in Kuruma v The Queen [1955] AC 197, where the defendant was charged with unlawful possession of ammunition which had been found on him as a result of an unlawful search, carried out by a policeman of insufficient seniority to make it. Lord Goddard CJ said this at p 203: In their Lordships opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. This proposition was endorsed by the House of Lords in R v Sang [1980] AC 402, which dealt more specifically with the judges discretion to exclude evidence which will have the effect of rendering the trial unfair (see now section 78 of the Police and Criminal Evidence Act 1984 and its equivalent, article 76 of the Northern Ireland Order). Likewise in R v Khan [1997] AC 558 evidence obtained by unauthorised surveillance and the secret recording of private conversations was admissible despite the unlawful methods by which it had been obtained. The position was summarised by Lord Fraser, with whom all other members of the House of Lords agreed, in Fox v Chief Constable of Gwent [1986] AC 281, 292A as follows: It is a well established rule of English law, which was recognised in R v Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally. It is clear that this inclusive rule of relevant evidence extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process; the recording in Khan is an example of the former. This common law background to the legislation, of which Parliament must be taken to have been well aware, shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval. Rather, it is necessary to examine the Parliamentary intention as to consequence. With great respect to Mr McMahons principal argument, it is not correct that article 61(8B) would have no purpose, or would be a dead letter, unless its consequence were that any fingerprints obtained from an unapproved device were inadmissible. Whether or not inadmissibility is the consequence, the article still meant that a requirement by a policeman of a suspect in custody that he provide his fingerprints on an unapproved device would be one which the suspect was entitled to refuse. It might not be very likely that a suspect would be acquainted with the presence or absence of approval, but his solicitor might well be. Such a suspect could therefore refuse to provide his fingerprints on a Livescan device and he would not thereby commit the offence of obstructing a police officer that no doubt he otherwise would. Similarly, if it became known that the police were regularly using an unapproved device, there would be no defence to an application for judicial review in which the unlawfulness of their actions would be declared and, if persisted in, no doubt prohibited. Thus the clear statutory purpose of preventing the use of a device unless it is approved by the Secretary of State would be achieved. There is no need for the additional consequence of inadmissibility of evidence in order to give content to the statute. It follows that the wording of article 61(8B) does not itself provide the solution to the issue in this appeal. It is necessary to examine the question what Parliament must have intended to be the consequence of non approval of Livescan. The correct approach to this enquiry was explained by Lord Steyn in R v Soneji [2005] UKHL 49; [2006] 1 AC 340. It had previously been thought that statutory provisions could be classified as either mandatory (carrying the consequence of total invalidity for breach) or directory (carrying lesser consequence). The over rigidity of that a priori approach had given rise to difficulty. At para 23 Lord Steyn said this: Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney Generals Reference (No 3 of 1999) [2001] 2 AC 91, the emphasis ought to be on the consequences of non compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. That more flexible approach does not necessarily mean that failure to comply with statutory provisions may not have far reaching consequences. It may sometimes yield the conclusion that the inevitable consequence is total invalidity. That was the outcome in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338, where the question was whether the failure to sign an indictment nullified the ensuing trial. The statutory provisions there in question were sections 1(1) and 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when signed. It was common ground that a valid indictment was a pre condition to a valid Crown Court trial. It can be seen from Lord Binghams speech at para 18 that he faithfully posed the Soneji question, namely what Parliament had intended, when passing the 1933 Act, should be the consequence of lack of signature. Since at the time of the 1933 Act the signature was taking the place of the previously existing endorsement of the bill by a Grand Jury, the answer was inescapable, if inconvenient: the signature validated the indictment in the same way as the Grand Jurys decision previously had done. Accordingly the absence of signature did indeed invalidate the subsequent trial, notwithstanding the fact that modern changes in the routes by which criminal cases arrive in the court of trial had in the meantime reduced the signature, in practice, to mere formality. The position had to be put right by amending legislation, in the form of the Coroners and Justice Act 2009. Should a similar parliamentary intention be deduced from article 61(8B)? Mr McMahon relies upon the well established rule that the product of a breathaliser test is inadmissible unless the testing device is an approved one. The cases begin with Scott v Baker [1969] 1 QB 659, decided in the infancy of the Road Safety Act 1967, which had introduced for the first time the offence of driving with blood alcohol beyond a prescribed statutory limit. The power to require a suspect to provide a laboratory blood or urine sample, by which blood alcohol could be tested, was made dependent upon a complex step by step procedure. The first step in that procedure was the taking of a preliminary (usually roadside) breath test. By section 7 a breath test was defined as one carried out using a device approved by the Secretary of State. The court held that such approval was essential to the statutory steps leading to a validly required laboratory sample, and that approval must be proved. The details of the blood alcohol driving legislation have been changed from time to time since then, and breath tests of a different kind are nowadays used not simply as a screening test but to determine the blood alcohol level. However, it remains the statutory rule, under section 7(1) of the Road Traffic Act 1988 and, in Northern Ireland, under article 18(1) of the Road Traffic (Northern Ireland) Order 1995, that a specimen of breath may be required in the course of an investigation into the offences of driving with excess alcohol, or of driving when unfit through drink or drugs, or of causing death by careless or dangerous driving when over the limit or under the influence, and that what may be thus required is limited to: specimens of breath for analysis by means of a device of a type approved by [the appropriate person.] Mr McMahon is therefore right to say that a breath specimen may be adduced in evidence against a defendant not only when the result constitutes the very offence of driving with excess alcohol but also where it is simply some part of the evidence relied on to prove an offence with different components, such as driving when unfit through drink. No one doubts the rule, however, that the product of a breath test will not be admissible unless the device used is an approved one. The statutory requirement for approval of an electronic fingerprint reader is not, however, analogous to the approval requirements in the cases of breath test or speed gun devices. Both the latter are methods of measuring something which cannot subsequently be re measured. They capture a snapshot of a suspects activity. The snapshot is often itself the offence. It is the speed, as measured by the device, which constitutes the offence of exceeding the speed limit. It is the blood alcohol content, as measured by the device, which constitutes the offence of driving with excess alcohol. In other cases, the snapshot is simply part of the evidence, for example if the offence charged is careless driving, or driving whilst unfit through drink. But in both kinds of situation, the activity measured by the device cannot be reproduced to be re measured. It is therefore entirely comprehensible that there should be a statutory requirement that the device should be approved, and that the measurements which can be relied upon in evidence should be limited to the products of such devices. That is no doubt why there are the specific statutory provisions in relation to speed guns described at para 8 above, and it is clearly why the courts have held that the requirements for approval in the case of breath tests have the like effect. The control fingerprints taken from the appellants in the police station were not snapshots. The impressions which their fingers provided could be reproduced at any time afterwards, and would be the same. The accuracy of the Livescan readings, if disputed, could readily be checked independently by the appellants providing more samples, whether by ink and paper or by any other means, for examination by an independent expert. The ease with which this can at any time be done demonstrates that there was no need at all for Parliament to stipulate, or to intend, that the product of unapproved electronic fingerprint readers should be inadmissible. It is the fact that in the present case there was no challenge whatever to the accuracy of the control fingerprints taken from Elliott by the Livescan device; the fingerprint found at the scene matched his control prints in no less than 45 particulars and there was no sign of any reliance on expert opinion either in the magistrates court or, after the absence of approval was appreciated, in the County Court. But if there had been a dispute, as in other cases it is at least possible that there might be, it would have been the simplest possible matter for new control prints to be provided so that independent expert opinion could be obtained. There appeared at first to be some limited support for the appellants contentions in an explanatory note which accompanied the proposed insertion into the Police and Criminal Evidence Act 1984 of section 61(8A) requiring type approval of electronic fingerprint readers. That amendment of the 1984 Act would have been achieved through section 78(7) of the Criminal Justice and Police Act 2001, had that subsection ever been brought into force. The explanatory note to that subsection (number 234) read as follows: Subsection (7) provides that where fingerprints are taken electronically, the device used must have type approval from the Secretary of State. This is to ensure that the device will produce images of the appropriate quality and integrity to be used for evidential purposes. However, the other background material shown to this court demonstrates that the purpose of the proposal for type approval was not principally the protection of the individual against risk of conviction on inaccurate evidence. The concern was much more closely related to the needs for the technology to work properly so that investigations could proceed confidently, for compatibility between police forces, both domestic and foreign, and for uniform machinery for search and comparison. The then Minister of State referred to the aim of facilitating a proper evidential trail. The House of Lords Select Committee on Science and Technology had emphasised the need for the technology to be robust. It is also clear that there was thought at one time that type approval would curtail any potential for unnecessary dispute in court about the legitimacy of electronically taken control fingerprints. The initial recommendation of the Police Scientific Development Branch had been against any stipulation for type approval. The reasons for that stance included the difficulty of formulating a test standard and the frequency of developments to many of the component parts of the system. The successful operation of Livescan in England and Wales over a decade without any type approval, as well as the experience in Northern Ireland, clearly contributed to the subsequent decision in 2009 not to commence the amendment to the English statute, and to repeal both article 61(8B) and the uncommenced section 61(8A). Overall the legislative history does not suggest any basis for concluding that Parliament intended that the consequence of use of unapproved apparatus should be the exclusion of the evidence. Such a consequence would, it is clear, be unnecessary and inappropriate. It is unnecessary because a reading of control fingerprints can always be checked subsequently. It is inappropriate because to exclude such evidence would deprive courts of reliable and relevant material. Since the product can be checked, and the evidence it provides is relevant, it ought to be admissible. If it were not, it would not be open to the police to take further control fingerprints without the consent of the subject, because he would no longer be in detention following arrest on suspicion of the offence, nor would he have been convicted of it. If the control fingerprints were to be inadmissible, not only would there be a windfall benefit to those who have committed crimes, perhaps of great gravity, but also defendants would be unable to rely on the evidence of the fingerprints of others when it was necessary for them to do so in order to defend themselves. A defendant who wished to show that a fingerprint found in an incriminating place belonged to another person, whom he contends committed the offence rather than himself, would be unable to adduce the evidence to do so. Some years after the provisions which we have here to construe, the Protection of Freedoms Act was enacted in 2012. Part 1, Chapter 1 contains, by way of proposed amendments to the Police and Criminal Evidence Act 1984, prospective provisions relating to fingerprints and other biometric data. Equivalent provision for the amendment of the Northern Ireland Order is made by section 9 of and Schedule 2 to the Criminal Justice (Northern Ireland) Act 2013. Neither set of provisions is yet in force but there is a proposed timetable for commencement. If and when these provisions are commenced they will provide for the destruction of fingerprints and other data in certain defined circumstances and/or after prescribed periods. There is express provision in proposed new section 63T(2) of the Police and Criminal Evidence Act 1984 (and in proposed new article 63Q(2) of the Northern Ireland Order) making inadmissible (at least against the person to whom the material relates) fingerprints or other data which the police have come under a duty to destroy. This proposed statutory scheme is consistent with the construction of the provisions we are considering in the present case. Where the intention is to make material inadmissible, express provision is made saying so, in the same way as it was in the statutes considered at para 8 above. Moreover, the proposed new scheme for destruction of biometric data is clearly founded on a view of individual rights which was considered to justify the consequence of inadmissibility if there is a duty to destroy the material. Such considerations do not apply to type approval for the machinery of taking fingerprints which there is no requirement to destroy. For these reasons it is clear that the correct conclusion is that Parliament did not intend, by enacting article 61(8B), that the consequence of an absence of approval should be to render inadmissible any fingerprints produced electronically. The decision of the Court of Appeal that the evidence of Elliots control fingerprints was admissible was correct. It follows that this appeal must be dismissed. |
This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L134, p114) (the PP Directive)), as given effect in the United Kingdom by the Public Contracts Regulations 2006 (SI 2006/5) (the 2006 Regulations). As recited in the Statement of Facts and Issues, the appellant, the Nuclear Decommissioning Authority (the NDA) is a non departmental public body established under the Energy Act 2004 (the EA 2004), and is responsible for 17 nuclear sites and the associated civil nuclear assets and liabilities formerly owned by the UK Atomic Energy Authority and British Nuclear Fuels Ltd. Pursuant to its duties under the EA 2004, the appellant is responsible for ensuring that, once decommissioned, sites previously used for nuclear generation are made suitable to be used for other purposes. The respondent, ATK Energy EU Ltd (ATK), provides integrated waste management and decommissioning services for the nuclear industry. ATK has pursued against the NDA a claim for damages for breaches of the NDAs obligations under the PP Directive and the 2006 Regulations in respect of the award of a contract for the decommissioning of 12 Magnox power stations, at Berkeley, Bradwell, Chapelcross, Dungeness A, Hinkley Point A, Hunterston A, Oldbury, Sizewell A, Trawsfynydd, Wylfa and two others. An agreement of compromise has been reached in respect of the claim, but the parties wish this judgment to be issued nonetheless. In short, Fraser J held, and it is for the purposes of the present appeal to be assumed, that the NDA failed to award the contract to the tenderer which submitted the most economically advantageous offer determined in accordance with the criteria which the NDA had itself specified, in breach of obligations under regulations 18(27) and 30(1) to (4) of the 2006 Regulations read against the background of the articles 29.1, 29.7 and 53 of the PP Directive. The NDA erroneously concluded that a consortium, known as CFP, had provided the most economically advantageous offer, awarding it a score of 86.48%. It awarded a consortium known as Reactor Site Solutions (RSS), of which ATK and another company, Bechtel, were members, a score of 85.42%. Fraser J [2016] EWHC 1988 (TCC) found (i) that CFP should have been disqualified from the competition for failing two threshold requirements, and (ii) that, in any event, RSS would have won the competition had the NDA not made many manifest errors (para 944) in its assessment of the tenders, but for which the NDA would have awarded RSS a score of 91.48% and CFP a score of only 85.56%. The public procurement directives in effect prior to 2004, concerning works (Council Directive 71/305/EEC (OJ 1971 L185, p5)) and supplies (Council Directive 77/62/EEC (OJ 1977 L13, p1)), contained no enforcement provisions. Following the decision of the Court of Justice in Gebroeders Beentjes BV v State of the Netherlands (Case C 31/87) [1988] ECR I 4635, paras 38 44, that the provisions of these Directives were unconditional and sufficiently precise to be relied upon by persons before national courts, a further Directive was introduced, Council Directive 89/665/EEC (OJ 1989 L395, p33) later amended by Council Directive 2007/66/EC (OJ 2007 L335, p31) (the 2007 Directive), to provide effective remedies for economic operators, including the setting aside of awards and compensation. I will refer to Council Directive No 89/665/EEC, as so amended, as the Remedies Directive. Domestic effect was given to the Remedies Directive by amendment of the 2006 Regulations by the Public Contracts (Amendment) Regulations 2009 (SI 2009/2992) (the 2009 Amendment Regulations). The 2006 Regulations have since been superseded by the Public Contracts Regulations 2015 (SI 2015/102). Under regulation 118 thereof, the 2006 Regulations remain, however, applicable for the purposes of this case. The scheme of the Remedies Directive, as implemented and as applicable on the facts of this case, was, in outline, as follows: (a) Under article 2a(2) of the Remedies Directive, a standstill period of at least ten days was required, from the date of receipt of a telephone or letter communication to an economic operator (such as ATK) that it had not been awarded the contract; during the standstill period the relevant contracting authority (here the NDA) could not enter into the contract; as implemented domestically by regulations 32(1) and 32A(5) of the 2006 Regulations, the standstill period was fixed as exactly ten days from the date of such receipt. (b) Under article 2c of the Remedies Directive, the United Kingdom was required to allow a period of at least ten days from any such communication for the economic operator to issue proceedings seeking a review of the authoritys decision; it implemented this requirement under regulation 47D(2) by allowing 30 days beginning with the date on which the economic operator first knew or ought to have known that grounds for starting proceedings had arisen; this was coupled with a proviso under regulation 47D(3) that it did not require proceedings to be started before the end of a defined period, corresponding with that stated in article 2c. (Article 2f in fact required that domestic law allow a period of at least 30 days, from publication of a contract award notice or information given by the contracting authority about the conclusion of the contract, for challenges based on limited grounds of ineffectiveness identified in article 2d; this may, perhaps, have been an inspiration for the more general 30 day period in regulation 47D(2).) (c) Under article 2(3) of the Remedies Directive, as implemented by regulation 47G, the authority, on becoming aware of the issue of a claim form relating to its decision to award the contract to CFP, was required to refrain from entering into the contract, if not already entered into, until court order or disposal of the proceedings. In the present case, the NDA informed RSS by telephone and letter delivered on 31 March 2014 that RSS had been unsuccessful. It also informed all bidders that it would voluntarily observe an extended standstill period until 14 April 2014. RSS wrote letters on 6, 8 and 10 April 2014, by which it requested various information and ultimately asked for a further extended standstill period until 23 April 2014, saying that it might otherwise be forced to issue a claim by 14 April to protect its position. On 11 April 2014, the NDA refused to extend the standstill period, and on the same day RSS replied that this was regrettable and that it was actively considering commencing a claim, and urged the NDA not to enter into the contract. On 15 April the NDA repeated that it was unable to agree to refrain from taking steps to enter into the contract, explaining that delay would cause it to suffer significant additional cost. Later that day, the NDA entered into the contract with CFP and informed RSS accordingly. On 28 April 2014, and so within the 30 days referred to in para 5(b) above, ATK, though not Bechtel, issued the claim form beginning the present proceedings. Preliminary issues ordered by Akenhead J on 10 October 2014 were decided by Edwards Stuart J on 23 January 2015 ([2015] PTSR 1106), leading to an appeal determined by the Court of Appeal (Lord Dyson MR, Tomlinson and Vos LJJ) by judgment dated 15 December 2015: [2016] PTSR 689. The shape of the arguments has changed, leading to a position where three main issues are now presented in the Statement of Facts and Issues as arising on this appeal. Slightly reformulated to reflect the submissions before the Supreme Court, they are: (i)(a) whether the Remedies Directive only requires an award of damages to be made when any breach of the PP Directive is sufficiently serious and (b) whether the answer to this question is acte clair, so that it need not be referred to the Court of Justice? (ii) whether regulation 47J(2)(c) of the 2006 Regulations confers a power to award damages in respect of any loss or damage suffered by an economic operator (a) in the case of any breach, or (b) only in the case of a sufficiently serious breach, of the Regulations? (iii) whether (and, if so, when) an award of damages under regulation 47J(2)(c) of the 2006 Regulations may be refused on the ground that an economic operator, who issued a claim form in respect of a contract award decision within the 30 day time limit prescribed by regulation 47D of the 2006 Regulations, did not do so and inform the contracting authority that it had done so before the contracting authority entered into the contract? Before Edwards Stuart J issue (i) only appears to have arisen tangentially to an argument, which no longer directly arises, that damages were discretionary. So far as he addressed it, his answer appears to have been negative (para 86). Issue (ii), he answered: (a) Yes; (b) No (para 71). Issue (iii), he held, involved a question of fact, not suitable for resolution as a preliminary issue in this case, though his views were generally discouraging of the idea that damages would be refused on any such basis (paras 42 54). In the Court of Appeal, Vos LJ, in a judgment with which the other members concurred, determined these issues to the following effect: (i)(a) Yes. (b) Yes (para 55). (ii)(a) Yes. (b) No (paras 66 70). (iii) No (paras 71 77). In relation to the first issue, Vos LJ, after analysing Court of Justice case law, concluded (paras 62 65) that breaches of the PP Directive must, in the light of the Remedies Directive, be actionable under the following three minimum conditions (the Francovich conditions): (1) the rule of law infringed must be intended to confer rights on individuals, (2) the breach must be sufficiently serious, and (3) there must be a direct causal link between the breach of the obligation and the damage sustained by the injured party. National law must also respect the principle of equivalence of EU with domestic rights (para 62). For present purposes, it is Francovich condition (2) which matters. As to the second issue, Vos LJ held, and this is not contentious, that it is open to national law to lay down criteria that provide a less restrictive remedy in damages than would be provided by the Francovich conditions (para 66). He went on to hold (and this is contentious) that the 2006 Regulations had this effect; whether ATKs claim was viewed as being for breach of directly enforceable EU law or for breach of domestic law enacted to give effect to the EU obligation contained in the Remedies Directive, it constituted a private law claim for breach of statutory duty, which, under English law, was not subject to any restrictive condition limiting its availability to cases of sufficiently serious breach (paras 66 67). As to the third issue, Vos LJ held that this involved an issue of determination or estimation of damages, which was for domestic law to determine (paras 55 and 71). He went on to hold that there was nothing in the 2006 Regulations or in general domestic law to oblige an economic operator to issue its claim form before the contracting authority entered into the contract, or to deprive it of a claim to damages on the ground that it had failed to invoke any other remedy (paras 72 76). The NDA now appeals by permission of the Supreme Court. Issue (i) Francovich condition (2) in EU law Articles 1 to 3 of the Remedies Directive read: 1(1). Member states shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2004/18/EC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in articles 2 to 2f of this Directive on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law. 2(1) Member states shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to: (a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority; (b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure; (c) infringement. award damages to persons harmed by an (7) except where a decision must be set aside prior to the award of damages, a member state may provide that, after the conclusion of a contract , the powers of the body responsible for review procedures shall be limited to awarding damages to any person harmed by an infringement. 3(1) The Commission may invoke the procedure provided for in paras 2 to 5 when, prior to a contract being concluded, it considers that a serious infringement of Community law in the field of public procurement has been committed during a contract award procedure falling within the scope of Directive 2004/18/EC. The Francovich conditions derive from the Court of Justices decisions in Francovich v Italian Republic (Joined Cases C 6/90 and C 9/90) [1995] ICR 722; [1991] ECR I 5357 and Brasserie du Pcheur SA v Federal Republic of Germany, R v Secretary of State for Transport, Ex p Factortame Ltd (No 4) (Joined Cases C 46/93 and C 48/93) [1996] QB 404 (Brasserie du Pcheur). These were decisions on state liability, in Francovich itself for failure to transpose a directive and in Brasserie du Pcheur for domestic laws which violated European law. In the latter case, the Court of Justice set out the three Francovich conditions at para 51, remarking in this respect that Community law confers a right to reparation where three conditions are met, and went on: 55. As to the second condition, as regards both Community liability under article 215 and member state liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the member state or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. 56. The factors which the competent court may take into consideration include the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. 57. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case law of the court on the matter from which it is clear that the conduct in question constituted an infringement. 66. The aforementioned three conditions are necessary and sufficient to found a right in individuals to obtain redress, although this does not mean that the state cannot incur liability under less strict conditions on the basis of national law. In Brasserie du Pcheur one issue before the Court of Justice was whether a national court was entitled to make reparation conditional on the existence of fault, whether intentional or negligent. Referring to the second Francovich condition, the Court said: 78. So, certain objective and subjective factors connected with the concept of fault under a national legal system may well be relevant for the purpose of determining whether or not a given breach of Community law is serious: see the factors mentioned in paras 56 and 57 above. 79. The obligation to make reparation for loss or damage caused to individuals cannot, however, depend on a condition based on any concept of fault going beyond that of a sufficiently serious breach of Community law. 80. Accordingly, reparation of loss or damage cannot be made conditional on fault (intentional or negligent) on the part of the organ of the state responsible for the breach, going beyond that of a sufficiently serious breach of Community law. The three Francovich conditions were in Kbler v Republik sterreich (Case C 224/01) [2004] QB 848, para 51, deployed in the context of state liability for failure by a final state court to apply European Union law, with the gloss (para 53) that, having regard to the specific nature of the judicial function and the legitimate requirements of legal certainty, the second condition could only be met in the exceptional case where the court has manifestly infringed the applicable law. The question on this appeal is whether, as the Court of Appeal considered, the three Francovich conditions apply to a claim against a contracting authority under the PP and Remedies Directives (and whether the answer to this question is acte clair). In submitting that the Court of Appeal was wrong, ATK makes a number of points. It points to the purposes of the Remedies Directive generally, and to the terms of articles 1(1) and 2(1) in particular, as showing an intention to address and provide a remedy in damages for harm caused by infringements generally. It points to the wording of article 3 as indicating that, where there is an intention to limit provisions of the Directive to cases of serious infringement, the intention is made express. It points to the fact that, if the Francovich conditions apply, then no remedy at all would potentially be available in cases falling within the last words of article 2(7). ATK also submits that the Court of Appeals approach is inconsistent with the European Unions international obligations under the Government Procurement Agreement (GPA 1994), a plurilateral agreement contained in Annex 4 to the Agreement in 1994 establishing the World Trade Organisation and approved on behalf of the Union by article 2 of Council Decision 94/800/EC (OJ 1994 L336, p144). Article XX(2) of the GPA 1994 provided for each party to provide effective procedures enabling suppliers to challenge alleged breaches of the Agreement arising in the context of procurements in which they have, or have had, an interest, while article XX(7) provided that: Challenge procedures shall provide for: an assessment and a possibility for a decision on rapid interim measures to correct breaches of the (a) Agreement . ; (b) the justification of the challenge; correction of the breach of the Agreement or (c) compensation for the loss or damages suffered, which may be limited to costs for tender preparation or protest. A similar provision appears in the more recent revised GPA to which the EU became party on 6 April 2014: Council Decision 2014/115/EU (OJ 2014 L68, p1). ATK submits that article XX(7) contemplates that damages must always be recoverable for a breach (and cannot be restricted to cases of serious breach), even if they may be limited to costs for tender preparation or protest. It points to the principle, endorsed in zen Letovho Provozu R, sp v Bundesamt fr Finanzen (Case C 335/05) [2007] STC 1509, para 16, and Association Justice & Environment zs v Commission of the European Communities (Case T 727/15) 23 January 2017, para 77, that secondary EU legislation should, so far as possible, be interpreted consistently with international agreements concluded by the European Union. Finally, but most importantly, ATK submits that Court of Justice case law supports its position. The debate in this area turns on two principal authorities: Stadt Graz v Strabag AG (Case C 314/09) [2010] ECR I 8769 (decided 30 September 2010 by the Third Chamber, without an Advocate Generals opinion) and Combinatie Spijker Infrabouw De Jonge Konstruktie v Provincie Drenthe (Case C 568/08) [2010] ECR I 12655 (Advocate Generals opinion delivered 14 September 2010; Judgment of the Second Chamber 9 December 2010). In Stadt Graz the basic question referred was whether the Remedies Directive precluded national legislation which made the right to damages for an infringement of public procurement law by a contracting authority conditional upon the infringement being culpable. The legislation in question included a presumption that the contracting authority was at fault, and a provision that the authority could not rely on a lack of individual abilities. The court, in holding that such legislation was impermissible, said this: 33. Directive 89/665 lays down only the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance with the requirements of EU law concerning public procurement If there is no specific provision governing the matter, it is therefore for the domestic law of each member state to determine the measures necessary to ensure that the review procedures effectively award damages to persons harmed by an infringement of the law on public contracts 34. Although, therefore, the implementation of article 2(1)(c) of Directive 89/665 in principle comes under the procedural autonomy of the member states, limited by the principles of equivalence and effectiveness, it is necessary to examine whether that provision, interpreted in the light of the general context and aim of the judicial remedy of damages, precludes a national provision such as that at issue in the main proceedings from making the award of damages conditional, in the circumstances , on a finding that the contracting authoritys infringement of the law on public contracts is culpable. 35. In that regard, it should first be noted that the wording of article 1(1), article 2(1), (5) and (6), and the sixth recital in the preamble to Directive 89/665 in no way indicates that the infringement of the public procurement legislation liable to give rise to a right to damages in favour of the person harmed should have specific features, such as being connected to fault proved or presumed on the part of the contracting authority, or not being covered by any ground for exemption from liability. 36. That assessment is supported by the general context and aim of the judicial remedy of damages, as provided for in Directive 89/665 37. According to settled case law, while the member states are required to provide legal remedies enabling the annulment of a decision of a contracting authority which infringes the law relating to public contracts, they are entitled in the light of the objective of rapidity pursued by Directive 89/665 to couple that type of review with reasonable limitation periods for bringing proceedings, so as to prevent the candidates and tenderers from being able, at any moment, to invoke infringements of that legislation, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements 38. Furthermore, the second subparagraph of article 2(6) of Directive 89/665 reserves to the member states the right to limit the powers of the body responsible for the review procedures, after the conclusion of a contract following its award, to the award of damages. 39. Against that background, the remedy of damages provided for in article 2(1)(c) of Directive 89/665 can constitute, where appropriate, a procedural alternative which is compatible with the principle of effectiveness underlying the objective pursued by that directive of ensuring effective review procedures only where the possibility of damages being awarded in the event of infringement of the public procurement rules is no more dependent than the other legal remedies provided for in article 2(1) of Directive 89/665 on a finding that the contracting authority is at fault. 40. it makes little difference in that regard that, by contrast with the national legislation referred to in Commission of the European Communities v Portugal (Case C 275/03), the legislation at issue in the main proceedings does not impose on the person harmed the burden of proving that the contracting authority is at fault, but requires the latter to rebut the presumption that it is at fault, while limiting the grounds on which it can rely for that purpose. 41. The reason is that that legislation, too, creates the risk that the tenderer who has been harmed by an unlawful decision of a contracting authority is nevertheless deprived of the right to damages in respect of the damage caused by that decision, where the contracting authority is able to rebut the presumption that it is at fault. 42. At the very least, that tenderer runs the risk, under that legislation, of only belatedly being able to obtain damages, in view of the possible duration of civil proceedings seeking a finding that the alleged infringement is culpable. ATK submits that, although the immediate focus of Stadt Graz was on the impermissibility of any limitation of liability by reference to a requirement of fault, its whole tenor was that the Remedies Directive contemplates a general right to damages for any infringement of the public procurement legislation, neither subject, nor capable of being made subject, to any specific features. A requirement that the breach should be sufficiently serious would, it submits, be an example of a special feature. Spijker concerned a situation not dissimilar to the present. The claimants tender had come second in circumstances which the claimant (Combinatie) alleged breached the PP Directive. The defendant Provincie, following an interim administrative court order that the contract should be awarded to no one else but Machinefabriek Emmen BV (MFE), awarded it to MFE. The claimant sued the Provincie for damages in the civil courts. One issue which the civil court, the Rechtbank Assen, identified was whether any unlawful act fell to be attributed to the Provincie. The court, taking the view that the Provincie might have acted unlawfully, asked the Court of Justice by questions 4(c) and (d): (c) If [the] authority is required to pay damages, does Community law set criteria for determining and estimating those damages, and if so, what are they? (d) If the contracting public authority cannot be deemed liable, is it possible, under Community law, for some other person to be shown to be liable, and on what basis? Advocate General Cruz Villaln said (para 5), in connection with question 4(c) that: the present case offers the opportunity to clarify certain points of Directive 89/665 which are of great significance for the purpose of upholding the legality which European Union law requires in the context of public procurement. In the course of his opinion, he said (para 77) that: In my view, it is solely for the Rechtbank to assess(40) points such as whether there was any liability and whether, where appropriate, it must be attributed to the Provincie, to the State on account of the actions of the judge dealing with interim relief proceedings or to any other person taking into consideration the evidence which has been shown to be relevant: the fact that the Provincie did not wait before making the award or appeal against the interim measures; the possible alternatives (if any) to making the award to MFE; the circumstances surrounding the provisional enforcement of the order of the judge dealing with interim relief proceedings, and the Combinaties voluntary withdrawal of the appeal lodged against that order. Footnote 40 to this passage read: 40. In order to do so, it must take into account all the factors which characterise the situation which has been brought before it, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Community institution and non compliance by the court in question with its obligation to make a reference for a preliminary ruling under article [267 TFEU] (Case C 224/01 Kbler [2003] ECR I10239, para 55), a sufficiently serious infringement of European Union law occurring where the decision concerned was made in manifest breach of the case law of the court in the matter. (Joined Cases C46/93 and C48/93 Brasserie du pcheur and Factortame [1996] ECR I1029, para 57, and Kbler, para 56.) The Court addressed question 4(c) as follows: 85. By its fourth question, part (c), the referring court asks, in essence, whether, if the awarding authority has to make good the damage arising from an infringement of EU law on the award of public contracts, EU law provides criteria on the basis of which the damage may be determined and estimated and, if so, what those criteria are. 86. Article 2(1)(c) of [the Remedies Directive] clearly indicates that member states must make provision for the possibility of awarding damages in the case of infringement of EU law on the award of public contracts, but contains no detailed statement either as to the conditions under which an awarding authority may be held liable or as to the determination of the amount of the damages which it may be ordered to pay. 87. That provision gives concrete expression to the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible. According to case law developed since the adoption of the [Remedies Directive], but which is now consistent, that principle is inherent in the legal order of the Union. The Court has held that individuals harmed have a right to reparation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals ([the Francovich case] para 35, the Brasserie du Pcheur case] paras 31 and 51; and [the Danske Slagterier case] paras 19 and 20). 88. As matters stand at present, the case law of the Court of Justice has not yet set out, as regards review of the award of public contracts, more detailed criteria on the basis of which damage must be determined and estimated. 89. As regards EU legislation, it should be noted that Directive 89/665 has been largely amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC (OJ 2007 L 335, p 31), adopted after the date of the facts which gave rise to the dispute in the main proceedings. However, on that occasion, the EU legislature refrained from adopting any provisions on that point. 90. In the absence of EU provisions in that area, it is for the legal order of each member state to determine the criteria on the basis of which damage arising from an infringement of EU law on the award of public contracts must be determined and estimated (see, by analogy, Case C 315/01 GAT [2003] ECR I 6351, para 46; and Case C 314/09 [the Stadt Graz case [2010] ECR I 8769], para 33) provided the principles of equivalence and effectiveness are complied with (see, to that effect, Joined Cases C 295/04 to C 298/04 Manfredi and others [2006] ECR I 6619, para 98). It is apparent from well established case law that the 91. detailed procedural rules governing actions for safeguarding an individuals rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) . 92. Therefore, the answer to the fourth question, part (c) is that, as regards state liability for damage caused to individuals by infringements of EU law for which the state may be held responsible, the individuals harmed have a right to redress where the rule of EU law which has been infringed is intended to confer rights on them, the breach of that rule is sufficiently serious, and there is a direct causal link between the breach and the loss or damage sustained by the individuals. In the absence of any provision of EU law in that area, it is for the internal legal order of each member state, once those conditions have been complied with, to determine the criteria on the basis of which the damage arising from an infringement of EU law on the award of public contracts must be determined and estimated, provided the principles of equivalence and effectiveness are complied with. In view of that answer, there is no need to reply to part 93. (d) of the fourth question. ATK argues that, in the light of para 93, these paragraphs must be taken to contain answers to both questions 4(c) and (d), that paras 89 and 90 indicate that no EU law conditions attach to liability of a contracting authority of the sort covered by question 4(c), whereas para 92 (and presumably para 87 on which para 92 is evidently based), which refer to the Francovich conditions, cover question 4(d) and are confined to the liability of the state and those for whom the state may be liable who are not contracting authorities. I am unable to accept this interpretation of the Court of Justices judgment. It converts an apparently clear exposition of the position regarding question 4(c) into an incoherent mixture of two differing schemes between which the text, on ATKs interpretation, jumps back and forwards. In my view, the text is clear. Paras 85 and 86 set the scene, viz that what is about to be discussed is the liability of an awarding authority for damage arising from an infringement of the PP Directive, and para 87 proceeds by making clear that the liability of an awarding authority is to be assessed by reference to the Francovich conditions. Subject to those conditions being met, paras 88 to 90 go on to make clear that the criteria for damages are to be determined and estimated by national law, with the further caveat that the general principles of equivalence and effectiveness must also be met (para 91). Finally, para 92 summarises what has gone before, repeating the need to satisfy the Francovich conditions. This is also exactly what the Advocate General had indicated in footnote 40 of his opinion. As to para 93, the inference is that the Court considered that the same principles must govern any claim against the State itself or a body for which the State is answerable (such as perhaps the administrative court which issued the interim order in Spijker). That is of course logical. The Court of Justice in Spijker was aware of the recent decision in Stadt Graz, cited it in para 90, and clearly did not consider it in any way inconsistent with what the Court of Justice said about the general applicability of the Francovich conditions. Nor was it inconsistent. Whether an error is excusable or inexcusable is a matter that a court may take into account when considering whether a breach is sufficiently serious to justify an award of damages under the second condition: see Brasserie du Pcheur, para 57, quoted in para 11 above. But the introduction of a fixed requirement of fault as a condition of State liability, on whichever party the burden of proving or disproving fault is placed, is well established as illegitimate on a line of authority which goes back to Brasserie du Pcheur itself (see para 12 above), and to Commission of the European Communities v Portugal (Case C 275/03) EU:C:2004:632 and which was merely reflected in the decision in Stadt Graz. The clarity of EU law in this respect was, no doubt, why the decision was taken that no Advocate Generals opinion was required in Stadt Graz. In these circumstances, there is in my view very clear authority of the Court of Justice confirming that the liability of a contracting authority under the Remedies Directive for breach of the PP Directive is assimilated to that of the state or of a public body for which the state is responsible. It is in particular only required to exist where the minimum Francovich conditions are met, although it is open to States in their domestic law to introduce wider liability free of those conditions. In the light of Spijker, ATKs submissions based on the general wording of articles 1 and 2 of the Remedies Directive cannot lead to a contrary conclusion. Article 3 is dealing with a different subject matter, which, even by way of contrast, could not throw much light on the scope of articles 1 and 2, and certainly cannot in the light of Spijker. Nor is ATKs argument by reference to the EUs international obligations under the GPA 1994 capable of leading to a contrary decision on any points. Any impetus which article XX(7) can give to ATKs argument is very weak at best. That article requires no more than either correction of the breach or compensation, and the compensation required may fall far short of covering the actual loss or damage suffered (since it may be limited to costs for tender preparation or protest). There is, apparently, no WTO authority on the interpretation of article XX(7) (or as to whether it might not itself be read subject to a condition such as the second Francovich condition). The argument based on GPA 1994 cannot in any event withstand the clear impact of the Courts judgment in Spijker. Finally, the Supreme Court, during the course of submissions, asked about academic authority, and was shown a further article additional to any in the agreed bundles. That was Professor Steen Treumers article Basis and Conditions for a Damages Claim for Breach of the EU Public Procurement Rules in Fairgrieve and Lichre, Public Procurement Law (2011). Professor Treumer wrote then of a lack of clarity in cases such as Commission v Portugal, of confusion arising from, and fundamentally different approaches taken in, the cases of Stadt Graz and Spijker and of differing approaches taken in national law, presumably before those cases. For the reasons I have already given, I do not see any such lack of clarity or confusion. Further, the Supreme Court was shown in the agreed bundles a more recent article, by a serving judge of the General Court, Judge Anthony M Collins, Damages in Public Procurement An Illusory Remedy? in Chapter 21 (p 339) in Of Courts and Constitutions Liber Amicorum in honour of Nial Fennelly (ed Bradley, Travers and Whelan) (2014). Setting out the criteria for the recovery of damages for breaches of the procurement rules, Judge Collins explains Spijker precisely in the sense which I consider that it obviously bears. It harmonises liability for such breaches irrespective of the identity of the author of the alleged illegality, with the minimum Francovich conditions applying to all such breaches (p 340), and with the result (p 341) that: the requirements that the rule breached must be intended to confer rights on individuals and that the breach of such a rule must be sufficiently serious, means that not every legal error in the course of an award procedure can ground an action in damages. This article reinforces my view that there is no uncertainty or confusion in the Court of Justices case law, and that the Supreme Court can be safe in relying on the clear language and ruling in Spijker as settling the position, whatever may have been previous doubts or differences of view at national level. For these reasons, I consider that the Court of Appeal answered the first question correctly, and in a manner which does not call for any reference by the Supreme Court, as the final court of appeal, to the Court of Justice. Issue (ii) Francovich condition (ii) at domestic law level This is a domestic law issue. The question is whether the UK legislator has, by the 2006 Regulations, gone further than European law requires, by making any contracting authority breaching the Regulations liable for any damages thereby caused, irrespective of whether the breach would under the second Francovich principle be sufficiently serious to require domestic law to make available a remedy in damages. The relevant Regulations read as follows: 32. Information about contract award procedures [Award decision notice] (1) Subject to paragraph (13), a contracting authority shall, as soon as possible after the decision has been made, inform the tenderers and candidates of its decision to (a) (b) award the contract; or conclude the framework agreement, and shall do so by notice in writing by the most rapid means of communication practicable. (2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include (a) the criteria for the award of the contract; (b) the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by the economic operator which is to receive (i) the notice; and (ii) the economic operator (aa) (bb) agreement, to be awarded the contract; or to become party to the framework and anything required by paragraph (10); (c) (d) the name of the economic operator to be awarded the contract; or (i) (ii) to become a party to the framework agreement; and a precise statement of either (i) when, in accordance with regulation 32A, the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or (ii) the date before which the contracting authority will not, in conformity with regulation 32A, enter into the contract or conclude the framework agreement. (2A) Where it is to be sent to a candidate, the notice referred to in paragraph (1) shall include the reasons why the candidate was unsuccessful; (a) and (b) the information mentioned in paragraph (2), but as if the words and relative advantages were omitted from sub paragraph (b). (a) 47A. Duty owed to economic operators (1) This regulation applies to the obligation on a contracting authority to comply with the provisions of these Regulations, other i. than regulations 14(2), 30(9), 32(14),40 and 41(1); and ii. any enforceable [EU] obligation in respect of a contract or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and a concessionaire to comply with the provisions of (b) regulation 37(3). 47C. Enforcement of duties through the Court (1) A breach of the duty owed in accordance with regulation 47A or 47B is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage. (2) Proceedings for that purpose must be started in the High Court, and regulations 47D to 47P apply to such proceedings. 47I. Remedies where the contract has not been entered into (1) Paragraph (2) applies where (a) the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A or 47B; and (b) In those circumstances, the Court may do one or more the contract has not yet been entered into. (2) of the following (a) order the setting aside of the decision or action concerned; (b) order the contracting authority to amend any document; award damages to an economic operator which (c) has suffered loss or damage as a consequence of the breach. (3) This regulation does not prejudice any other powers of the Court. 47J. Remedies where the contract has been entered into (1) Paragraph (2) applies if the contract has already been entered into. (a) the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A or 47B; and (b) In those circumstances, the Court (a) must, if it is satisfied that any of the grounds for ineffectiveness applies, make a declaration of ineffectiveness in respect of the contract unless regulation 47L requires the Court not to do so; (b) must, where required by regulation 47N, impose penalties in accordance with that regulation; (c) may award damages to an economic operator which has suffered loss or damage as a consequence of the breach, regardless of whether the Court also acts as described in sub paragraphs (a) and (b); (d) must not order any other remedies. (2) These Regulations were all introduced by the 2009 Amendment Regulations, to implement the 2007 Directive. The 2006 Regulations and 2009 Amendment Regulations were made under the power contained in section 2(2) of the European Communities Act 1972, to make provision for the purpose of implementing EU obligations of the United Kingdom and/or dealing with matters arising out of or related to any such obligation. The Francovich conditions are no more than minimum conditions, which domestic law is free to relax or ignore. There is therefore no Marleasing presumption that the United Kingdom legislator intended to reflect the Francovich conditions (Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135). Further, it is not suggested that it would be outside the scope of section 2(2) for the United Kingdom legislator to provide for the recovery of damages in respect of breaches which were not sufficiently serious to meet the EU law minimum requirement that a damages remedy be available: see United States v Nolan [2015] UKSC 63; [2016] AC 463, para 63. ATK relies on the wording of the 2006 Regulations as introducing unconditional actionability of breaches, coupled with unconditional domestic liability for breaches of any domestically based statutory duty. It points to the obligation contained in regulation 47A(2) and the duty, breach of which is by regulation 47C(1) prescribed as actionable by any economic operator who in consequence suffers loss or damage. ATK submits that there is no warrant for reading into these Regulations any condition that the breach must be sufficiently serious before it is actionable in damages. Although there was no requirement to do so, or presumption that this would be done, the NDA invites the Supreme Court to conclude that it was the intention of the UK legislator simply to give effect to the minimum EU requirements regarding damages. It points to the uses of the word may in regulations 47I(2) and 47J(2)(c). It does not suggest that this gives rise to any general discretion. But it suggests that it is consistent with a limitation of damages by reference to the Francovich conditions. It picks up, in domestic law, the requirement under article 2(1) of the Remedies Directive that domestic law shall include a power to award damages to an economic operator harmed by an infringement, a requirement which, as I have held, is limited by the Francovich conditions. ATK in response submits the word may can be explained as a reference to the possibility that the contracting authority might have a defence, for example due to failure by the economic operator to mitigate its loss. That to my mind is a somewhat slender explanation for the introduction of the word may, especially as loss arising from a failure to mitigate is commonly regarded as not having been caused by the breach: see eg Sotiros Shipping Inc v Sameiet Solholt (The Solholt) [1983] 1 Lloyds Rep 605. The Court of Appeal dealt with this issue quite shortly. It noted that the 2009 Amendment Regulations had been preceded by an Explanatory Memorandum and a Transposition Note as well as a Consultation Document of April 2009, all of which [it said] make it reasonably clear that the Governments intention was to do only what was necessary to implement the Remedies Directive without any gold plating save where such was expressly identified (para 17). But it viewed the claim provided by the 2006 Regulations, as amended in 2009, as an ordinary private law claim for breach of statutory duty, to which no restrictive condition applies under English law, and saw it as irrelevant in this context whether or not the legislator intended to gold plate the EU law on public procurement when introducing the Regulations (para 67). The Court of Appeal was right in para 17 to identify the legislators intention in 2009 as having been not to gold plate. The Explanatory Note to the 2009 Amendment Regulations said that except where otherwise stated (none of the respects so stated being presently relevant) the Regulations implemented the Directive. The Explanatory Memorandum laid before Parliament referred to the Regulations as implementing articles in the Directive that need to be transposed and to the amendments to the 2006 Regulations as needed to implement the Directive. The Impact Assessment, prepared by the Office of Government Commerce (the OGC) and attached to the Explanatory Memorandum, concluded by saying that the OGC had adhered to guidance including avoidance of gold plating and taking a minimalist approach to implementation insofar as is possible within the context of this implementation and that the impact assessment had examined, article by article, the choices available for the UK and identified a range of options, invariably selecting those which represent the least cost and greatest benefit within the confines of the mandate laid down in the Directive (para 72). The Impact Assessment contained a detailed account of the choices available and made. None relates to or suggests a choice in 2009 to implement the Directive by introducing domestic liability for damages in circumstances not required under EU law. The Explanatory Note, the Explanatory Memorandum and the Impact Assessment are all potentially admissible as aids to the understanding of the legislators intentions in 2009, on the principle identified by the House of Lords in R v Montila [2004] UKHL 50; [2004] 1 WLR 3141, para 35. However, ATK submits that 2009 is not the relevant date. It points out that, although regulations 47A through to 47P (Part 9) of the 2006 Regulations as amended by the 2009 Amendment Regulations were introduced as a complete substitute for the previous section 47 (Part 9) and were the product of extensive re writing of previous text with many new elements, the bare outline of regulations 47A to 47C, 47I and 47J can still be detected in the much more limited language of regulation 47(1), (6), (8) and (9) of the earlier 2006 Regulations, which can in turn be traced back to the Public Services Contracts Regulations 1993 (SI 1993/3228), regulation 32(1), (2), (4) and (5). ATK submits that there is no reason to suggest that the legislator in 2009 intended any different approach to the damages recoverable under the earlier 1993 and 2006 Regulations, and that there is no material to show that avoidance of gold plating had the same weight at those earlier dates. As to this, it is true that there is no material bearing directly on the legislators intentions at those earlier dates (though there is equally nothing to show that it was necessarily any different). But in my view it is unrealistic, when construing regulations 47A through to 47P, to ignore the legislators intention in 2009 to introduce a whole new package of substituted provisions which should, save where a deliberate choice to the contrary appeared, have no greater force than EU law requires. What happened in 2009 was effectively a new start, based on the Remedies Directive. ATK also points to Matra Communications SAS v Home Office [1999] 1 WLR 1646. There the Court of Appeal specifically expressed the view (p 1655B) that damages under the Remedies Directive 89/665/EEC were not subject to the Francovich conditions (described by the Court of Appeal as Norbrook conditions, after Norbrook Laboratories Ltd v Ministry of Agriculture, Fisheries and Food (Case C 127/95) [1998] ECR I 1531). The Court of Appeal went on (para 1655D G) to express the view that the damages provided by domestic law remain damages on the basis envisaged by Directive (89/665/EEC); but regulation 32(5)(b)(ii) none the less thereby creates a private law, non discretionary, remedy, because within the national legal order any remedy in damages necessarily has those qualities. The Court of Appeal in Matra can now be seen to have been wrong in treating the Francovich conditions as irrelevant. Its further view that domestic law damages remain damages on the basis envisaged by [the] Directive might however be read as consistent with the NDAs case on the present issue. Where the Court of Appeal in the present case went in my opinion clearly wrong was in its assumption that any claim for damages under the 2006 Regulations was no more than a private law claim for breach of a domestically based statutory duty, and for that reason subject to ordinary English law rules which include no requirement that a breach must be shown to be sufficiently serious before damages are awarded (para 67). The Court of Appeal appears to have assumed that the categorisation in domestic law of a claim based on EU law as being for breach of statutory duty freed it automatically from any conditions which would otherwise apply under EU law. That this is not so is clear if one takes the simple case of a domestic claim against the State for failure correctly to transpose EU law. Such a claim is subject to the Francovich and Brasserie du Pcheur principles and conditions. Sir Andrew Morritt put the matter correctly, with references to past authority, when he said in Phonographic Performance Ltd v Department of Trade and Industry [2004] 1 WLR 2893, paras 11 to 12: 11. At the outset it is necessary to consider the nature of PPLs claim. The decisions of the European Court of Justice in Francovich v Italian Republic (Joined Cases C 6/90 and C 9/90) [1995] ICR 722 and Brasserie du Pcheur SA v Federal Republic of Germany (Joined Cases C 46 and C 48/93) [1996] QB 404 have established, and it is not disputed, that a member state may incur liability to a person under Community law where three conditions are satisfied. They are that (1) the rule of Community law infringed is intended to confer rights on individuals; (2) the breach is sufficiently serious, and in particular that there was a manifest and grave disregard by the member state of its discretion; and (3) there is a direct causal link between the breach of the obligation resting on the member state and the damage sustained by the injured party. As I have already pointed out for the purposes of these preliminary issues I have to assume that all those conditions will be established. 12. The nature of such a claim in English law was considered by Hobhouse LJ in R v Secretary of State for Transport, Ex p Factortame Ltd (No 5) [1998] 1 CMLR 1353. In that case the Divisional Court concluded that liability had been established and went on to consider whether exemplary damages could and should be awarded. It was in that context that Hobhouse LJ considered (para 173) that the liability was best understood as a breach of statutory duty. In so doing he relied on the dictum to the same effect of Lord Diplock in Garden Cottage Foods v Milk Marketing Board [1984] AC 130, 141 and the conclusion of Mann J in Bourgoin v Ministry of Agriculture, Fisheries and Food [1986] QB 716, 733 that the duty was imposed by the relevant article and section 2(1) European Communities Act 1972. Transposed to the facts of this case the duty for the breach of which the Crown is sued is that imposed by article 8.2 of the Rental Directive and section 2(1) [of the] European Communities Act 1972. The scheme of the Remedies Directive is a balanced one. The Francovich conditions represent the Court of Justices conclusion as to the appropriate minimum protection by way of damages which an economic operator can expect. Although there is no Marleasing imperative to construe the scheme so far as possible consistently with the Francovich conditions, it is I think a natural assumption that the UK legislator will not go further than required by EU law when implementing such a scheme, without considering this and making it clear. That is fortified by the legislators clear intention not to gold plate when substituting the new Part 9 scheme for the old in 2009. In these circumstances, I consider that the 2006 Regulations as amended in 2009 should be read as providing for damages only upon satisfaction of the Francovich conditions. That is also consistent with the use of the word may which otherwise seems to me to have no real significance. Issue (iii) failure to claim before the contract was made Issue (iii) is whether, if proceedings have been started within the 30 day time limit prescribed by regulation 47D of the 2006 Regulations, an award of damages under regulation 47J(2)(c) of the 2006 Regulations may nonetheless be refused on the ground that the economic operator did not issue its claim form in respect of a contract award decision and inform the contracting authority that it had done so before the contracting authority entered into the contract? Issue (iii) arises from the difference between the periods set by the domestic legislator for a standstill and for the commencement of proceedings by a person aggrieved by the decision to award a public procurement contract. The UK legislator could have implemented articles 2a(2) and 2c of the Remedies Directive by assimilating the standstill period and the period for applying for a review. The former had under article 2a(2) to be at least ten days from sending by fax or electronically or from receipt of the contract award decision. The latter could under article 2c have been at least ten days from the same moment. While regulation 32A(2) reflected the period identified in article 2a(2), regulation 47D(2) gave a period for proceedings for review (not involving a claim of ineffectiveness) 20 days longer than the minimum required by article 2c. Thus, in the present case, the NDA was free after ten days (extended voluntarily for four further days) to enter into the contract, but ATK had another 20 (or, after the voluntary extension) 16 days within which to issue its claim form for damages. The significance of this issue is that, if ATK had issued its claim form before the NDA entered into the contract, then the NDA would have been required under regulation 47G(1) to refrain (a) from entering into the contract; (b) If this requirement to refrain continued, and ATKs challenge succeeded, ATK would in due course be awarded the contract and avoid the GBP 100m loss claimed. However, it should be noted that: the NDA could have applied under regulation 47H(1) to bring the (c) requirement to an end; (d) the court would then under regulation 47H(2) have been obliged to consider whether, apart from regulation 47G(1) it would be appropriate to make an interim order requiring the NDA to refrain from entering into the contract; (e) assuming that the court concluded that ATKs challenge had some merit (which it would in this case presumably have been seen as having, since it ultimately succeeded), the court would have considered whether it would not be appropriate to make an interim order in the absence of undertakings or conditions (regulation 47H(3)), and would have had the power to require or impose undertakings or conditions in relation to the requirement that the NDA refrain from entering into the contract; (f) the NDA would in this way, assuming that it was ordered to continue to refrain from entering into the contract while ATKs challenge was resolved, have had the benefit of a cross undertaking and/or security, which would, if the NDA defeated ATKs challenge, cover loss or damage which the NDA suffered through not being able to enter into the contract. The NDA contends in these circumstances that ATK failed to mitigate (or avoid) its loss by deliberately deciding not to issue a claim form until after the NDA had entered into the contract. ATKs response is that the NDAs case conflicts with the scheme of the 2006 Regulations, as well as with a general principle that it is open to a party to elect as it chooses between remedies, particularly between seeking interim relief and relying on a claim for damages. ATK also submits that the NDAs case amounts to imposing a time limit which would be shorter than that required by EU law or stipulated by domestic law and/or incompatible with EU principles of legal certainty and effectiveness. There is Court of Justice authority that national law may recognise a general principle of mitigation along the lines for which the NDA contends in respect of breaches by the State of EU law. The Court of Justice said this in Brasserie du Pcheur, paras 83 85: 83. In the absence of relevant Community provisions, it is for the domestic legal system of each member state to set the criteria for determining the extent of reparation. However, those criteria must not be less favourable than those applying to similar claims based on domestic law and must not be such as in practice to make it impossible or excessively difficult to obtain reparation. 84. In particular, in order to determine the loss or damage for which reparation may be granted, the national court may inquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he availed himself in time of all the legal remedies available to him. Indeed, it is a general principle common to the legal 85. systems of the member states that the injured party must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the damage himself Mulder v Council and Commission of the European Communities (Joined Cases C 104/89 and C 37/90) [1992] ECR I 3061, 3136 3137, para 33. The court reiterated the substance of these paragraphs in Danske Slagterier v Bundesrepublik Deutschland (Case C 445/06) [2010] All ER (EC) 74, paras 59 61. It is, in my opinion, clear that the Court of Justice was here leaving it to domestic law to determine whether and how far to apply any such principle, even though it expressed the view that it was a general principle common to the legal systems of the member states that the injured party must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the damage himself. The general legislative schemes, constituting the background to this issue under EU and domestic law, have been summarised in paras 5 and 42 above. In the context of an argument about mitigation, it is worth underlining one feature. Both the Remedies Directive and the 2006 Regulations treat a contracting authoritys decision to award a contract in circumstances where the substantive requirements of the PP Directive or the 2006 Regulations have not been observed as an actionable infringement or breach of duty to any economic operator thereby disadvantaged. This is so, although no contract will at that point have been entered into. Proceedings may be begun, within the relevant time limit, before or after the entry into the contract, but in either case they involve the same complaint, viz failings in the prescribed procurement process, leading to the decision to award the contract to the wrong person. In this context, the actual entry into any contract appears in effect to be treated not as the relevant breach, but as the consequence of the prior breach consisting in the prior wrongful decision to award the contract. This is also consistent with the way in which ATKs present claim was formulated and litigated before Fraser J who gave judgment on 29 July 2016, holding that the NDA had failed properly to conduct the procurement process and ought to have awarded the contract to ATK. If that proves to be the right analysis, it at least opens the way to a submission under domestic law that the duty to mitigate arose as from the date of ATKs receipt of the decision to award the contract to CFP. I do not understand ATK to have contested that in their submissions. Accordingly, since the appeal is concerned with what the Remedies Directive and the 2006 Regulations treat as an existing infringement, an argument that ATK failed to mitigate is in principle open to the NDA. But issue (iii) as formulated before the Supreme Court (para 7(iii)), falls to be answered with reference to the circumstances of this appeal. We are not concerned with a familiar form of mitigation, such as a failure to take steps to seek alternative business to replace the contract wrongly awarded to a competitor. We are concerned with a very unusual form of mitigation, whereby, it is suggested, ATK should have taken steps to prevent the NDA giving effect to the NDAs infringement, even if ATK thereby had to expose themselves to the risks associated with the possibility of their challenge to the contract award decision failing. That the so called duty to mitigate may in some circumstances require the victim of a breach to take steps by way of legal action is, in my opinion, clear. Lord Pannick QC, representing the NDA, was able to refer to cases in which English courts have held that the victim of a breach of duty should, by way of mitigation, pursue available legal remedies, before, for example, suing his professional advisers for negligence: Western Trust & Savings Ltd v Travers & Co (1998) 75 P & CR 200; Walker v Geo H Medlicott & Son [1999] 1 WLR 727. See also the discussion of these and other cases in Jackson & Powell on Professional Liability 8th ed (2017), paras 11.336 11.339. The principle that a breach may call for mitigation, by third party action of this sort, is therefore uncontroversial. If my builder leaves my front door open and squatters enter, I cannot say that I have lost my house. I must take steps, legal steps if necessary, to recover possession. Lord Pannick also referred to cases on the exercise of a discretion, where the failure to seek interim relief as against the person or body alleged to have been in breach of duty was regarded as a relevant factor. In one, Evans LJ expressed a view that a failure to seek interim relief was relevant to the exercise of discretion to give leave for judicial review of a local authority decision to award a waste disposal contract to a competitor of the claimant: Mass Energy Ltd v Birmingham City Council [1994] Env LR 298. In another, R (Gavin) v Haringey Borough Council [2004] 1 PLR 61 David Richards J took into account an objectors failure to apply for interim relief reasonable though it was since such an application would have involved giving an undertaking in damages as relevant to an issue whether planning permission should be quashed; the developer had a reasonable case for considering that the planning permission was valid, and the objectors failure had enabled the developer, reasonably, to continue to incur costs on the development. The factors relevant to an exercise of discretion can be very wide. But the awarding of damages for a breach, or their refusal on account of a failure to mitigate, is not discretionary. No authority was cited to us on a situation directly comparable to the present, where it is submitted that the victim of a breach may be regarded as acting unreasonably, by not taking steps to stop the perpetrator of the breach from carrying it into effect. The NDA does not suggest that ATKs conduct, in delaying the issue of a claim form, would necessarily or always fall to be regarded as unreasonable. The NDAs proposition is that, on a full examination at a trial of all the circumstances in the light of evidence, including in particular examination of the reasons for ATKs conduct, ATK may be held to have acted unreasonably and thereby to have failed to avoid the loss of the contract, so disabling itself from claiming damages for any loss arising from the NDAs entry into the contract with CFP, rather than with RSS. In this connection, the NDA surmises, plausibly, that the reason why ATK did not issue its claim form at a time when this would have put an automatic stop on the NDA entering into the contract is that it appreciated that this would lead to the NDA seeking to lift the stop. In that case, it would very probably only have been possible to maintain the stop if ATK was ready and able to put up security for any loss which the NDA would suffer through the continuation of the stop. This, ATK may well not have been. But another possible reason why ATK might not have been able to maintain the stop (or not have thought it sensible to bring about a stop in the first place, by issuing a claim form before the contract was entered into) was that it could not show that damages would not constitute an adequate remedy if the NDA proved to have failed wrongly to award the contract to the RSS consortium to which ATK belonged. The question therefore arises whether and on what basis it could be said to be unreasonable for ATK to delay commencing proceedings until after the entry into the contract. If ATK regarded damages as an adequate remedy, there would be no point in bringing about a stop in the first place. Even if it did not regard damages as an adequate remedy and confident though it may have been in the prospects of success of its (ultimately successful) challenge to the NDAs contract award decision it may in its own interests have preferred to rest on a claim for damages if its challenge to the contract award decision succeeded, rather than give a cross undertaking and expose itself to an indeterminate liability thereunder if its challenge failed. It is true, as Lord Pannick submits, that the scheme of the Remedies Directive and the 2006 Regulations aims specifically at giving an economic operator the opportunity to stop the wrongful award of a procurement contract to a competitor. But that does not mean that the economic operator is obliged to take advantage of the opportunity. The scheme gives both parties choices as to how to proceed and how to protect themselves. It assimilates the position, after a stop has been placed on the entry into a contract by the issue of a claim, with that which exists when a party is seeking an interim injunction: see para 42(d) above. An economic operator is, under the scheme as enacted in the United Kingdom, thus left free to issue a claim for damages after awaiting the entry into the contract. If, on the other hand, it issues a claim before entry into the contract, it is, on the face of it, also entitled to consider in its own interests whether or not to give an undertaking or put up security, if that is later required as the price of continuing the stop on entry into the contract. The provision of an undertaking or security as a condition of the continuation of a stop order or stay is a matter of free choice for a party. There is no basis for regarding the victim of an alleged breach seeking interim relief as obliged to exercise that choice in the interests of the other party, or indeed of anyone save itself. I am unable to accept the NDAs proposition that, because the court could reasonably demand a cross undertaking or security as a condition of a continuation of the stop order, it would or could be regarded as unreasonable for ATK to refuse to put this up. For the court to impose a condition as the price of continued relief which a party is seeking is quite different from treating the victim of a breach as acting unreasonably if it fails to seek a particular form of relief or to back it with an undertaking or security. The present issue only arises, by definition, in a context where the contracting authority proves to have infringed procurement rules by its contract award decision. Under the scheme, the contracting authority also has a choice as to whether and how to act and to protect itself in a context where this is alleged or is a possibility. If it wishes to avoid the exposure resulting from having entered into the contract in circumstances where there is still time for an aggrieved economic operator to issue a claim form, it can delay entering into the contract until after the expiry of the 30 day period allowed to the economic operator for issue of a claim form. The delayed entry into the contract could involve the contracting authority in some loss, over and above that due to the minimum ten day standstill anyway required under the Remedies Directive and the 2006 Regulations. In the event that the contract award decision proved not to have involved any infringement, the contracting authority would have to bear that loss, without any recourse. But some loss of this sort could anyway result under the scheme from the ten day standstill period (and from the period which might elapse between the imposition of any stop and its discharge, in a case where the Court did not see fit to continue the stop by requiring an undertaking or security). The loss would on any view be unlikely to be anything approaching that which would arise from entering into the contract with one economic operator and being held liable to another for having wrongly done so. In summary, an economic operator is entitled, in the face of what it views as (and later proves to have been) a breach of duty by the contracting authority, to leave it to the authority to take the risk of implementing its wrongful award decision. The economic operator cannot be said to be acting unreasonably if it fails to stop the authority from perpetrating a breach of duty which the authority could itself stop perpetrating. It cannot be said to be acting unreasonably if it refuses to give an undertaking or put up security in order to maintain a stop which it has in the first instance obtained by issuing a claim form before the authority has entered into the contract to give effect to its wrongful contract award decision. I add that it has not been and could not be suggested that the NDA entered into the contract only because it thought that it was not exposed to a subsequent claim by ATK. Indeed, NDAs submissions before the Court of Appeal said this (para 51): The [NDA] makes no bones about the fact that, because of the financial implications of delay, it would have applied to lift the suspension and (if successful) signed the contract, had [ATK] sought to trigger and maintain the suspension without offering a cross undertaking in damages. The [NDA] does not know what it would have done if a cross undertaking had been offered it would have depended upon advice that was not in fact sought, and factors such as the likely date of an expedited trial that did not become known, because of the way that [ATK] in fact acted. The second sentence indicates that the NDA might have sought to remove any stop on its entry into of the contract, even if ATK had offered a suitable cross undertaking in order to achieve its continuation. In other words, the NDA may, even in that context, have preferred to run the same risk that it did by entering into the contract in this case. For the reasons I have given, I do not consider that there are any circumstances in which ATK could be regarded as having failed unreasonably to mitigate its loss arising from the NDAs wrongful contract award decision, by failing to initiate or pursue steps to prevent the NDA from implementing that decision by entering into the contract with ATKs competitor, CFP. Under the scheme of the Remedies Directive and 2006 Regulations, each side had choices which it was entitled to, and no doubt did, exercise in its own interests. In these circumstances, the answer to issue (iii) is in the negative as the Court of Appeal held. Conclusion Under issue (i), ATKs case in this Court was that European Union law requires a remedy in damages for any breach, whether serious or not, or that this issue should at least be referred to the Court of Justice. This case would, if accepted, have constituted a reason for reaching the same result as the Court of Appeal did by reference to domestic law. The Supreme Court does not however accept ATKs case on this issue. Under issue (ii), the NDAs case has been the Court of Appeal was wrong to hold that, even though European Union law only requires a remedy in damages for a serious breach, domestic law goes further by requiring a remedy in damages for any breach, whether serious or not. The NDA has succeeded, and its appeal should be allowed, on this issue. Under issue (iii), the NDA also sought to establish that there should be a trial as to whether an award of damages may in the circumstances of this case be refused to an economic operator. The NDA has failed, and its appeal should be dismissed, on this issue. |
1. Highbury Poultry Farm Produce Ltd (HPFPL) operates a poultry slaughterhouse in Shropshire under the approval of the Food Standards Agency. The average throughput is 75,000 chickens per day, equating to 19.5m or so chickens per annum. The birds have their legs shackled to a moving line and are then submitted to a number of sequential processes, including stunning, bleeding and scalding. On each of 31 August, 12 September and 5 October 2016 a chicken went into the scalding tank (where its feathers would be removed) while still alive because, after stunning, its neck had not been properly cut by a certificated operative. HPFPL was charged with two offences in respect of each of the three incidents. The two offences were particularised as follows: 1. Highbury Poultry Farm Produce Ltd being the business operator of the slaughterhouse, failed to comply with a specified EU provision, namely article 3 of Regulation (EC) No 1099/2009, which required that animals should be spared avoidable pain, distress or suffering during their killing and related operations, in that a bird that had been subject to simple stunning was not stuck and bled out before being processed, contrary to regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015. 2. Highbury Poultry Farm Produce Ltd being the business operator of a slaughterhouse, failed to comply with a specified EU provision, namely article 15(1) of Regulation (EC) No 1099/2009, which required you to comply with the operational rules for slaughterhouses laid down in Annex III of the said Regulation, including point 3.2 setting down requirements for the bleeding of animals, in that, following the simple stunning of a chicken, there was a failure to systematically sever the carotid arteries or the vessels from which they arise and the animals entered the scalding tank without the absence of signs of life having been verified, contrary to regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015. HPFPL raised a preliminary point of law which became sub divided into two related issues: (1) whether the offences under regulation 30(1)(g) require proof of mens rea (ie proof that the defendant had knowledge of the factual circumstances constituting the alleged offence) and (2) whether the prosecution must prove a culpable act or omission on the part of the defendant. Having heard the case in November 2017, District Judge Cadbury, sitting at Telford Magistrates Court, handed down his ruling on 9 January 2018. He held that these offences did not require proof of mens rea or culpability on the part of HPFPL. Rather they were offences of strict liability. On 19 March 2018 District Judge Cadbury stated a case seeking the opinion of the Divisional Court of the Queens Bench Division of the High Court on the following two questions: 1. Did I err in ruling that proof of an offence contrary to regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 did not require the prosecution to prove mens rea on the part of the business operator? 2. Did I err in ruling that the prosecution was not required to prove a culpable act and/or omission on the part of the business operator when prosecuted for offences alleged to be contrary to [regulation 30(1)(g) of the] Welfare of Animals at the Time of Killing (England) Regulations 2015? Given concerns as to the applicability of the case stated procedure to a situation where the Magistrates Court had not made a final determination of guilt, HPFPL also brought judicial review proceedings in the Divisional Court against District Judge Cadburys ruling. In its judgment, [2018] EWHC 3122 (Admin), the Divisional Court (Hickinbottom LJ and Jay J) decided that the correct way to proceed was via judicial review. On the substantive matter, it dismissed HPFPLs application for judicial review because the District Judge was correct to have decided the preliminary issue of law in favour of the Crown Prosecution Service. It decided that the offences are ones of strict liability and do not require proof of mens rea or culpability by the business operator. HPFPL now appeals to the Supreme Court against that decision of the Divisional Court dismissing its application for judicial review. While recognising that the same questions would be answered in the same way whichever of the two procedures was used, the Divisional Court decided that the case stated procedure could not here be used because the Magistrates Court had not made a final determination whether HPFPL was guilty or not. There has been no appeal against that decision on procedure and it is therefore unnecessary to say anything more about it. What this court has to determine is whether the Divisional Court and District Judge Cadbury were correct to decide that the two offences charged under regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (SI 2015/1782) (WATOK Regulations 2015) namely the breach by HPFPL, as a business operator, of, first, article 3(1) and, secondly, article 15(1), Annex III, point 3.2, of Regulation (EC) No 1099/2009 on the protection of animals at the time of killing (the EU Regulation) are offences of strict liability so that negligence by the business operator does not have to be proved. It is helpful to set out immediately the precise provisions that create the two offences with which we are concerned. Regulation 30(1)(g) of the WATOK Regulations 2015 reads: It is an offence to contravene, or to cause or permit a person to contravene [] a provision of the EU Regulation specified in (g) Schedule 5 . Schedule 5 specifies, inter alia: article 3(1) of the EU Regulation; and article 15(1), Annex III, point 3.2, of the EU Regulation. The first offence refers to article 3(1) of the EU Regulation which reads: Animals shall be spared any avoidable pain, distress or suffering during their killing and related operations. The second offence refers to article 15(1), Annex III, point 3.2 of the EU Regulation. Article 15(1) reads: Business operators shall ensure that the operational rules for slaughterhouses set out in Annex III are complied with. By Annex III, point 3.2: In case of simple stunning the two carotid arteries or the vessels from which they arise shall be systematically severed Further dressing or scalding shall only be performed once the absence of signs of life of the animal has been verified. This judgment will proceed from the general to the particular. That is, before moving to look in detail at the correct interpretation of the two offences, one needs to clarify whether the relevant principles for the interpretation of legislation are those of EU law or domestic law or both. The judgment therefore starts by examining, in some depth, the relationship between the EU Regulation and the WATOK Regulations 2015. It will then look briefly at whether the imposition of strict liability in the context of criminal law is contrary to EU law before turning to examine the two offences. 2. The relationship between the EU Regulation and the WATOK Regulations 2015 (1) One bite of the cherry Stephen Hockman QC for HPFPL submitted that, even if he failed to show that negligence is required under the EU Regulation, he could still succeed in arguing that negligence is required under the domestic regulation; and that, in interpreting a legislative provision under domestic law, it is well established that there is a presumption that a crime requires mens rea or culpability (see, for example, Sweet v Parsley [1970] AC 132, Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1, and B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428). The Divisional Court accepted that that two bites of the cherry approach is correct. Jay J said, at para 56: [T]he EU Regulation does not create any criminal offences. These are created by member states in line with their own legislative techniques and established approaches to the criminal law whilst at the same time adhering at all material times to the language, principles and policies of the EU Regulation Ultimately, the analysis must come down to regulation 30(1)(g) of our domestic legislation, but Mr Hockman was fully entitled to attempt two bites of the cherry: first of all, to seek to persuade us that the obligations on business operators under EU law are not absolute; and, secondly, that in any event domestic law does not create offences of strict liability in this regard. And later, at para 73, having rejected Mr Hockmans submissions that the EU Regulation required negligence, Jay J said: [M]y rejection of Mr Hockmans first group of submissions cannot be regarded as conclusive. He has, as has been pointed out, a second bite of the cherry. Ultimately, the answer to this case hinges on whether regulation 30(1)(g) requires proof of mens rea. I agree with those submissions of Mr Perry for reasons which will now be set David Perry QC for the Crown Prosecution Service submitted that that was not the correct approach. The interpretation of the EU Regulation should be the beginning and the end of the enquiry. According to Mr Perry, the correct way to think about the relationship between the EU Regulation and the domestic regulations in this case is that the domestic regulations are merely the mechanism whereby the EU Regulation is given effect in this jurisdiction. It is therefore the interpretation of the EU Regulation that matters. The cases in domestic law on the presumption that a crime requires mens rea or culpability are not directly relevant. HPFPL has only one bite of the cherry. out in some detail. It is trite law that an EU Regulation has direct effect in a member state without the need for domestic enactment. Nevertheless, the combination of EU Regulation and domestic regulations is commonplace where detailed rules are being imposed and the only discretion being left to the member state is in relation to the penalties to be imposed for contravention of those rules. Looked at another way, in general (subject to the exceptions in article 83 of the Treaty on the Functioning of the EU) the EU does not have competence to impose criminal penalties (see, for example, Commission of the European Communities v Council of the European Union (Case C 176/03) [2005] ECR I 7879, para 47). In line with this, it would appear that an EU Regulation in the area of animal welfare could not have created a free standing crime in a member state. The EU Regulation therefore laid down the detail of the duties imposed while leaving the member states with the discretion to decide whether to create criminal offences, by imposing criminal penalties, in their domestic legislation. The relevant discretion is provided for in article 23. This reads as follows: The member states shall lay down the rules on penalties applicable to infringements of this Regulation The penalties provided for must be effective, proportionate and dissuasive. In principle, it would have been possible for a member state to implement this EU Regulation by imposing only civil or administrative penalties, provided such penalties were effective, proportionate and dissuasive. However, the implementation of the EU Regulation in England by the WATOK Regulations 2015 perhaps not least so as to ensure effectiveness has been by imposing criminal penalties thereby making infringements of the rules criminal offences. Of course, it is the UK, not England, that is the member state, but animal welfare is a devolved area within the UK legislative arrangements so that each of England, Wales, Scotland and Northern Ireland has its own regulations (which are materially identical so far as the provisions relevant to this appeal are concerned). It is of central importance that, while the member states have a discretion as regards penalties, they have no discretion to lower the standards required by the EU Regulation. We regard it as untenable to interpret article 23 as allowing member states to lower the standards imposed in so far as they have decided to implement the EU Regulation through criminal, rather than non criminal, penalties. It follows that, if the EU Regulation imposes strict liability, the domestic regulation must (as a matter of EU law) do the same; and certainly, without a clear indication in the domestic regulation that the EU Regulation is being departed from, the best interpretation of the domestic legislation must be that it is merely the mechanism for implementing what has been laid down in the EU Regulation. Indeed, applying the Marleasing principle (set out in Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135), even if there are words in a domestic regulation that, on their face, depart from what an EU Regulation requires, the courts of a member state are required, if at all possible, to interpret the words of the domestic regulation so as to conform with that EU Regulation. In any event, in this case, the words of the relevant domestic regulation make clear that it is implementing whatever standards are imposed by Schedule 5 to the EU Regulation: ie regulation 30(1)(g) precisely specifies that It is an offence to contravene a provision of the EU Regulation specified in Schedule 5. In my view, therefore, if HPFPL fails to establish that negligence is required under the EU Regulation (ie if, contrary to Mr Hockmans submissions, the EU Regulation imposes strict liability), HPFPL cannot then succeed on the basis that, in any event, the domestic regulation requires negligence and does not impose strict liability. There can be no question of the domestic regulation imposing a lower standard (ie negligence rather than strict liability) than that laid down by the EU Regulation because to do so would contravene the requirement of EU law for proper implementation of the EU Regulation. Mr Hockman prayed in aid Criminal Proceedings against Vandevenne (Case C 7/90) [1993] 3 CMLR 608. That case dealt with Council Regulation (EEC) No 3820/85 which imposed maximum driving times for lorry drivers. The European Court of Justice (the ECJ) held that article 15, which imposed a duty on employers to use best endeavours to ensure that their drivers took the required rest breaks, left member states free to enact domestic legislation imposing strict criminal liability on employers. In other words, member states were held to be free to impose a stricter standard in domestic criminal law than that laid down in Regulation No 3820/85. But that decision does not help Mr Hockman because it recognises only the reverse of what he is arguing for. The ECJ held that the domestic legislation validly imposed a stricter, not a lower, standard than Regulation No 3820/85. Therefore, the correct approach in this case, as submitted by Mr Perry, is that HPFPL has only one bite of the cherry. It needs to establish that on the correct interpretation of the EU Regulation, as implemented through the domestic regulations, the offences require negligence and are not offences of strict liability. (2) EU law principles of legislative interpretation It follows from the acceptance of Mr Perrys submissions (set out in para 12 above) that the relevant principles of legislative interpretation to be applied here are the principles of legislative interpretation established by the ECJ or the Court of Justice of the European Union (the CJEU) which I shall refer to as the EU law principles of legislative interpretation not the English law principles of statutory interpretation. In R v Henn [1981] AC 850, 905, Lord Diplock referred to: the danger of an English court applying English canons of statutory construction to the interpretation of the Treaty or, for that matter, of Regulations or Directives. This was said in the context of the Court of Appeals not having been referred to relevant decisions of the ECJ on the meaning of article 30 (concerned with quantitative restrictions on imports) in the Treaty establishing the European Economic Community (also known as the Treaty of Rome). Similarly, in the Scottish case of Westwater v Thomson 1993 SLT 703, 709 710, Lord Justice General Hope (as he then was), sitting in the High Court of Justiciary (Appeal), said the following: Counsel for the respondents last point was that we should construe these rules strictly in the respondents favour in view of their penal consequences. But that submission is inconsistent with Community law which leaves it to the member state to take whatever steps it thinks appropriate, whether penal or otherwise, to give effect to Community legislation. Community legislation as such is not penal in character and it must be applied uniformly throughout the Community. For us to attempt to construe it by reference to domestic rules about the construction of penal legislation would be to apply rules of construction which have no part to play in the construction of regulations issued either by the Council or the Commission. In R v Henn [1981] AC 850, 904H Lord Diplock issued a warning against the danger of an English court applying English canons of statutory construction to the interpretation of the treaty or for that matter of Community regulations or directives. More recently, in Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22; [2012] 2 AC 471, in the context of interpreting an EU Framework Decision, Lord Phillips of Worth Matravers at para 15 said: The approach to interpretation must be one that would be acceptable to all the member states who have to strive to identify a uniform meaning of the Decision. [O]ne cannot simply apply the canons for construction or even the principles that apply to interpreting domestic legislation. It is clear, therefore, that, in so far as they are different (and it is unnecessary in this case to try to pinpoint what the precise differences might be), the domestic rules of statutory interpretation are here displaced by the EU law principles of legislative interpretation. Although one is interpreting domestic criminal regulations, those regulations, because they implement the EU Regulation, must be interpreted by applying the principles laid down in EU law. A contrary approach would undermine the objective of harmonisation (which involves, among other things, ensuring that an autonomous meaning is applied to terms used in EU law so as to impose uniform standards across the EU). It is therefore the courts task in this case to apply EU law principles of legislative interpretation. What then are those principles? In the context of it being permissible, under EU principles of legislative interpretation, to consider the recitals, which expressly set out the objectives of the EU Regulation, Mr Hockman referred us to Omejc v Republika Slovenija (Case C 536/09) [2011] ECR I 5367. In what has now become a commonly cited formulation, the CJEU said the following at para 21: according to the Courts settled case law, in interpreting a provision of European Union law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it is part . In R v V [2011] EWCA Crim 2342, which concerned UK regulations implementing an EU Regulation by imposing strict criminal liability in relation to the transportation of waste, Cranston J giving the judgment of the Court of Appeal (Criminal Division) said at para 19: When interpreting European Union legislative instruments, an English court does not deploy the ordinary principles of statutory construction but rather those so called principles of teleological construction established by the jurisprudence of the Court of Justice of the European Union. One aspect of that is that the substantive provisions of an instrument are to be interpreted in the light of its objectives, which are most readily available in the recitals. Lord Phillips in Assange v Swedish Prosecution Authority (Nos 1 and 2), at para 15, helpfully pointed out that relevant factors to consider, in interpreting European legislation, are: the terms of the instrument, including its preamble; the usual meaning of the expressions used with a comparison of the different languages of the instrument; the purpose and general scheme of the instrument; and the preparatory materials. It would appear that the most important point to have in mind is that the teleological approach to legislative interpretation adopted by the ECJ and CJEU means that there is a heavy stress on seeking to ensure that the interpretation of the words fulfils the purpose of the legislative provision and, more generally, the purposes of the EU. For helpful discussions see, for example, T Koopmans, The Theory of Interpretation and the Court of Justice, in Judicial Review in European Union Law, eds D OKeeffe and A Bavasso (2000), p 45, especially at p 54; and Professor John Bell, writing the section headed European teleological approaches, in English Private Law, 3rd ed (2013), ed A Burrows, paras 1.36 1.39. EU law and strict liability in the context of criminal law Before I move on to consider the application of the EU law principles of legislative interpretation to the two offences in issue, it is important to clarify, lest there be any doubt about this, that, just as one can have strict liability in domestic criminal law (despite there being a presumption that a crime requires mens rea or culpability) so the imposition of strict liability in the context of criminal law is not contrary to EU law (even though a principle of nulla poena sine culpa or no punishment without fault may be applicable: see the reference to this principle in, for example, Kserei Champignon Hofmeister GmbH & Co KG v Hauptzollamt Hamburg Jonas (Case C 210/00) [2002] ECR I 6453, paras 35, 44, 49 and 52). I have already indicated that, in general, the EU does not have competence in relation to creating crimes. But the fact that EU law is not averse to strict liability in the context of criminal law is well illustrated by Public Prosecutor v Hansen & Son I/S (Case C 326/88) [1992] ICR 277. In that case, the ECJ considered whether the imposition by a member state of strict criminal liability for breach of a provision of Community law was compatible with the EU principle of proportionality. The case concerned Council Regulation (EEC) No 543/69, which imposed maximum driving limits for lorry drivers (and was the predecessor of the Regulation considered in the Vandevenne case, referred to above at para 17). Denmark enacted legislation holding employers strictly liable in criminal law for the breach by their employees of those limits. A Danish court referred the question whether the Regulation precluded national legislation imposing strict criminal liability. The ECJ concluded that member states had a discretion to include provisions imposing such liability. At paras 19 20 the court said the following: 19. it is necessary to bear in mind, first, that a system of strict liability may prompt the employer to organise the work of his employees in such a way as to ensure compliance with the Regulation and, secondly, that road safety, which, according to the third and ninth recitals in the preamble to Regulation No 543/69, is one of the objectives of that Regulation, is a matter of public interest which may justify the imposition of a fine on the employer for infringements committed by his employees and a system of strict criminal liability. Hence the imposition of a fine, which is consistent with the duty of co operation referred to in article 5 of the EEC Treaty, is not disproportionate to the objective pursued. The application of the principle of proportionality to the amount of the fine has not been called in question in this case. 20. It follows from all the foregoing considerations that neither [Regulation 543/69] nor the general principles of Community law preclude the application of national provisions under which an employer whose drivers infringe articles 7(2) and 11 of the Regulation may be the subject of a criminal penalty notwithstanding the fact that the infringement cannot be imputed to an intentional wrongful act or to negligence on the employers part, on condition that the penalty provided for is similar to those imposed in the event of infringement of provisions of national law of similar nature and importance and is proportionate to the seriousness of the infringement committed. The two relevant offences Having established that the court must apply EU law principles of legislative interpretation with their heavy emphasis on effecting the purpose of the relevant provisions and that the imposition of strict liability in the context of criminal law is not contrary to EU law, I can now turn to the interpretation of the two offences in this case. The two offences charged under regulation 30(1)(g) of the WATOK Regulations 2015 are the breach by HPFPL as a business operator of, first, article 3(1) of the EU Regulation (the first offence) and, secondly, article 15(1), Annex III, point 3.2, of the EU Regulation (the second offence). I have set out in para 9 above the precise provisions that create the two offences. I should make clear as a prelude to what follows that, although there have been decisions of the CJEU on the EU Regulation (and by the ECJ on the predecessors of the EU Regulation), none of those decisions is relevant to the questions that this court has to decide. I have also derived no assistance from either the preparatory materials to the EU Regulation or other language versions of the EU Regulation. (1) The second offence For reasons that will become apparent, it is convenient to consider the second offence first. On the face of it, the relevant words of article 15(1), Annex III, point 3.2 impose strict liability. By article 15(1), business operators shall ensure that the operational rules are complied with. And the operational rules are specified in Annex III, point 3.2 in very clear and precise terms: the two carotid arteries or the vessels shall be systematically severed. There is no hint that business operators shall be liable only if the operational rules are intentionally or negligently infringed. If strict liability were not being imposed, words importing culpability could have easily been included; but they have not been. Nor is there anything in the context of the EU Regulation as a whole (and see para 43 below for what I say about recital (2)) that would indicate that intention or negligence is required in relation to this offence. True it is that some of the provisions are concerned to impose monitoring and system checking and, in that sense, may be said to be concerned with imposing due diligence. But that is in no sense inconsistent with recognising that other provisions (including those creating the second offence) go beyond requiring due diligence. That the best interpretation is that strict liability is being imposed is reinforced when, in accordance with the heavy emphasis placed on this by EU law principles of legislative interpretation, one concentrates on the purpose of the provision. Strict liability imposes a clear and easily enforceable standard and is therefore in line with a principal goal of uniformity across the EU. In contrast, enforcing a negligence standard would potentially be prone to difficulty. Indeed, it is not even clear what would here be meant by a negligence standard. In particular, would one be requiring negligence by an operative and then attaching blame vicariously on the business operator? If so, there may be a serious difficulty in identifying the relevant operative, not least where the operations are mechanical. I tend to agree with the main point made by Karl Laird in his short commentary on the decision of the Divisional Court in this case at [2019] Crim LR 528, 530. Albeit apparently viewing the issue as one of domestic statutory interpretation, he wrote that if strict liability were rejected the aim in enacting [the offence] would have been fatally undermined, given the difficulty in pinpointing the individual upon whom the requisite state of mind must be attributed. Moreover, although one might argue this both ways and without empirical evidence one cannot be confident which side of the argument is to be preferred it is at least plausible that imposing strict liability (rather than negligence) acts as an incentive to improve standards. For a helpful consideration of the arguments both ways, in the context of a decision that accepted the merits of a half way house whereby a defendant would be permitted a defence of due diligence to what would otherwise be a strict liability offence, see the judgment of Dickson J, giving the judgment of the Supreme Court of Canada, in R v City of Sault Ste Marie [1978] 2 SCR 1299, especially at pp 1310 1312. If one were to reason by analogy from domestic statutory interpretation, it is noteworthy that one is not here concerned with traditional core criminal offences but rather with what have sometimes been termed, in the context of domestic criminal law, regulatory offences. These are offences created by statute and, in modern times, primarily enforced by regulators (in this case the Food Standards Agency) either alone or in combination with the Crown Prosecution Service. In domestic law, strict liability has often been regarded as less problematic in relation to such regulatory offences: see, for example, Blackstones Criminal Practice, 2020 ed, para A2.22 citing Parker v Alder [1899] 1 QB 20. Looking at the words used in the EU Regulation, in their context and especially in the light of the purpose of the Regulation, it is therefore my view that, applying EU law principles of legislative interpretation and bearing in mind that imposing strict criminal liability is not contrary to EU law, the second offence is correctly interpreted as imposing strict liability. (2) The first offence To put this offence in context, it is helpful to set out some parts of article 3(2) and the whole of article 3(3) as well as article 3(1). General requirements for killing and related operations 1. Animals shall be spared any avoidable pain, distress or suffering during their killing and related operations. For the purposes of paragraph 1, business operators 2. shall, in particular, take the necessary measures to ensure that animals (b) are protected from injury (d) do not show signs of avoidable pain or fear or exhibit abnormal behaviour Facilities used for killing and related operations shall be 3. designed, constructed, maintained and operated so as to ensure compliance with the obligations set out in paragraphs 1 and 2 under the expected conditions of activity of the facility throughout the year. On the face of it, the relevant words of article 3(1) impose strict liability: animals shall be spared avoidable pain, distress or suffering. This use of the passive voice leaves no obvious room for a requirement of intention or negligence. And the requirement that the pain, distress or suffering is avoidable would be met where the business operator has contravened a specific operational rule (as here) which is designed to ensure the avoidance of pain, distress or suffering. That the words of article 3(1) are imposing strict liability gains strong support from the rest of article 3 which in article 3(2) and 3(3) uses the verb to ensure. So the relevant words of article 3(2) are shall take the necessary measures to ensure that; and the relevant words of article 3(3) are shall be operated so as to ensure compliance with . The reasoning in paras 34 36 above, there put forward to support the view that the second offence imposes strict liability, is equally relevant and forceful in relation to the first offence. Leaving aside recital (2), it is therefore clear, in my view, that article 3(1) imposes strict liability. Before looking at recital (2), one point should be clarified. In his short judgment in the Divisional Court agreeing with Jay J, Hickinbottom LJ, at para 97, appeared to suggest that, for the purposes of article 3(1), there is an irrebuttable presumption a deeming provision that where the second offence has been committed (ie where the two carotid arteries or the vessels from which they arise were not systematically severed) the bird, despite being stunned, has inevitably been caused avoidable pain, distress or suffering. It may be that Hickinbottom LJ was here focussing solely on whether the pain, distress or suffering was avoidable rather than on whether pain, distress or suffering was experienced. But in so far as his words might be interpreted as referring to the experiencing of the pain, distress or suffering, I do not agree with what he said. If there is any doubt (in relation to the first offence) about the bird experiencing pain, distress or suffering, that will be a matter for the prosecution to prove in the normal way. There is no reason to interpret article 3(1) as laying down that pain, distress or suffering has inevitably been experienced. Note also that, while the phrase irrebuttable presumption is commonly used by lawyers in various contexts, I would suggest that it is best avoided because, as Hickinbottom LJ indicated by his immediate reference to a deeming provision, it has nothing to do with presumptions in the true sense and simply means that there is a legal rule to that effect. Turning now to recital (2), this reads: Whereas: Killing animals may induce pain, distress, fear or other forms of suffering to the animals even under the best available technical conditions. Certain operations related to the killing may be stressful and any stunning technique presents certain drawbacks. Business operators or any person involved in the killing of animals should take the necessary measures to avoid pain and minimise the distress and suffering of animals during the slaughtering or killing process, taking into account the best practices in the field and the methods permitted under this Regulation. Therefore, pain, distress or suffering should be considered as avoidable when business operators or any person involved in the killing of animals breach one of the requirements of this Regulation or use permitted practices without reflecting the state of the art, thereby inducing by negligence or intention pain, distress or suffering to the animals. (Emphasis added) Mr Hockman submitted that recital (2) provides a definition of what is meant by avoidable pain, distress or suffering in article 3(1) and that that definition requires negligence or intention because those are the express words used in recital (2). Indeed, Mr Hockman went further and submitted that this recital is of general relevance to the whole of the EU Regulation so that one should treat it as being relevant to the second offence and not just the first. While it is clear that recital (2) is seeking to explain the purpose of article 3, I accept that article 3 lays down a general requirement, not least because it is headed general requirements for killing and related operations. However, even if that general requirement does impose a standard of negligence or intention, rather than strict liability, that is not inconsistent with the imposition of strict liability by other specific provisions (including those creating the second offence). Irrespective of the detailed arguments analysed below, I therefore see no good reason to read recital (2) as affecting my reasoning, set out above, on the second offence. But what about the central submission of Mr Hockman that recital (2) expressly requires one to read into article 3(1) a requirement of negligence or intention? In the Divisional Court Jay J rejected this submission by preferring two alternative interpretations of recital (2). First, Jay J said, at para 58: I would read the subordinate clause thereby inducing as qualifying [the] second limb rather than the first. Jay J was therefore interpreting the clauses as saying the following: Pain, distress or suffering should be considered as avoidable when business operators or any person involved in the killing of animals (i) breach one of the requirements of this Regulation or (ii) use permitted practices without reflecting the state of the art, thereby inducing by negligence or intention, pain, distress or suffering to the animals. The problem with this first interpretation is that it is clear that the breach of one of the requirements of the EU Regulation has to be causally linked to the pain, distress or suffering to the animals. Without such a causal link a breach of the Regulation might have nothing to do with any such pain, suffering or distress. For example, a breach of the provision of the EU Regulation requiring there to be an animal welfare officer or requiring operatives to be certified cannot, in the abstract, without any causal link, mean that there has been relevant pain, distress or suffering. It follows that the phrase thereby inducing pain, distress or suffering to the animals has to qualify the first limb as well as the second. Jay J gave a second, alternative, interpretation at paras 58 59: In any event, I certainly would not read this subordinate clause as setting forth an essential component of all regulatory breaches Even if this clause does not merely cover the second limb of the final sentence of the recital, all that it is doing is saying that a breach of the Regulation will usually entail fault. That second interpretation is compelling. The words are making clear that a breach of article 3(1) will usually entail fault but they are not laying down that fault is an essential element. An equally persuasive and slightly different way of putting this is that negligence or intention are being provided as examples of the ways, and not as an exhaustive list of the ways, in which a breach of the Regulation, or a failure to use permitted practices reflecting the state of the art, induces pain, distress or suffering that should have been avoided. It is also important to stress that the words negligence or intention are in a recital and are not in the operative provisions of the EU Regulation. It is clear that under EU law principles of legislative interpretation, one can take a recital into account in interpreting a relevant provision of the Regulation: see, for example, Omejc v Republika Slovenija (Case C 536/09) [2011] ECR I 5367, para 26. There is also no doubt that, under EU law principles of legislative interpretation, the recitals are of considerable importance. As one is applying the teleological approach, the express setting out of the purposes is bound to be highly significant. However, what one has here is a clear provision of the EU Regulation, imposing strict liability, and a somewhat ambiguous provision in the recital referring to negligence or intention. In that situation, it appears to be well established that the recital should be interpreted in such a way as not to contradict the Regulation. For example, in Criminal Proceedings against Caronna (Case C 7/11) EU:C:2012:396, the CJEU stated as follows at para 40: the preamble to a European Union act cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting them in a manner clearly contrary to their wording (Case C 308/97 Manfredi [1998] ECR I 7685, para 30; Case C 136/04 Deutsche Milch Kontor [2005] ECR I 10095, para 32; and Case C 134/08 Tyson Parketthandel [2009] ECR I 2875, para 16). R (International Air Transport Association) v Department of Transport (Case C 344/04) [2006] 2 CMLR 20 is a particularly clear illustration of this approach to recitals. The case concerned Regulation (EC) No 261/2004. Articles 5, 6 and 7 established rules on the immediate compensation and assistance to be given by airlines to passengers who were denied boarding or whose flights had been cancelled or delayed. Recital (14) of the Regulation read as follows: (14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier. The claimant airline associations sought judicial review of the UK Department of Transports implementation of articles 5, 6 and 7. They claimed, among other things, that those articles infringed the principle of legal certainty. One of their arguments, summarised by the ECJ at para 75, was that Regulation No 261/2004 envisages, in an inconsistent manner in the 14th and 15th recitals in its preamble, that extraordinary circumstances may limit or exclude an operating air carriers liability in the event of cancellation of, or long delays to, flights whereas articles 5 and 6 of the regulation, which govern its obligations in such a case, do not accept such a defence to liability except with regard to the obligation to pay compensation. The ECJ rejected this argument on the basis that the operative provisions were clear. It stated as follows in para 76: while the preamble to a Community measure may explain the latters content (see Alliance for Natural Health [(R (Alliance for Natural Health) v Secretary of State for Health (Cases C 154/04 and C 155/04) [2005] 2 CMLR 61)], para 91), it cannot be relied upon as a ground for derogating from the actual provisions of the measure in question (Case C 162/97 Nilsson and Others [1998] ECR I 7477, para 54; and Case C 136/04 Deutsches Milch Kontor [2005] ECR I 10095, para 32). [T]he wording of those recitals indeed gives the impression that, generally, operating air carriers should be released from all their obligations in the event of extraordinary circumstances, and it accordingly gives rise to a certain ambiguity between the intention thus expressed by the Community legislature and the actual content of articles 5 and 6 of Regulation No 261/2004 which do not make this defence to liability so general in character. However, such an ambiguity does not extend so far as to render incoherent the system set up by those two articles, which are themselves entirely unambiguous. Applying EU law principles of legislative interpretation, therefore, the unclear recital (2) does not override the clear article 3(1). Finally, there is a further background (or contextual) consideration that supports the interpretation of the first offence as imposing strict liability. Article 28 of the EU Regulation repealed Directive 93/119/EC. That Directive set out the previous EU law on the protection of animals at the time of slaughter or killing. Article 3 of that Directive read: Animals shall be spared any avoidable excitement, pain or suffering during movement, lairaging, restraint, stunning, slaughter or killing. By article 5(1): Solipeds, ruminants, pigs, rabbits and poultry brought into slaughterhouses for slaughter shall be (d) bled in accordance with the provisions of Annex D. Under Annex D, para 2: All animals which have been stunned must be bled by incising at least one of the carotid arteries or the vessels from which they arise. The recital relevant to article 3 read simply as follows: Whereas at the time of slaughter or killing animals should be spared any avoidable pain or suffering. The important point for present purposes is that that relevant recital the forerunner of recital (2) in the EU Regulation with which we are concerned did not include the words negligence or intention in relation to the avoidable pain or suffering. There was also no other hint in that Directive that it was an essential element of avoidable pain or suffering that it was caused by negligence or intention. It would therefore appear that that previous Directive required member states to impose strict liability. As it is highly unlikely that the EU would have made its animal welfare requirements less stringent under the EU Regulation than under the Directive it replaced, this adds further support to the strict liability interpretation of article 3(1). Looking at the words used in the EU Regulation, in their context and especially in the light of the purpose of the Regulation, it is therefore my view that, applying EU law principles of legislative interpretation and bearing in mind that imposing strict criminal liability is not contrary to EU law, the first offence, like the second offence, is correctly interpreted as imposing strict liability. Final observations and conclusion I agree with what Jay J said at para 88 of his judgment in the Divisional Court: [T]he EU Regulation should be seen as setting forth a comprehensive code or rule book which must be complied with by the business operator at all material times. On the facts of the present case, there was a strict obligation to sever the main arteries systematically, and a concomitant strict obligation to spare these birds avoidable pain. The Divisional Court went on to reach the same strict liability conclusion applying domestic law. Although that two bites of the cherry approach was incorrect I add, by way of footnote, that had it been correct to apply domestic law, I would have agreed with the Divisional Courts view that the presumption of mens rea or culpability was here rebutted. Neither counsel asked the court to make a reference to the CJEU on the questions raised. Such a reference is neither required nor appropriate because the matter is acte clair. For the reasons I have given, the two offences in issue are offences imposing strict liability on the business operator. There is no requirement to prove negligence. Although my reasoning differs in some respects from that of the Divisional Court, the appeal of HPFPL is dismissed. The criminal proceedings must now proceed before District Judge Cadbury to be finally determined on the basis of whatever further evidence the parties wish to adduce. |
The issue raised by this appeal is whether the respondents to this appeal, the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence, are required to hold a public inquiry (or other similar investigation). The inquiry which is sought would relate to a controversial series of events which began on 11 and 12 December 1948, when a Scots Guards patrol shot and killed 24 unarmed civilians in the village of Batang Kali, in Selangor. At that time, Selangor was a British Protected State in the Federation of Malaya, but it is now of course a state within the independent federal constitutional monarchy of Malaysia. The decision not to hold a public inquiry was taken by the respondents pursuant to section 1(1) of the Inquiries Act 2005 (the 2005 Act). That section provides that [a] minister may cause an inquiry to be held in relation to a case where it appears to him that certain conditions are satisfied including (a) particular events have caused, or are capable of causing, public concern and (b) there is public concern that particular events may have occurred. The appellants, who are closely related to one or more of the victims (and some of whom were children in the village at the time), contend that the killings on 11/12 December 1948 (the Killings) amounted to unjustified murder, and that the United Kingdom authorities have subsequently wrongly refused to hold a public inquiry, and have sometimes deliberately kept back relevant evidence. The appellants contend that a public inquiry is required on three different grounds. First under article 2 of the European Convention on Human Rights (the Convention), which came into force for the United Kingdom on 3 September 1953, and was extended by the United Kingdom under article 56 of the Convention to the Federation of Malaya on 23 October 1953; secondly under the common law by virtue of its incorporation of principles of customary international law; and thirdly under the common law through the medium of judicial review. These three grounds each raise a number of issues, sometimes overlapping. However, there is also a jurisdiction issue, given that the events in question occurred in what was then a different jurisdiction and is now also a wholly independent state. I will first set out the relevant facts, and after mentioning the jurisdiction issue, I will deal with the three grounds raised by the appellants, taking them in the order in which they have been just set out, which is the same order in which they were raised by Mr Fordham QC in the course of his excellent written and oral arguments on behalf of the appellants. The facts Background In the first half of the 20th century, the country which is now Malaysia was part of the British Empire. In 1941, during the course of the Second World War, it was invaded and occupied by the Japanese. It was subsequently re taken by the British in 1945, the year in which the Second World War ended. Shortly thereafter, there was an insurgency, which became known as the Malayan Emergency, and in which members of what had been the communist Malayan Peoples Anti Japanese Army took a leading part. Several British planters and businessmen were killed and there were violent incidents within a number of states, including Selangor. In June 1948, the Colonial Secretary approved the use of emergency powers in Malaya, and the High Commissioner declared a state of emergency on 12 July 1948 for the entire Federation, and three days later he issued Emergency Regulations. United Kingdom ministers agreed to send a brigade of the British army to Malaya by the end of August 1948. The cost was to be borne by the Treasury. Many of the troops sent were national servicemen, with only limited training in relation to operations of this kind. Part of the brigade comprised the Second Battalion of the Scots Guards. They arrived in Singapore in October 1948 and after three weeks training, and they were sent to areas of the Federation where bandit activity had been reported. G Company of the Second Battalion was based at Kuala Kubu Bahru where they underwent training for jungle warfare, apparently for the first time. The events of 11 and 12 December 1948 Batang Kali is located approximately 45 miles northwest of Kuala Lumpur in the district of Ulu Selangor. It was then a village consisting of families who inhabited kongsi residential huts, which are wooden longhouses raised from the ground with a veranda entrance. The village was within a rubber plantation owned by a Scotsman, Thomas Menzies, the chairman of the Selangor Estates Owners Association, and most of the villagers worked on the estate. G Company of the Second Battalion of the Scots Guards was based at Kuala Kubu Bahru. The senior police officer for the district asked Captain Ramsey (the second in command of the Company) to send patrols to two separate areas, to ambush a party of insurgents expected to arrive the following day. Captain Ramsey commanded one of the patrols, and Lance Sergeant Charles Douglas led the other because there was no other available commissioned officer. Lance Sergeant Thomas Hughes was Douglass second in command, and the patrol included a Lance Corporal and 11 guardsmen (almost all of whom were undertaking National Service). A Malay Special Constable (Jaffar bin Taib) acted as a guide and they were accompanied by two police officers, Detective Sergeant Gopal and Detective Constable Woh. Early in the evening of 11 December 1948, the patrol took control of the village. Fifty adult villagers and some children, including two of the appellants, were detained. The villagers, who were a range of ages, were not wearing uniforms and had no weapons. The men were separated from the women and children by the patrol. They were all detained in custody overnight in the kongsi huts. Interrogation of the villagers then took place, and there were simulated executions to frighten them, which caused trauma to some. A young man was shot dead by the patrol in the village that evening, and he has now been identified as Loh Kit Lin, the uncle of the second appellant. During the interrogations, the police officers secured information from one of the men, Cheung Hung, the first appellants father, about armed insurgents who occasionally visited the village to obtain food supplies. This information was passed to the patrol. On the morning of 12 December, Lim Tian Sui, who was the kepala (village headman), and the father of the third appellant, arrived in the village by lorry, which was searched and found to contain some rice. Lim Tian Sui was detained. The women and children and one traumatised man were then ordered onto the lorry. It was driven a little way from the kongsi huts. Those aboard were guarded by members of the patrol before being driven away from the plantation. The kongsi hut with 23 men was then unlocked by other members of the patrol. Within minutes all 23 were shot dead by the patrol. The kongsi huts were then burned down. The patrol then returned to its base. The immediate aftermath The first known document to describe the Killings was a confidential telegram sent by the High Commissioner, to the Colonial Office on 13 December 1948. It stated that 26 bandits have been shot and killed by police and military in the Kuala Kubu area of Selangor and that one bandit had been wounded and captured. Also on 13 December 1948, a journalist working for The Straits Times, Harry Miller, drove to the Scots Guards base at Kuala Kubu Bahru. He interviewed Sergeant Douglas who said that all those shot on 11 and 12 December 1948 had been trying to escape when about to be taken to the companys base for interrogation. He also said that a large quantity of ammunition had been found under a mattress. This account was published in The Straits Times on 13 December 1948 and, four days later, the General Officer Commanding Malaya, Major General Sir Charles Boucher, stated at a press conference that this was an extremely accurate description of what had occurred. On 17 December 1948, a Far Eastern Land Forces British Army Report on relevant incidents was compiled setting out the actions that had been taken to combat the insurgency. In relation to the incident in question it noted that a patrol had captured 26 male bandits who had been detained for a night in kongsi huts and that, following a successful ambush of a lorry, the bandits attempted mass escape. 25 killed. One recaptured. The official War Office report of 22 December 1948 repeated this summary, and referred to the event as a very successful action. This official account was not universally accepted. The families of those killed appealed for help to various organisations and the Chinese Consul General requested an inquiry, suggesting that the Killings were unjustified given that all the deceased were unarmed. Claims appeared in the Chinese press that there had been a massacre. On 22 December 1948, Mr Menzies stated publicly that all those killed were his employees with records of good conduct, and that there had been no strikes or other problems. On 24 December 1948, The Straits Times called for an inquiry. Sir Stafford Foster Sutton, the Attorney General of the Federation and a Federal counsel, Mr Shields, then conducted an investigation, which seems to have taken a matter of days. Although the file (together with many other files relating to law and order issues during the Malayan Emergency) was destroyed in 1966, Sir Stafford spoke about this inquiry in 1970 to the Metropolitan Police and to a BBC news programme. He said that the inquiry originated as a result of public disquiet and a complaint from the owner of the rubber estate where it occurred. Statements (not on oath) had been taken from each member of the patrol which were given to him by the police. No inquiries were made of inhabitants of the village for a very good reason, because they were most unlikely to talk and, if they did talk, to tell the truth. He had visited the scene, met the sergeants and the two detectives, examined the burnt down huts and found shell cases that had exploded during the fire and were illegally there. He had been told by the sergeants that they believed that the men they had arrested were bandits, and that, when those men had been taken for interrogation, they had made a dash for it and the Guards then opened fire. After cross examining the sergeants and the police officers who had accompanied the patrol, he said that he had been absolutely satisfied a bona fide mistake had been made. Accordingly, he had been satisfied of the bona fides of the patrol and there had not been anything that would have justified criminal proceedings and had reported his findings to the High Commissioner. It seems that there were separate investigations by the police and the army, although scant and contradictory information survives as regards the detail and the extent of these undertakings. For instance, Sir Charles Boucher told the press on 5 January 1949 that he had instigated an investigation immediately after he heard about the incident, but no details have been uncovered. The only contemporaneous statements that have been found are from Detective Sergeant Gopal, Detective Constable Chia Kam Woh, and two statements from Cheung Hung. Officers Gopal and Woh indicated that Cheung Hung had told them about visits by bandits in order to obtain food. Cheung Hung told the police that this was common knowledge but the villagers were afraid to inform the authorities. The officers stated that they separated Cheung Hung, and that they were in the area of the store when the 23 men were shot. Cheung Hung, who has given somewhat differing accounts over the years, indicated that he had been in a yam patch at the time of the shooting. He had not seen any attempted escape but instead the men were shot when they were being walked away from the huts. Part of a telegram headed Incident at Batang Kali from the High Commissioner, Sir Henry Gurney, to the Colonial Office dated 1 January 1949 has survived. It stated that the soldiers who had been posted with object of protecting the clearing from external attack did everything that it was possible for them to do to stop the escaping Chinese before resorting to force. It also pointed out that: [W]hen persons are picked up by the security forces under such circumstances until they are screened at headquarters it is impossible for the security forces to know whether they may be members of killer squads or to what extent they are involved. Furthermore although some of the killed were rubber tappers it is our experience that such persons are frequently rubber tappers part time and bandits the rest of the time and that their arms are normally hidden in the neighbourhood and not found with them. Moreover, we feel that it is most damaging to the morale of the security forces to feel that every action of theirs, after the event, is going to be examined with the most meticulous care. A further document from the High Commission headed Supplementary Statement was released to the local press on 3 January 1949, and published the following day in The Straits Times, and The Times in London. After setting out some background information, and explaining how some arms and ammunition had been discovered in the village, it went on to say this: [Some] Chinese men found in the clearing were placed in a room in one of the kongsi houses for the night, under guard. The following morning they were brought out of the room by two sentries who were on the verandah of the kongsi house in which the room was situated. The only other soldier in sight was the sergeant in command who was standing on the ground a little beyond the kongsi house, ready to receive the Chinese as they came off the verandah. When all the Chinese had reached the ground from the verandah, one of them shouted and they thereupon split up into three groups and made a dash for the three entrances to the jungle. There is no doubt that they were under the impression that the only troops that they had to compete with were the two soldiers on the verandah of the kongsi house and the sergeant. The attempted escape was obviously pre arranged because there was no hesitation in the formation of the three groups and the shout was no doubt the pre arranged signal for putting the plan into effect. The sergeant and the two soldiers on the verandah immediately shouted calling upon them to halt. They could not use their arms because to do so would have endangered the lives of their comrades who were posted out of sight but in the line of fire. The men in the three groups covering the entrances heard shouting but did not know what was happening until they saw the Chinese running through the bush and jungle past where they were posted. They thereupon shouted the Malay word for halt to which no attention was paid by the escaping Chinese. The men of the three groups gave chase, continuing calling upon them to halt and, as they failed to so, the soldiers opened fire. At a press conference on 5 January 1949, Sir Alec Newboult, Chief Secretary of the Federation of Malaya, said, I have no doubt at all that these men made an attempt to escape from legal custody, and having made that attempt they had to stand the consequences. He went on, Let us be absolutely fair with the security forces. The point at issue is that, in starting the attempt to escape, the men were warned and continued to make their escape and the patrol opened fire. Sir Charles Boucher added: I think the public should know that troops and police are trained never to open fire unless it is necessary, but when they have to fire, the fire is always intended to kill. It cannot be anything else. On 26 January 1949, the Colonial Secretary Mr Creech Jones gave a written answer to a Parliamentary Question about the incident. This stated: The Chinese in question were detained for interrogation under powers conferred by the Emergency Regulations. An inquiry into this incident was made by the civil authorities and, after careful consideration of the evidence and a personal visit to the place concerned, the Attorney General was satisfied that, had the Security Forces not opened fire, the suspect Chinese would have made good an attempt at escape which had been obviously pre arranged. A full statement was issued in Kuala Lumpur on 3 January. Demands were made for a public inquiry conducted by a High Court judge, but they were rejected. Events in 1969 and 1970 In late 1969, some 12 years after Malaysia achieved independence, one of the Scots guardsmen, William Cootes, provided a sworn statement to the newspaper, The People, which stated that the victims at Batang Kali had been massacred in cold blood. Sworn affidavits were thereafter taken from three other guardsmen who were part of the patrol that went to Batang Kali: Alan Tuppen, Robert Brownrigg and Victor Remedios. They alleged that the deceased had been massacred on the orders of the two sergeants on the patrol, and it was suggested by some of the deponents that they had been ordered to give the false explanation that the victims had been killed when trying to escape. A further guardsman, George Kydd (who did not provide a written statement) told a reporter on The People that the Killings were sheer bloody murder []. [T]hese people were shot down in cold blood. They were not running away. There was no reason to shoot them. In the next few days, two of the soldiers, Alan Tuppen and Victor Remedios, gave interviews on British national television and radio confirming an account of unlawful killing. Sir Stafford Foster Sutton was also interviewed on the BBC News. All of the transcripts are available. Sir Stafford repeatedly described the killings as a bona fide mistake and made it clear that anyone who knew anything about it at the time entirely agreed that it was a bona fide mistake. Alan Tuppen confirmed that in his own mind the killings were tantamount to murder. For their part, Sergeant Douglas (by then a Regimental Sergeant Major) and former Sergeant Hughes reiterated the account given in 1948 by Sergeant Douglas, that all those shot on 11 and 12 December 1948 had been trying to escape when about to be taken to the companys base for interrogation. An official of the Ministry of Defence was present when Sergeant Douglas was interviewed. He commented that the interview was absolutely fair and correct in all respects. A reporter from The People then interviewed Cheung Hung who was still living in Malaysia. He said that the troops had separated the women and children from the men, divided the men who did not attempt to escape into groups and shot them. The Straits Times interviewed one of the guides, Inche Jaffar bin Taib, who said that, shortly before the Killings took place, a sergeant told him not to look at the male detainees. After he had turned his back he heard a burst of gunfire, and when he turned round he saw dead bodies everywhere. The sergeant told him that he would be jailed if he breathed a word about what had happened. The UK government issued a press statement indicating that it was taking the matter very seriously. Internal memoranda noted that a three year limitation period prevented prosecutions under the Army Act 1861 but given the view was taken that prosecutions in the civilian courts remained a possibility, a decision on whether to institute criminal proceedings necessarily came before the government could resolve whether to hold an inquiry. The Director of Public Prosecutions, Sir Norman Skelhorn QC, received advice on 27 February 1970 from a prosecution lawyer, with which he and the Attorney General agreed, that the Metropolitan Police should investigate what had occurred. It was proposed that this inquiry into the facts was to include interviewing all the guardsmen, the police officers who accompanied the patrol, the interpreter and the sole survivor. Sergeants Douglas and Hughes were to be interviewed last. On 18 March 1970 the DPP informed the Ministry of Defence that he would extend the inquiry beyond the United Kingdom if he considered this to be a necessary step. On 13 April 1970 the Malaysian Government offered to assist the investigation. Responsibility for the investigation was given to the Metropolitan Police, and the lead officer, Detective Chief Superintendent Williams, contemplated taking two months to interview the guardsmen in the United Kingdom before providing an interim report to the DPP. If authority was given to pursue investigations in the Far East, he envisaged needing six weeks to interview 36 witnesses in Malaysia. He also had in mind the possibility of exhuming the bodies. The sergeants were to be interviewed as the last stage before he submitted his report to the DPP. He expected that the entire process would take approximately six months. Four guardsmen, William Cootes, Alan Tuppen, Robert Brownrigg and George Kydd, were interviewed under caution. They each admitted that Sergeant Hughes had ordered them to shoot the men, who had not attempted to escape, as suspected bandits or sympathisers. None of the guardsmen had taken the option that was offered of not participating. A further guardsman (whose record of interview is not available), Keith Wood, also admitted when interviewed that the men were murdered. Victor Remedios did not answer the officers questions, but did not withdraw his earlier admission of murder. Additionally, Robert Brownrigg and George Kydd said that they had been instructed by the army to provide the false explanation that the men had been trying to run away. Two lance corporals, George Porter and Roy Gorton, said that the men had been shot whilst attempting to escape. The sergeants were not interviewed because the inquiry was terminated. DCS Williams spoke to the two reporters and he was critical of their methods, including the fact that William Cootes had been paid 1,500 for his initial statement to The People, and the fact that it appeared that the journalists may have given incorrect information concerning the possibility of a prosecution. Meanwhile, in the spring of 1970, the High Commissioner in Kuala Lumpur and the Foreign and Commonwealth Office were expressing concern that the Malaysian Government may come under pressure to open their own inquiry or press HMG, that the investigation might revive local feeling, and cause political difficulties. A letter of 19 May 1970 from the High Commission to the FCO expressed the view that the presence and activities of an investigating team would be given close and embarrassing attention. It was considered extremely doubtful if a villagers recollections of an incident which happened 22 years ago could ever be accurate, especially as the terrain has since changed beyond recognition. The letter went on to state that We quite realise the political importance of allowing justice to be seen to be done over Batang Kali, but it is worth bearing the limitations in mind. On 2 June 1970 Mr P J Sullivan from South West Pacific Department at the FCO wrote to the office of the DPP. Having referred to the likely publicity that the arrival of a British police team in Malaysia would cause, especially if the team wished to take evidence in the area of Batang Kali itself, he expressed doubts about the reliability of any evidence which was given, in the light of the passage of time and also because of the possible incentive of compensation. On 12 June 1970 the DPP was provided by one of his officials with a minute which concluded: I am satisfied that on the evidence we have there is no prospect of criminal proceedings. But there are at least five persons who say this was murder. It seems to me inquiries must be pursued in Malaysia otherwise the inquiry will only be half done. Furthermore there are a number of witnesses out there who claim to have seen what took place, including Cheung Hung. The various statements by this man are inconsistent and we want to pin him down. It appears also that a number of persons who say they saw what happened (women on the lorry) could not have been in a position to do so. I feel that this should be cleared up. I am of the opinion that, if we do not go through to the bitter end, we will lay ourselves open to attack by the newspapers and by the anti military brigade. The DPPs endorsement of that minute was in these terms: I have nothing to add to my minute of 5/6/70. Having embarked on this inquiry, must we now go as far as we can? Perhaps however the Malaysian Government will refuse entry to the investigating team, which will save any further expenditure of time and money on this unrealistic inquiry. Following the General Election on 18 June 1970, the new Attorney General, Sir Peter Rawlinson QC, indicated at a meeting with the DPP on 26 June 1970 that it was unlikely that sufficient evidence would be obtained to support a prosecution and therefore the investigation should go no further. This decision was communicated to the Ministry of Defence by the DPP on 29 June 1970, with a fairly full explanation, which concluded that, in the light of the passage of time and the inconsistent statements which had been made: I am satisfied that the institution of criminal proceedings would not be justified on the evidence so far obtained. Further in my view the prospect of obtaining any sufficient additional evidence by further police investigation in Malaysia are so remote that this would not be warranted. Accordingly, I do not propose to ask the police to pursue the inquiry and the Attorney General agrees with my views. On 30 July 1970, DCS Williams produced a report on his investigation to date. It stated: Cootes, Tuppen (with solicitor), Brownrigg and Kydd admitted in statements, after caution, that murder had been committed. Woods, in the presence of a solicitor, verbally admitted that murder had been committed, after he had been cautioned. Remedios, in the presence of a solicitor, refused to comment on, or add anything to his original sworn statement. Porter and Gorton made statements denying the allegations. At the outset this matter was politically flavoured and it is patently clear that the decision to terminate inquiries in the middle of the investigation was due to a political change of view when the new Conservative Government came into office after the General Election of 18 June 1970. Meanwhile, the Ministry of Defence decided not to hold an inquiry into the Killings. Events from 1992 to 1997 The deaths at Batang Kali next gained significant public prominence when the BBC broadcast a documentary on 9 September 1992 about the Killings, entitled In Cold Blood. This was based on a range of materials, which included interviews with Cheung Hung and a number of other Malaysians who were related to the men who had been killed or who had been present in Batang Kali when these events occurred. This was the first time many of them had been interviewed. One of the officers involved in the 1970 Metropolitan Police investigation, Detective Sergeant Dowling, and three guardsmen who had not been on the patrol were also interviewed and some of the statements made during the 1970 police interviews with the guardsmen were read out. It was said they stood by their accounts but refused to appear. The Ministry of Defence declined an invitation to participate. In correspondence with the BBC, it simply confirmed the account given in 1948 and in 1949. On 15 September 1992, immediately following the broadcast, Ministers were briefed by Richard Suckling, a senior government legal adviser. The briefing described the BBC documentary. It noted that a fact which had not been referred to in the programme was the substantial conflict of evidence between the soldiers who had been present and had given statements. It also referred to the possible differences between what may have been thought to be acceptable in 1948 and in 1992. Following the broadcast, the Crown Prosecution Service reviewed whether any further steps should be taken. In a draft note of the review dated 26 March 1993, Jim England of the Services War Crimes Unit observed: What the documentary does show is that in 1970 there probably were a number of people with relevant information to give if the police had gone to Malaysia. Even though it now seems almost certain that Chong Fongs account is fictional, I do not consider that it would be fair to say that all the surviving villagers were inherently unreliable. It seems to me that they were never given an official opportunity to tell their side of the story due to fear of what they would say. However, Mr England said that he was certain in [his] own mind that it would be pointless now to re open this investigation, partly because if anyone was charged they would, in view not only of the long and what must be regarded as a consequentially prejudicial delay but also because the termination of inquiries in 1970, have an unassailable abuse of process argument so as to avoid conviction. It would appear that no consideration was given to holding an inquiry rather than pursuing a criminal prosecution. Meanwhile, on 8 July 1993, Foo Moi, the wife of one of the men who had been shot, and Cheung Hung, the first appellants father, presented a Petition to the Queen through the British Embassy in Kuala Lumpur requesting the British government to reopen the investigations, prosecute those responsible for the deaths and to pay compensation. No such action was taken and a telegram from the High Commission to the FCO of 7 February 1994 observed: we see no case for pushing ahead with an answer to the petition while air services and Bosnia remain such sensitive issues. Even if we were [put under pressure by the MCA or the Malaysian Government] we would be able to resist it by taking the line that a suitably thorough examination of the relevant papers in the UK was necessarily taking time. A letter from the High Commission to the FCO of 6 April 1994 commented: It remains in our interests to play this affair long I therefore recommend that the MCAs petition is submitted to the Queen as soon as possible. This would buy us a bit more time in which to consider the terms of our reply to the petition (I will telegraph separately with further advice on this). By April 1994 the Petition had been submitted to the Palace with a draft response which was described as essentially non committal, while not closing the door to further action if sufficient new evidence is forthcoming. In December 1994, the High Commissioner responded to the Malaysian Chinese Association who inquired as to the progress of the response to the Petition that he was looking into the matter. However, a response to the 1993 Petition was never forthcoming. Meanwhile, on 14 July 1993, the Royal Malaysian Police began investigating the Killings locally in response to a report of the massacre as a crime made that day by three surviving family members: Foo Moi, and the first appellants father and mother, Cheung Hung, and Tham Yong. The Malaysian Police took statements from them and a number of others who were either related to the men who had been killed or who had been in the village at the time, as well as three retired police officers. Contrary to his statement of 14 December 1948, Detective Constable Chia Kam Woh denied being present at Batang Kali on the day. Having been made aware of the petition and Royal Malaysian Police investigation, on 2 February 1994, Mr England sent his report on the 1970 Metropolitan Police Force evidence and the In Cold Blood documentary to the FCO. His covering letter stated: As you will appreciate, the role of the CPS is limited to assessing the quality of evidence and making decisions on the question of criminal proceedings. The Petition from the villagers raises other matters of compensation which are not within our remit. He also stated that no further action was envisaged: although this does not preclude you from asking the CPS to examine any further evidence which may emerge from present investigations in Malaysia so that your Ministers may be advised whether any grounds exist for requesting further investigations. The FCO replied on 15 March 1994 stating: I am very sorry that other events have prevented me from acknowledging before now the very helpful paper enclosed with your letter of 2 February. I copied it at the time to our High Commission in Kuala Lumpur. Their recommendation was that, since we were under no particular pressure from the Malaysians to produce an answer, we should not take further action on the Petition while certain sensitive issues in our relations with Malaysia remained unresolved. Events since then tend to reinforce that case, and I therefore propose to leave the papers on the file for the moment. I will reassess in due course. I will let you know before moving again. An interim Royal Malaysian Police report of 31 May 1995 concluded that further inquiries were necessary, including obtaining the views of the chief pathologist as to examining the bodies and taking statements from the Scots Guards. A request was made through Interpol for British help which was passed to the Metropolitan Police War Crimes Unit. This included a request for the names of the Scots Guards on the patrol. It took until 31 July 1996 to send the names. The addresses were then sought by the Royal Malaysia Police, but nothing further seems to have been supplied. Officers involved in the investigation planned to visit the United Kingdom to pursue their inquiries here. However, this never took place. The Royal Malaysia Police file was closed on 30 December 1997, it would appear due to a lack of evidence to support criminal charges. More recent events In 2008, a campaign group called the Action Committee Condemning the Batang Kali Massacre was formed. On 25 March that year it sent a second petition to the Queen seeking an apology and compensation. In October, the appellants solicitors wrote to the Foreign Secretary requesting a response to the petition. On 12 December 2008, a supplementary petition was presented seeking additional relief including a public inquiry. On 21 January 2009, the High Commissioner gave a response that was subsequently withdrawn following pre action correspondence from the appellants solicitors: In view of the findings of the two previous investigations that there was insufficient evidence to pursue prosecutions in this case, and in the absence of new evidence, regrettably we see no reason to re open or start a fresh investigation. A barrister, Dr Brendan McGurk, was then instructed to review the available material on the Killings for the respondents. On 21 August 2009, the appellants solicitors were sent a provisional decision based on this review refusing to establish an inquiry or to investigate. They were invited to comment. Before doing so, they secured access to view the police files that Dr McGurk had seen and to some of the CPS material. They provided copies of a book that had just been published about the killings, Slaughter and Deception at Batang Kali by Ian Ward, the former Daily Telegraph War Correspondent, and Norma Miraflor. With their representations, they forwarded material from the 1993 1997 Malaysian Police file that had been supplied to them by a journalist that had not been seen by Dr McGurk or the British authorities. They also made the respondents aware of the views of archaeologist Professor Sue Black from the Centre of Anatomy and Human Identification at the University of Dundee, as to the prospects of disinterment revealing new evidence and the extent of the process required. On 29 November 2010 the Treasury Solicitor wrote to the appellants solicitor communicating the respondents decision to refuse to hold an inquiry into the Killings, and setting out their reasons. The instant proceedings The instant proceedings were issued on 25 February 2011 by way of an application for judicial review. The Scots guardsmen involved in the patrol who were known to be alive and could be traced were served as interested parties but did not participate. Permission was granted on 31 August 2011 by Silber J. On 4 November 2011 the Treasury Solicitor sent a letter to the appellants solicitor stating that the respondents had reviewed and confirmed their decision not to hold an inquiry following a submission from officials addressing an argument concerning the adequacy of the previous investigations. Upon the appellants application for disclosure of documents by the Metropolitan Police, on 1 May 2012, Sir John Thomas P made an order stating: I cannot be satisfied that these documents are documents that must be disclosed, but the pragmatic solution to the issue is for the documents to be made available to the claimants solicitors, who can then apply to put those which are relevant (and only those) in due course before the court. The Divisional Court (Sir John Thomas P and Treacy J) dismissed the claim for reasons given in a judgment given on 4 September 2012 [2012] EWHC 2445 (Admin). The appellants appeal to the Court of Appeal was dismissed for reasons given in a judgment of the court (Maurice Kay, Rimer and Fulford LJJ) given on 19 March 2014 [2014] EWCA Civ 312, [2015] QB 57. The appellants now appeal to this court. The Jurisdiction issue The first issue which it is appropriate to address is whether the present claim is properly brought against the United Kingdom at all. That submission appears to apply to all three of the bases upon which the appellants rest their case, but it was principally developed in argument by reference to the first basis, article 2 of the Convention (article 2). In so far as the claim is brought under article 2, this issue is encapsulated in the question whether the appellants complaint relates to alleged failures by the United Kingdom to secure to everyone within [its] jurisdiction, within the meaning of article 1 of the Convention, any of the rights and freedoms defined in article 2, so as to make the United Kingdom potentially responsible for breach of the Convention Rights as incorporated into domestic law by the Human Rights Act 1998 (the 1998 Act). On this issue, I have read in draft the judgment of Lord Mance. I agree with his conclusion that, in so far as the respondents case is based on lack of jurisdiction, it should be rejected for the reasons which he gives. The appellants case based on article 2 of the Convention Introductory Article 2.1 provides that everyones right to life shall be protected by law and that no one shall be deprived of his life intentionally save pursuant to a court order. According to well established Strasbourg jurisprudence, this article has given rise to what is now recognised as a separate and autonomous duty to carry out an effective investigation into any death which occurs in suspicious circumstances see the Grand Chamber judgment in ilih v Slovenia (2009) 49 EHRR 996, para 159. The respondents in this case unsurprisingly do not argue that, at least if one ignores the fact that they occurred in 1948, the Killings would not fall within this principle. However, the respondents contend that the appellants claim, in so far as it is based on article 2, is barred for what may be characterised as temporal or procedural reasons. The respondents first argument has two strands and is based on the fact that the Killings occurred (i) before the Convention came into existence, and indeed (ii) before the 1998 Act came into force. Although the Strasbourg court has somewhat finessed the strict rule that the Convention cannot apply retrospectively, the respondents contend that the finessing cannot assist the appellants. The respondents second argument is that, even if the first argument is wrong, the appellants are too late, as their article 2 right (if any) to seek an inquiry is time barred. I shall take those arguments in turn. The contention that there is no right under the Convention The Killings took place in December 1948 and the Convention was only finally agreed in November 1950. In those circumstances, at any rate at first sight, it might be thought that no right, however fundamental or important, could arise under the Convention in relation to facts which occurred before the Convention came into force. Indeed, in accordance with article 28 of the Vienna Convention on the Law of Treaties 1969, that is the normal rule in relation to the application of the Convention see Blei v Croatia (2006) 43 EHRR 1038, paras 45 72 and ilih at para 140. However, the law on this aspect has been interpreted by the Strasbourg court, specifically in relation to the duty to investigate suspicious deaths, in what may be characterised as a more nuanced way. The law was developed in a number of cases of which ilih was of particular importance. In that case, as already mentioned, the Grand Chamber held in para 159 of its judgment that the duty to investigate suspicious deaths had evolved into a separate and autonomous duty on a state, which was a detachable obligation arising out of article 2 capable of binding the state even when the death took place before the [date when the Convention was binding on the state]. However, the guidance which the court then gave as to how it was to be decided whether that separate and autonomous duty had arisen was subject to substantial criticism (not least in the concurring opinion of Judge Lorenzen and the dissenting opinion of Judges Bratza and Turmen in ilih itself). No doubt it was at least in part for that reason that the law on the point was relatively recently clarified by the Grand Chamber in Janowiec v Russia (2013) 58 EHRR 792, from which almost all the applicable principles can be taken for present purposes. In para 128 of Janowiec, the Grand Chamber confirmed that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (the critical date). The issue in this case which requires consideration of judgments other than Janowiec is whether the critical date is the date on which the state in question signed up to the Convention or the date on which that state gave its citizens the right to petition the Strasbourg court in relation to any alleged infringement of their Convention rights. Apart from that, however, as the Grand Chamber explained in Janowiec, Strasbourg jurisprudence has established that the general principle that the Convention is not retrospective does not necessarily mean that a state has no duty to investigate a suspicious death simply because it occurred before the critical date. As the Grand Chamber put it in para 141 of Janowiec, in such a case, there are three relevant applicable requirements: First, where the death occurred before the critical date, the courts temporal jurisdiction will extend only to the procedural acts or omissions in the period subsequent to that date. Secondly, the procedural obligation will come into effect only if there was a genuine connection between the death as the triggering event and the entry into force of the Convention. Thirdly, a connection which is not genuine may nonetheless be sufficient to establish the courts jurisdiction if it is needed to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective way. In other words, in the case of a death before the critical date, two criteria must be satisfied before the article 2 investigation duty can arise, namely (i) relevant acts or omissions after the critical date, and (ii) a genuine connection between the death and the critical date. However the second criterion may be finessed where it is necessary to underpin the underlying values of the Convention. Turning to the first criterion, on the face of it at any rate, the appellants have, at the very least, a powerful case for saying that there have in this case been relevant acts and omissions since the critical date. The clearest basis for this contention arises from the information that came to light in the period 1969 1970, which, on any view, was after the critical date. Until the sworn statement of William Cootes was published in The People in late 1969, there was no specific evidence, at any rate in the public domain, from anyone in the patrol that the Killings had been unlawful. In the ensuing months further formal and informal statements to the same effect were made by other members of the patrol. At para 144 of its judgment in Janowiec, the Grand Chamber explained that a relevant omission would occur if no investigation had occurred and: a plausible, credible allegation, piece of evidence or item of information comes to light which is relevant to the identification and eventual prosecution or punishment of those responsible. Should new material emerge in the post entry into force period and should it be sufficiently weighty and compelling to warrant a new round of proceedings, the court will have to satisfy itself that the respondent state has discharged its procedural obligation under article 2 in a manner compatible with the principles enunciated in its case law. In the light of this approach, it appears to me that the appellants have established that the first criterion identified in para 141 of Janowiec is satisfied. The crucial components of my reasoning are that (i) prior to 1970, there had been no prior full or public investigation of the Killings, (ii) until 1969, there had been no publicly available evidence from any member of the patrol to suggest that the Killings had been unlawful, (iii) the evidence which first came to light in late 1969 and early 1970 plainly suggested that the Killings were unlawful, and (iv) that evidence appears to have been weighty and compelling, although by no means conclusive in the light of the other evidence. I turn to the second criterion identified in para 141 of Janowiec, the genuine connection requirement. In that connection, the Grand Chamber said this at para 146: [T]he lapse of time between the triggering event and the critical date must remain reasonably short if it is to comply with the genuine connection standard. Although there are no apparent legal criteria by which the absolute limit on the duration of that period may be defined, it should not exceed ten years. Even if, in exceptional circumstances, it may be justified to extend the time limit further into the past, it should be done on condition that the requirements of the Convention values test have been met. It is in relation to this issue that it is necessary to look outside Janowiec in order to resolve a centrally important dispute between the parties, namely whether, for this purpose, the critical date, from which the ten years referred to in para 146 of Janowiec runs back, is (i) the date on which the Convention came into force in the relevant territory, or (ii) the date on which the relevant state first recognised the right of every individual citizen to petition the Strasbourg court in relation to alleged infringements of their Convention rights (the right to petition). The appellants argue for date (i), whereas the respondents contend that date (ii) is correct (although they did not take this point in the courts below, where they accepted what is now the appellants case on this issue). The date when the Convention came into force in the United Kingdom was 3 September 1953, although, if the appellants are right, the more relevant date would very probably be that on which the UK extended the application of the Convention to the Federation of Malaya, 23 October 1953. It does not matter which is correct for present purposes, as the Killings took place less than ten years before either date. On the other hand, if the critical date is that on which the United Kingdom first recognised the right to petition, it would be 14 January 1966, as that was the date on which the UK accorded the right to its citizens to petition the Strasbourg court in relation to any act or decision occurring or any facts or events arising subsequently to the 13 January 1966. If that is the correct date, then the appellants must fail as the Killings occurred considerably more than ten years before that date. At first sight, this point may appear to have been disposed of by the Grand Chamber in Janowiec, given the definition of critical date at para 128 as the date of the entry into force of the Convention with respect to that Party. However, that statement was made in a case where the Party, ie the state concerned, Russia, had accorded the right to petition on the same date as it acceded to the Convention. It is therefore plainly not dispositive of the issue. In my view, the position is made clear in two Grand Chamber judgments in 2009. In ilih, para 140, the Grand Chamber said this: The court reiterates that the provisions of the Convention do not bind a contracting party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that party or, as the case may be, prior to the entry into force of Protocol No 11, before the date on which the respondent party recognised the right of individual petition, when this recognition was still optional (the critical date). This is an established principle in the courts case law based on the general rule of international law embodied in article 28 of the Vienna Convention (emphasis added). It is very hard to accept the appellants submission that the reference in that passage to the date of the right to petition was an oversight or mistake. This passage is also said by the appellants to be inconsistent with what the Grand Chamber had said in para 70 of Blei. I do not agree. First, that paragraph was well in the courts mind in ilih, as it was specifically cited to support what was said in para 140. Secondly, para 70 of Blei is expressed in the negative: it merely says that a contracting party cannot be liable in respect of any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that party. That is not the same thing as saying that a contracting party is always liable in respect of any act or fact which took place, or any situation which only ceased to exist, after that date. Further, if the Grand Chamber in the subsequent decision in Janowiec had considered that what was said in para 140 of ilih was wrong, it would surely have said so. In addition, there is Varnava v Turkey (Application Nos 16064 16066/90 and 16068 16073/90), (unreported) given 18 September 2009, which was concerned with Turkeys alleged failure to investigate the disappearance of individuals in Northern Cyprus in 1974. Turkey had ratified the Convention in 1954, but had only recognised the right of petition in 1987. The Grand Chamber at para 133 said that the court is not competent to examine any complaints by these applicants against Turkey so far as the alleged violations are based on facts having occurred before January 1987. Two points can be made, about that decision. First, the claims nonetheless succeeded, as the court held that, unlike killings, disappearances carried with them an ongoing obligation to investigate (see para 148, and the distinction was confirmed in Janowiec at para 134). Secondly, there was no argument in Varnava based on the contention that there had been any relevant acts or omissions on the part of Turkey since 1974. However, it does not appear to me that either of those points detract from the point that the reasoning of the Grand Chamber in Varnava is difficult to reconcile with the appellants case on the critical date issue. In addition to these two Grand Chamber judgments, there are the admissibility decisions of the First Section of the Court in akir v Cyprus (Application No 7864/06), (unreported) given 29 April 2010 and of the Third Section in Dorado v Spain (Application No 30141/09), (unreported) given 27 March 2010, and the judgment of the First Section in Jeli v Croatia (Application No 57856/11) (unreported) given 12 June 2014. Like Varnava, akir was concerned with events in Cyprus in 1974, but, unlike Varnava and like this case, it involved allegations of failure to investigate allegedly unlawful killings rather than disappearances. At p 5, the court repeated the Grand Chambers formulation of the relevant law in para 140 of ilih and para130 of Varnava, and then pointed out that the killings in question occurred more than 14 years before Cyprus accorded the right to petition on 1 January 1989. It is fair to say that the decision that the claim in that case was inadmissible was not specifically based on the point that the killings occurred more than ten years before the date on which the right to petition was granted by Cyprus. However, the essential point is that the court relied on more than one occasion on the proposition that the critical date was that date, rather than the date on which Cyprus acceded to the Convention (see at pp 6, 7 and 8). In Dorado at para 32, the court stated that the provisions of the Convention do not bind a contracting party in relation to any act or omission which took place before the date of the entry into force of the Convention in respect of that party. That is, strictly speaking, neutral, as it is not inconsistent with the respondents case here. In any event, the application was inadmissible on any view. In Jeli, the court discussed Varnava, ilih and Janowiec, and, at para 55, acknowledged that in ilih, the proximity in time of the death of the applicants son to the acceptance by Slovenia of the right of individual petition established the temporal competence of the court in respect of the procedural obligation under article 2 of the Convention. Quite apart from Strasbourg jurisprudence, I consider that the respondents contention as to the critical date accords better with principle. The rule that one cannot, at least normally, go back more than ten years relates to the jurisdiction of the Strasbourg court, as is clear from the way in which the court expressed itself in para 144 in Janowiec. One would therefore expect it to be linked to the date on which the courts jurisdiction could be expected to be invoked. Further, the rule is to a substantial extent based on practicalities, and it would therefore be rather odd if its applicability was related to the date on which the Convention first applied rather than the date on which it could first be invoked. Finally, given that time starts to run under article 35 of the Convention against a citizens right to complain to the Strasbourg court from the date on which the right arose (as to which see the next section but one of this judgment), it would seem consistent if the ten year rule applied in the same way. In these circumstances, I conclude that, subject to the third criterion identified in para 141 of Janowiec, involving Convention values, the present claim does not meet the genuine connection requirement in the second criterion. The third criterion was considered by the Grand Chamber in paras 149 151 of Janowiec, and, while it was accepted that it applied where the triggering event was of a larger dimension than an ordinary criminal offence, the court concluded that a Contracting Party cannot be held responsible under the Convention for not investigating even the most serious crimes under international law if they predated the Convention. Accordingly, the third criterion cannot assist the appellants. It therefore follows that, in so far as the appellants claim is based on article 2, it fails because the Strasbourg court would rule it inadmissible as the Killings occurred more than ten years before UK citizens had the right to petition the Strasbourg court. Although Lady Hale and Lord Kerr reach the same conclusion in relation to the appellants claim based on article 2, they do so for somewhat different reasons. Lady Hale takes a different view of the critical date, as, unlike me, she regards the Strasbourg jurisprudence as unclear and considers that logic favours the date on which the Convention came into force. Lord Kerr considers that the proper approach to this issue is somewhat more nuanced than I do. I readily understand the attraction of his approach, but in my view it is important that parties know where they are in this area of jurisprudence, and it seems to me that his approach would leave the law being in a somewhat unpredictable state. As Lady Hale rightly says, we do not have to follow Strasbourg jurisprudence slavishly, but I would be reluctant to depart from it on this point in this appeal for two reasons. First, the appeal was argued on both sides on the basis that we should follow Strasbourg jurisprudence on this issue. Secondly, this is a topic on which clarity and consistency is highly desirable, and, unless the guidance from Strasbourg seemed unclear, incoherent or unworkable, I would be reluctant not to follow and apply it. Having permitted a degree of retroactivity, I believe that the Strasbourg court has rightly imposed some pretty clear rules with a view to ensuring a degree of clarity and consistency in this area. Particularly in the absence of any invitation to do so, I consider that, at least in this case, this is an area on which we should follow, but go no further than Strasbourg jurisprudence. Although I have concluded that the claim under article 2 should fail for the reason summarised in para 89 above, it is worth examining, albeit not with a detailed exegesis, the other two grounds raised against the appellants article 2 case by the respondents. The contention that there is no right under the 1998 Act The respondents contend that, even if (contrary to the conclusion which I have reached) the Strasbourg court would have held that the appellants would have had a valid claim for an inquiry into the Killings under article 2, their claim under that head should be dismissed because a UK court would have no jurisdiction to entertain it. This contention is based on the proposition that the jurisdiction of a UK court to entertain the claim arises not (at least directly) from the Convention, but from the 1998 Act, and, as that Act only took effect on 2 October 2000, it cannot be invoked in order to give the court jurisdiction in respect of an event which occurred before that date. At least on the face of it, that seems a very powerful contention. It is clear from section 22(4) that the 1998 Act was not intended to have retrospective effect. And the contention is supported by opinions given by all five members the House of Lords in In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, a case concerned with the duty to hold an inquiry or inquest into a suspicious death: see paras 20 23, 48, 67, 79 81 and 88 89 per Lord Nicholls, Lord Steyn, Lord Hoffmann, Lord Rodger and Lord Brown respectively. This, Lord Hoffmann explained that the House of Lords had decided on a number of occasions that the [1998] Act was not retrospective, and that accordingly there was, at least domestically, no ancillary right to an investigation of [a] death [of] a person who died before the Act came into force. However, in the light of the Grand Chamber judgment in ilih, some members of this court adopted a somewhat modified position in the subsequent case of In re McCaughey (Northern Ireland Human Rights Commission intervening) [2011] UKSC 20, [2012] 1 AC 725. In that case, by a majority of six to one, the Supreme Court held that, at least where there had been a decision to hold an inquest into a death which had occurred before 2 October 2000, the 1998 Act could be invoked to require the inquest to comply in all procedural aspects with the requirements of the Convention. (And I can see no reason why the same reasoning would not apply where the decision was to hold an inquiry into a death which had occurred before 2 October 2000.) However, Lord Phillips went a little further in McCaughey at paras 61 63, where he indicated that, if in a particular case the Strasbourg court would hold that there was, after 1 October 2000 an article 2 obligation to investigate a suspicious death before that date, then, contrary to the conclusion in McKerr, he would have been inclined to hold that that obligation would also arise in domestic law under the 1998 Act. While he found the reasoning in ilih difficult to understand (para 46), he seems to have formed the opinion that it would probably justify departing from McKerr, although he did not express a concluded view. Lord Kerr (who at paras 216 219 was also critical of the reasoning in ilih) and Lord Dyson both appear to have concluded that the effect of the Grand Chambers reasoning in ilih was that the conclusion reached in McKerr was no longer sound, and that, if the Strasbourg court would hold that the UK had an article 2 duty after 1 October 2000 to investigate a death before that date, then that duty would also arise domestically under the 1998 Act see paras 110 114 and 132 137 respectively. Lord Hope (who at para 73 was similarly unhappy about the lack of clarity of the guidance in ilih) took a different view, and at para 75 said that he saw no reason to disagree with the views expressed in McKerr. He explained in the following paragraphs that it was only because there had been a decision to have an inquest in that case that the requirements of article 2 could be invoked. Lord Rodger of Earlsferry, who dissented, certainly favoured following McKerr. Given that the issue did not need to be determined, neither Baroness Hale nor Lord Brown addressed the question whether the reasoning in McKerr remained good law, although they proceeded on the assumption that it did. In the light of this rather unsatisfactory state of affairs, there would be much to be said for our deciding the issue of whether McKerr remains good law on this point. However, given that it is unnecessary to resolve that issue in order to determine this appeal, we ought not to decide it unless we have reached a clear and unanimous position on it. We have not. On the one hand, the respondents case is supported by the unanimous decision of a five judge court in McKerr, whose ratio is clear and simple to apply, but it could lead to undesirable conflicts between domestic and Strasbourg jurisprudence. On the other hand, the appellants case derives significant support from two, and arguably three, of the judgments in the subsequent seven judge court in McCaughey, and, while it involves applying Strasbourg jurisprudence which has been criticised for lack of clarity, it would ensure that domestic and Strasbourg jurisprudence march together. Accordingly, I would leave open the question whether, if the Strasbourg court would have held that the appellants were entitled to seek an investigation into the Killings under article 2, a UK court would have been bound to order an inquiry pursuant to the 1998 Act. The contention that the appellants article 2 claim is out of time The respondents case that the appellants article 2 claims are in any event brought too late rests on article 35 of the Convention and section 7(5) of the 1998 Act. Under article 35, the Strasbourg court only has jurisdiction in a case where an application is brought after all domestic remedies have been exhausted and within a period of six months from the date on which a final decision was taken. Under section 7(5), a complaint of infringement under the 1998 Act must normally be brought within one year beginning with the date on which the act complained of took place. For present purposes, it does not matter which of these time limits apply or whether both of them do. However, I am inclined to think that only section 7(5) applies, as it is solely the jurisdiction of the domestic court which the appellants are seeking to invoke, even though their case inevitably relies heavily on Strasbourg jurisprudence. The appellants contend that time only started to run with the decision of 29 November 2010 to refuse an inquiry, and if that is right, the instant application would plainly have been in time. The respondents primarily contend that time started to run in 1970, when the vital fact that a number of the soldiers in the patrol stated that the Killings were unlawful first became publicly known, and it was decided not to hold an inquiry. Alternatively, the respondents say that time started to run by 1997 when it became clear that, despite the renewed publicity in the television film shown in 1992 and the presentation of a petition for an inquiry in 1993, there would be no inquiry. In Varnava at para 162, the Grand Chamber said that, in a case of a suspicious death, [t]he lack of progress or ineffectiveness of an investigation will generally be more readily apparent, and, [a]ccordingly, the requirements of expedition may require an applicant to bring such a case before Strasbourg within a matter of months, or at most, depending on the circumstances, a very few years after events. At para 158, the Grand Chamber also made the point that where a death has occurred, applicant relatives are expected to take steps to keep track of the investigations progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation. However, as the appellants contend, there are observations from the Strasbourg court that the article 2 duty to hold an investigation can arise as a result of fresh evidence. Indeed, that point arose in the Strasbourg courts judgment in McKerr v United Kingdom (2002) 34 EHRR 553, which was a precursor to McKerr. The reasoning in McKerr v United Kingdom was cited in the admissibility decision in Hackett v United Kingdom (Application No 34698/04), (unreported) given 10 May 2005, where the Fourth Section said at p 5 that later events or circumstances may arise which cast doubt on the effectiveness of the original investigation and trial or which raise new or wider issues and an obligation may arise for further investigations to be pursued. To similar effect, in Brecknell v United Kingdom (2007) 46 EHRR 957, para 66, the Strasbourg court said that it may be that sometime later, information purportedly casting new light on the circumstances of the death comes into the public domain and that [t]he issue then arises as to whether, and in what form, the procedural obligation to investigate is revived. It then gave examples including deliberate concealment of evidence which only subsequently comes to light, or later items of evidence which cast doubt on the effectiveness of the original investigation and trial. However in para 70 the court accepted that it was not right to say that any assertion or allegation can trigger a fresh investigative obligation under article 2, but emphasised that state authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further. Despite their reliance on these cases, and despite the views of Lord Kerr to the contrary, I would reject the appellants argument that there were events or revelations occurring after 1970, and, even more, after 1997, which justify the argument that, in effect, their article 2 right to an investigation into the Killings revived, and could be pursued in 2009. The respondents realistically accept that the new evidence which came to light in 1969 and 1970 was of such significance that it revived such article 2 right to an investigation into the Killings as the appellants may have had. As already explained, that evidence for the first time involved clear and public statements from soldiers involved with the Killings which cast serious doubt on the correctness of the consistent public position of the UK government that the Killings had been lawful. The new evidence was a classic example of the type of new information which the courts in Brecknell and Hackett would have had in mind as justifying an investigation if none had been held before, or even, perhaps, if one had been held before. However, the same cannot be said about the evidence or information which came out subsequent to 1970, particularly when one bears in mind that the matter must primarily be assessed by reference to the evidence available to the applicant concerned. The only arguably significant new evidence which was available to the appellants after 1970 was (i) in the contents of the 1992 television programme In Cold Blood and (ii) in the 2009 book, Slaughter and Deception at Batang Kali and (iii) the contents of some further statements. Both the programme and the book gave the Killings some publicity and no doubt caused many people to undergo feelings of outrage and concern. However, although they each contained some new evidence in the form of, or as a result of, interviews with relatives of the victims of the Killings, neither the television programme nor the book contained much new revelatory evidence over and above that which had been available in 1970. The same thing may be said of any statements which were taken after 1970. In other words, any item of evidence which could be said to have been new after 1970 did not really add anything to the basic point, which had become quite apparent in 1970, namely that there were considerable reasons for doubting whether the official UK government line on the Killings was correct, and that there were strong grounds which suggested that the Killings were unlawful. As for any further investigations carried out in the three or four years following the broadcasting of the television programme, the same may be said about them: they did not take matters further in terms of revelatory information. Similarly, the investigations in 2008/2009 involved little more than reviewing information which had long been available. In these circumstances, although it may seem somewhat harsh on the facts of this case, I am of the view that, if the appellants case, in so far as it is properly based on article 2, were held to have been brought within time, it would make the strict time limits in section 7(5) and in article 35 something of a paper tiger in many cases where there is a claim that a death should be investigated. I would therefore hold that even if, contrary to my view, the appellants case would otherwise be made out under article 2, it would still have to be rejected on the ground that it has been brought too late. It is right to add that a further argument which was touched on in oral submissions, but not developed in much detail, is that, as the purpose of the proposed inquiry is, at least in the main, to establish historical truth, the appellants cannot rely on article 2. In Janowiec at para 143, the Grand Chamber observed that the obligation to conduct investigations under articles 2 and 3 is in connection with criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party, not other types of inquiries that may be carried out for other purposes, such as establishing a historical truth. There is obvious force in the point that an inquiry after 2010 into events in 1948 must at least to a substantial extent be to establish the truth, and it is unlikely that any criminal, civil, administrative or disciplinary proceedings would result even if it was concluded that the Killings amounted to a war crime. However, as the point was not debated very much, and as it is unnecessary to rule on it, I shall say no more about it (although a similar point arises in connection with the common law claim see para 132 below). The appellants case based on customary international law Introductory The second basis for the appellants claim for an inquiry into the Killings is embodied in the argument that customary international law requires the UK government to investigate the Killings, particularly in the light of the evidence now available to support the notion that they were unlawful and may have amounted to a war crime, and that the common law would recognise, and give effect to, this aspect of international law. I would reject that contention for two reasons. First, the cases and textbooks to which we have been taken do not establish that, by 1948, when the Killings occurred, international law had developed to the extent of requiring a formal public investigation into a suspicious death, even if there were strong reasons for believing that they constituted a war crime. Secondly, and quite apart from that, even if international law required such an investigation, the requirement cannot be implied into the common law. Customary international law So far as my first reason is concerned, it appears to be common ground that it is only within the past 25 years that international law recognised a duty on states to carry out formal investigations into at least some deaths for which they were responsible and which may well have been unlawful. Thus, the earliest document to which the appellants have made reference in this connection is in UN General Assembly Resolution 60/147 of 16 December 2005 on The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Article 3(b) provides that [t]he obligation to ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to [i]nvestigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law. The first case in which the Strasbourg court suggested that there was such a duty was in 1995 in McCann v United Kingdom (1995) 21 EHRR 97. And, as the respondents point out, Lord Steyn in McKerr at para 52, suggested that it was probably unrealistic to suggest that what he called the procedural obligation, namely the duty to investigate unlawful deaths was already part of customary international law in 1982. However, the appellants argue that, given that it is now part of customary international law that suspected unlawful killings, and in particular war crimes, should be formally investigated, the fact that the Killings took place before this was part of customary international law no longer presents them with a problem. In the absence of any treaty provisions, clear case law or authoritative academic support for this proposition, I would reject that argument. The appellants argument thus involves a fresh duty being imposed on a state, sometime between 1990 and 2005 by customary international law, to investigate any war crime, indeed any suspicious death, which amounts to a violation of human rights law or of humanitarian law, which may have occurred within its jurisdiction in the past. I regard it as unlikely that such a duty has been imposed by customary international law, but, even if it has been, it must be subject to a cut off date. Otherwise, the duty would extend to deaths which occurred literally centuries ago. In the unlikely event that a fresh retrospective duty was imposed sometime after 1995, it seems to me that the furthest that such a duty could go would be ten years back which would be an unprincipled but arguably practical solution, which has the merit of having been adopted by the Strasbourg court, as already explained. On any view, I regard it as inconceivable that any such duty could be treated as retrospective to events which occurred more than 40 years earlier, or could be revived by reference to events which took place more than 20 years before that. Incorporation into the common law Even if this conclusion turned out to be wrong, and it is now a principle of customary international law that a state must investigate deaths such as the Killings, even though they occurred as long ago as 1948, it would not be right to incorporate that principle into the common law. Parliament has expressly provided for investigations into deaths (i) through the coroners courts in the Coroners and Justices Act 2009, and its predecessors, and (ii) through inquiries in the 2005 Act, and its subject specific predecessor statutes. It has also effectively legislated in relation to investigations into suspicious deaths through the incorporation of article 2 in the 1998 Act. In those circumstances, it appears to be quite inappropriate for the courts to take it onto themselves, through the guise of developing the common law, to impose a further duty to hold an inquiry, particularly when it would be a duty which has such potentially wide and uncertain ramifications, given that it would appear to apply to deaths which had occurred many decades even possibly centuries ago. This conclusion receives strong support from four of the five opinions given in McKerr, whose authority on this point has in no way been diminished by any of the judgments in McCaughey. At para 30, Lord Nicholls, with whom Lord Rodger agreed, said that he had grave reservations about the appropriateness of the common law now fashioning a free standing positive obligation of this far reaching character, namely a common law obligation to arrange for an effective investigation into [a suspicious] death, simply because it was required by article 2. However, he specifically rejected the notion of such a common law obligation on the ground that it would create an overriding common law obligation on the state, corresponding to article 2 in an area of the law for which Parliament has long legislated, namely coroners inquests. At para 71, Lord Hoffmann, with whom Lord Rodger also agreed, as did Lord Brown, rejected the notion that there was a broad common law principle equivalent to article 2 against which the whole of the complex set of rules which governed the earlier investigations can be tested and by which they can be found wanting and be ordered to be rerun under different rules. He added that the very notion of such a principle, capable of overriding detailed statutory and common law rules, is alien to the traditions of the common law. Lord Brown also rejected the notion that the court should condemn as contrary to the common law a series of procedures long since properly concluded in accordance with well established domestic laws and never challenged save by reference to a substantially later European Court decision. Lord Steyns position was a little different. At para 51, he referred to the fact that it would be necessary to take into account the fact that inquests were dealt with by statute. However, he considered that it was inappropriate for the common law to extend the law on investigating suspicious deaths given that the right to life is comprehensively protected under article 2 as incorporated in our law by the 1998 Act. However, he did then suggest that [t]he impact of evolving customary international law on our domestic legal system is a subject of increasing importance. However, the views of the other four Lords of Appeal were clear, and strongly supportive of the conclusion I have reached on this issue. In these circumstances, I would reject the contention that customary international law, through the medium of the common law, requires the UK government to hold an inquiry into the Killings. I also agree with the more general remarks made by Lord Mance in paras 144 151 of his judgment in connection with the extent to which the common law incorporates principles of customary international law. I should add that it may well be that the appellants argument on this basis should also be rejected on the ground of delay: the issue was briefly canvassed in the respondents written case, but it did not feature significantly in oral argument, and it is unnecessary to rule on it. The appellants case based on common law Introductory The appellants final point is that, given that the respondents had a discretion under section 1 of the 2005 Act as to whether to order an inquiry into the Killings, the court should decide that they should have ordered an inquiry, and they should now be directed to do so. In their first and principal decision letter, that of 29 November 2010, the respondents explained why they had decided not to order an inquiry into the Killings. In summary form, this letter made the following points: a) Under section 2 of the 2005 Act an inquiry was not permitted to determine criminal or civil liability; b) Establishing the truth is more likely to be important in relation to recent events; c) The Killings took place against a different legal backdrop, both domestically and internationally, and any conclusions about the training and command structure of the Scots Guards in 1948 were unlikely to be of practical value today, unlike other recent public inquiries into suspicious deaths; d) Although the documentary burden would probably be relatively light, collecting evidence in Malaysia was likely to be costly and there would be other running costs; e) An inquiry would face obvious difficulties as there was a conflict of evidence, those directly involved had mostly died, and the survivors were in their 80s, and witnesses would have difficulty in recalling events over 60 years ago; f) An inquiry would, as the appellants contended, need to consider the extent to which race was a factor in the Killings and subsequent events, but any conclusion that those events were tainted by race prejudice would be unlikely to assist in eliminating discrimination now; g) An investigation could be good for race relations but internal Malaysian relations are primarily for the Malaysian Government and any possible benefit to UK Malaysian race relations was not a sufficient basis for the holding of an inquiry; h) There was no reliance on the sufficiency of any previous criminal investigations, or the availability of civil remedies. The subsequent letter of 4 November 2011 was written following the respondents consideration of further arguments from the appellants solicitor, largely arguing that an inquiry was required to investigate the shortcomings of previous investigations. The respondents considered that the inadequacies of the previous investigations were not themselves sufficient reason to hold an inquiry now. Apart from reiterating many of the points in the earlier letter, the respondents pointed out that inquiring into the earlier investigations would involve yet more expense, and added that it was doubtful whether much light could be thrown on the earlier investigations, given how long ago they had been undertaken. The appellants argue that, although the respondents had a discretion under section 1 of the 2005 Act as to whether to order an inquiry in 2010/2011 into the Killings (and the subsequent events), the discretion is subject, in principle, to challenge in court, and that, on the facts of this case, the decision in question was wrong in law and should accordingly be quashed. There is no more fundamental aspect of the rule of law than that of judicial review of executive decisions or actions. Where a member of the executive, such as the respondents in this case, is given a statutory discretion to take a particular course or action, such as ordering an inquiry under section 1 of the 2005 Act, the court has jurisdiction to overrule or quash the exercise of that discretion. However, the exercise of that jurisdiction is circumscribed by very well established principles, which are based on the self evident propositions that the member of the executive is the primary decision maker, and that he or she will often be more fully informed and advised than a judge. The area covered by judicial review is so great that it is impossible to be exhaustive, but the normal principle is that an executive decision can only be overruled by a court if (i) it was made in excess of jurisdiction, (ii) it was effected for an improper motive, (iii) it was an irrational decision, or, as it is sometimes put, a decision which no rational person in the position of the decision maker could have taken, or (iv) the decision maker took into account irrelevant matters or failed to take into account relevant matters. An attack on an executive decision based on such grounds is often known as a Wednesbury challenge (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). If one or more of these grounds (which often overlap to some extent) is or are satisfied, the court may (but need not in every case) quash the decision. If none of these grounds is satisfied, then the decision will almost always stand. The argument based on rationality In what was an impressive and otherwise full judgment, the Court of Appeal gave this argument of the appellants very short shrift, saying at [2015] QB 57, para 118: The case for the claimants is that the reasoning set out in the two decision letters cannot survive a Wednesbury challenge. We totally disagree. We are satisfied that the Secretaries of State considered everything which they were required to consider; did not have regard to any irrelevant considerations; and reached rational decisions which were open to them. Indeed, when considered in the domestic legal context of discretion, we do not think that any other Secretaries of State would have been likely to reach a different conclusion at this stage. With the exception of the last sentence of that paragraph (as to which I would prefer to express no opinion), I agree with that analysis. The respondents clearly considered the request for an inquiry seriously and rejected it for reasons which are individually defensible and relevant, and which cumulatively render it impossible to characterise their conclusion as unreasonable, let alone irrational. There is no suggestion that the decision not to hold an inquiry was tainted in any other way, and accordingly, applying classic judicial review principles, I consider that the decision cannot be impugned. The appellants point out that there has been no quantification of the likely cost of an inquiry, but that does not meet the point that it will clearly cost a significant amount of money, especially bearing in mind the likelihood of live evidence and argument, visits to Malaysia, and exhuming and examining the bodies of the victims. Indeed, I strongly suspect that preparing a budget for such an enterprise would be difficult and the result very unreliable. The appellants point out in this connection that some preliminary work has been done through previous investigations, but that appears to us to cut both ways: it may mean that some preliminary investigations have been made, it also means that there will be more material to process, to compare with other evidence, and to put to witnesses. The appellants also suggest that the inquiry would have little difficulty in reaching a conclusion that the Killings were unlawful, but, as the Divisional Court said at para 142, it is no longer permissible to conclude on the evidence available at the present time that the 24 men were shot when trying to escape. Equally, as the court immediately went on to say, in the light of the evidence which has come to light since 1969, [n]or can the conclusion now be reached that the 24 men were deliberately executed. There is evidence that supports both accounts. The argument based on proportionality The appellants raise the argument that the time has come to reconsider the basis on which the courts review decisions of the executive, and in particular that the traditional Wednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality. The possibility of such a change was judicially canvassed for the first time in this jurisdiction by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410E, and it has been mentioned by various judges in a number of subsequent cases often with some enthusiasm, for instance by Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 51. In other words, the appellants contend that the four stage test identified by Lord Sumption and Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, paras 20 and 74 should now be applied in place of rationality in all domestic judicial review cases. It would not be appropriate for a five Justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very wide in applicable scope. Accordingly, if a proportionality challenge to the refusal to hold an inquiry would succeed, then it would be necessary to have this appeal (or at any rate this aspect of this appeal) re argued before a panel of nine Justices. However, in my opinion, such a course is unnecessary because I consider that the appellants third line of appeal would fail even if it was and could be based on proportionality. The move from rationality to proportionality, as urged by the appellants, would appear to have potentially profound and far reaching consequences, because it would involve the court considering the merits of the decision at issue: in particular, it would require the courts to consider the balance which the decision maker has struck between competing interests (often a public interest against a private interest) and the weight to be accorded to each such interest see R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, para 27, per Lord Steyn. However, it is important to emphasise that it is no part of the appellants case that the court would thereby displace the relevant member of the executive as the primary decision maker as to which see per Lord Sumption and Lord Reed in Bank Mellat (No 2) at paras 21 and 71 respectively. Furthermore, as the passages cited by Lord Kerr from Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014] UKSC 20, [2015] AC 455, paras 51 and 54, and Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19, [2015] 1 WLR 1591, paras 96, 113 and 115 show, the domestic law may already be moving away to some extent from the irrationality test in some cases. As those cases suggest, even if the appellants attack on rationality as the correct yardstick were to succeed, it may be that the position would be more nuanced than this cursory discussion of the appellants argument might suggest. The answer to the question whether the court should approach a challenged decision by reference to proportionality rather than rationality may depend on the nature of the issue see for instance the discussion by Gertrude Lbbe Wolff in The Principle of Proportionality in the Case Law of the German Federal Constitutional Court (2014) 34 HRLJ 12. Turning to this case, the reasons for not holding an inquiry are as set out in the two letters, whose contents are summarised in paras 124 and 125 above. The reasons advanced on behalf of the appellants in favour of having an inquiry are that it is appropriate to explore the evidence publicly and seek to identify the truth, and to grant to the survivors and relatives a form of closure to this matter that would be enormously valuable. They suggest that an inquiry would be the only way of testing the official version of what happened on 11/12 December 1948, and of address[ing] this injustice which has endured for decades and will rightly not go away. They further argue that an inquiry could lead to a correction of the official record, a public apology, a public memorial, and active consideration of some ex gratia compensation. It is impossible not to sympathise with these sentiments. But in my opinion, these understandable reasons for holding an inquiry do not justify a court concluding that the respondents decision to refuse an inquiry for the reasons summarised in paras 124 and 125 above was disproportionate. The desire to discover historical truth is understandable, particularly in a case where it involves investigating whether a serious wrong, indeed a war crime, may have been committed. However, not only is this a case where neither article 2 nor customary international law would require such an investigation. It is also a case where the relevant members of the executive have given coherent and relevant reasons for not holding an inquiry, including expressing a justifiable concern that the truth may not be ascertainable, and a justifiable belief that, even if the appellants expectations to the contrary were met, there would be little useful that could be learned from an inquiry so far as current actions and policies were concerned. The notion that there is a positive common law duty to investigate the Killings in the present case, even though they took place nearly 70 years ago, simply in order to establish historical truth would, at least without more, open the door to demands that all suspicious deaths, however long ago, would have to be investigated. The notion that the duty is owed to those whose relatives were killed or may remember the incident has more force, but that is not a powerful enough reason, in my view, to enable the court to say that, despite the reasons advanced by the respondents for not holding an inquiry, it was disproportionate to refuse to do so. It is not as if the appellants have got nowhere: in these proceedings, the Divisional Court, the Court of Appeal and now this court have all said in terms that the official UK Government case as to the circumstances of the Killings may well not be correct and that the Killings may well have been unlawful. And the events of 1969 1970, at least to large extent, speak for themselves. As for the argument that an inquiry is justified because of what is said, in effect, to be a cover up, I see the force of the argument in relation to the immediate aftermath of the Killings and the decision in 1970 not to proceed with the investigation. However, it seems to me that the appellants reliance on the events of those two periods suffers from the same sorts of problems as an inquiry into the Killings themselves. There would be obvious difficulty, given the passage of time, at arriving at the truth or, perhaps more accurately, at any more of the truth than the documents already show. And the value of any further information or analysis of the events of the aftermath or in 1969 1970 in terms of lessons for the present day must be limited at best. In addition, the benefits for the survivors and the relations of the victims would be limited. So far as the events after 1990 are concerned, I am unconvinced that there is anything to look into. The concerns about the value of an inquiry currently raised by the respondents would have largely applied then. It is the respondents who have the primary role of deciding under section 1 of the 2005 Act whether to have an inquiry into the Killings, and if not why not, and it is not for the court to substitute its view for that of the respondents. What the court, on the instant hypothesis, must do is to decide whether, bearing in mind the reasons for and against holding an inquiry, the respondents refusal to hold an inquiry was disproportionate. In my view, it was not. The respondents did not specifically raise the argument that the appellants common law claim was in difficulty for the additional reason of delay. It is nonetheless worth mentioning that, for the reasons discussed in paras 105 107 above, there may well be a powerful case for saying that, if the appellants wished the respondents to hold an inquiry into the Killings, they could and should have requested it in 1970 or 1971. Accordingly, it may be that the fact that the appellants can be said to have delayed for 40 years before seeking an inquiry and have only then judicially reviewed the respondents refusal to hold one, is a strong factor against now granting them any relief in that connection. However, given that the point was not developed in argument by the respondents, it would be unfair on the appellants to rely on the point, and I say no more about it. Conclusion For these reasons, I would dismiss this appeal. LORD MANCE: (with whom Lord Neuberger, Lady Hale, Lord Kerr and Lord Hughes agree on the jurisdiction issue) I have read and agree generally with the reasoning and conclusions in the judgment given by Lord Neuberger. This judgment adds a footnote (in paras 144 151 below) to his observations in paras 112 122 on the incorporation of customary international law into the common law, and, more substantively, addresses (in paras 152 202 below) the issue of jurisdiction, to which Lord Neuberger refers in para 65. As to whether the refusal to direct an inquiry should be reviewed in terms of proportionality, Lord Kerr quotes views which I have already expressed in the context of the issues in Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014] UKSC 20; [2015] AC 455 and Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591. In the context of, and in order to decide this appeal, all that is necessary to say is that I agree with Lord Neuberger and Lord Kerr that there is no ground for treating the refusal of an inquiry as either Wednesbury unreasonable or disproportionate. Incorporation of customary international law into common law The basis and extent to which customary international law (CIL) is received into common law was not examined in great detail in the parties submissions before us. The appellants described obligations on the United Kingdom under CIL as a source of domestic law. Both the appellants and the respondents referred in their cases to Lord Denning MRs description of the doctrine of incorporation which he went on to endorse in Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529, 553: the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. Lord Denning was clearly only speaking of CIL, not treaty law which raises quite different considerations. However, as the appellants went on to recognise at least this further qualification exists in relation to CIL, beyond that stated by Lord Denning, namely that: The recognition at common law must itself not abrogate a constitutional or common law value, such as the principle that it is Parliament alone who recognises new crimes: R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136 at para 29. Even that principle was only one of the reasons why the House held in R v Jones (Margaret) that the international crime of aggression could not form part of English law. The second reason, expressed in the speech of Lord Hoffmann with which all other members of the House agreed, was the constitutional reason that a domestic court could not adjudicate upon the question whether the state of which it formed part had acted unlawfully in the course of exercising the Crowns discretionary powers in the making of war and disposition of the armed forces: paras 63 67. The position is therefore somewhat more nuanced than Lord Denning MRs statement might suggest. Common law judges on any view retain the power and duty to consider how far customary international law on any point fits with domestic constitutional principles and understandings. Thus, in a number of other cases prior to R v Jones (Margaret), courts have rejected suggestions that CIL had expanded the ambit of domestic criminal law: see eg R v Keyn (1876) 2 Exch Div 63, 202, et seq and Chung Chi Cheung v The King [1939] AC 160. Although both cases involved criminal liability, neither case highlighted this as a critical distinction when discussing whether CIL should be regarded as part of domestic law. Thus, in the latter case, Lord Atkin said simply at p 168: The courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. In Trendtex, Lord Denning was addressing a distinction between two doctrines, according to which CIL is seen as becoming part of domestic law either by incorporation or by transformation. Lord Denning adopted the former view. He went so far as to say that, unless the doctrine of incorporation applied, I do not see that our courts could ever recognise a change in the rules of international law: p 554C D. That seems an unduly, and coming from its speaker perhaps surprisingly, restrictive view of the developmental authority of common law judges. But the background against which Lord Denning uttered it was reasoning of the majority (from which Lord Denning had dissented) in the prior Court of Appeal decision of Thai Europe Tapioca Service Ltd v Government of Pakistan, Directorate of Agricultural Supplies [1975] 1 WLR 1485, suggesting that CIL rules incorporated into domestic law by decisions of a domestic court were subject to the ordinary rules of stare decisis. On that basis, once they had been recognised at Court of Appeal level (as the rules of state immunity have been), they would be capable of alteration only by the House of Lords. Several points may be made about Lord Dennings adoption of the doctrine of incorporation. First, it needs qualification as stated in paras 144 145 above. Second, even as regards civil aspects of CIL, Lord Wilberforce in I Congreso del Partido [1983] 1 AC 244, 261G 262A expressly avoided commitment to more of the admired judgment of Lord Denning MR than was necessary. Similarly, in R v Jones (Margaret), at para 59, Lord Hoffmann, with whom all other members of the House agreed, and I, at para 100, also expressly left open the basis on which CIL is relevant under domestic law. Third, nearly 40 years after Trendtex and in an era where precedent is unlikely to be seen as so great an obstacle to reconsideration of domestic law in the light of international developments, the difference in effect of the two doctrines is unlikely to be as significant as it may have seemed in 1977. Even in 1977 Stephenson LJ made a similar point: p 569D although it is right to add that he was the one member of the court who regarded the prior Court of Appeal authority of Thai Europe as precluding any relaxation of the existing rules of state immunity. A similar observation to Stephenson LJs is found in Nulyarimma v Thompson [1999] FCA 1192 in para 109 of the judgment of Merkel J (whose disagreement as to whether the CIL crime of genocide was to be regarded as a domestic crime does not affect the judgments general force). When and if it is ever necessary to consider further the precise basis on and extent to which CIL may become part of domestic law, all three judgments on this point in Nulyarimma v Thompson will repay study. It is clear that there are different views, even though the differences may prove more apparent than real. As at present advised, and without having heard argument on the point, there seems likely to be wisdom in Wilcox Js statements in para 25 that it is difficult to make a general statement covering all the diverse rules of international customary law and in para 26, after distinguishing civil and criminal cases as different classes, that Perhaps this is only another way of saying that domestic courts face a policy issue in deciding whether to recognise and enforce a rule of international law. Speaking generally, in my opinion, the presumption when considering any such policy issue is that CIL, once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration. However, in the present case and for the reasons given by Lord Neuberger in para 112, it would be inappropriate for English courts to import the suggested CIL principle regarding the holding of an inquiry in respect of events in 1948 into domestic law, because Parliament has effectively pre empted the whole area of investigations into historic deaths. Domestic courts cannot or should not in such circumstances recognise or import a principle which would be wider and would extend to cover events further back in time than would be covered by the inquiries provided by such legislation and/or by the Human Rights Convention. Jurisdiction The issue of jurisdiction has two strands: the first, whether the United Kingdom can be said to have been responsible for whatever happened in Batang Kali on 11/12 December 1948; the second, whether it can be held responsible for not holding an inquiry now. These strands are relevant under the Convention rights, as incorporated into domestic law, to the question whether there were failures by the United Kingdom to secure to everyone within [its] jurisdiction, within the meaning of article 1 of the Convention, any of the rights and freedoms defined in article 2 of the Convention, so as to make the United Kingdom potentially responsible for breach of the Convention Rights as incorporated into domestic law by the Human Rights Act 1998. But both strands are also potentially relevant to the claims that an inquiry should now be held by reference to international law and/or under common law principles of judicial review. As to the first strand, the respondents case is that, while the Scots Guards were on active service in Selangor, they were acting under the aegis of the constitutional arrangements in force in the Federation of Malaya or, alternatively, in the State of Selangor, and that any acts on their part were always attributable either to His Majesty in right of the Federation or to The Sultan as the Ruler of the State of Selangor, rather than to His Majesty in right of the United Kingdom. In drawing this distinction, the respondents rely on R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529. As to the second strand, the respondents case is that any liabilities or obligations which the Crown in right of the United Kingdom may have had prior to 1957 passed in that year to the new independent Federation and/or that the Crown cannot now have come under any duty to hold an inquiry in relation to the Killings which had occurred in Selangor in 1948. In support of this second strand of their submissions, the respondents rely on the Federations independence since 1957 and/or on article 167 of the Federal Constitution of 1957. Constitutional arrangements of and in relation to Malaya and Selangor To consider these submissions, it is necessary to analyse the constitutional arrangements which existed in Malaya at the relevant times. At the date of the deaths in December 1948, Selangor was a state ruled by its Sultan whose relations with His Majesty King George VI were governed by the Selangor Treaty of 21 January 1948. Also on 21 January 1948, it had become one of nine Malay States which, together with two British colonies (Malacca and Penang) constituting the Straits Settlements, were party to the Federation of Malaya Agreement made between the Sultans of the Malay States and His Majesty. The Selangor Treaty, along with similar treaties with the Sultans of the other eight Malay States, and the Federation of Malaya Agreement were the subject of The Federation of Malaya Order in Council 1948 (SI 1948/108) made on 26 January 1948, laid before the United Kingdom Parliament on 27 January 1948 and coming into force on 1 February 1948. The Order scheduled the Treaties with the Sultans of Selangor and the other Malay States and the Federation Agreement. The Selangor Treaty provided by clause 3(1) that: His Majesty shall have complete control of the defence and of all the external affairs of the State of Selangor and His Majesty undertakes to protect the Government and State of Selangor and all its dependencies from external hostile attacks and for this and other similar purposes His Majestys Forces and persons authorised by or on behalf of His Majestys Government shall at all times be allowed free access to the State of Selangor and to employ all necessary means of opposing such attacks. By clause 4, the Sultan undertook to receive a British Adviser to advise on all matters connected with the government of the state other than matters relating to the Muslim Religion and the Custom of the Malays, and undertakes to accept such advice. The Treaty also contemplated expressly the entry into force of the Federation of Malaya Agreement. The Federation of Malaya Agreement recited that it had been represented to His Majesty that fresh arrangements should be made for the peace, order and good government of the Malay States in the form of the Federation, which was to take effect on such day as His Majesty may, by Order in Council, appoint . Clause 3 established the Federation, while clause 4 provided that: His Majesty shall have complete control of the defence and of all the external affairs of the Federation and undertakes to protect the Malay States from external hostile attacks and for this and other similar purposes, His Majestys Forces and persons authorised by or on behalf of His Majestys Government shall at all times be allowed free access to the Malay States and to employ all necessary means of opposing such attacks. Clause 7 provided for a High Commissioner in and for the Federation to be appointed by Commission under His Majestys Sign Manual and Signet, while clause 8 provided that: Their Highnesses the Rulers undertake to accept the advice of the High Commissioner in all matters connected with the government of the Federation save as excepted in clause 5 of this Agreement [that is, matters relating to the Muslim Religion or the Custom of the Malays]: Provided that nothing in this clause shall in any way prejudice the right of any of Their Highnesses to address His Majesty through a Secretary of State, if any of Their Highnesses so desires. Clause 13 provided: His Majesty may from time to time give to the High Commissioner Instructions, either under His Majestys Sign Manual and Signet, or through a Secretary of State, for the due performance, or the proper exercise of the powers, duties and rights of the High Commissioner under, and in conformity with, this Agreement; but no law made under this Agreement shall be void or inoperative by reason of anything contained in such Instructions. With regard to executive authority, the Agreement provided: Extent of executive authority. 16. Subject to the provisions of this Agreement, and in particular without prejudice to the provisions of clauses 18, 86 and 110 thereof, the executive authority of the Federation shall extend to all matters set out in the first column of the Second Schedule to this Agreement. Exercise of executive authority. 17. The executive authority of the Federation shall be exercised by the High Commissioner either directly or through officers subordinate to him, but nothing in this clause shall prevent the Legislative Council from conferring functions upon persons or authorities other than the High Commissioner within the powers given to it by this Agreement. Delegation of executive authority. 18. Notwithstanding anything in this Agreement, the High Commissioner may entrust, either conditionally or unconditionally, to the government of any Malay State with the consent of His Highness the Ruler of that state, or to the government of a Settlement, or to their respective officers, functions in relation to any matter to which the executive authority of the Federation extends. Special responsibilities. (1) In the exercise of his executive authority, the High 19. Commissioner shall have the following special responsibilities, that is to say: (a) the protection of the rights of any Malay State or any Settlement and of the rights, powers and dignity of Their Highnesses the Rulers; (b) the prevention of any grave menace to the peace or tranquillity of the Federation or any Malay State or Settlement comprised therein; Clause 48 further provided: Subject to the provisions of this Agreement, it shall be lawful for the High Commissioner and Their Highnesses the Rulers, with the advice and consent of the Legislative Council, to make laws for the peace, order and good government of the Federation with respect to the matters set out in the Second Schedule to this Agreement and subject to any qualifications therein. Under clause 52, the High Commissioner could if he considered it expedient in the interests of public order, public faith or good government force through any law which the Legislative Council had failed to enact. The matters set out in the first column of the Second Schedule, in respect of which the High Commissioner had executive authority under clauses 16 and 17 of the Federation Agreement and the Federal Legislature had power to make laws under clause 48, included Defence and External Affairs: DEFENCE AND EXTERNAL AFFAIRS 1(a). All matters relating to defence including (a) naval, military or air forces of His Majesty; local forces, any armed forces which are not forces of His Majesty but are attached to or operating with any of His Majestys forces within the Federation 2. External Affairs CIVIL AND CRIMINAL LAW AND PROCEDURE, EQUITY, EVIDENCE, COURTS, CORPORATIONS, EMERGENCY POWERS 15. Emergency powers, emergency legislation; trading with the enemy; enemy property Under the powers contained in clause 48 read with the Schedule 2 paragraph 15, the High Commissioner and the Rulers with the advice and consent of the Legislative Council on 7 July 1948 enacted the Emergency Regulations Ordinance, No 10 of 1948 to confer on the High Commissioner power to make regulations on occasions of emergency or public danger. The High Commissioner declared a state of emergency on 12 July 1948, and, in pursuit of the powers contained in the Ordinance, issued Emergency Regulations on 15 July 1948. Regulation 21 authorised any police officer of or above the rank of Sub Inspector without warrant and with or without assistance to enter and search any premises and to stop and search any vessel, vehicle or individual, whether in a public place or not. Regulation 24 authorised a police officer to arrest and detain any person who on being questioned failed to satisfy the officer as to the purposes for which he was where he was found and who the officer suspected had acted or was about to act in any manner prejudicial to the public safety and the maintenance of public order. Regulation 27 provided that: The powers conferred upon police officers by Regulations 21, 22(1)(a) and 23 may be exercised by any member of His Majestys Naval, Military or Air Forces or of any Local Forces established under any written law of or above the rank of Warrant Officer, and the powers conferred by Regulations 22(1)(b): and 24(1) may be exercised by any member of His Majestys Naval, Military or Air Forces or of any Local Forces established under any written law. The Order in Council made on 26 January 1948 started with these recitals: Whereas by the Foreign Jurisdiction Act 1890, it was, amongst other things, enacted that it should be lawful for His Majesty to hold, exercise and enjoy any jurisdiction which His Majesty then had or might at any time thereafter have within a foreign country in the same and as ample a manner as if His Majesty had acquired that jurisdiction by the cession or conquest of territory: And whereas His Majesty has full power and jurisdiction within the Malay States of Johore, Pahang, Negri Sembilan, Selangor, Perak, Kedah, Perils, Kelantan and Trengganu (hereinafter referred to as the Malay States): The Order in Council went on to provide by section 4 that In pursuance of the Federation Agreement there shall be established a Federation . , by section 5 that The provisions of the Federation Agreement shall have the force of law throughout the territories comprised in the Federation and by section 6 that: The High Commissioner is hereby empowered and commanded to do all things belonging to his Office in accordance with this Order, the Federation Agreement, such Commission as may be issued to him under His Majestys Sign Manual and Signet and such Instructions as may from time to time be given to him by His Majesty under His Sign Manual and Signet or through a Secretary of State, and in accordance with such laws as may from time to time be in force in the Federation or any part thereof. Detailed instructions were on 26 January 1948 passed under the Royal Sign Manual and Signet to the High Commissioner relating to matters including the legislative council contemplated by the Federation Agreement. According to Notifications published in the Federation of Malaya Government Gazette dated 28 November 1949, His Majesty had for the better co ordination of measures for the maintenance and protection of the interests in South East Asia of our Government in the United Kingdom at some point before mid 1948 appointed a Commissioner General to advise Our said Government concerning such matters in respect of Burma, Siam, French Indo China and the Netherlands East Indies (hereinafter referred to as the Foreign Territories) , while from May 1946, Malcolm MacDonald had been Governor General in and over the Malayan Union (now the Federation of Malaya), the Colony of Singapore . By Commission passed under the Royal Sign Manual and Signet on 10 August 1948 His Majesty appointed Malcolm MacDonald as Commissioner General in South East Asia to discharge the functions hitherto discharged by the said Governor General and to extend the area of his authority to embrace the Federation of Malaya, the Colonies of Singapore, Sarawak, North Borneo, the Protected State of Brunei, and such other territories, being parts of Our dominions or under Our protection, as We may direct , and to exercise such authority and perform such duties as might be specified in such instructions as he might receive from Us under our Sign Manual and Signet or through one of Our Principal Secretaries of State or as may be prescribed by law. Prior to the Commission dated 10 August 1948, exchanges between the Commissioner General for South East Asia and London dated 26 June and, 8 and 12 July 1948 show the Commissioner General reporting on the nature and dimensions of the present internal security problem and the measures necessary to combat it as agreed by the Defence Co ordination Committee held on 24 June with the Governor of Singapore and the High Commissioner of the Federation attending. These included references to police action with military support, the military support being at that stage, it appears, two battalions of the Malay Regiment and one squadron of the Royal Air Force Regiment (Malay). The Commissioners communication dated 12 July 1948 recorded that: There is a very close liaison and co ordination between the police and military at all levels and in each state and settlement the Chief Police Officer retains final decision of responsibility for law and order. In most affected areas in the Federation troops are taking a very big share in evacuation operations, but we are maintaining the principle that military are acting in aid of civil power. Except in static guard duties troops operate with an element of police presence whenever possible. There is excellent understanding between police and military staffs in both the Federation and Singapore and no difficulties seems to be arising regarding their respective roles. By telegram on 9 August 1948, the Defence Co ordination Committee recommended the dispatch of a brigade of the British Army to Malaya as reinforcements, saying that: In arriving at this conclusion we have taken into account (i) the vital need from the point of view of British prestige, civil morale, and the maintenance of the economy of the Federation of bringing the operations in Malaya to a successful conclusion as early as possible. At a Cabinet meeting on 13 August 1948 it was resolved to proceed urgently with this. The decision was taken after the Chief of Imperial General Staff, Field Marshal Viscount Lord Montgomery of Alamein, said that: In Malaya the trouble was not only of local origin, but was instigated by Chinese Communists and kept going by communist reinforcements from across the Siamese border . Moreover our own nationals were being killed. We could not stand this nor could we afford to lose Malaya to Communism. His conclusion was that we should send immediate help to the Far East. The brigade, part of which comprised the Second Battalion of the Scots Guards, duly arrived in Singapore in October 1948, and after three weeks training was sent to areas of the Federation where bandit activity was reported, including in the case of G Company of the Second Battalion, Kuala Kubu Bahru. The establishment and existence of the British army was authorised by the Army Act, which was brought into force annually by a more specific Act and recited at the relevant times that: The Kings Regulations 1940 provided inter alia: Whereas the raising or keeping of a standing army within the United Kingdom in time of peace, unless it be with the consent of Parliament, is against law: And whereas it is adjudged necessary by His Majesty and this present Parliament that a body of land forces should be continued for the safety of the United Kingdom and the defence of the possessions of His Majestys Crown 71. His Majesty may make regulations as to the persons to be invested as officers, or otherwise, with command over His Majestys forces and as to the mode in which such command is to be exercised. 6. The government of the Army is vested in the Crown. The command of the Army is placed in the bands of the Army Council, who are also responsible for the administration of the regular forces. 28. The governor of a colony, protectorate or mandated territory is the single and supreme authority responsible to and representative of His Majesty. He is, by virtue of his commission, and the letters patent, entitled to the obedience and assistance of all military and civil officers, but, although bearing the title of captain general or commander in chief, and although he may be a military officer, senior in rank to the OC the forces, he is not, except on special appointment from His Majesty, invested with the command of His Majestys forces in the colony, protectorate or mandated territory. He is not, therefore, entitled to take the immediate direction of any military operations, The European Convention on Human Rights came into force for the United Kingdom on 3 September 1953, and was under article 56 extended by the United Kingdom to the Federation of Malaya on 23 October 1953. In 1957 the Federation of Malaya became an independent sovereign country within the Commonwealth. The arrangements for this were made by the Federation of Malaya Independence Act 1957 and the Federation of Malaya Independence Order in Council No 1933 of 1957. The Act provided: 1. (1) Subject to the provisions of this section, the approval of Parliament is hereby given to the conclusion between Her Majesty and the Rulers of the Malay States of such agreement as appears to Her Majesty to be expedient for the establishment of the Federation of Malaya as an independent sovereign country within the Commonwealth. (2) Any such agreement as aforesaid may make provision (a) for the formation of the Malay States and of the Settlements of Penang and Malacca into a new independent Federation of States under a Federal Constitution specified in the agreement, and for the application to those Settlements, as states of the new Federation, of State Constitutions so specified; (b) for the termination of Her Majestys sovereignty and jurisdiction in respect of the said Settlements, and of all other Her power and jurisdiction in and in respect of the Malay States or the Federation as a whole, and the revocation or modification of all or any of the provisions of the Federation of Malaya Agreement, 1948, and of any other agreements in force between Her Majesty and the Rulers of the Malay States. The Order in Council gave effect as from 31 August 1957 to a new Federal Constitution contained in the First Schedule, and revoked the Federation of Malaya Orders in Council 1948 to 1956. Article 167(1) of the Constitution provided: Rights, liabilities and obligations. 167. (1) Subject to the provisions of this article, all rights, liabilities and obligations of (a) Her Majesty in respect of the government of the Federation, and (b) the government of the Federation or any public officer on behalf of the government of the Federation, shall on and after Merdeka [Independence] Day be the rights, liabilities and obligations of the Federation. On and as from independence, the United Kingdoms notification declaring that the European Convention on Human Rights applied to the Federation of Malaya as a territory for whose international relations it was responsible was withdrawn and no longer applied. Analysis Against this background, I consider the two strands of the respondents submissions which I have summarised above. By the first strand, the respondents argue that the British army was not acting in right of the United Kingdom in relation to any of the killings. The respondents acknowledged in their skeleton argument before the Court of Appeal that the Scots Guards were deployed to the Far East in right of the United Kingdom, but they submitted then, and they repeat the submission now, that what matters is the legal regime under which the Scots Guards acted while in Malaya (para 33). This regime is, they contend, to be found in the reservation to the Crown of complete control over the defence and external affairs of Selangor as well as of the Federation, pursuant to which the Crown not only undertook to protect Selangor and the Malay States from external hostile attacks, but authority was also given for this and other similar purposes for His Majestys Forces to be allowed free access to the [Malay States] and to employ all necessary means of opposing such attacks. More specifically, the activities of the Scots Guards were also authorised under Federation law by the Emergency Regulations (paras 151 152 above). Alternatively, they contend that, if the Scots Guards were not deployed in Selangor for such purposes, then they were deployed for internal purposes, necessarily in aid of the Sultan, who was obliged to follow the advice of the British resident adviser on such a matter: see clause 4 of the Selangor Treaty of 1948 (para 157 above). The appellants endorse the respondents primary contention, that the British Army forces were deployed in Malaya to protect against external hostile attacks or for other similar purposes (written case, para 4.14). It also appears to accord with the reality. The Malayan insurgency was part of an external threat, and British forces were sent to assist in order to protect the Federation and its component parts against that threat or for similar purposes. The parties differ however in their analysis of the constitutional implications of this conclusion. The respondents, invoking reasoning of Lord Bingham, Lord Hoffmann and Lord Hope in Quark, submit that there is a distinction between Crown action taken in right of the United Kingdom and in right of, or under the constitutional regime applicable in, Malaya or alternatively Selangor. They argue that the Crowns authority over defence and external affairs was exercised or mediated through the High Commissioner, exercising his powers in that regard under the Federation Agreement, and that the Scots Guards were acting under the constitutional authority of the Executive Government of the Federation and exercising the emergency powers provided by the Emergency Regulations of 15 July 1948. The appellants submit that there was no need for any such mediation. The Crown was in right of the United Kingdom simply entitled to deploy its forces in the Federation to protect against external hostile attacks or for similar purposes. Although this was not fully explored before us, both the distinction which the respondents draw in reliance on reasoning in Quark, and its applicability, are open to a number of questions. It can readily be accepted that, in relation to fully self governing countries where the Queen remains Head of State, the Queen when acting for example on the advice of her local ministers acts in right of her position as Head of State of the relevant country, not as Head of State in the United Kingdom. But (despite the width of the recitals in the Order in Council dated 26 January 1948) the King was not the Head of State of either Selangor or the Malayan Federation. Hence, no doubt, the respondents argument that the Crowns intervention was mediated through the High Commissioner as executive authority of the Federation or was undertaken on behalf of the Sultan of Selangor. But even in situations where the Crown is the Head of State the distinction drawn in Quark calls for further consideration. Quark concerned South Georgia and South Sandwich Islands (SGSSI), a British Overseas Territory acquired originally by settlement, with a constitution governed by an order in council, which provided for a Commissioner, who was, in similar fashion to the High Commissioner of the Malayan Federation, bound under section 5(1) to act according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State. By the Fishing (Maritime Zone) Area Order 1993 and the Fisheries (Conservation and Management) Ordinance 1993, the Commissioner declared, and introduced a licensing scheme controlling fishing within, a maritime zone extending 200 nautical miles from SGSSI. He further appointed a Director of Fisheries who was under his direction. The Secretary of State instructed the Commissioner (who was in turn required to direct the Director) to give two fishing licences in a way which precluded the grant to the claimant of a renewed licence. The claimant relied on article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights to claim damages. A1P1 had not been extended to SGSSI by any notification under article 56 of the Convention. The claimant failed. Lord Bingham, Lord Hoffmann and Lord Hope endorsed as one reason a submission (advanced as here by counsel for the Secretary of State) that the Queen must be treated as having given the instructions through the Secretary of State in right of SGSSI, rather than in right of the United Kingdom. Lord Nicholls and Baroness Hale did not endorse this reasoning, and they and Lord Hoffmann and Lord Hope all concurred in a second reason, which was that both in Strasbourg and under the Human Rights Act the absence of any notification extending A1P1 to SGSSI under article 56 meant that the claim could not involve any failure by the United Kingdom to secure to everyone within [its] jurisdiction any Convention right within the meaning of article 1 of the Convention. The fact that United Kingdom ministers had in reality control over the grant or refusal of fishing licences in SGSSI was, in the absence of any such notification, not capable of bringing the claim within article 1. It was this alternative line of reasoning which, when Quark took their complaint to the European Court of Human Rights, led that court unanimously to declare the application inadmissible: see Quark Fishing Ltd v United Kingdom (Application No 15305/06) (unreported) given 19 September 2006. The reasoning of Lord Bingham, Lord Hoffmann and Lord Hope in Quark was the subject of a sharp critique by Professor John Finnis in a University of Oxford Faculty of Law Legal Studies Research Paper, Common Law Constraints: Whose Common Good Counts?, which was in turn considered by Lord Hoffmann in the Houses later decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, paras 37 49. Professor Finniss thesis was that The United Kingdom and its dependent territories within Her Majestys dominions form one realm having one undivided Crown and that, in contradistinction to the position of self governing colonies, in respect of any dependency of the United Kingdom (that is, of any British overseas territory), acts of Her Majesty herself are performed only on the advice of the United Kingdom Government both quotations from Halsburys Laws of England, 4th ed re issue (2003) vol 6 para 716, specifically approved in Tito v Waddell (No 2) [1977] Ch 106, 231, per Megarry V C and R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB 892, 921 922, per Kerr LJ. Bancoult concerned the ability of a British court judicially to review an order in council relating to the British Indian Overseas Territory (BIOT), notwithstanding the provisions of the Colonial Laws Validity Act 1865. Having read Professor Finniss paper, Lord Hoffmann said in Bancoult, paras 48 49, that he was inclined to think that the reason which I gave for dismissing the cross appeal in [Quark] that is that A1P1 had no application in the absence of any notification under article 56 was rather better than the reason I gave for allowing the Crowns appeal that is that the Crown had through the Secretary of State given the instructions in right of SGSSI, not the United Kingdom and that on this Lord Nicholls was right. Lord Hoffmann also analysed the relevant order in council not simply as part of the local law of BIOT but, as Professor Finnis says, as imperial legislation made by Her Majesty in Council in the interests of the undivided realm of the United Kingdom and its non self governing territories(para 40). The latter aspect of its amphibious nature, as he put it, took it outside the scope of the Colonial Laws Validity Act and made it capable of being reviewed judicially in the British courts. Lord Hoffmanns revised views about the Crowns position when exercising powers on the advice of United Kingdom ministers in relation to dependent territories and his views about the potentially amphibious nature of an order in council relating to such a nature reinforce my conclusion that there is no reason to attempt to justify the Crowns military involvement in the Federation of Malaya in 1948 solely in terms of the Federations Constitution. The case for not doing so in the present context is in fact a fortiori to that which, in the light of Professor Finniss paper and Lord Hoffmanns revised view, existed in relation to SGSSI and BIOT. The Crown was, as I have pointed out, sovereign in SGSSI and BIOT. The Crown was not sovereign in the Federation of Malaya or in any of the nine Malay States including Selangor. It had powers in respect of external affairs, defence and the deployment of the British army which were granted it under Treaty with each Malay State and were reflected in the Federation Agreement. Those powers must have been given to the King wearing the Crown of, and in the interests of, the United Kingdom. There is no reason not to treat them as having simply been exercised in that capacity and for that purpose, on the advice of United Kingdom ministers. All the indications are that this is the basis on which they were exercised. While on active service in Malaya, the Scots Guards remained His Majestys forces and under the command of the Crown exercised through the Army Council in accordance with the Kings Regulations: see para 164 above. There was no question of their secondment to any other authority. Neither the Commissioner General in South East Asia nor the High Commissioner for the Federation appears actually to have had any right of command over them. The fact that their members may not have served under any contract of service is irrelevant to the present issue whether the appellants complaints relating to their alleged activities in Selangor involve alleged failure by the United Kingdom to secure to everyone within [its] jurisdiction the rights and freedoms in article 2 of the Convention. By 1953 the Convention was in force and had been extended by notification under article 56 to the Malayan Federation. Once the Convention came into force and was so extended, the second strand of reasoning in Quark, based on the absence of any such notification, can no longer directly apply. The fact of notification, coupled with the United Kingdoms control over its armed forces on active service in Selangor, mean that the deaths in December 1948 occurred in circumstances within the United Kingdoms jurisdiction, within the meaning involved in article 1 of the Convention, if and to the extent that that article applies. Those who died were at the time within the British Armys control, and this would continue to be so, even if they were fired upon as they were seeking to escape. Under the Convention, the question next arising is one of timing: can the United Kingdom be regarded as responsible for failure to hold an inquiry into deaths which occurred in December 1948 before the Convention was in force at all, let alone extended to the Federation? I have concluded that the deaths in December 1948 would have occurred within the United Kingdoms jurisdiction within the meaning of article 1, had the Convention been in force in Malaya in 1948. On that basis, and because the gap in time between the deaths and the extension to the Malayan Federation of the Convention, was less than ten years, a sufficient temporal link exists between the deaths and the critical date to satisfy the test laid down in the Strasbourg case law, particularly Janowiec v Russia (2013) 58 EHRR 792. Under international law, there would arise a parallel, though relatively unexplored, issue of timing, which Lord Neuberger mentions in para 117 but which it is unnecessary to resolve on this appeal. As a matter of purely common law judicial review, the length of time since the deaths is a relevant discretionary factor. That brings me to the second strand of the issue of jurisdiction, which arises from the Federations achievement of full independence in 1957. As at and from that date, it was provided by article 167(1) of the Federal Constitution, given effect by the Federation of Malaya Independence Order in Council No 1933 of 1957 that all rights, liabilities and obligations of Her Majesty in respect of the government of the Federation shall on and after [Independence] Day be the rights, liabilities and obligations of the Federation: see paras 166 167 above. The United Kingdom also ceased to have any right of intervention in the face of external threats or in respect of defence and the notification under article 56 of the Convention extending the Convention to the Federation ceased to apply. The respondents contend on this basis that the United Kingdom cannot after 1957 have come under any duty to hold an inquiry into what occurred in December 1948. Perhaps unsurprisingly, we were shown little material to guide us on the resolution of this strand of the overall issue. But I am not persuaded by the respondents submission that the grant of full independence in 1957 relieved the United Kingdom of any potential obligation, otherwise arising towards alleged victims of alleged pre 1957 misconduct by the United Kingdom army, to hold an inquiry into such misconduct. A first question is whether any potential liability or obligation to hold an inquiry into the deaths in December 1948 can be said to be in respect of the government of the Federation at all. I have considerable doubt whether it can be. Once it is concluded that the British army was in Malaya in the service of His Majesty and in the interests of the United Kingdom, I have difficulty in regarding it as acting in respect of the government of the Federation, even though it was there to protect Selangor and the Malay States from external hostile attacks or for similar purposes: see paras 170 171 and 178 above. However, I need not rest my conclusions on this sole basis. Assuming that the conduct of the British army in Malaya was in respect of the government of the Federation, and any potential duty to hold an inquiry into such conduct likewise, the question is whether and how the constitutional arrangements made between the Federation and the United Kingdom on the Federations independence can affect any domestic law duty which the United Kingdom would otherwise have towards victims to hold an inquiry into or, in appropriate circumstances, to pay compensation in respect of prior misconduct by the British army. I do not see how they could, even if the deaths can be regarded as occurring during the course of governmental activities which were in 1948 the responsibility of the United Kingdom but were transferred in 1957 to the Malayan Federation. State succession is an area of international law which is neither easy nor well covered by authority. Brownlies Principles of Public International Law 8th ed (2012), p 442 summarises the position as follows: The preponderance of authority is in favour of a rule that responsibility for an international delict is extinguished when the responsible state ceases to exist either by annexation or voluntary cession. Such liability is considered personal to the responsible state and remains with the state if it continues to exist after the succession. This reasoning is, however, less cogent in relation to voluntary merger or dissolution. Nor does it apply when a successor state accepts the existence of succession. In the Lighthouses Arbitration [(1956) 23 ILR 81] it was held in connection with one claim that Greece had by conduct adopted an unlawful act by the predecessor state and recognised responsibility. The principle stated in the first sentence is illustrated in domestic law by West Rand Central Gold Mining Co v The King [1905] 2 KB 391, in which the Kings Bench Divisional Court held that there was no principle of international law by which, after annexation or conquest, a conquering state could become liable, absent express contrary stipulation, to discharge the financial liabilities of the conquered state incurred before the outbreak of war. The principle of acceptance or adoption, referred to in the last two sentences of the passage in Brownlie, also appears in Mwandingi v Ministry of Defence, Namibia [1991] 1 SA 851 (Nm). The High Court of Namibia there held the Ministry of Defence of Namibia liable for the alleged wrongful shooting of the claimant by the South African Defence Force prior to Namibian independence. It based its decision on article 140 of the Constitution of Namibia, providing that everything done by the government of South Africa should be deemed to have been done by the government of Namibia. If the conduct of the British army in December 1948 can be regarded as being in respect of the government of the Federation, it might be said to have been adopted by the Federation by article 167(1) of the 1957 Constitution. But I do not see how or why adoption by the Federation as a successor state should at the same time release the United Kingdom in domestic, or even international, law vis vis the victims of such conduct. Apart from adoption, the general rule which appears is that state liability for a death remains with the state responsible for the deaths, so long as that state exists, and does not pass to a successor state which takes over the relevant territory or activities. Different arrangements made as between the United Kingdom and the Federation should not on any view affect the rights which victims otherwise have against the United Kingdom domestically, whether such domestic rights arise by reference to the Convention rights, international law or pure common law principles. Assuming that the deaths in December 1948 were and remain the United Kingdoms responsibility domestically, responsibility for any inquiry now called for into them must prima facie also remain with the United Kingdom. It is true that the inquiry is claimed by persons who are now clearly not within the United Kingdoms control, in relation to an incident in a place which is now equally clearly outside the United Kingdoms jurisdiction; and, further, that much of the evidence and material which could or would be relevant is and is only in Malaysia, which is outside the jurisdiction. But any inquiry would relate to the deaths of persons who were at the time under United Kingdom control, and to the conduct of the British army which was and is within United Kingdom jurisdiction. More specifically it would relate to the conduct of Scots Guards who were under United Kingdom command and within United Kingdom jurisdiction (and one or two of whom are still alive and understood to be within such jurisdiction). When a death of a person under British military control occurs abroad, any subsequent inquiry will often involve seeking information from sources in different jurisdictions at the date of the inquiry. So far as concerns the Convention, any duty on the part of the United Kingdom under article 2 to hold an inquiry in accordance with the principles in Janowiec is an independent duty. This is so although it requires a triggering event, such as a death occurring at a time when the individual complainants could rely on the Convention or within a short period (with a maximum of ten years) prior to whenever that became possible. In either case, the duty to hold an inquiry may arise from or, in the language of Janowiec, be revived by the discovery of relevant new matter, whereupon a claim to an inquiry may be pursued, within the appropriate time limit for making such a claim after the duty has arisen or revived. For there to be a Convention duty to hold an inquiry, this must be necessary to secure to [some]one within [the United Kingdoms] jurisdiction the rights and freedoms defined in article 2. But this cannot and does not mean that the beneficiaries of the inquiry must be within the jurisdiction when the inquiry is sought. The focus must be on whether the inquiry relates to an incident involving someone within the United Kingdoms jurisdiction. In the light of my conclusions on the first strand of the overall issue of jurisdiction, that was and is here the case. As to the problem that the subject matter of any inquiry would be the conduct of British troops in what is now a fully independent country, that is no new phenomenon, having regard to the United Kingdoms experience in Iraq and Afghanistan. Dividing and tailoring of a Convention obligation to secure Convention rights relevant to an individual was recognised as possible in Al Skeini v United Kingdom (2011) 53 EHRR 589, para 137, when a state, through its agents, exercises control and authority over an individual, and thus jurisdiction. If other conditions were satisfied, I see no reason why the United Kingdom should not be required to hold an inquiry under article 2 in respect of the events in Selangor in December 1948, on the basis that the inquiry could and would be tailored and limited to what was feasible, having regard inter alia to such co operation as might be obtained from the Malaysian authorities. Similarly, if an inquiry were required by reference to international law and/or as a matter of purely common law judicial review, the United Kingdom could not be expected to do more than was feasible. For these reasons, I would reject the respondents case on both strands of the issue of jurisdiction, and hold that, had the other conditions for ordering an inquiry been satisfied, there would be no jurisdictional obstacle to doing so. LORD KERR: The response that the law ought to make to a claim that an historical wrong should be legally recognised and redressed involves a recurring and multi faceted challenge. That challenge can arise in a myriad of contexts the prosecution of sexual offences perpetrated years or even decades before proceedings come to court; the quashing of convictions long after they were first made against a person whose innocence is established by subsequently obtained evidence; and the holding of an inquest into someones death years after it occurred, when new evidence touching on the death has come to light. These are but a few examples of cases where the law has had to confront the need to revisit disputes which had been considered settled or which were said to have occurred too long ago to countenance their revival. This appeal involves precisely such a challenge. The shocking circumstances in which, according to the overwhelming preponderance of currently available evidence, wholly innocent men were mercilessly murdered and the failure of the authorities of this state to conduct an effective inquiry into their deaths have been comprehensively reviewed by Lord Neuberger in his judgment and require no further emphasis or repetition. It is necessary to keep those circumstances and that history firmly in mind, however, in deciding how our system of law should react to the demand of the relatives of those killed that the injustice that has been perpetrated should be acknowledged and accepted. Three possible gateways to the vindication of the appellants claim have been dealt with by Lord Neuberger: via article 2 of the European Convention on Human Rights and Fundamental Freedoms (ECHR); under customary international law, as incorporated into the common law; and by the invocation of the principle of proportionality as a basis for judicial review in the municipal law of this country. Article 2 It would be a mistake, I believe, to view the applicability of article 2 solely in terms of whether it has retrospective effect. This provision carries with it a duty, complementary to the obligation to protect life, of investigating any death occurring in suspicious circumstances. That duty does not arise as a matter of retroactive obligation. If article 2 applies, the obligation to investigate the death is a current imperative. As Lord Neuberger has observed (para 66) the respondents accept that, if article 2 applies to these deaths, there is an existing obligation to carry out an inquiry that meets its requirements. That duty has been variously described as separate, autonomous or detachable from the primary obligation under article 2. It has an existence which is distinct from that primary obligation. The assertion that an article 2 inquiry is not required does not rest, therefore, on the claim that no contemporary duty exists but on the essentially pragmatic basis that, for procedural reasons, it is not appropriate that an inquiry be held. This is important. In principle an inquiry into the deaths that is compliant with article 2 should be held. But it is claimed that that prima facie position should give way because a bright line rule is required to restrict the backward reach of article 2. The foundation of that claim is, as I have said, pragmatic rather than principled. That consideration should form the background to an examination of the Strasbourg jurisprudence in this area. The detachable nature of the duty to investigate; the fact that this is not inextricably bound up with the primary duty to protect the right to life, underlay the ECtHRs decision in ilih v Slovenia (2009) 49 EHRR 996. This is fundamental to a proper understanding of the correct approach to take to the trilogy of issues which arise: the critical date on which a member state will be considered bound by its treaty commitments; the relevant acts and omissions after the critical date; and the genuine connection between the death and the critical date. On one view, these are no more than arbitrarily selected standards which might rather than must inform consideration of whether a member state should be required to conduct an article 2 compliant inquiry into a death which occurred before the Strasbourg court acquired formal temporal jurisdiction. There is no inescapable point of principle, for instance, which requires the adoption of a ten year period as the absolute limit on the period between the death and the critical date. The desirability of a rule, whether it be described as a bright line rule or a rule of thumb, is obvious, however. Where feasible, states should have some indication from the ECtHR as to when their article 2 duty is likely to arise. And there has to be some limit on how far back that duty extends. Practicability of inquiry must play a part in the evaluation. Before turning to consider in detail the particular decisions of the ECtHR in this area, a general observation may be made. It is not appropriate, in my opinion, to seek to derive from the Strasbourg jurisprudence rigid rules that might be supposed to provide infallible answers to the questions that arise as to whether deaths occurring before the critical date should be subject to an article 2 inquiry. The evolutionary development of the procedural right under article 2 is alone sufficient to establish the inaptness of such an approach. Convention rights do not generally lend themselves to the application of inflexibly prescriptive rules. This is especially true of article 2 rights. The critical date Although the respondent adumbrated four possible dates that might qualify as the critical date (i) the date of signing the Treaty establishing ECHR, (1950); (ii) the date of ratification, (1951); (iii) the date of entry into force in the United Kingdom of the Convention, (1953); and (iv) the date on which individual petition was granted, (1966), on the hearing of the appeal, the dispute concerning the critical date issue centred on two possibilities. The first of these was the date on which the Convention came into force in the United Kingdom, 3 September 1953, (or when it was extended to the Confederation of Malaya, 23 October 1953). The second possibility was the date on which the United Kingdom gave its citizens the right of personal petition to the Strasbourg court 14 January 1966. Lord Neuberger has decided that the case law of the ECtHR favours the latter date and I can understand how that view can be reached in light of some of the statements made by the ECtHR. There are some contrary indications to be found in other statements and, in the light of these, I have concluded that Strasbourg case law does not point indisputably in the direction of the date of personal petition being the critical date. There is reference in the Strasbourg jurisprudence which can be interpreted as supporting the view that the date on which the United Kingdom became bound by the Convention (1953) should be regarded as the critical date. What does the coming into force of treaty obligations such as those contained in ECHR entail? In the case of the United Kingdom it must surely involve this countrys acceptance that it is bound by and agrees to abide by the terms of the Convention. The date on which the Convention came into force in the United Kingdom must be the date when this country formally accepted that it was bound to comply with the rights enshrined in ECHR including those contained in article 2. Now that it is recognised that that duty comprehends a freestanding obligation to conduct an inquiry into suspicious deaths, in 1953, on the coming into force of the Convention, the United Kingdom was, as a matter of international law, bound to conduct an inquiry into the deaths involved in these appeals. Can it be said, in those circumstances, that the critical date did not arrive for another 12 years? In my view, there is no clear and constant line of jurisprudence emerging from the Strasbourg court that would support the notion that, although the United Kingdom had, from 1953, an international obligation to conduct an article 2 inquiry into these deaths, the Strasbourg courts temporal jurisdiction did not come into existence until 1966. Before the Court of Appeal the respondents did not argue that the critical date was 1966. On the contrary, at para 13 of the skeleton argument submitted by the respondents for the Court of Appeal hearing it is stated, the critical date would be in a Strasbourg case the date on which the United Kingdom ratified the ECHR. That the respondents did not espouse 1966 as the critical date is not surprising in light of the Strasbourg jurisprudence and, incidentally, observations made by this court In re McCaughey [2011] UKSC 20; [2012] 1 AC 725 see paras 62, 78, 101, 112. One may begin the review of ECtHR case law with Blei v Croatia (2006) 43 EHRR 1038. In considering statements made in that case about the temporal jurisdiction of the Strasbourg court it is to be remembered that the decision was given before the detachable duty to investigate suspicious deaths had been recognised. Leaving that aside, however, it is clear that support for either of the contended for critical dates can be discerned from the courts discussion about its temporal jurisdiction. Thus in para 70 the court said: in accordance with the general rules of international law, the provisions of the Convention do not bind a contracting party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that party. (emphasis added) But in para 71 the court referred to declarations made under former articles 25 and 46 of the Convention by which Croatia recognised the competence of the Convention organs to deal with individual petitions based on facts occurring after the Convention and its Protocols had come into force in respect of Croatia which might appear to suggest that the critical date was that on which the right of an individual to present a personal petition was recognised. (This was, of course, the same date as the ratification of the Convention by Croatia.) Lord Neuberger has relied on the statement in para 140 of the Grand Chambers judgment in ilih in support of his conclusion that the critical date is the grant of the right of individual petition (paras 80 and 81 above). Two observations may be made about this. Firstly, the Grand Chamber in para 140 canvassed two possible candidates for the critical date the coming into force of the Convention or the entry into force of Protocol No 11, whereby the right of individual petition was recognised. The Grand Chamber did not say that the critical date was necessarily the later of these possibilities. Often, as in the case of Slovenia, these dates coincide. It is, to my mind, therefore, by no means clear that the Grand Chamber in para 140 purported to lay down a general rule that if the grant of the right of individual petition post dated the coming into force of the Convention, it was the later event that must be regarded as marking the critical date. The Grand Chamber had no need to address that issue since the two events (the coming into force of the Convention and the grant of a right to individual petition) occurred at the same time. Secondly, later statements in ilih are consistent with the view that the critical date is in fact the date of entry into force of the Convention rather than the date of the grant of the right of individual petition. Thus in para 165, the Grand Chamber said, the court notes that the death of the applicants son occurred only a little more than a year before the entry into force of the Convention in respect of Slovenia and in para 166, The court notes and the government did not dispute that the applicants procedural complaint essentially related to judicial proceedings which were conducted after the entry into force of the Convention (emphasis added in both instances). I accept that the Grand Chambers decision in Varnava v Turkey (Application Nos 16064 16066/90 and 16068 16073/90) (unreported) given 18 September 2009, represents a rather more forthright endorsement of the grant of the right of individual petition as the critical date. In paras 132 134 the court said: 132. Turkey ratified the Convention on 18 May 1954; it accepted the right of individual petition on 28 January 1987 and the jurisdiction of the old court on 22 January 1990. Protocol No 11, which brought the new court into existence, came into force on 11 January 1998. 133. Turkey was accordingly bound by the provisions of the Convention from 18 May 1954. However, its acceptance of the right of individual petition was limited to facts taking place after the date of the declaration to that effect on 28 January 1987. When the old court ceased to function in 1998, this courts jurisdiction became obligatory and ran from the acceptance by a Contracting State of the right of individual petition. It follows that the court is not competent to examine any complaints raised by these applicants against Turkey in so far as the alleged violations are based on facts having occurred before 28 January 1987 (see Cankocak v Turkey (Application Nos 25182/94 and 26956/95), para 26, 20 February 2001, and Demades v Turkey (just satisfaction) (Application No 16219/90), para 21, 22 April 2008). 134. On that basis, any complaints by the applicants asserting the responsibility of the Contracting State for factual events in 1974 are outside the courts temporal jurisdiction. In so far as any complaints are raised concerning acts or omissions of the Contracting State after 28 January 1987, the court may take cognisance of them. It notes in this respect that the applicants specified that their claims related only to the situation pertaining after January 1987, namely the continuing failure to account for the fate and whereabouts of the missing men by providing an effective investigation. The Grand Chambers statement that the court's jurisdiction became obligatory and ran from the acceptance by a Contracting State of the right of individual petition is not supported by any analysis. And, as Lord Neuberger has acknowledged, that statement is incidental to the decision in the case because the court found that the nature of the procedural obligation to investigate disappearances was such that, potentially, it persisted as long as the fate of the person who had disappeared was unaccounted for; the ongoing failure to provide the requisite investigation was therefore regarded as a continuing violation. Interestingly, an argument deployed by the government of Cyprus (an intervener in Varnava) which was recorded at para 128 of the judgment does not appear to have been dealt with by the Grand Chamber. It was to the effect that the applications could not be said to concern Turkeys responsibility for acts or omissions at a time when it had not accepted the Convention. The disappearances had occurred in 1974 and from 1954 onwards Turkey could have been subject to proceedings begun by other contracting parties. If this argument is right (and I cannot see any reason that it is not) it illustrates the true nature of the correct date concept. It should be seen as a gateway that is concerned principally with the backward reach of article 2, not simply with the enforceability of an individual right under that provision. On one view, it would be anomalous that a countrys failure to conduct an article 2 inquiry would come within the Strasbourg courts temporal jurisdiction at the suit of another member state but that it should not be amenable to that jurisdiction on an application by the next of kin of the person whose death was the subject of the application. As against that, however, it might be thought to be incongruous that ECtHR should be able to assume jurisdiction to adjudicate in a dispute between citizen and state before the right of individual petition had even been conferred. An example of the choice of the entry into force alternative can be found, however, in the case of Dorado v Spain (Application No 30141/09) (unreported) given 27 March 2012. The Convention entered into force in Spain on 4 October 1979. The right of individual petition became applicable to that country on 1 July 1981. Notwithstanding this, the Third Section of the ECtHR in held that the critical date was the entry into force of the Convention. At para 32 the court said: The court emphasises that the provisions of the Convention do not bind a Contracting Party in relation to any act or omission which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (the critical date see Blei v Croatia [GC] (Application No 59532/00), para 70, ECHR 2006 111; ilih v Slovenia [GC], (Application No 71463/01), para 140, 9 April 2009; and Varnava and Others v Turkey [GC], (Application Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90), para 130, ECHR 2009 . ). (emphasis added) Significantly, the court included Varnava among the decisions which, it suggested, supported the proposition that the Convention was binding at the date of its entry into force in the relevant member state. And, lest it be thought that the failure to identify the time of the grant of the right to individual petition as the critical date was inadvertent, it should be noted that the two dates (coming into force and right of individual petition) were expressly referred to in paras 34 and 39 of the judgment. In Janowiec v Russia (Application Nos 55508/07 and 29520/09) (2013) 58 EHRR 792, the Grand Chamber again considered the question of the temporal jurisdiction of the court. The statement in para 128 of the courts judgment, quoted by Lord Neuberger at para 71 above, that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (the critical date) is expressed in unqualified terms. Lord Neuberger has said that, despite these seemingly clear words, the issue is not disposed of by the judgment in Janowiec because Russia had acceded to the Convention on the same date that it gave its citizens the right of personal petition to Strasbourg. But if the choice between the two possible candidates for the critical date is a stark one (and it has been so portrayed throughout this appeal), then the fact that the two events occurred on the same day cannot explain why the court chose to identify the entry into force of the Convention as the critical date. If it was clear that the grant of the right to individual petition marked the critical date, why has the court in Janowiec omitted to say so? Why should it state that the critical date was the time of the entry into force of the Convention, if this was merely an incidental circumstance? The point has been made that if the Grand Chamber in the subsequent decision in Janowiec had considered that what was said in para 140 of ilih was wrong, it would surely have said so. This, of course, depends on ones view of the import of that paragraph. For the reasons given at paras 206 and 207 above, I do not accept that the court in ilih decided that the date of the grant of the right to an individual petition was the critical date. There was no need, therefore, for the court in Janowiec to make any adverse observation on para 140 of ilih. In akir and others v Cyprus (Application No 7864/06), (unreported) given 29 April 2010, an admissibility decision, the court referred on a number of occasions to the date on which Cyprus accorded the right of individual petition as the critical date. Lord Neuberger regarded this as highly significant, pointing out in para 84 of his judgment that this was the date that had been chosen by the court rather than the date on which Cyprus had acceded to the Convention. In the section of the judgment entitled The Law, however, the court said: The court emphasises that the provisions of the Convention do not bind a Contracting Party in relation to any act or omission which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party or, as the case may be, before the date on which the respondent Party recognized the right of individual petition (the critical date see Blei v Croatia [GC], (Application No 59532/00), para 70, ECHR 2006 III; ilih v Slovenia [GC], (Application No 71463/01), para 140, 9 April 2009; and Varnava and others v Turkey [GC], (Application Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90), para 130, ECHR 2009 . ). (emphasis added) Again, therefore, the decision in akir does not unmistakably endorse the time of the grant of personal petition as the only possible critical date. In my view, the least that can be said of the relevant ECtHR case law is that it certainly does not provide unequivocal support for the view that the critical date is in every instance the date on which the right to present an individual petition to the Strasbourg court has been granted by a member state. What then should this courts conclusion on the critical date be? Two interrelated issues must be addressed in order to answer this question. The first concerns the significance which should attach to the absence of clear guidance from Strasbourg on whether the critical date should be the date of entry into force of the Convention or the date of the grant of the right of individual petition. The second issue is whether the approach to the backward reach of the Convention obligation should be approached in the same way by a national court as it is by the ECtHR, in light of the fact that this court must deal with the question as a matter of domestic law. Part, at least, of the interrelationship between these two issues stems from the fact that national courts in this country give effect to (or refuse to give effect to) Convention rights as a matter of domestic law. The Human Rights Act 1998 introduced to the law of the United Kingdom the European Convention on Human Rights and Fundamental Freedoms. But it did so by making the Convention part of national law so that the rights became domestic rights. Because the rights are domestic, they must be given effect according to the correct interpretation of the domestic statute. As Lord Hoffmann said In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] AC 173, para 34, [the courts] first duty is to give effect to the domestic statute according to what they consider to be its proper meaning, even if its provisions are in the same language as the international instrument which is interpreted in Strasbourg. There are, of course, sound practical and policy reasons that our national courts should follow decisions of the ECtHR. Perhaps the most important of these was touched on by Lord Hoffmann in para 35 of In re G: The best reason is the old rule of construction that when legislation is based upon an international treaty, the courts will try to construe the legislation in a way which does not put the United Kingdom in breach of its international obligations. If Strasbourg has decided that the international Convention confers a right, it would be unusual for a United Kingdom court to come to the conclusion that domestic Convention rights did Lord Hoffmann mentioned what Lord Bingham had said in the earlier case of R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323. In para 20 of his speech in that case Lord Bingham had uttered the fateful line that has become the source of much judicial controversy, The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less. This gave life to the so called mirror principle whereby the content and character of rights in the UK national sphere should precisely match Strasbourg pronouncements. The sentence is much quoted as is, what has been described as, the characteristically stylish twist that was put on it by Lord Brown in R (Al Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2007] UKHL 26; [2008] AC 153, para 106 where he said that the sentence could as well have ended: no less, but certainly no more. In Ullah Lord Bingham was careful to refer to the interpretation of the Convention (as opposed to the interpretation of HRA) but his opinion in that case has been used in a number of subsequent judgments to support the proposition that the content of domestic rights under HRA should not, as a matter of principle, differ from those pronounced by Strasbourg. Indeed, his judgment has been construed as indicating that, unless the ECtHR has given clear guidance on the nature and content of a particular Convention right, the national courts of the UK should refrain from recognising the substance of a claimed entitlement under ECHR. So, for instance, in Al Skeini Lord Brown suggested that where the ECtHR had not spoken, our courts should hold back, explaining that, if it proved that Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg. And in R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29; [2011] 1 AC 1 Lord Phillips followed a similar line. I have expressed my disagreement with that approach in Ambrose v Harris Procurator Fiscal [2011] UKSC 43; [2011] 1 WLR 2435 but must immediately acknowledge that mine was the sole dissenting judgment in that case. Since then, however, judgments have been given in which a departure from a rigid application of the mirror principle is discernible. In Rabone v Pennine Care NHS Foundation Trust (INQUEST intervening) [2012] UKSC 2, [2012] 2 AC 72 it was held that there was a positive obligation to protect the life of a mentally ill young woman who had been admitted to hospital informally because of serious attempts to take her own life. This decision was reached notwithstanding the fact that there was no authority from the ECtHR to that effect. In Surrey County Council v P (Equality and Human Rights Commission intervening) [2014] UKSC 19; [2014] AC 896, para 62 Lord Neuberger said that where there was no Strasbourg authority which dealt precisely with the issues before this court, this court could rely on principles expressed by the ECtHR, even if only indirectly relevant, and apply them to the cases which it had to decide. At para 86 of that case, I reiterated my view (first expressed in Ambrose) that this court had a duty to determine whether a claim that a Convention right had been breached should be accepted, even if Strasbourg had not yet pronounced upon it. And in Moohan v Lord Advocate (Advocate General for Scotland intervening) [2014] UKSC 67; [2015] AC 901 Lord Wilson suggested that there had been a retreat from the Ullah principle which had led the court to substantially modify it. At para 105 he said: where there is no directly relevant decision of the ECtHR with which it would be possible (even if appropriate) to keep pace, we can and must do more. We must determine for ourselves the existence or otherwise of an alleged Convention If there is no clear guidance from Strasbourg on which of the alternatives should be chosen as the critical date, in my view, this court should not be deterred from forming its own judgment as to which is appropriate. I acknowledge, however, that where the national court is required, as part of its decision on a Convention issue, to address directly the question of what Strasbourg would decide (as opposed to what the national court itself should decide), there is a need for caution, where there is no or no clear guidance from the ECtHR on the question. This does not, however, relieve the national court of its duty under section 6 of HRA to resolve the dispute as to whether there has been a breach of a Convention right. The decision in this case as to which date is to be preferred partakes of a two pronged inquiry. First, what the Strasbourg court would decide on the question of its temporal jurisdiction, if presented with a stark choice between the date on which the right of personal petition was granted by the member state and the date of entry into force of the Convention. Secondly, whether this court should be influenced in its decision as to its jurisdiction under the Human Rights Act by what it considers the Strasbourg court would decide. This is the second issue identified in para 227 above. One can recognise the force of the point made by Lord Neuberger at para 84 that, as a matter of first principle, the critical date, so far as the Strasbourg court is concerned, should be linked to the date on which it is invested with the jurisdiction by a member state to entertain personal petitions from that states citizens. As against that, it seems to me that, from the date of entry into force of the Convention in a member state, since it then assumed an international duty to abide by the terms of ECHR, that duty was enforceable by another member state. Article 33 of ECHR (previously article 24) provides for inter state applications. In order to invoke this procedure, it is not necessary for the complainant state to have been a victim. Rights could be violated and inter state enforcement actions could be taken long before the right of individual petition was recognised in some member states. In light of this, as I have said at para 220 above, it might be regarded as anomalous that the individual actually affected by an alleged violation should not have the right to enforce his or her right while another state could apply to the court for redress. But it may be that this is an anomaly which simply must be accepted. Whichever of the alternatives is chosen (the date of entry into force or the date of the personal petition) it is clear that this is not to be regarded as an immutable point from which no departure can be made. In the first place, as Lord Neuberger has explained, it is well settled in Strasbourg case law that a connection between the triggering event and the critical date can, in certain circumstances, warrant extending the temporal jurisdiction of the Strasbourg court back to that event. As the ECtHR has made clear in, among other cases Janowiec, there must be relevant acts or omissions after the critical date and the period between the triggering event and the critical date must remain reasonably short [and while there was no] absolute limit on the duration of that period it should not exceed ten years (para 146). If Strasbourg is willing to contemplate a backward reach of up to ten years between the triggering event and the critical date, is it certain that ECtHR would not be prepared to back date the reach of the Convention to the date of its entry into force in a particular member state? In my view, it is not. But it is by no means certain that the court would be prepared to do so. Because of the need for caution, to which I have adverted (in para 235 above), but not without some hesitation on my part, I am not prepared to say that ECtHR would hold that the critical date was the entry into force of the Convention or that the backward reach of the Convention should be extended to that date. In the event, therefore, although Lord Neuberger and I are not in precise agreement as to what Strasbourg would find, that disagreement does not signify in terms of the present appeal. Either Strasbourg would find that the critical date was the date on which the right to individual petition was conferred or it is not clear that it would not so find. The consequence is the same in both scenarios. A further matter requires to be considered, however. At para 149 of Janowiec the Grand Chamber accepted that there may be extraordinary situations which do not satisfy the genuine connection standard but where the need to ensure the real and effective protection of the guarantees and the underlying values of the Convention would constitute a sufficient basis for recognising the existence of a connection. The type of extraordinary situation in contemplation here was explained by the court in para 150: the Grand Chamber considers the reference to the underlying values of the Convention to mean that the required connection may be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention. This would be the case with serious crimes under international law, such as war crimes, genocide or crimes against humanity, in accordance with the definitions given to them in the relevant international instruments. At para 151, however, the court said this: The court nonetheless considers that the Convention values clause cannot be applied to events which occurred prior to the adoption of the Convention, on 4 November 1950, for it was only then that the Convention began its existence as an international human rights treaty. Hence, a Contracting Party cannot be held responsible under the Convention for not investigating even the most serious crimes under international law if they predated the Convention. Although the court is sensitive to the argument that even today some countries have successfully tried those responsible for war crimes committed during the Second World War, it emphasises the fundamental difference between having the possibility to prosecute an individual for a serious crime under international law where circumstances allow it, and being obliged to do so by the Convention. In light of this passage, I agree with Lord Neuberger that, so far as the Strasbourg court is concerned, the Convention values argument cannot assist the appellants in their claim that a genuine connection between the triggering event and the critical date should be recognised. The claim under HRA What then of the claim based on HRA? Is there any reason that a national court should adopt the same approach to the question of critical date as that of the Strasbourg court? If not, what should the backward reach of HRA, if any, be? Three possibilities must be considered. The first is that the date of the coming into force of the Act itself should mark the date on which a right under HRA arises. The second is that the right under HRA should be coterminous with the temporal jurisdiction of the ECtHR. Finally, it is necessary to consider whether the Convention values dimension could exceptionally provide a link to the Killings in 1948, when that dimension is considered under HRA rather than under ECHR. By way of preamble to consideration of these alternatives, and with particular reference to the second of them, it should be emphasised that the temporal jurisdiction of the Strasbourg court derives from provisions that applied or apply exclusively to that court. Article 25 of ECHR provided that the European Commission of Human Rights could receive petitions from any person claiming to be the victim of a violation of his or her Convention rights, provided that the member state against which the complaint was made had declared that it recognised the competence of the Commission to receive such petitions. Article 46 contained a similar provision in relation to the court. Since 1994, it has been compulsory for member states of the Council of Europe to accept the right to petition the Strasbourg court. Not only do these provisions not apply to claims under HRA, they have nothing to say on the issue of the temporal jurisdiction of this court under that Act. The right of individual petition is a specific, procedural question which applies only to the Strasbourg court. Should the date on which a claim under HRA is possible, be the date of coming into force of that Act? The House of Lords In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, unanimously held that HRA did not have retrospective effect. On that account, the argument that there was a duty to conduct an article 2 compliant investigation into a death which had occurred before 2 October 2000 (the date on which HRA came into force) was dismissed. In McCaughey some modification (as Lord Neuberger has put it) of that position was inevitable. McKerr had been decided before the detachable nature of the procedural requirement to investigate a suspicious death was recognised. But it is important to understand that McCaughey did not challenge the conclusion in McKerr that HRA did not have retrospective effect. It was because the procedural obligation under article 2 was a continuing one that an article 2 compliant inquest in the latter case was required see Lord Phillips at paras 51 52 and 61; Lord Hope at para 76; Lady Hale at para 90; Lord Brown at para 100; my own judgment at paras 110 111; and Lord Dyson at para 134. Lord Neuberger has commented (at para 95 above) that Lord Phillips in McCaughey was inclined to hold that a departure from McKerr was warranted because domestic law should follow the jurisprudence of the Strasbourg court in recognising an article 2 obligation to investigate a suspicious death after the coming into force of HRA. He has also suggested that Lord Dyson (in paras 132 137) and I (in paras 110 114) also favoured this conclusion. It may be that Lord Phillips was of the view that McKerr should be departed from solely because Strasbourg had expressed a different view about the retrospective potential of the Convention and that this should be applied as a matter of automatic consequence to the HRA. I do not consider, however, that this was the purport of Lord Dysons or my judgment. It was because the detachable nature of the procedural duty under article 2 was clearly recognised for the first time in ilih that the decision in McKerr could no longer be followed. It was not because it was considered that the pronouncements in that case about the non retroactive effect of the HRA were wrong. What ilih showed was that the assertion in McKerr that all the obligations arising under article 2 were to be treated as parts of a single whole could no longer stand. Of course, it was theoretically open to this court in McCaughey to refuse to follow the finding in ilih that the procedural duty under article 2 to investigate suspicious deaths was detachable, but, absent such a decision, the need to revise McKerr (without rejecting it in its entirety) was clear. I agree with Lord Neuberger, therefore, that it is not necessary for this court to reach a conclusion on whether McKerrs central thesis (that HRA is not retroactive) was wrong. Rather, what this court must do is decide whether, in light of the states detachable duty to investigate suspicious deaths, there is an existing duty to conduct an article 2 compliant inquiry into the deaths which are the subject of this appeal. On that basis it is impossible to say that, simply because HRA came into force on 2 October 2000, ipso facto, there is no such duty. I would therefore dismiss the first of the possibilities outlined in para 243 above. Should the right under HRA be coterminous with the temporal jurisdiction of the ECtHR? In para 74 of their printed case, the respondents argue that if the appellants do not have a valid claim in Strasbourg under article 2, they cannot have such a claim under the HRA because the Act gives effect to Convention rights within the United Kingdom and does not purport to expand them beyond what Strasbourg has recognised. This argument fails to address the different sources of jurisdiction for Strasbourg and the municipal courts of this country. Constraints on the temporal jurisdiction of the ECtHR, insofar as they derived from articles 25 and 46 of ECHR and, latterly, derive from article 6 of Protocol 11, did not and do not apply to national courts. Moreover, recognition of the jurisdiction of this court to decide whether there is a procedural duty to investigate the deaths does not involve an expansion of the nature and content of that duty as they have been expressed by Strasbourg. The duty remains the same in both instances. The issue is whether, by reason of the different sources of jurisdiction, it should be regarded as arising in domestic law if it does not arise in international law. When a domestic court, applying the HRA, considers the scope of the Convention, the date of the recognition of the right of individual petition to ECtHR is not relevant. One can recognise that it has, at least potentially, some relevance for the Strasbourg court since it marks the beginning of the period when that court has been formally invested with jurisdiction to hear individual complaints. But the domestic courts are in a different position. They must ask first whether the facts constitutive of the alleged violation fall within the temporal scope of the Convention, and they must then ask whether the autonomous article 2 investigative duty lies within the temporal scope of the HRA. The ECtHR asks a different question, namely, whether the matter falls within the temporal jurisdiction of the court, which is regulated by either the date of the entry into force of the Convention in the member state or the recognition of the right of individual petition. My unequivocal answer, therefore to the question, should the temporal jurisdiction of the national court under the HRA be coterminous with that of ECtHR is that it should not be. Just because the Strasbourg court does not have temporal jurisdiction, it should not be regarded as automatic that the national court does not. But the perceived need for legal certainty which prompted ECtHRs decision about the limits on the backward reach of the Convention applies, by parity of reasoning, to the decision as to the national courts jurisdiction. As the Grand Chamber said in Janowiec in para 133, having regard to the principle of legal certainty, the temporal jurisdiction as regards compliance with the procedural obligation of article 2 in respect of deaths that occur before the critical date is not open ended. Likewise, the backward reach of HRA and the recognition of a continuing duty under article 2 to investigate cannot be open ended. Some limit must be applied. That is not to say that there are no countervailing considerations which militate against the fixing of a rigid limit. The role of national courts is to interpret and apply the Convention and thereby provide effective human rights protection to individuals. Indeed, the requirement that all member states of the Council of Europe must confer the right of individual petition on their citizens reflects the growing consensus that international human rights law is about ensuring justice for individual citizens rather than being a matter of relationships between governments. Notwithstanding these considerations, the need for some temporal connection between the triggering event and the animation in the domestic law sphere of the duty to investigate is undeniable. Otherwise the backward reach of HRA would be potentially limitless or, as it was put in Janowiec, open ended. Should the limit be, as in the ECtHR jurisprudence, a short period and no longer than ten years? There is no reason in principle that the periods should be the same in the national law order as in Strasbourg case law. The need for some limit in both instances is unavoidable, however. The choice of the appropriate period must be, in the final analysis, arbitrary. To fix it at the point of the coming into force of HRA would be antithetical to the concept of a continuing duty to investigate a suspicious death when inquiries into that death were begun or should have been continued after the coming into force of the Act. But to extend the duty backwards without any limit simply because an adequate investigation has not yet been undertaken would be significantly out of step with the Strasbourg approach. It would also be, in many instances, wholly impractical. However unsatisfactory it may be in terms of principle, a limit must be set which is essentially arbitrary but which accords with what is, in most cases, practically possible. It may well be that the ten year period chosen by Strasbourg is as good as any. However the limit is fixed, I have concluded that it cannot be extended to cover the some 52 years from the date of coming into force of HRA and the Killings in 1948. The need to avoid erosion of Convention values The triggering event involved in this case, the killing of 24 apparently innocent men, is clearly of a larger dimension than an ordinary criminal offence and could well be said to be the negation of the very foundations of the Convention. If it is established that the men were not trying to escape when they were killed and that there was no justification for opening fire on them, this would constitute a serious crime under international law. All these elements of the killings, if shown to have existed, would strike at the heart of the guarantees and the underlying values of the Convention. Should that circumstance operate to provide, for the purposes of HRA, the exceptional form of connection contemplated by ECtHR in para 150 of Janowiec? The Strasbourg court considered that the question of erosion of Convention values did not arise in the pan European context in relation to events which occurred before the Convention was adopted on 4 November 1950. Although it professed to be sensitive to the argument that there were contemporary examples of some countries having prosecuted those responsible for war crimes committed during the Second World War, it suggested that there was a fundamental difference between accepting that such prosecutions were possible and their being mandated by the Convention. Should the same considerations obtain in deciding whether the need to protect Convention values ought to prompt a finding that HRA should be applied in a way that would require recognition of a current obligation to investigate killings which occurred almost 67 years ago? For my part, I doubt if the question whether prosecution of historical offences should be a matter of compulsion or discretion bears directly on the issue of what is required to protect Convention values. I consider, however, that the need to preserve those values cannot provide the basis of an exceptional link. I have reached that view for the prosaic reason that those values take their life from the Convention. They are not eroded by events which took place before the Convention itself, and the values and guarantees which it embodies, came into existence. I have concluded, therefore, that the protection of Convention values dimension does not provide a link to an existing duty to conduct an article 2 compliant inquiry into the Killings. Revival of the duty to investigate Since no link to the triggering event has been established on any of the bases advanced by the appellants, the question of revival of the duty to investigate does not arise. Had that been a live issue in the case, I confess that I would have found it less easy to resolve than does Lord Neuberger. The official account of the Killings given shortly after they occurred in 1948 was affirmed in 1970 (in the House of Commons in a reply by the Attorney General, Sir Peter Rawlinson) and on 21 January 2009 in a letter from the British High Commissioner in which he said, In view of the findings of two previous investigations that there was insufficient evidence to pursue prosecutions in this case, and in the absence of any new evidence, regrettably we see no reason to reopen or start a fresh investigation. As late as 2009, therefore, the British Government was maintaining the stance that there was nothing to challenge, much less gainsay the original official version of the Killings. If the appellants had accepted that assertion, could they have been faulted for doing so? Surely not. And, if not, can it be said that nothing new has subsequently emerged that would have warranted a decision to no longer accept the governments claim? In fact, a number of new developments took place after January 2009. In June 2009 the book, Slaughter and Deception was published. Lord Neuberger has said that this did not contain much new revelatory evidence. That depends on how one views the state of the evidence and the attitude that might reasonably have been taken to it before publication. If a decision to accept the governments steadfast denials of the need for an inquiry could not be condemned, it is difficult to see how the appellants failure to challenge them can be faulted. The least that Slaughter and Deception did was to collate material from various sources which supported the appellants case that the governments claim that no further inquiry was necessary could not be sustained. Significantly, at a meeting held on 3 July 2009 and attended by members of the Batang Kali action committee with their lawyers and representatives of the Ministry of Defence and the Foreign and Commonwealth Office, it was disclosed that the government was reconsidering the January 2009 decision not to hold a further inquiry. This is significant in two aspects. First, it indicates that the government believed that there was new material which called for fresh consideration. Secondly, it sounds on the reasonableness of the stance of the appellants in failing to take action to challenge the decision not to hold a new inquiry. Lord Neuberger has said that in 1970 there were already considerable reasons for doubting whether the official United Kingdom Government line on the killings was correct, and that there were strong grounds which suggested that the killings were unlawful (para 107 above). This assessment is very much a matter of individual judgment and it is not easy to avoid the influence of hindsight in making it. In any event, it must be set against the statement in Parliament by a senior member of the government, the Attorney General, endorsing what he implied was an independent decision of the Director of Public Prosecutions not to ask the police to pursue the inquiry into the killings. In fact, as the report of Detective Superintendent Williams revealed, he was of the view that this decision was one secured by a political change of view. This did not come to the attention of the appellants until 2009. Thereafter, the government was considering the representations made by the appellants as to whether a new inquiry would be held. It has not been suggested (nor could it be) that the appellants should have challenged the failure to hold an inquiry before the outcome of the governments deliberations was known nor that they failed to act with sufficient speed after it was disclosed to them. In the context of what is required to revive a duty to investigate, the question of what new material will be sufficient to give rise to such a revival should be approached broadly. In Brecknell v United Kingdom (2007) 46 EHRR 957 the Strasbourg court found that a renewed investigation into a 1975 murder was necessary in order to evaluate the link between a number of previously closed cases involving fresh allegations of state collusion. It emphasised that there could always be situations after the closure of cases where information purportedly casting new light on the circumstances of the death comes into the public domain para 66. And in para 70, while pointing out that the revival of the duty to investigate would not be prompted by any allegation, the court said that given the fundamental importance of [article 2], the state authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further. Clearly, therefore, it is not necessary that the new material take the form of hard evidence. Allegations, provided they are credible and have the potential to undermine earlier findings, will suffice. A reassessment of already existing evidence, if it is plausible and enjoys the same potential, will also be sufficient. While, therefore, it may be true to say that nothing substantial in the way of hard evidence was revealed in Slaughter and Deception or by the appellants lawyers obtaining access to the files of the Metropolitan Police and those of the Malaysian Police, the material that they collectively provided cast an entirely new light on the decision not to hold an inquiry. The impact of that new material was neatly and comprehensively stated in para 82 of the Court of Appeals judgment: Whilst developments since our critical date have been intermittent, they have yielded material which, to put it at its lowest, may cast doubt on the original account. The confessions which arose in 1969 1970 were of potential significance and remain so, not least because the investigation within which they emerged was brought to an abrupt halt. They have never been tested or discredited. The sum of knowledge has been significantly increased by the work of the Royal Malaysian Police 20 years ago but they were unable to secure meaningful co operation from the United Kingdom authorities. Importantly, significant material from the Metropolitan Police in the 1970s and a considerable amount of potentially relevant material accumulated during the Royal Malaysian Police investigation in the 1990s has only come to the notice of the claimants in the course of, and as a result of, these proceedings. It includes statements made many years later by some of the children who were at Batang Kali at the time of the shootings. It is not suggested that the material which has emerged since the critical date and which, if true, discredits the official version is all inherently incredible. The fact is that it has never been tested independently. Nor has it been brought together for a singular independent assessment. Moreover, there is reason to suppose that, even now, it could be supplemented by significant pathological expert evidence following exhumation. Professor Sue Black of the University of Dundee has so opined. I agree with this summary and, if a link to the triggering event had been established, I would have held that the duty to conduct an article 2 compliant inquiry had been revived. Customary international law I agree with Lord Neuberger that the appellants cannot succeed by recourse to customary international law because, at the time of the killings, the duty to investigate suspicious deaths had not been recognised as a precept of that system of law. As the Divisional Court in the present case said ([2012] EWHC 2445 (Admin), at para 105), Any duty under customary international law must be judged at the time of the occurrence of the act about which an inquiry is sought. I would be less sanguine about accepting in its entirety Lord Neubergers second reason for rejecting the appellants case on this ground. He relies strongly on four of the five opinions in the House of Lords in McKerr to support his conclusion that a rule of customary international law which decreed that deaths occurring as long ago as 1948 should be investigated ought not to be incorporated into the common law. The basis on which those opinions were expressed is that it would be inappropriate to do so where, in the words of Lord Nicholls, this would create an overriding common law obligation on the state, corresponding to article 2 in an area of the law for which Parliament has long legislated. One can quite understand how it would be inapt to construct a common law duty to investigate which was, in effect, parallel to the statutory obligation to investigate suspicious deaths occurring within the national courts jurisdiction. But suppose that the deaths had occurred at a time when the United Kingdom had jurisdiction over the territory in which they had occurred but, at that time, there was no article 2 duty to investigate nor, when an inquest was subsequently sought, was there any statutory requirement to investigate the deaths because, for instance, United Kingdom had by then relinquished jurisdiction over the country in which they had occurred. If there was a duty to investigate under customary international law, which was current at the time that the deaths occurred, it seems to me that there would be a strong argument that such a duty should find expression in the common law. But those supposed facts are far removed from the circumstances of the present case and I need say nothing further about the matter. Proportionality Lord Neuberger has said that it would not be appropriate for a five member panel of this court to reach a final conclusion on the question whether proportionality should supplant rationality as a ground of judicial review challenge at common law. I tend to agree, although I suspect that this question will have to be frankly addressed by this court sooner rather than later. As Lord Neuberger has said, it is possibly a matter of some constitutional importance, although it is perhaps not as great as many commentators believe. Lord Neuberger also suggested that a change from irrationality to proportionality had implications which might be very wide in applicable scope. This could very well be true but I believe that some of these have been overestimated in the past. Indeed, the very notion that one must choose between proportionality and irrationality may be misplaced. Without rehearsing all the arguments which swirl around this issue and keeping in mind the perils of over simplification, it is important to start any debate on the subject with the clear understanding that a review based on proportionality is not one in which the reviewer substitutes his or her opinion for that of the decision maker. At its heart, proportionality review requires of the person or agency that seeks to defend a decision that they show that it was proportionate to meet the aim that it professes to achieve. It does not demand that the decision maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense. It should also be understood that the difference between a rationality challenge and one based on proportionality is not, at least at a hypothetical level, as stark as it is sometimes portrayed. This was well expressed by Lord Mance in Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014] UKSC 20; [2015] AC 455. At para 51 he said: The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so called Wednesbury principle: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. The nature of judicial review in every case depends on the context. The change in this respect was heralded by Lord Bridge of Harwich in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 531 where he indicated that, subject to the weight to be given to a primary decision makers findings of fact and exercise of discretion, the court must be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. Developing this theme and touching on the subject of the innate superiority of proportionality as a tool of review, Lord Mance continued at para 54: Both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision makers view depending on the context. The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance or benefits and disadvantages. Lord Mance returned to the same theme in Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591 where he said, at para 96: In short, proportionality isas Professor Dr Lbbe Wolff (former judge of the Bundesverfassungsgericht which originated the terms modern use) put it in The Principle of Proportionality in the Case Law of the German Federal Constitutional Court (2014) 34 HRLJ 12, 6 17a tool directing attention to different aspects of what is implied in any rational assessment of the reasonableness of a restriction, just a rationalising heuristic tool. She went on, at p 16: Whether it is also used as a tool to intensify judicial control of state acts is not determined by the structure of the test but by the degree of judicial restraint practised in applying it. Whether under EU, Convention or common law, context will determine the appropriate intensity of review: see also Kennedy v Information Comr [2015] AC 455, para 54. Lord Sumption in the same case expressed not entirely dissimilar views, saying at para 105 that although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law. Lord Reed, on the other hand, was not disposed to assimilate the tests of proportionality and rationality. At para 115 of Pham he said: That is not to say that the Wednesbury test, even when applied with heightened or anxious scrutiny, is identical to the principle of proportionality as understood in EU law, or as it has been explained in cases decided under the Human Rights Act 1998. In R (Daly) v Secretary of State for the Home Department [200l] 2 AC 532, Lord Steyn observed at para 26, with the agreement of the other members of the House of Lords, that there was a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality in cases where Convention rights were at stake. In Brind, the House of Lords declined to accept that proportionality had become a distinct head of review in domestic law, in the absence of any question of EU law. This is not the occasion to review those authorities. As in Pham so, probably, in the present appeal, it is not the occasion to review the authorities. Final conclusions on a number of interesting issues that arise in this area must await a case where they can be more fully explored. These include whether irrationality and proportionality are forms of review which are bluntly opposed to each other and mutually exclusive; whether intensity of review operates on a sliding scale, dependent on the nature of the decision under challenge and that, in consequence, the debate about a choice between proportionality and rationality is no longer relevant; whether there is any place in modern administrative law for a pure irrationality ground of review ie one which poses the question, could any reasonable decision maker, acting reasonably, have reached this conclusion; and whether proportionality provides a more structured and transparent means of review. In the present case, the appellants must present their case for a proportionality review of the decision not to hold an inquiry in a context where they cannot assert that there has been interference with their right to have such an inquiry. Conventionally, of course, interference with a fundamental right has been the setting where proportionality has most frequently been considered recently see, for instance, R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45; Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, paras 20 and 74; and R (Nicklinson) v Ministry of Justice (CNK Alliance intervening) [2014] UKSC 38, [2015] AC 657, paras 80, 167 168, 310, 337. As Lord Reed pointed out in Pham at para 113, it is necessary to distinguish between proportionality as a general ground of review of administrative action, confining the exercise of power to means which are proportionate to the ends pursued, from proportionality as a basis for scrutinising justifications put forward for interferences with legal rights. Lord Neuberger has suggested in para 131 above that the appellants have contended that the four stage test identified by Lord Sumption and Lord Reed in Bank Mellat at paras 20 and 74 should now be applied in place of rationality in all domestic judicial review cases. If this is the appellants position I question its feasibility. In the first instance there is no legislative objective and no interference with a fundamental right; secondly, it is difficult to see how the least intrusive means dimension could be worked into a proportionality exercise where the decision did not involve interfering with a right. I envisage a more loosely structured proportionality challenge where a fundamental right is not involved. As Lord Mance said in Kennedy, this involves a testing of the decision in terms of its suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. In the present case, such a proportionality challenge would require the court to assess whether the government has struck the right balance between two incommensurate values: protecting the public purse from the substantial expenditure that would inevitably be involved, with (from its perspective) little tangible or practical benefit, as opposed to exposing historic crimes by the British forces, with the associated vindication of the appellants long fought and undeniably worthy campaign. I have been reluctantly driven to the conclusion that, without an identifiable fundamental right in play, it is difficult to say that the decision not to hold an inquiry is disproportionate. Jurisdiction I agree with all that Lord Mance has had to say on this subject. Conclusion With regret, I have concluded that the appeal cannot succeed. This is an instance where the law has proved itself unable to respond positively to the demand that there be redress for the historical wrong that the appellants so passionately believe has been perpetrated on them and their relatives. That may reflect a deficiency in our system of law. It certainly does not represent any discredit on the honourable crusade that the appellants have pursued. LADY HALE: (dissenting) The claimants want the United Kingdom Government at long last to hold a proper inquiry into how it was that 24 unarmed rubber plantation workers were shot dead by British soldiers on 11 and 12 December 1948 during the emergency in Malaya. They want the decisions taken by the Secretaries of State on 29 November 2010 and 4 November 2011 not to hold such an inquiry or to make any other form of reparation quashed. They make their challenge under both the Human Rights Act 1998 and the common law. The Human Rights Act challenge The Human Rights Act challenge has always been ambitious. The events in question took place before the European Convention on Human Rights was adopted in 1950; before it was ratified by the United Kingdom in 1951; before it gained sufficient ratifications to come into force in 1953; before the United Kingdom accepted the right of individuals to petition the European Court of Human Rights about alleged violations in 1966; and before the Human Rights Act 1998 turned the Convention rights into rights which are binding, not only in international law, but also in United Kingdom law. The claimants seek to build two bridges. The first is to carry them from the killings which took place in 1948 into the temporal scope of the Convention which came into force in 1953. They say that 1953 is the critical date for this purpose and that the killings took place sufficiently close to that date for there still to have been an obligation to investigate them after it. The second bridge must carry them from that internationally enforceable obligation into a domestically enforceable obligation under the Human Rights Act. They say that such an obligation arises because of new information which has come to light since the Act came into force. It is a tribute to the skill of the claimants legal team that these arguments have to be taken seriously. They rely crucially on the Grand Chamber decision in Janowiec v Russia (2013) 58 EHRR 792, which clarified the courts earlier decision in ilih v Slovenia (2009) 49 EHRR 996. Janowiec concerned what is generally known as the Katyn massacre in 1940, when more than 21,000 Polish prisoners of war were summarily executed by officers of the Soviet NKVD, the predecessor of the KGB. The court might have disposed of the case on the ground that these deaths all took place long before the ECHR had been dreamt of, let alone adopted. But it did not. It acknowledged that it only had jurisdiction to examine acts or omissions taking place after the entry into force of the Convention. But it posited two circumstances in which that jurisdiction might arise even though the deaths themselves had pre dated the critical date. The first was where there was a genuine connection between the death and the entry into force of the Convention. This had two components, both of which must be satisfied. First, the period of time between the death as the triggering event and the entry into force of the Convention [was] reasonably short, and [second] a major part of the investigation [had] been carried out, or ought to have been carried out, after the entry into force (para 148). The court had previously said that the period should be no more than ten years (para 146), although it appears that this was a maximum which might not apply in all cases. The second circumstance was if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundation of the Convention (para 150). The examples given were war crimes, genocide or crimes against humanity. But this Convention values obligation could not arise where the deaths had taken place before the adoption of the Convention, for it was only then that the Convention began its existence as an international human rights treaty (para 151). It would have been much simpler for us all if the Grand Chamber had applied the same logic to the genuine connection test. But it did not. As to the first part of the genuine connection test, the lapse of a reasonably short period of time since the deaths, it seems unrealistic and artificial that so much should depend upon whether the critical date is the entry into force of the Convention in 1953, or the acceptance of the right of individual petition in 1966. As Lord Kerr has demonstrated, the jurisprudence of the Strasbourg court does not point convincingly one way or the other. But logic points strongly in favour of the former. The United Kingdom was bound by treaty to observe the Convention from 3 September 1953 and in relation to Malaya from 23 October 1953. It could thereafter have been taken to the Strasbourg court by any other member state for an alleged violation. There was no requirement that the member state or its citizens be a victim. It is difficult to see why the additional possibility of being taken to the court by an individual victim should make any difference to the obligations of the United Kingdom in international law. Left to myself, therefore, I would not have been prepared to reject this claim on the ground that the critical date was 1966 rather than 1953. We do not have slavishly to follow the Strasbourg jurisprudence. Lord Binghams famous dictum in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20, does not require us to do so. Thus far, it is possible to discern four broad propositions from our own case law. First, if it is clear that the claimant would win in Strasbourg, then he will normally win in the courts of this country. This is because it would negate the purpose of the Human Rights Act for the claimant to have to bring a claim in Strasbourg. But this is subject to the well known qualifications set out in Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2010] UKSC 45, [2011] 2 AC 104, para 48 (and recently reaffirmed in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, para 26): that the clear and constant line of Strasbourg authority is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle. Second, if it is clear that the claimant would lose in Strasbourg, then he will normally lose here too: R (Al Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2007] UKHL 26, [2008] AC 153 is an example where the House of Lords thought that the answer was clear. Strasbourg had drawn a line in the sand jurisdiction was territorial, with only a very few narrowly defined exceptions, which did not apply to civilians killed in the course of military operations in Iraq. As it happened, the House was wrong about that (see Al Skeini v United Kingdom (2011) 53 EHRR 589), but that does not affect the principle. Third, there are cases where it is clear that Strasbourg would regard the decision as one within the margin of appreciation accorded to member states. Then it is a question for the national courts by which organ of government the decision should be taken: R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38, [2015] AC 657 is an example of this, in which this court was divided on where responsibility lay for deciding whether the outright ban on assisting suicide was justified. Fourth, there are cases on which there is as yet no clear and constant line of Strasbourg jurisprudence. We do not have to wait until a case reaches Strasbourg before deciding what the answer should be. We have to do our best to work it out for ourselves as a matter of principle: Rabone v Pennine Care NHS Foundation Trust (INQUEST intervening) [2012] UKSC 2, [2012] 2 AC 72 is an example of this (an example which, as it happened, was swiftly followed by a Strasbourg decision which is wholly consistent with it: see Reynolds v United Kingdom (2012) 55 EHRR 1040). There may be other situations in which the courts of this country have to try to work out for themselves where the answer lies, taking into account, not only the principles developed in Strasbourg, but also the legal, social and cultural traditions of the United Kingdom. As to the second part of the genuine connection test, that a significant part of the investigation did take place, or should have taken place, after the critical date, this depends upon whether there was an omission to act after that date. That depends upon whether a plausible, credible allegation, piece of evidence or item of information comes to light which is relevant to the identification and eventual prosecution or punishment of those responsible. Such new material must be sufficiently weighty and compelling to warrant a new round of proceedings (Janowiec, para 144, citing Dorado v Spain (Application No 30141/09), (unreported) given 27 March 2012, akir v Cyprus (Application No 7864/06), (unreported) given 29 April 2010, and Brecknell v United Kingdom (2007) 46 EHRR 967, paras 66 72). Quite obviously, new material did come to light in 1970 when five of the soldiers admitted under caution that the villagers had not been running away but had been shot in cold blood and a sixth did not retract the sworn statement he had earlier given to the same effect. The critical question, however, is whether further new material came to light after the Human Rights Act came into force. That question is critical because the second bridge, from the Convention to the Human Rights Act, depends upon it. The claimants might well have been able to complain to the Strasbourg court after the 1970 investigation was abandoned. But it is now far too late for them to do that. The time limit for complaining to Strasbourg is long gone. An individual can only make a claim under the Human Rights Act if he or she could complain to Strasbourg after exhausting the remedies available domestically. It was established in In re McCaughey [2011] UKSC 20, [2012] 1 AC 725 that where the death took place before the Human Rights Act came into force but a significant part of the investigation was to take place after that date, then the investigation had to comply with the requirements of the Convention. The claimants argue that the obligation also arises if, after the Act came into force, significant new information comes to light which undermines or casts doubt upon the effectiveness of the original investigation or investigations (a possibility recognised in McCaughey, for example at para 93). The claimants also argue that this point was decided in their favour in the Court of Appeal. The original investigation by the UK authorities in 1948 1949 was seriously defective, not least because none of the surviving villagers were interviewed, and was rightly criticised by the Divisional Court and Court of Appeal. The criminal investigation begun in 1970 as a result of the guardsmens confessions in 1969 1970 was halted prematurely, before the Metropolitan Police could complete their inquiries by interviewing the Malaysian witnesses. The Malaysian Police conducted their own investigations from 1993 to 1996 but were unable to complete their inquiries by interviewing the British witnesses. Much of the material was first brought together and put into the public domain in the book, Slaughter and Deception at Batang Kali, by Ian Ward and Norma Miraflor, published in June 2009. It is unclear just how much the British authorities knew about the Malaysian Police inquiries until then, but it is clear from the prcis of the book prepared for the Secretaries of State by Dr Brendan McGurk in 2009, that the authors had seen statements made to the Malaysian Police which had not been seen in either Ministry. As Lord Kerr has shown, in January 2009, the Secretaries of State were still maintaining the stance that there was nothing to gainsay the original official version of the killings, but something caused them to reconsider their decision in the course of 2009. As the Court of Appeal held, significant material from the Metropolitan Police in the 1970s and a considerable amount of potentially relevant material accumulated during the Royal Malaysian Police investigation in the 1990s has only come to the notice of the claimants in the course of, and as a result of, these proceedings (para 82). Amongst that material was Detective Chief Superintendent Williams report, which revealed his view that the decision to halt the inquiry was secured by a political change of view. Against that, the Secretaries of State argue that the Court of Appeal was not there deciding that there was new information sufficient to revive the investigative obligation. They also argue that the essentials of the villagers accounts had been reported to the Metropolitan Police in 1970 and included in DCS Williams report. Thus, although that inquiry had not been completed, the British authorities did know all the essential points of dispute. Further, although the claimants only got access to the files in the course of the proceedings, they too knew about the soldiers confessions from press reports and from a television documentary In Cold Blood, broadcast in 1992. Thus, save for minor details, there was nothing new about what each side was saying had taken place. In common with Lord Kerr, I find this a much more difficult issue to resolve than does Lord Neuberger. Clearly, the soldiers confessions in 1969 1970 were indeed significant new material which cast doubt on the effectiveness of the original inquiry and were sufficient to revive the obligation to investigate. It is also possible that the results of the Malaysian Police inquiries in the 1990s produced sufficient new material to revive the obligation. It is one thing for survivors to give their accounts to journalists and quite another thing to give them to the police in the course of an official inquiry. But what is meant by new material and coming to light? It appears from the reference in Janowiec to an allegation, piece of evidence or item of information that new material must be construed broadly. It is true that the bare bones of the allegations and counter allegations were known in 1970, but there had then been no proper investigation in Malaya. Effectively there have been two separate investigations, each of one half of the picture only. They were not properly brought together until the publication of Slaughter and Deception at Batang Kali in June 2009. In Harrison v United Kingdom (2014) 59 EHRR SE1, coming to light was equated with coming into the public domain (para 51). The findings of the Hillsborough Independent Panel constituted new evidence and information which cast doubt on the effectiveness of the original inquest and criminal investigations (para 53). Those findings were based on all the available documentation which now included newly disclosed documents held by government departments. Thus, whatever else coming to light may mean, it must encompass the revelation of material which was previously known only to the relevant authorities. Hence I agree with Lord Kerr that the material collectively provided by the publication of the book and the access gained to the Metropolitan and Royal Malaysian Police files cast an entirely new light on the decision not to hold an inquiry (para 265). But I cannot agree with him that this is not a live issue in these proceedings. In their written submissions, the claimants clearly state that they cross the second bridge, the bridge into the Human Rights Act, because the current position is that relevant and weighty material has recently come to light, requiring investigation to discharge the article 2 procedural obligation (para 2.2). But that question only arises if the first part of the genuine connection test is established and that depends upon the critical date. In my view, therefore, principle dictates that the critical date is the date upon which the United Kingdom became bound in international law to observe the guarantees of human rights and fundamental freedoms laid down in the Convention; the triggering events were less than five years earlier; and significant new material has recently come to light which, to say the least, casts doubt on the effectiveness of the original inquiry and later criminal investigations. My reservations about the human rights claim are different. The first is whether what the claimants want falls within the procedural obligation in article 2 at all. In Janowiec, the court observed that the procedural acts which took place or ought to have taken place after the entry into force of the Convention referred to acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party (citing Labita v Italy (2000) 46 EHRR 50, at para 131 and McCann v United Kingdom (1995) 21 EHRR 97, at para 161). The claimants do indeed seek reparation, but this is not by way of an ordinary civil action (which would have been time barred a very long time ago) and not from the actual perpetrators, and it is now quite unrealistic to expect that anyone could be prosecuted for their part in what took place. What the claimants really and rightly want is a proper, full and fair inquiry, which will establish the truth, so far as it is possible to do so, vindicate their deceased relatives and lead to a retraction of the official account of what took place. Yet in Janowiec, the court went on to say that This definition operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing a historical truth (para 143). My second reservation is that the logic of refusing to apply the Convention values test to deaths which took place before the Convention was adopted could equally well be applied to the genuine connection test. How can it be said that there is a genuine connection between the obligations in the Convention and the triggering event, if that event took place before those obligations were given expression in the Convention and adopted by enough states to make it potentially binding in international law? Just like the Convention values, those obligations take their life from the Convention. They are not eroded by events which took place before the Convention itself, and the values and guarantees which it embodies, came into existence (to quote Lord Kerr, at para 258). That to my mind is a more logical, sensible and practical solution to the question of whether there is an obligation to investigate such historic events than arid debates about the critical date. It is for that reason that I would dismiss the Human Rights Act claim. The common law claims There are three bases for the common law claims: customary international law, proportionality, and irrationality or Wednesbury unreasonableness. I agree that it has not been shown that, when these killings took place, customary international law had recognised a duty to investigate deaths of this sort. That is sufficient to dispose of this part of the claim and it is unnecessary to express a view on whether, in any event, such an obligation should not be recognised as part of the common law because of the long history of legislative activity governing the investigation of suspicious deaths. Much of the argument before us (but not in the courts below) was devoted to whether the time had now come to recognise proportionality as a further basis for challenging administrative actions, a basis which, if adopted, would be likely to consign the Wednesbury principle to the dustbin of history. The claimants principal argument (relying in particular on the work of Professor Paul Craig) was that proportionality should be adopted as the basis of challenge for all administrative decisions. An alternative argument was that it should now be openly adopted by this court in a human rights context (relying again on those commentators, including Professor Craig, who suggest that it already applies in the context of fundamental rights). This is indeed a complex issue, but I agree with Lord Kerr (para 283) that it is one thing to apply a proportionality analysis to an interference with, or limitation of, a fundamental right and another thing to apply it to an ordinary administrative decision such as whether or not to hold some sort of inquiry. The recent observations of this court on the relevance of a proportionality analysis, in Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19, [2015] 1 WLR 1591, were in the context of stripping the claimant of his British nationality and all that goes with it, which is clearly a grave invasion of a fundamental right. The context here is, of course, the killing of unarmed civilians by British soldiers. The right to life of those civilians was undoubtedly engaged by whatever took place. Two of the four claimants were present at the scene, but the women and children were separated from the men overnight, and loaded onto a lorry to be driven away from the scene the following day. The claim of all four is as relatives of the deceased. The right which they claim is to a proper investigation and a retraction of the official explanation of what took place. But, for the reasons given earlier, that is not a right recognised by the common law or under the Human Rights Act. But that still leaves the Wednesbury challenge. I do not think that, by concentrating on the proportionality argument, it was intended to abandon the more conventional challenge. Issue 2 identified in the Statement of Facts and Issues was whether the refusal to hold an inquiry or otherwise investigate can be justified by the applicable standard. If not proportionality that must be Wednesbury unreasonableness or irrationality. The decisions in question were contained in the principal decision letter of 29 November 2010 and confirmed, after these proceedings had begun, on 4 November 2011. The reasons given for deciding not to hold an inquiry are summarised by Lord Neuberger at paras 124 and 125 and it is unnecessary for me to repeat them. I would only add that those reasons were focussed upon a statutory inquiry under the Inquiries Act 2005; but the Secretaries of State also concluded that the reasons against such an inquiry also militate against the establishment of any other form of inquiry or investigation. The Divisional Court dealt with this issue in some detail: [2012] EWHC 2445 (Admin), paras 124 to 176. The court considered five possible purposes of an inquiry, derived from Lord Howes evidence to the Select Committee on Government by Inquiry in 2004 2005: (a) establishing the facts, (b) learning from events and preventing a recurrence, (c) catharsis and improving understanding of what happened, (d) providing reassurance and rebuilding public confidence, and (e) accountability. To this they added (vi) promoting good race relations, as required by section 71 of the Race Relations Act 1976. But the courts assessment of how an inquiry might achieve all of these purposes was heavily influenced by its conclusion that it would appear to be very difficult at this point in time to establish definitively whether the men were shot trying to escape or whether these were deliberate executions (para 159). Thus the facts could not definitely be found (paras 160, 161); catharsis could not be achieved (para 165); reassurance could not be given or public confidence rebuilt (para 168); accountability could not be determined (para 169); and it could not be said whether there would be negative or positive consequences in race equality terms (para 172). In addition, times had changed so much that it was very questionable how much could be learnt (para 164); and the costs, even of a stream lined inquiry, which is all the court thought necessary, were a material factor (paras 174 175). Hence the Secretaries of State had taken into account the relevant factors and reached a decision which was plainly open to them to reach (para 176). The Court of Appeal was critical of the approach of the Divisional Court: [2014] EWCA Civ 312, [2015] QB 57. The difficulties of reaching definitive conclusions lay at the heart of its reasoning but this was to impose too high a threshold (para 109). Recent public inquiries, including the Shipman, Bloody Sunday and Baha Mousa inquiries, had adopted a lower and more flexible standard. Moreover, the Secretaries of State had expressly not assumed that it was unlikely that an inquiry could reach firm conclusions. Nevertheless, they took into account the evidential difficulties; considered that establishing the truth is especially important when it can cast light on systemic or institutional failings, which can then be corrected, and this is more likely where the events are relatively recent; and doubted the contemporary relevance of any findings, given how much had changed since 1948. The costs would be considerable. Overall, the conclusion was that the benefits to be gained would not justify the costs. The Court of Appeal was satisfied that the Secretaries of State had considered everything which they were required to consider; did not have regard to any irrelevant considerations; and reached rational decisions which were open to them (para 118). One of the reasons given by the claimants for adopting proportionality instead of Wednesbury unreasonableness or irrationality is Professor Craigs view that cast in its correct terms it could almost never avail claimants (Administrative Law, 7th ed (2012), para 21 027) and that it is difficult to think of a single real case in which the facts meet this standard (The Nature of Reasonableness (2013) 66 CLP 131, 161). This case is an excellent opportunity to test whether that proposition is correct. Any rational decision maker would take into account, at the very least, the following salient points about the background history: (1) The enormity of what is alleged to have taken place. If the guardsmen did indeed kill innocent and unarmed villagers in cold blood, then even by the different standards of the time, this was a grave atrocity which deserves to be acknowledged and condemned. (2) The inadequacy of the initial investigation. There were many people present at the scene who could have been asked for their accounts. It was totally unacceptable to assume that the guardsmen and their police escorts were telling the truth but that survivors and civilian eye witnesses would not do so. (3) The weight which should be accorded to the confessions made in 1970. Although originally given to a newspaper, four were repeated under caution to the police. They were enough to cast serious doubt on the official account and to prompt a serious police inquiry. (4) The premature termination of that inquiry, which was obviously being conscientiously conducted by DCS Williams, and his view that this was a political decision, unsurprising given that it happened very shortly after the change of government in 1970. (5) The evidence obtained from the Royal Malaysian Police inquiry in the 1990s. Although some of the relatives and survivors had previously given their accounts to others, this evidence had only recently come to light. (6) The petering out of that inquiry, in the face, it would appear, of an unhelpful attitude of the British authorities when the Malaysian Police wished to pursue their inquiries here. (7) The thorough analysis of all the available evidence in Slaughter and Deception at Batang Kali. The authors did have a particular point of view, being determined to undermine the official account, but they collected together a great deal of information and analysed it in great detail. (8) The evidence from the archaeologist, Professor Black, as to what exhuming and examining the bodies of the deceased could show and how it would help in determining the facts. (9) The persistence and strength of the injustice felt by the survivors and families of the men who were killed, which has led them twice to petition the Queen and to launch these proceedings. Bearing all that in mind, a rational decision maker would then consider the advantages of some sort of inquiry, in summary: (1) The very real possibility that, despite the difficulties, conclusions could be drawn about what is most likely to have happened. (2) The importance of the British authorities, at long last, seeking to make good the deficiencies of the past inquiries and the very real benefits this could bring in terms of catharsis, accountability and public confidence, whether or not firm conclusions could be reached. If firm conclusions could be drawn, the huge importance of acknowledging what had gone wrong and setting the record straight. Against those advantages, a rational decision maker would set the following disadvantages: (3) (1) The passage of time, the death of so many of the participants and witnesses, and the conflict of evidence, which would make finding the facts more difficult. (2) The changes which have taken place in the organisation and training of the army, the climate of law and public opinion, such that it is unlikely that practical lessons could be learned about how better to handle such situations today. (3) The cost of even a stream lined inquiry, which would be not inconsiderable, involving as it would have to do inquiries to be made in Malaysia, which would depend upon the co operation of the Malaysian authorities. The reasons given by the Secretaries of State focussed on what might now be learned of contemporary relevance, either to the organisation and training of the army or to promoting race relations, from conducting an inquiry. They did not seriously consider the most cost effective form which such an inquiry might take. They did not seriously consider the bigger picture: the public interest in properly inquiring into an event of this magnitude; the private interests of the relatives and survivors in knowing the truth and seeing the reputations of their deceased relatives vindicated; the importance of setting the record straight as counsel put it, balancing the prospect of the truth against the value of the truth. The Strasbourg court expressed this well in Harrison, at para 58: Even where no article 2 procedural obligation exists, it is in the interests of governmental transparency and of justice in the wide sense for a government to arrange for a further review in connection with a national tragedy in response to concerns of victims or their families who are not satisfied with the results of the terminated investigations carried out in accordance with national law, notwithstanding that the tragedy has occurred many years earlier. If the Divisional Court had not set the bar to establishing the truth so high, it might well have concluded that the value of establishing the truth, which would serve all the beneficial purposes which it identified, was overwhelming. In my view, the Wednesbury test does have some meaning in a case such as this. The Secretaries of State did not take into account all the possible purposes and benefits of such an inquiry and reached a decision which was not one which a reasonable authority could reach. I would have allowed this appeal. |
Mexfield Housing Co Operative Ltd (Mexfield) is a fully mutual housing co operative association, which was founded by a bank as part of a mortgage rescue scheme, ie with a view to buying mortgaged properties from individual borrowers who are in difficulty, and then letting the properties back to them. In that capacity, it acquired a number of residential properties, which it then let out to the former owner mortgagors, who, in the normal way for tenants of a fully mutual housing co operative, were required by its rules to be members of Mexfield. One of those properties is 17 Elton Avenue, Barnet (the premises), which, during 1993, Mexfield purchased from Ms Ruza Berrisford, and, by a written agreement made on 13 December 1993, agreed to let it back to her. The agreement was described as an Occupancy Agreement (the Agreement), and it started by reciting that, in anticipation of her occupation of the premises, Ms Berrisford had become a member of Mexfield. Clause 1 then provided as follows: [Mexfield] shall let and [Ms Berrisford] shall take the [premises] from 13 December 1993 and thereafter from month to month until determined as provided in this Agreement. Clause 2 stipulated that the rent was to be payable weekly in advance, and the fourth schedule stated that it was to be 89 per week, subject to annual increase in accordance with the Retail Price Index plus 2%. Clause 2(4) stated that any increase in rent was only to take effect after [a]t least one months notice in writing. Clauses 3 and 4 contained a number of covenants of a familiar nature to those who are conversant with professionally drafted residential tenancy agreements. Clause 3 was concerned with Ms Berrisfords obligations, and it included, in subclause (1), an obligation to take possession of the premises and to pay the rent, in subclause (9), an obligation to use the premises as her only or main residence, and, in subclause (11), an absolute obligation not to assign, sublet or part with possession or occupation of the whole or any part of the premises. The only provisions of the Agreement which expressly provided for its determination were clauses 5 and 6, which were in these terms: 5. This Agreement shall be determinable by [Ms Berrisford] giving [Mexfield] one months notice in writing. This Agreement may be brought to an end by [Mexfield] by the exercise of the right of re entry specified in this clause but ONLY in the following circumstances: a) If the rent reserved hereby or any part thereof shall at any time be in arrear and unpaid for 21 days b) If [Ms Berrisford] shall at any time fail or neglect to perform or observe any of the [terms of] this Agreement which are to be performed and observed by [her] c) If [Ms Berrisford] shall cease to be a member of [Mexfield] d) If a resolution is passed under [Mexfields] Rules regarding a proposal to dissolve [Mexfield] THEN in each case it shall be lawful for [Mexfield] to re enter upon the premises and peaceably to hold and enjoy the premises thenceforth and so that the rights to occupy the premises shall absolutely end and determine as if this Agreement had not been made . 6. Because Mexfield was a mutual housing association, any residential tenancy granted to one of its members attracted no statutory protection, save the very limited protection accorded by the Protection from Eviction Act 1977 (the 1977 Act). For present purposes, the 1977 Act relevantly contains provisions which (i) preclude a residential property owner from physically excluding or evicting an existing or former licensee or tenant from the property without an order of the court, and (ii) entitle a residential occupier under a periodic tenancy to at least four weeks notice to quit. Ms Berrisford remained in occupation of the premises, complying with her obligations under the Agreement, until (apparently through no fault of hers) she fell behind with her rent. Mexfield could have invoked clause 6(a), but it did not do so, presumably because it is a forfeiture provision, and Ms Berrisford soon paid off the rent arrears, so it would have been a foregone conclusion that she would have obtained relief from forfeiture. Rather than relying on clause 6(a), what Mexfield did was to serve a notice to quit on Mrs Berrisford on 11 February 2008, expiring on 17 March 2008. Mexfield then brought proceedings for possession in the County Court, arguing that, despite the apparent limited circumstances in which, and the limited method by which, it could terminate the Agreement (sc. under clause 6), it nonetheless was entitled to put an end to Ms Berrisfords tenancy by serving a notice to quit. The evidence advanced on behalf of Ms Berrisford suggests that, in the past five years or so, Mexfield, or its mortgagee, came under some financial pressure, and that, as a result of purchasing its mortgage debt, Mexfield is now effectively owned and controlled by a businessman, who is seeking to pursue the claim for possession for commercial reasons. Mexfields evidence is that it is run by a committee of management, and nobody else. For present purposes, it is unnecessary to address this dispute, but it is only fair to Mexfield to record that (i) even if Ms Berrisfords version of events is correct, Mexfield has done nothing wrong, (ii) this is a test case, as the Agreement is a standard form used by Mexfield, and (iii) Mexfield has agreed that it will enter into a fresh agreement with Ms Berrisford if her current appeal fails. The essence of Mexfields case was that the effect of a number of cases, culminating in the decision of the House of Lords in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386, is that an arrangement such as that embodied in the Agreement could not be a valid tenancy as a matter of law. Accordingly, Mexfield contended, Ms Berrisford had become a periodic (either weekly, because she paid a weekly rent, or monthly, because that was the parties apparent intention) tenant of the premises by virtue of the payment and acceptance of rent since 1993, and, pursuant to well established and unchallenged principles, Mexfield was entitled to determine such a tenancy with at least one weeks (or one months) notice in common law, but required to be at least four weeks notice by the 1977 Act. At first instance, His Honour Judge Mitchell refused Mexfields application for summary judgment. However, on appeal, Peter Smith J, and, on appeal from him, the Court of Appeal, accepted, albeit reluctantly, Mexfields argument, and made an order for possession see [2009] EWHC 2392 Ch and [2010] EWCA Civ 811; [2011] 1 Ch 244. In the Court of Appeal, in three clear and illuminating judgments, Mummery and Aikens LJJ considered that they were bound by authority to make such an order, but Wilson LJ held that the contractual limitation on Mexfields right to determine the Agreement was enforceable by Ms Berrisford. Ms Berrisfords primary claim that she has a subsisting tenancy The argument in summary The argument for Ms Berrisford, as developed by Mr Wonnacott in his conspicuously clear and learned submissions, is to this effect: (i) The Agreement purports to be the grant to Ms Berrisford of a tenancy for a term determinable by her on one months notice under clause 5, or by Mexfield through exercising its rights under clause 6, and in no other way; (ii) Subject to the points in sub paragraphs (iii) and (iv), such an arrangement cannot constitute a valid tenancy in law; (iii) Before 1926, the arrangement would have been a term for the life of the tenant, subject to the determination rights under clauses 5 and 6 before her death; (iv) By virtue of section 149(6) of the Law of Property Act 1925 (the 1925 Act), such a term is now a tenancy for 90 years, subject to the landlords right to determine on the tenants death, and to the rights under clauses 5 and 6; (v) As Ms Berrisford has not served notice under clause 5, and Mexfield is not relying on clause 6, Mexfield is not entitled to possession, as the 90 year tenancy created by the Agreement still subsists. I shall consider those five points in turn. Can the landlord determine the Agreement by giving one months notice? The first point turns on the interpretation of the Agreement. At any rate at first sight, it seems hard to quarrel with Mr Wonnacotts contention that it continues until either the tenant serves notice under clause 5 or the landlord can and does exercise its rights under clause 6. After all, clause 1 provides that the Agreement is to subsist until determined as provided in this agreement, and the only provisions which deal with determination are clauses 5 and 6. However, on behalf of Mexfield, Mr Gaunt QC relies on the fact that clause 1 describes the tenancy as being from month to month, and says that this carries with it a right in the landlord to determine the Agreement on one months notice. This was not a point raised by Mexfield in the courts below, but it is a pure point of law, and no prejudice could be caused to Ms Berrisford by the fact that it was taken for the first time in this court. We therefore permitted Mexfield to argue that it has the right to determine the Agreement on one months notice. Having now heard the argument, which was advanced in attractive and well modulated terms, I would reject it. Before considering the argument by reference to the terms of the Agreement, it is, of course, necessary to consider whether there is anything in the surrounding circumstances relevant to the interpretation of the Agreement. Beyond the fact that Mexfield was a co operative housing association, of which Ms Berrisford was a member, and that the purpose of the Agreement was to provide Ms Berrisford with a home (all of which is anyway plain from the provisions of the Agreement), it does not appear to me that there are any relevant facts, save that the mortgage rescue background tends to support the notion that Ms Berrisfords right of occupation was not intended to be precarious. (There was some argument as to whether the Agreement was based on guidance given by the Housing Corporation, and there was an application to adduce further evidence in that connection. I consider that whether or not Mexfield was following such guidance is irrelevant to any issue on this appeal. I would therefore refuse the application, and will say no more about that aspect). Turning to the language of the Agreement, Mr Gaunts central point is that the inclusion of the words from month to month mean that the Agreement was intended to be a monthly tenancy, and that, effectively by definition, a monthly tenancy can be determined by either side with one months notice. I accept that, in the absence of any indication to the contrary, a tenancy granted from month to month is a monthly tenancy, and that, again in the absence of any indication to the contrary, a monthly tenancy may be determined by either party giving one months notice to the other. For instance, as explained later in this judgment, it is clear that parties to a monthly tenancy could agree on a bar for a specific period on the right of a landlord to serve notice to quit, and they can also agree a longer (or indeed a shorter) period of notice than the one month which would normally be implied. As observed by Lord Clarke a tenancy agreement has to be interpreted in the same way as any other written contract, so the precise rights and obligations of the parties under it must depend on the terms which the parties have agreed and the circumstances in which they were agreed. However, in some circumstances, there may be principles of law which result in the parties intention being frustrated or modified, and, as is clear from the reasoning in Street v Mountford [1985] AC 809, the legal consequences of what the parties have agreed is a matter of law rather than dependent on what the parties intended. In this case, it seems clear that the parties intended that the arrangement created by the Agreement should only be determinable pursuant to clause 5 or clause 6. As already mentioned, that seems to follow from the closing words of clause 1. However, Mr Gaunt argues that, by virtue of the fact that a tenancy from month to month is determinable by either party on one months notice by either party, the Agreement impliedly provided for determination by Mexfield on a months notice. That ingenious argument appears to me to suffer from several flaws. First, such an implied right of determination does not naturally fall within the scope of the natural meaning of the expression determined as provided in this Agreement. Secondly, it would mean that clause 5 is redundant. Thirdly, it seems scarcely consistent with the words but ONLY in clause 6. Fourthly, if Mexfield does have the right to determine on one months notice, there seems to have been little point in giving it the right to forfeit in clause 6. Finally, given the circumstances in which the Agreement was entered into, it seems unlikely that Ms Berrisfords security was intended to be so tenuous as to be determinable by Mexfield on one months notice at any time from the day the Agreement was made. Accordingly, if a monthly tenancy is automatically determinable by either party giving the other one months notice, as Mr Gaunt contends, it seems to me clear that the Agreement did not give rise to a monthly tenancy, unless it is impossible to conclude, as a matter of law, that it did not. In my view, it is perfectly possible to avoid such a conclusion. The words from month to month could quite properly have been included to indicate that, if Ms Berrisford wished to serve notice under clause 5, or (more questionably) if Mexfield wished to serve notice under clause 2(4), such a notice must take effect on the thirteenth day of a month. However, it is right to add that, for reasons given later in this judgment, I do not accept Mr Gaunts contention that, if the Agreement gave rise to a monthly tenancy, it would have to be automatically determinable on one months notice by either party. Accordingly, whether or not the Agreement gave rise to a monthly tenancy, I consider that, as a matter of contractual interpretation, the effect of clauses 1, 5 and 6 is that that tenancy can only be determined by Ms Berrisford pursuant to clause 5 or by Mexfield pursuant to clause 6, and in no other way (save consensually, viz by surrender). Is such an arrangement capable of being a tenancy as a matter of law? I turn to the second issue, namely whether an arrangement, which can only come to an end by service of one months notice by the tenant, or by the landlord invoking a right of determination on one or more of the grounds set out in clause 6, is capable, as a matter of law, of being a tenancy in accordance with its terms. Mr Wonnacott accepts that it is not so capable. His concession is supported both by very old authority and by high modern authority. It seems to have been established for a long time that an agreement for an uncertain term cannot be a tenancy in the sense of being a term of years. In Say v Smith (1563) Plowd 269, 272, Anthony Brown J said that every contract sufficient to make a lease for years ought to have certainty in three limitations, viz in the commencement of the term, in the continuance of it, and in the end of it and words in a lease, which dont make this appear, are but babble. That is consistent with what was stated in Bractons De Legibus et Consuetudinibus Angliae, written in the mid thirteenth century. It is there stated that a grant of land until you have taken 40 pounds would be a free tenement (which could not be created without certain strict formalities), rather than a term certain (which did not require such formalities), because it cannot be known how long it may take for so many pounds to be raised from [the] land, because the term is uncertain and undetermined Bracton on the Laws and Customs of England (trans Professor E Thorne) (1977), vol 3, p 50 (f176b). This statement was referred to with approval by Sir Edward Coke in Co Litt 42a (1628), and much the same is stated in Brooks New Cases (1554/5) pl 462. So too in The Bishop of Baths Case (1605) 6 Co Rep 34b, 35b, Coke stated that a letting expressed to last until a certain amount of money had been levied of the issues and profits is but a lease at will without livery i.e. without the formalities required for the establishment of a freehold interest. Much more recently, in Lace v Chantler [1944] KB 368, the Court of Appeal held that a purported letting for the duration [of the Second World War] could not take effect as a good tenancy for the duration of the war as it was for an uncertain term, and that it was consequently ineffective. This decision was distinguished by a subsequent Court of Appeal in Ashburn Anstalt v Arnold [1989] Ch 1, where it was held that a right to occupy premises until the owner gave one quarters notice certifying he needed the premises for redevelopment created a tenancy binding on third parties. Less than 20 years ago, the House of Lords approved and applied Lace [1944] KB 368, and disapproved and overruled Ashburn [1989] Ch 1. In Prudential [1992] 2 AC 386, land was sold in 1930 by the owner, Mr Nathan, to the London County Council, who immediately leased it back to him at a weekly rent until the land is required by the council for the purposes of the widening of the road. The House of Lords held that this arrangement was incapable of creating a tenancy, as it was for an uncertain, potentially perpetual, duration. Lord Templeman (with whom the other members of the House of Lords agreed, albeit with reluctance in most cases) said at [1992] 2 AC 386, 394F, that there had been 500 years of judicial acceptance of the requirement that a term must be certain applies to all leases and tenancy agreements. The position with regard to periodic tenancies containing a fetter on the right of either or both parties to serve a notice to quit seems to be much the same. The concept of a periodic tenancy appears to have originated in a suggestion in Burgh v Potkyn (1522) YB 14 Hen 8 f10 pl 6, but it does not seem to have been accepted by the courts until the end of the 17th century, and then only on special facts see Taylor v Seed (1696) Comb 383. Accordingly, there is not the long established learning which there is in relation to terms of uncertain duration. In Doe d Warner v Browne (1807) 8 East 165, an agreement provided that a tenancy at 40 per annum would not be determined so long as the tenant paid the rent and did not harm the landlord. At p 166, Lord Ellenborough CJ said in argument that it would be inconsistent with, and repugnant to a tenancy from year to year that it should not be determinable at the pleasure of either party giving the regular notice. In his judgment on the following page, Lawrence J said much the same thing, tantalisingly (as it appears to have been in an unreported case) suggesting that Lord Mansfield had held otherwise, in a view which had been long exploded. Mr Browne subsequently obtained equitable relief from Lord Eldon LC see Browne v Warner (1807) 14 Ves Jun 156 and (1808) 14 Ves Jun 409. However, these reports only cover the grant of interlocutory relief, and the precise basis for its grant is not entirely clear. In those circumstances, although Mr Wonnacott seeks to derive assistance from Lord Eldons observations (as did Malins V C in In re Kings Leasehold Estates (1873) LR 16 Eq 521, 526 527), I do not think that any conclusions can be safely drawn from his decision, save, perhaps, that any conclusion which may be derived from Doe v Browne 8 East 165 may not be as simple as more modern authorities suggest. Despite what was said in Doe v Browne 8 East 165, the Court of Appeal in Breams Property Investment Co Ltd v Stroulger [1948] 2 KB 1, 6 held that an agreement by a landlord in a periodic tenancy not to serve notice to quit for three years unless it required the premises for its own use was valid. In In re Midland Railway Cos Agreement, Charles Clay & Sons Ltd v British Railways Board [1971] Ch 725, the Court of Appeal held that an agreement by a landlord not to determine a half yearly tenancy until the premises were needed for the purposes of its undertaking was valid. The Court distinguished Lace [1944] KB 368 on the ground that it did not concern a periodic tenancy, and derived assistance from Breams [1948] 2 KB 1. In Prudential [1992] 2 AC 386, the House of Lords overruled Midland Railway [1971] Ch 725, effectively on the basis that a fetter of uncertain duration on the service of a notice to quit in relation to a periodic tenancy was as objectionable to the concept of a tenancy as was the existence of an uncertain term. It was not, however, suggested by Lord Templeman that Breams [1948] 2 KB 1 was wrongly decided. Following the decision of the House of Lords in Prudential [1992] 2 AC 386, the law appeared clear in its effect, intellectually coherent in its analysis, and, in part, unsatisfactory in its practical consequences. The position appears to have been as follows. (i) An agreement for a term, whose maximum duration can be identified from the inception can give rise to a valid tenancy; (ii) an agreement which gives rise to a periodic arrangement determinable by either party can also give rise to a valid tenancy; (iii) an agreement could not give rise to a tenancy as a matter of law if it was for a term whose maximum duration was uncertain at the inception; (iv) (a) a fetter on a right to serve notice to determine a periodic tenancy was ineffective if the fetter is to endure for an uncertain period, but (b) a fetter for a specified period could be valid. If we accept that that is indeed the law, then, subject to the point to which I next turn, the Agreement cannot take effect as a tenancy according to its terms. As the judgment of Lady Hale demonstrates (and as indeed the disquiet expressed by Lord Browne Wilkinson and others in Prudential [1992] 2 AC 386 itself shows), the law is not in a satisfactory state. There is no apparent practical justification for holding that an agreement for a term of uncertain duration cannot give rise to a tenancy, or that a fetter of uncertain duration on the right to serve a notice to quit is invalid. There is therefore much to be said for changing the law, and overruling what may be called the certainty requirement, which was affirmed in Prudential [1992] 2 AC 386, on the ground that, in so far as it had any practical justification, that justification has long since gone, and, in so far as it is based on principle, the principle is not fundamental enough for the Supreme Court to be bound by it. It may be added that Lady Hales Carrollian characterisation of the law on this topic is reinforced by the fact that the common law accepted perpetually renewable leases as valid: they have been converted into 2000 year terms by section 145 of the Law of Property Act 1922. However, I would not support jettisoning the certainty requirement, at any rate in this case. First, as the discussion earlier in this judgment shows, it does appear that for many centuries it has been regarded as fundamental to the concept of a term of years that it had a certain duration when it was created. It seems logical that the subsequent development of a term from year to year (ie a periodic tenancy) should carry with it a similar requirement, and the case law also seems to support this. Secondly, the 1925 Act appears to support this conclusion. Having stated in section 1(1) that only two estates can exist in land, a fee simple and a term of years, it then defines a term of years in section 205(1)(xxvii) as meaning a term of years either certain or liable to determination by notice [or] re entry; as Lord Templeman said in Prudential [1992] 2 AC 386, 391B, this seems to underwrite the established common law position. The notion that the 1925 Act assumed that the certainty requirement existed appears to be supported by the terms of section 149(6). As explained more fully below, this provision effectively converts a life tenancy into a determinable term of 90 years. A tenancy for life is a term of uncertain duration, and it was a species of freehold estate prior to 1926, but, in the light of section 1 of the 1925 Act, if it was to retain its status as a legal estate, it could only be a term of years after that date. Presumably it was converted into a 90 year term because those responsible for drafting the 1925 Act thought it could not be a term of years otherwise. Thirdly, the certainty requirement was confirmed only some 20 years ago by the House of Lords. Fourthly, while not a very attractive point, there is the concern expressed by Lord Browne Wilkinson, namely that to change the law in this field might upset long established titles [1992] 2 AC 386, 397A. Fifthly, at least where the purported grant is to an individual, as opposed to a company or corporation, the arrangement does in fact give rise to a valid tenancy, as explained below. Finally, it has been no part of either partys case that the Agreement gave rise to a valid tenancy according to its terms (if, as I have concluded, it has the meaning for which Mr Wonnacott contends). Would such a tenancy have been treated as a tenancy for life before 1926? While Mr Wonnacott accepts that the arrangement contained in the Agreement would not be capable of constituting a tenancy in accordance with its terms, he contends that, at any rate before 1926, the arrangement would have been treated by the court as a tenancy for the life of Ms Berrisford, determinable before her death by her under clause 5, or by Mexfield under clause 6. There is much authority to support the proposition that, before the 1925 Act came into force, an agreement for an uncertain term was treated as a tenancy for the life of the tenant, determinable before the tenants death according to its terms. In Bracton (op cit) vol 3, p 50 (f176b), it will be recalled that the grant of an uncertain term was held to give rise to a free tenement, provided that the formalities had been complied with. The nature of this free tenement would appear to be a tenancy for the life of the grantee. That is clear from what was said in Littleton on Tenures (1481/2) vol 2, section 382 namely: [I]f an abbot make a lease to a man, to have and to hold to him during the time that he is abbot the lessee hath an estate for the term of his owne life: but this is on condition that if the abbot resign, or be deposed, that then it shall be lawful for his successor to enter. In Co Litt vol 1, p 42a, it is similarly stated that if an estate is granted to a person until, inter alia, she marries, or so long as she pays 40 or for any like incertaine term, the lessee hath in judgment of law an estate for life determinable if [the formalities of creation are satisfied]. This passage was quoted and applied by North J in In re Carnes Settled Estates [1899] 1 Ch 324, 329. The same point was made in Sheppards Touchstones on Common Assurances, where it is said that uncertain leases made with limitations may be good leases for life determinable on these contingents, albeit they be no good leases for years 7th ed (1821), vol 2, p 275. In Doe v Browne 8 East 165, 166 167, Lord Ellenborough CJ and Lawrence J, both of whom rejected the contention that an agreement which was to continue so long as the tenant paid the rent and did not harm the landlords business could be a valid term of years, said that it could be an estate for life, but that it failed to achieve this status because the necessary formalities had not been complied with. Such formalities have now largely been done away with, and they normally only require a written, signed document. As Lord Dysons reference to Joshua Williamss 1920 textbook shows, the perceived legal position right up to the time of the 1925 property legislation was that terms of uncertain duration were converted into determinable terms for life. On this basis, then it seems clear that, at least if the Agreement had been entered into before 1 January 1926 (when the 1925 Act came into force), it would have been treated by the court as being the grant of a tenancy to Ms Berrisford for her life, subject to her right to determine pursuant to clause 5 and Mexfields right to determine pursuant to clause 6. Mr Gaunt relies on more recent authorities to support a contention that an agreement for an uncertain term was only regarded as creating a tenancy for life if, on a fair reading of the agreement, that was what the parties to the agreement intended. That does indeed seem to have been the approach of Sir George Jessel MR in Kusel v Watson (1879) 11 Ch D 129, but that is of limited value as the agreement in that case could not have created a tenancy for life, as it was created by a lessee. However, Mr Gaunts contention gets rather more support from the reasoning of the Court of Appeal in Zimbler v Abrahams [1903] 1 KB 577, 582 (per Vaughan Williams LJ) and 583 (per Stirling and Mathew LJJ). In my judgment, however, there are three answers to that contention. The first is that the reasoning in Zimbler [1903] 1 KB 577 is not strictly inconsistent with Mr Wonnacotts analysis: if, as a matter of interpretation, the agreement in that case did involve the grant of a tenancy for life, then there was no need to invoke Mr Wonnacotts analysis, but that does not mean that the analysis is wrong. Secondly, if Zimbler [1903] 1 KB 577 did proceed on the assumption that an agreement which purported to create a tenancy for an uncertain term could not give rise to a tenancy for life unless it was the parties intention to do so, it was wrong, as it would have been inconsistent with the authoritative dicta relied on by Mr Wonnacott, in particular the clear statement in Littleton, vol 2, section 382. (I also note that neither counsel in Zimbler [1903] 1 KB 577 relied on the point made by Mr Gaunt: see pp 578 580). Thirdly, even if an agreement which creates an uncertain term could only have resulted in a tenancy for the life of the tenant if that was the intention of the parties, I consider that, on a true construction of the Agreement, it was intended that Ms Berrisford enjoy the premises for life subject, of course, to determination pursuant to clauses 5 and 6. I have in mind in particular clause 6(c), which will apply on Ms Berrisfords death, the fact that her interest is unassignable, and the fact that it was intended to ensure that she could stay in her home. Is the agreement converted into a 90 year term by section 149(6)? The next step in Mr Wonnacotts argument is that, given that the Agreement would have given rise to a tenancy for life prior to 1926, the effect of section 149(6) of the 1925 Act (section 149(6)) is that the Agreement is now to be treated as a term of 90 years determinable on the death of Ms Berrisford, subject to the rights of determination in clauses 5 and 6. Section 149(6) provides: Any lease . at a rent . for life . or any contract therefor, made before or after the commencement of this Act, . shall take effect as a lease . or contract therefor, for a term of 90 years determinable after the death . of the original lessee . by at least one months notice in writing given to determine the same on one of the quarter days applicable to the tenancy As already mentioned, the 1925 Act began by limiting the number of permissible legal estates in land to two, a fee simple and a term of years. Accordingly, it was necessary for the statute to deal with interests, such as estates for lives, which had previously been, but no longer were, valid legal estates. Hence one of the reasons for section 149(6). However, it is clear from its terms that the section was not merely concerned with preserving life interests which existed prior to 1 January 1926: it also expressly applies to life interests granted thereafter. Therefore, says Mr Wonnacott, the section converts an arrangement such as the Agreement, which, according to the common law, is a life tenancy into a 90 year term. The first argument which might be raised against this contention is that the Agreement was not a lease for life, merely a contract which would have been treated by established case law as such a lease. I do not consider that can be right. Apart from not being consistent with the wording of section 149(6), it would mean that an agreement such as that described in Littleton section 382, which existed as a continuing valid determinable life estate on the 1 January 1926, would have lost its status as a legal estate, as it would not have been saved by section 149(6): that cannot have been the legislatures intention. Mr Gaunt contends that section 149(6) is concerned with tenancies which automatically end with the tenants death, not with tenancies which can be determined on the tenants death, and, in this case, the effect of clause 6(c) is that the tenancy can be determined, not that it automatically determines, on the tenants death. I accept that section 149(6) only applies to tenancies which automatically determine on death, and I am prepared to assume that clause 6(c) can only be invoked by service of a notice. However, the argument misses the point, because the Agreement is (or would be in the absence of sections 1 and 149 of the 1925 Act) a tenancy for life, not because of the specific terms of, or circumstances described in, clause 6(c), but because it is treated as such by a well established common law rule. It is also suggested that section 149(6) does not apply to arrangements such as the Agreement which are determinable in circumstances other than the tenants death e.g. on the grounds set out in clause 6. I can see no reasons of principle for accepting that contention, and it appears to me that there are strong practical reasons for rejecting it. The common law rule that uncertain terms were treated as life tenancies applied, almost by definition, to arrangements which determined in I have read what Lord Walker has written about section 149(6) and Bass other events, and it is hard, indeed impossible, to see why the rule should be limited to cases where an event automatically determines the term, as opposed to cases where an event entitles the landlord to serve notice to determine the term. In each case, the term is uncertain. At least one of the reasons the common law treated uncertain terms as tenancies for lives was, as I see it, to save arrangements which would otherwise be invalidated for technical reasons, and I find it hard to accept that the modern law requires the court to adopt a less benevolent approach to saving contractual arrangements. Holdings Ltd v Lewis [1986] 2 EGLR 40, and respectfully agree with him. It is strongly pressed by Mr Gaunt that the conclusion that the Agreement gives rise to a valid tenancy for 90 years determinable on the tenants death would be inconsistent with high modern authority. In particular, he said that such a conclusion would be contrary to the outcome in Lace [1944] KB 368, and inconsistent with clear dicta of Lord Greene MR in that case and of Lord Templeman in Prudential [1992] 2 AC 386. I accept the factual basis for that argument, but do not agree with its suggested conclusion. The fact is that it was not argued in either of those two cases that the arrangement involved would have created a life tenancy as a matter of common law, and that, following section 149(6), such an arrangement would now give rise to a 90 year term, determinable on the tenants death (and Mr Wonnacott was kind enough to point out that such an argument would not have assisted, and may even have harmed, the unsuccessful respondents case in Prudential [1992] 2 AC 386). Some of the statements about the law by Lord Greene and Lord Templeman can now be seen to be extravagant or inaccurately wide, but it is only fair to them to repeat that this was, at least in part, because the tenancy for life argument was not raised before them. Is Ms Berrisford accordingly entitled to retain possession? For the reasons given, I accept Mr Wonnacotts case that (i) the arrangement contained in the Agreement could only be determined in accordance with clauses 5 and 6, and not otherwise, (ii) such an arrangement cannot take effect as a tenancy in accordance with its terms, but (iii) by virtue of well established common law rules and section 149(6), the arrangement is a tenancy for a term of 90 years determinable on the tenants death by one months notice from the landlord, and determinable in accordance with its terms, i.e. pursuant to clauses 5 and 6. I indicated earlier in this judgment that this conclusion would apply irrespective of whether the purported tenancy created by the Agreement was simply for an indeterminate term or was a periodic tenancy with a fetter on the landlords right to determine. There is no difficulty if the former is the right analysis. If the latter is correct, then there is a monthly tenancy which the landlord is unable to determine unless he can rely on one or more of the grounds in clause 6. In Breams [1948] 2 KB 1, the Court concluded that a periodic tenancy with a fetter on the landlords right to determine for three years was valid. It seems to me that the term thereby created was equivalent to a fixed term of three years (subject to a restricted right of determination in the landlord and an unrestricted right of determination by the tenant) followed by a periodic tenancy. Accordingly a periodic tenancy with an invalid fetter on the landlords right to determine should be treated in the same way as a tenancy for a fixed, if indeterminate, term. That seems to me to be justified in principle, logical in theory, and it ensures the law in this area is the same for all types of tenancy, whether or not periodic in nature (which was, I think, part of the reasoning in Prudential [1992] 2 AC 386). On that basis, even if the tenancy created by the Agreement was a monthly tenancy with an objectionable fetter, it seems to me that it would have been treated as a life estate under the old law (subject to the right to determine in accordance with the terms of the fetter), and so would now be a tenancy for 90 years. Ms Berrisford is still alive, and it is common ground that she has not served notice under clause 5 and that Mexfield is not relying on clause 6. In those circumstances, it follows that Ms Berrisford retains her tenancy of the premises and that Mexfield is not entitled to possession. Ms Berrisfords alternative case in contract This conclusion renders it unnecessary to consider two alternative arguments, which were raised by Mr Wonnacott, namely that (i) if the Agreement did not create a tenancy, it nonetheless gave rise to a binding personal contract between Mexfield and Ms Berrisford, which Ms Berrisford is entitled to enforce against Mexfield so long as it owns the premises, or (ii) if the Agreement created a periodic tenancy with an impermissible fetter on the right of the landlord to serve notice to quit, the fetter is nonetheless enforceable as against Mexfield so long as it is the owner of the premises. However, having heard full submissions on those two arguments, I incline fairly strongly to the view that, if Ms Berisford had failed in establishing that she had a subsisting tenancy of the premises, she would nonetheless have defeated Mexfields claim for possession on the ground that she is entitled to enforce her contractual rights. If the Agreement does not create a tenancy for technical reasons, namely because it purports to create an uncertain term, it is hard to see why, as a matter of principle, it should not be capable of taking effect as a contract, enforceable as between the parties personally, albeit not capable of binding their respective successors, as no interest in land or other proprietary interest would subsist. The argument to the contrary rests in part on authority and in part on principle. So far as authority is concerned, the point at issue was specifically addressed and rejected by Lord Greene in Lace [1944] KB 368, 371 372 in these terms: [Counsel] argued that the agreement could be construed as an agreement to grant a licence. In my opinion, it is impossible to construe it in that sense. The intention was to create a tenancy and nothing else. The law says that it is bad as a tenancy. The court is not then justified in treating the contract as something different from what the parties intended . That would be setting up a new bargain which neither of the parties ever intended to enter into. So, too, in Prudential [1992] 2 AC 386, it appears that Lord Templeman treated as void a fetter for an indefinite period on the right of the landlord under a periodic tenancy to serve a notice to quit. It does not seem to me that the observations of Lord Greene, although they are strongly expressed views of a highly reputable judge, can withstand principled analysis. As Lord Templeman made clear in Street [1985] AC 809, while the parties rights and obligations are primarily determined by what they have agreed, the legal characterisation of those rights is ultimately a matter of law. If the Agreement is incapable of giving rise to a tenancy for some old and technical rule of property law, I do not see why, as a matter of principle, that should render the Agreement invalid as a matter of contract. The fact that the parties may have thought they were creating a tenancy is no reason for not holding that they have agreed a contractual licence any more than in Street [1985] AC 809, the fact that the parties clearly intended to create a licence precluded the court from holding that they had, as a matter of law, created a tenancy. So, too, as Mr Wonnacott points out, in Milmo v Carreras [1946] KB 306, the Court of Appeal (led by Lord Greene) held that what was plainly stated and understood by the parties to be an underlease operated as an assignment of the lease as a matter of law, because the duration of the purported underlease equalled or exceeded that of the lease. Mr Gaunt relies on Street [1985] AC 809 to support another argument, namely that the Agreement could not amount to a licence because it granted the occupier exclusive possession, which is the hallmark of a tenancy. In my view, there is nothing in that argument. The hallmarks of a tenancy include the grant of exclusive possession, but they also include a fixed or periodic term. That was emphasised by Lord Templeman in Street [1985] AC 809 at several points in his judgment, where he referred to a tenancy having to be for a term of years absolute, a fixed or periodic term certain, or (in a formulation which he approved and adopted) for a term or from year to year or for a life or lives [1985] AC 809, 814E F, 818E, and 827C and E. Further, as Lord Templeman made clear more than once, the rule that an occupier who enjoys possession is a tenant admits of exceptions, even where the occupier has been granted a fixed or periodic term see at [1985] AC 809, 818E F and 823D E. It has been suggested (although not in argument before us) that the notion that the Agreement could give rise to a contractual licence if it cannot be a tenancy is somehow inconsistent with the reasoning of the House of Lords in Bruton v London & Quadrant Housing Trust [2000] 1 AC 406. In that case, Lord Hoffmann said that an agreement can give rise to a tenancy even if it does not create an estate or other proprietary interest which may be binding upon third parties: p 415. That statement was made in circumstances where a housing trust, which had been granted a licence by a local authority to use a block of flats, agreed that a Mr Bruton could occupy one of the flats. The point being made by Lord Hoffmann was that the fact that the trust was only a licensee, and therefore could not grant a tenancy binding on its licensor, did not prevent the agreement with Mr Bruton amounting to a tenancy as between him and the trust. The tenancy would thus have been binding as such not only on Mr Bruton and the trust, but also on any assignee of Mr Bruton or the trust. Bruton [2000] 1 AC 406 was about relativity of title which is the traditional bedrock of English land law. Lord Hoffmanns observations in that connection have no bearing on a case where the nature of the agreement is such that it cannot, as a matter of law, be a tenancy even as between the parties. If the Agreement cannot give rise to a tenancy, then, if it is not a contractual licence, the only right that Ms Berrisford could claim would be that of a periodic tenant on the terms of the written Agreement in so far as they are consistent with a periodic tenancy, because she has been in possession purportedly under the Agreement, paying a weekly rent to Mexfield. It is worth briefly considering why she would be a periodic tenant on this basis, not least because it is Mexfields contention that this is the right analysis. It would be because the law will infer a contract on these terms from the actions of the parties, namely the terms they purported to agree in the Agreement, and Ms Berrisfords enjoyment of possession and payment of rent. But the ultimate basis for inferring a tenancy (and its terms) is the same as the basis for inferring any contract (and its terms) between two parties, namely what a reasonable observer, knowing what they have communicated to each other, considers that they are likely to have intended. Given that no question of statutory protection could arise, it seems to me far less likely that the parties would have intended a weekly tenancy determinable at any time on one months notice than a licence which could only be determined pursuant to clauses 5 and 6. Since writing this, I have read what Lord Mance and Lord Clarke have written in connection with this point, and I respectfully agree with them. It is also interesting to read Lord Hopes judgment, which demonstrates that the Scottish courts have also encountered difficulty when grappling with interests of uncertain duration, and seem to have come up with a similar answer. That leaves Mr Wonnacotts further alternative argument, namely that, if Mexfield is right and there is a periodic tenancy, then, even if the fetter on the landlords right to serve a notice to quit is objectionable in landlord and tenant law, it can be enforced as between the original parties as a matter of contract. That was the basis on which Wilson LJ felt able to find for Ms Berrisford in the Court of Appeal. I prefer to say nothing about that point: I have already dealt with one alternative reason for allowing this appeal, so considering this argument would involve making two successive counter factual assumptions, rarely a satisfactory basis for deciding a point of law. Conclusion In these circumstances, I would allow Ms Berrisfords appeal, and discharge the order made against her. It is only right to repeat that the Court of Appeal and Peter Smith J were bound by authority which made it impossible for them to reach the same conclusion as I have done on the points on which I would allow the appeal. LORD HOPE For the reasons given by Lord Neuberger, with which I entirely and respectfully agree, I too would allow this appeal. I wish to add just a few words about the position in Scotland, as there are significant differences between the way English and Scots law treat agreements of the kind that are in issue in this case. The first difference relates to the status of Mexfield as compared with the status that a similar body has in Scotland. It is a fully mutual housing association within the meaning of section 1(2) of the Housing Associations Act 1985 and section 5(2) of the Housing Act 1985. It cannot create an assured tenancy in England: section 1(2) of and paragraph 12(1)(d) of Schedule 1 to the Housing Act 1988. Nor can it create a secure tenancy there, because it is registered under the Industrial and Provident Societies Act 1965. A housing association is not a landlord for the purpose of creating a protected or statutory tenancy: Rent Act 1977, sections 15(1) and 15(3). So its members have no statutory protection except that which is given to them by the Protection from Eviction Act 1977. In Scotland a fully mutual co operative housing association which meets the conditions for registration set out in sections 58 and 59 of the Housing (Scotland) Act 2001 is eligible for registration as a social landlord under Part 2 of that Act. Mexfield would meet these criteria if it was providing housing services in Scotland, as they extend to bodies established for the purpose of providing houses for occupation by members of that body where the rules restrict membership to persons entitled to occupy a house provided by that body: section 58(2)(b). It is the normal practice for eligible bodies to apply for registration. There were 211 registered social landlords in Scotland in 2011: see the annual report of the Scottish Housing Regulator. Where the landlord is a registered social landlord which is a co operative housing association and the tenant is a member of the association the tenancy is a Scottish secure tenancy: section 11(1)(d). The Protection from Eviction Act 1977 does not extend to Scotland: section 13(3). But Ms Berrisford would have had statutory security of tenure if the house which she is occupying under the Occupancy Agreement was in Scotland and her landlord had been registered under the 2001 Act. The other difference relates to the way the common law treats such agreements if statutory security of tenure is not available. The starting point in Scots law is that a lease is a contract which gives the tenant a personal right to the subjects: Gordon, Scottish Land Law, 3rd ed (2009), vol 1, para 18 136. A right of that kind is capable of being created simply by agreement between the parties. The original parties to the contract are free to regulate the arrangements that are to apply between themselves as they wish. They will be held to the terms of their contract so long as the original proprietor of the premises retains ownership of the property and the original tenant remains in occupation of it. The situation becomes more complicated where the ownership of the premises passes to someone else. In that event the tenant will need to have acquired a real, or proprietary, right if he wishes to enforce his exclusive right to remain there against the new owner. The circumstances in which the lease will confer on the tenant a real right were set out in the Leases Act 1449, which remains in force: Gordon, para 18 137. To obtain the benefit of the statute, which refers to the takers of the lands having terms and years thereof, there must be a term when it is to come to an end. The lease must be for a definite duration, such as a number of years or the lifetime of the grantor or the grantee: Hunter on Landlord and Tenant, 4th ed (1876), vol 1, p 461. A real right may also be obtained by registering the lease in the Land Register of Scotland if it is to endure for 20 years or more under the Registration of Leases (Scotland) Act 1857, as amended by the Land Tenure Reform (Scotland) Act 1974, section 18 and Schedule 6. But the grant of a lease which could extend to more than 20 years is prohibited in the case of property which is to be used as or as part of a private dwelling house: 1974 Act, section 8(1). In Carruthers v Irvine 1717 Mor 15195 the period for which the lease was granted was expressed by the words perpetually and continually as long as the grass groweth up and the water runneth down. The grantor died and his heir sought to remove the tenant on the ground that the lease did not say when it was to come to an end. His claim failed because the court found that by the meaning of [the] parties the contract was intended to be a perpetual right to the tenant and his successors. This did not meet the requirements of the 1449 Act, and it was admitted that the tenant would not have been able to enjoy that right in a question with a singular successor of the grantor: see Hunter, p 462. But the personal right against the heir under the contract was not affected. In Crighton v Lord Air 1631 Mor 11182 the grant was to the tenant and his heirs and successors for five years and after that a further five years and then five years for ever. The argument that the lease was a nullity because it did not say when it was to come to an end was repelled. It was noted that the grantor might have objected on this ground in question with a singular successor of the grantee. But it was held that he could not do so in a question with the grantees heirs, as he had bound himself by the words of the grant never to remove the grantees heirs. These cases show that as between the original parties a lease may be granted for an indefinite period: Rankine, The Law of Leases in Scotland, 3rd ed (1916), p 115; Gordon, para 18 11. The grantee will obtain security of tenure in a question with singular successors of the landlord if the lease sets out the term when it is to come to an end. If no term of endurance at all is specified in the agreement, or it is for an uncertain term or it is potentially perpetual, it will not meet the requirements of the Act. But this does not mean that effect cannot be given to the personal obligation. If the issue arises as between the original parties to the agreement and the agreement does not provide for this, a term after which either party can bring it to an end will be implied by law. In Redpath v White 1737 Mor 15196 there was no such term, but the court accepted the argument that it was open to it to fix the time of endurance. The starting point is that a lease of that kind is regarded as good for one year only. But if there are words in the lease which show that it was the intention of the parties that it should continue for more than one year, the court will select the minimum period that the words admit of: Erskine, Principles of the Law of Scotland, 21st ed (1911), II, vi, 10; Rankine, p 115. As there were clauses in the lease which showed that it was intended to last for more than a year, the court in Redpath substituted a period of two years. Where the term of the lease expires and the grantee remains in occupation without the parties having entered into a new agreement its terms are prolonged from year to year, or a shorter period if that is what the lease indicates, under tacit relocation: Rankine, p 602; Gordon, para 18.25. Once it is under tacit relocation it is open to either party to bring the tenancy to an end by notice to quit. The right to do so is implied by law, so any term of the contract which is inconsistent with tacit relocation is prima facie unenforceable: Gloag on Contract, 2nd ed (1929), p 733. But tacit relocation is excluded as between the original parties to the lease if the parties make a bargain as to the terms on which the tenant is to stay on in occupation of the premises: Buchanan v Harris & Sheldon (1900) 2 F 935, 939, per Lord Adam. It has also been held to be excluded if the parties to the lease provide expressly by their contract that tacit relocation is not to apply to it: MacDougall v Guidi 1992 SCLR 167; see also Stair Memorial Encyclopaedia, Landlord and Tenant, para 364. Applying these various points to this case, clause 1 of the Occupancy Agreement states that it will continue from month to month until determined as provided in the agreement. This is an indefinite period, so the agreement is not capable of conferring on the tenant a real right under the Leases Act 1449. But there would be no need in Scots law for the court to imply any period in place of what is provided for in clause 1. This is because the dispute in this case is between the original parties to the agreement and because the circumstances in which it may be brought to an end are sufficiently set out in the contract. I agree with Lord Neubergers analysis of what, as a matter of contractual interpretation, is its effect: see para 22, above. Clause 5 provides that the agreement is determinable by the member on giving the Association one months notice in writing. Clause 6 provides that it may be brought to an end by the Association but only in the circumstances that that clause sets out. The possibility of the Association bringing the agreement to an end by serving one months notice in writing is excluded by the terms of the agreement. The question whether Ms Berrisfords agreement with Mexfield, which has now endured for more than 20 years, has the effect of excluding the implied right of the landlord to terminate under the rules relating to tacit relocation is not easy to answer. But, as she would have had security of tenure under the statute, it is not one that would need to be addressed if her landlord had been registered under the 2001 Act. I have to confess that I have found it difficult to understand why English law finds it so difficult to hold that, if an agreement of this kind cannot for technical reasons take effect as a tenancy, it can be regarded as binding on the parties simply by force of contract. I appreciate the problems that would need to be faced if it was necessary for the agreement to have proprietary effect, which it would if the dispute had not been between the original contracting parties. As it is, however, the essence of the dispute between the parties in this case seems to me to be about the effect of the contract which they entered into. One might have expected it to be capable of being solved by applying the ordinary principles of the law of contract without having to resolve questions about the effect of the agreement on the parties proprietary interests or what the agreement is to be called. But I entirely understand that the contrary view is supported by a very substantial body of authority. It can by no means be lightly brushed aside, and I am persuaded that, for all the reasons that Lord Neuberger gives, it would not be appropriate for us to consider changing the law as to what constitutes what English law will hold to be a tenancy, at least in this case. I also wonder whether the time has not now come for the legislative fetter which prevents mutual housing associations from granting protected or statutory tenancies in England and Wales to be removed, so that they are placed on the same footing as other providers of social housing as in Scotland. The reason that was given by the Minister of State in the Department of the Environment, the Earl of Caithness, for introducing an amendment to the Bill which became the Housing Act 1988 that provided that a fully mutual housing association cannot create an assured tenancy was that a statutory regime designed to regulate the relationship between landlord and tenant had little relevance in a situation where, as is the nature of a co operative, the interests of landlord and tenants as a whole are in effect indivisible: Hansard (HL Debates), 3 November 1988, vol 501, col 395. That statement was repeated in the House of Commons by the Parliamentary Under Secretary of State, David Trippier, when the Lords amendment was approved: Hansard (HC Debates), 9 November 1988, vol 140, col 337. The facts of this case suggest that, as least so far as Mexfield is concerned, that happy state of affairs no longer exists. The assumption on which that measure was put through Parliament seems now to rest on doubtful foundations, as financial pressures may cause the parties interests to diverge to the detriment of the residential occupier. That is not something that this court can deal with. But I suggest that it might be considered in any future programme for the reform of housing law. LORD WALKER I respectfully concur in the cogent and comprehensive judgment of Lord Neuberger MR. I add a few words of my own as to the decision of the Court of Appeal in Bass Holdings Ltd v Lewis [1986] 2 EGLR 40. In that case the Court of Appeal held that the word determinable, as used in section 149(6) of the Law of Property Act 1925, means liable to terminate automatically on a persons death, or some other uncertain event, rather than capable of being terminated by notice given after a persons death, or some other uncertain event. With the exception of the case mentioned in the last paragraph of this judgment, Bass seems to be the only reported case that has made more than a passing reference to section 149(6). The case was concerned with a standard form tenancy agreement made between a brewery company and the licensee of a public house in Deptford. The tenancy was for three years and then continued as a tenancy from year to year, subject to provisions for termination set out in a schedule. Para 1 allowed the landlord to terminate the tenancy on six months notice. Para 4 provided that if the tenant died during the term the landlord could terminate the tenancy on 14 days notice, or three months if the tenant left a widow. This shorter notice was no doubt thought appropriate because of the exigencies of the on licensed trade. The brief report does not state what notice the tenant had to give, but it seems inconceivable that that was not covered in another paragraph of the schedule. The issue was whether section 149(6) applied to the tenancy. Nourse LJ gave the main judgment, with which Glidewell LJ and Sir John Donaldson MR agreed. The court upheld the first instance decision of Hoffmann J that section 149(6) did not apply. Determinable can, in the vocabulary of the law, have either of the meanings mentioned at the beginning of this judgment. The three reasons given by Nourse LJ for preferring the narrower meaning are to my mind convincing. But I think there is a more powerful reason based not on the language of section 149(6) but on its purpose. It was intended to enable a commercial lease for life to exist as a legal estate under the new regime introduced by the Law of Property Act 1925. It was not intended to apply to leases or tenancies which did not need that sort of helping hand. Mr Lewiss tenancy in Bass was well able to stand on its own feet as a legal estate without being converted into a term of 90 years determinable by notice after Mr Lewiss death while still licensee of the public house. That point is, I think, reflected in the short concurring judgment of Sir John Donaldson MR. Lord Neuberger did not find it necessary to refer to Bass for reasons mentioned in para 47 of his judgment. I agree with his reasoning, and also with what Lord Neuberger goes on to say in para 48. Even if section 149(6) were supposed to have applied to the tenancy in Bass, there would be no good reason to make a fundamental change in its commercial effect by disregarding the landlords wider power to terminate on six months notice. I echo Lord Neubergers tribute to Mr Wonnacotts clear and scholarly submissions. He did not refer to what seems to be the only other case in which section 149(6) has been considered by the Court of Appeal, that is Skipton Building Society v Clayton (1993) 66 P & CR 223. The facts are of some interest, illustrating the difficulties that can arise when a husband regularly forges his wifes signature. The main point of law is whether the sale of a flat at a reduced price, with the retention of a rent free licence for life, constituted a fine (that is, a premium) for the purposes of section 149(6). The Court of Appeal held that it did. There is nothing in the judgment of Slade LJ that conflicts with any of the reasoning in Lord Neubergers judgment. LADY HALE Periodic tenancies obviously pose something of a puzzle if the law insists that the maximum term of any leasehold estate be certain. The rule was invented long before periodic tenancies were invented and it has always been a problem how the rule is to apply to them. In one sense the term is certain, as it comes to an end when the week, the month, the quarter or the year for which it has been granted comes to an end. But that is not the practical reality, as the law assumes a re letting (or the extension of the term) at the end of each period, unless one or other of the parties gives notice to quit. So the actual maximum term is completely uncertain. But the theory is that, as long as each party is free to give that notice whenever they want, the legal maximum remains certain. Uncertainty is introduced if either party is forbidden to give that notice except in circumstances which may never arise. Then no one knows how long the term may last and indeed it may last for ever. These rules have an Alice in Wonderland quality which makes it unsurprising that distinguished judges have sometimes had difficulty with them. It is intriguing to read, in Doe d Warner v Browne (1807) 8 East 165, 167, that Lord Mansfield had once thrown out (obviously meaning suggested) the notion of a tenancy from year to year, the lessor binding himself not to give notice to quit. By that date the notion cannot have been exploded for very long. More recently, in Breams Property Investment Co Ltd v Stroulger [1948] 2 KB 1, the Court of Appeal held that it was not repugnant to the notion of a quarterly tenancy when the landlords promised that they would not terminate it within the first three years unless they required the premises for their own occupation, so the purchasers of the reversion could not give notice to quit until the three years were up. Breams Property can, however, be explained on the basis that although phrased as a quarterly tenancy with a restriction on the landlords right to serve notice to quit, in effect it simply turned the quarterly tenancy into a three year term terminable by the tenant on notice before that, to be followed by a normal quarterly tenancy after that. However, in In re Midland Railway Cos Agreement, Charles Clay & Sons Ltd v British Railways Board [1971] Ch 725, a strong Court of Appeal, in a reserved judgment of the Court, went much further and upheld a term in a half yearly tenancy which prohibited the landlords from serving notice to quit unless they required the property for their own undertaking. The Court accepted that the maximum term of a single term of years had to be certain before the lease took effect. Thus a letting for the duration of the war, as in Lace v Chantler [1944] KB 368, was invalid. This rule was so long established that it was now too late to inquire why this aspect of the particular estate was considered essential to its existence or to question the doctrine: [1971] Ch 725, 731 732. But it could be easily circumvented by granting a lease for (say) 90 years, terminable earlier than that should the uncertain event happen. So the rule has an air of artificiality, of remoteness from practical considerations: p 732. (Had Mr Wonnacott been around then forcibly to remind their Lordships that in fact such a lease to an individual was treated at common law as a lease for life, provided that the necessary formalities were complied with, and had therefore been converted by section 149(6) of the Law of Property Act 1925 into a lease for 90 years, their Lordships might have expressed themselves even more strongly.) In any event, they held that the rule only applied to an attempt to grant a lease or tenancy for a single and uncertain period. It was not repugnant to the nature of a periodic tenancy to place a curb on the landlords power to determine it, unless perhaps there was an attempt to prevent the landlord from ever doing so. They could not see any distinction between this case and the curb of limited duration in Breams Property. In Ashburn Anstalt v Arnold [1989] Ch 1, the Court of Appeal went even further and upheld as a tenancy a grant of what was described as a licence to occupy premises rent free which the landlords could only determine if they certified that they were ready immediately at the end of the quarters notice period to demolish and redevelop the property. The Court considered that the vice of uncertainty was that neither party knew where they stood and the court did not know what to enforce. In this case there would be no doubt about whether the determining event had occurred. The parties should be held to their agreement even though this might not be a periodical tenancy as in the Midland Railway case. Both the Midland Railway and Ashburn Anstalt cases were overruled by the House of Lords in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386. There Mr Nathan had sold a strip of land between his shop and the road to the London County Council, which had let it back to him at a weekly rent, by an agreement which provided that the tenancy shall continue until the . land is required by the council for the purposes of the widening of the highway. His successors in title sought to enforce this restriction against the county councils successors in title and the House of Lords held that they could not do so. It is understandable that the House of Lords should have taken the view that this was in effect a single term of uncertain, indeed potentially perpetual, duration and thus incompatible with the long established rule of the common law against terms of uncertain duration. It is understandable that the House should have taken the same view of the Ashburn Anstalt case and overruled it. It was, as it seems to me, unnecessary for them to hold that a similar curb in an otherwise conventional periodical tenancy was similarly repugnant and thus to overrule Midland Railway but this is what they did. Their Lordships were not invited to consider the argument which Mr Wonnacott has advanced in this case. This is not surprising, as it would have done the company which had bought the land from Mr Nathan no good. Mr Nathan was almost certainly already dead (and companies cannot have a lease for their own lives). Indeed, Mr Wonnacotts argument does not appear previously to have been made in a case which concerns what would otherwise bear all the hallmarks of a periodic tenancy with a curb on the landlords power to determine it. So we have now reached a position which is curiouser and curiouser. There is a rule against uncertainty which applies both to single terms of uncertain duration and to periodic tenancies with a curb on the power of either party to serve a notice to quit unless and until uncertain events occur. But this rule does not matter if the tenant is an individual, because the common law would have automatically turned the uncertain term into a tenancy for life, provided that the necessary formalities were complied with, before the Law of Property Act 1925. A tenancy for life was permissible at common law, although of course it was quite uncertain when the event would happen, but it was certain that it would. I suppose at the time of the hundred years war there was uncertainty both as to the when and the whether it would ever end. Be that as it may, a tenancy for life is converted into a 90 year lease by the 1925 Act. As it happens, in the particular agreement with which we are concerned, it is not difficult to conclude that the parties did in fact intend a lease for life determinable earlier by the tenant on one months notice and by the landlords on the happening of certain specified events. So our conclusions are in fact reflecting the intentions of the parties. But it is not difficult to imagine circumstances in which the same analysis would apply but be very far from the intentions of the parties. And that analysis is not available where the tenant is a company or corporation. So there the court is unable to give effect to the undoubted intentions of the parties. Yet, as the Court pointed out in Midland Railway, it is always open to the parties to give effect to those intentions by granting a very long term of years, determinable earlier on the happening of the uncertain event. The law, it would seem, has no policy objection to such an arrangement, so it is difficult to see what policy objection it can have to upholding the arrangement to which the parties in fact came. It is even more bizarre that, had the tenancy for life analysis not been available, the conclusion might have been, not that this was a contractual tenancy enforceable as such as between the original parties, but that it was a contractual licence, also enforceable as such between the original parties. This, as I understand it, is the difference between English and Scots law. I do not understand that it makes any difference to the result. As will be apparent, I entirely agree with the reasoning and conclusions reached by Lord Neuberger on the first question: does Ms Berrisford have a subsisting tenancy? For that reason, I do not think it necessary to express an opinion on the alternative case in contract. But it seems to me obvious that the consequence of our having reached the conclusions which we have on the first issue is to make the reconsideration of the decision in Prudential, whether by this Court or by Parliament, a matter of some urgency. As former Law Commissioner Stuart Bridge has argued ([2010] Conv 492, 497): If the parties to a periodic tenancy know where they stand, in the sense that the contract between them is sufficiently certain, then that should be enough. If a landlord, in this case a fully mutual housing association, decides that its tenants should be entitled to remain in possession unless and until they fall into arrears with their rent or break other provisions contained in the tenancy agreement, it is difficult to see what policy objectives are being furthered in denying the tenant the rights that the agreement seeks to create. Quite so. LORD MANCE I too agree with Lord Neubergers comprehensive judgment, including his tribute to Mr Wonnacotts exposition of the law. For the present, I (like Lord Neuberger: paras 33 35) proceed on the basis that an essential characteristic of a contractual tenancy is lacking if the contract provides for a series of periods indefinitely renewable unless and until some future event occurs which may never occur. The decision in this appeal is therefore that the present Agreement between the parties, being for a term uncertain at inception, would have been treated until 1925 as involving the grant of a tenancy for Ms Berrisfords life, and falls now, under the Law of Property Act 1925, section 149(6), to be treated as a tenancy for a term of 90 years determinable on Ms Berrisfords death. But for this conclusion, the Court would have had to consider the effect of an Agreement which was on its face for an uncertain term, but incapable in law of taking effect as such. Mr Gaunt QC for Mexfield submits that such an Agreement must take effect as a tenancy, but of a wholly different kind to any which the parties intended, in that it would be terminable at any time by Mexfield on a months notice. There is in my opinion neither attraction in nor need to accept that submission. The Agreement was to run from month to month until determined as provided in this Agreement an obvious reference to clauses 5 and 6, containing the parties agreement on the only permissible methods of contractual determination. To treat the Agreement as one under which Mexfield could terminate at the end of any month on a months notice would undermine an evidently fundamental element in the parties contract. I agree with Lord Clarke that ordinary principles of construction govern the Agreements true construction. I note that Lord Hobhouse made a similar point in relation to the agreement, held to be a tenancy, in Bruton v London & Quadrant Housing Trust [2000] 1 AC 406, 417; he cited in that connection Reardon Smith Line Ltd v Yngvar Hansen Tangen (The Diana Prosperity) [1976] 1 WLR 989 a precursor, famous in commercial law, of the Investors Compensation and Mannai Investment cases. The three characteristic hallmarks of a contractual tenancy, as distinct from a contractual licence, are (a) exclusive occupation, (b) rent and (c) a term which the law regards as certain: Street v Mountford [1985] AC 809, esp. 826E F, per Lord Templeman. That case is authority for the proposition that a lease or tenancy is a contractually binding agreement, not referable to any other relationship between the parties, by which one person gives another the right to exclusive occupation of land for a fixed or renewable period or periods of time, usually in return for a periodic payment in money. An agreement having these characteristics creates a relationship of landlord and tenant to which the common law or statute may then attach various incidents. See Bruton v London & Quadrant Housing Trust [2000] 1 AC 406, 413E, per Lord Hoffmann. Only in special circumstances (not here relevant) will an agreement having these characteristics not involve a tenancy: see Street v Mountford, p 822B and Bruton, pp 410E, 411C 412B, 414 B G and 417A On the hypothesis I am presently considering, those three characteristics were not all present. The basis for asserting that there was a contractual tenancy therefore falls away. But the contract was valid as such. There is no reason not to give it effect according to its terms. As a matter of legal categorisation, because it was not a tenancy, it can only involve a licence. Its terms precluded the giving by Mexfield of notice to terminate, except in circumstances falling within clause 6 of the Agreement. To force the contract into the category of tenancy, by rewriting its essential terms to provide for a periodic monthly tenancy terminable on a months notice, would be to substitute for the Agreement that the parties have made a wholly different contract. It would be to treat the first two of the three characteristics of a tenancy mentioned above as sufficient by themselves and as displacing any need to satisfy the third. It would be to insist on terminology (such as the Agreements references to letting and taking possession from month to month and this Tenancy) over substance (the parties express limitation of the right to terminate and the consequent absence of an essential characteristic of a tenancy). Like Lord Neuberger (para 69), I reserve my view on the position upon the hypothesis of a contract constituting a tenancy, but which was both subject to provisions restricting termination for an uncertain period and not capable of being treated as a tenancy for life at common law or a tenancy for 90 years under section 149(6) of the 1925 Act. In the light of what I have already said and on the law as it stands, this is an impossible hypothesis, since such a contract could not give rise to what the law would regard as a tenancy; it could however take effect between the parties according to its terms, although it would not have proprietary effect as against third parties: see paras 101 102 above. Parties can normally contract as they will, either inter se or indeed with third parties. LORD CLARKE I agree that this appeal should be allowed. It seems remarkable to me that it is necessary to decide this appeal in 2011 by reference to jurisprudence developed over the centuries to the effect that an agreement for an uncertain term was treated as a tenancy for the life of the tenant, determinable before the tenants death according to its terms. It is a mystery to me why in 2011 the position of a tenant who is a human being and a tenant which is a company should in this respect be different. There is in my opinion much to be said for the view that the certainty rule should now be abandoned. However, I agree with Lord Neuberger that it is not necessary to abandon it for the purposes of deciding this appeal. I can understand why in this appeal Mexfield sought to abandon its concession that, on the true construction of the contract, which is called the Agreement, it could not serve a notice to quit under the contract and that the only way the contract could come to an end was by Ms Berrisford serving a notice under clause 5 or by Mexfield exercising its rights under clause 6. One might have thought that, if the contract was not brought to an end in one of those ways it would continue, at least as a contract which governed the rights and obligations of the parties to it. Moreover, it would do so even if, by some quirk of the law, the parties had failed to create a tenancy. It was thus of some importance for Mexfield to abandon its concession. As I see it, the ordinary principles governing the true construction of a contract apply to tenancy agreements and leases. The principles have been discussed in many cases, notably of course, as Lord Neuberger MR said in Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, para 17, by Lord Hoffmann in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, passim, in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912F 913G and in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, paras 21 26. I agree with Lord Neuberger (also at para 17) that those cases show that the ultimate aim of interpreting a provision in a contract is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant. As Lord Hoffmann made clear in the first of the principles he summarised in the Investors Compensation Scheme case at p 912H, the relevant reasonable person is one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. Here the language used is simple and straightforward. I agree with Lord Neuberger for the reasons he has given that the contract makes it clear that the two ways in which the contract could be brought to an end under the contract were those described in clauses 5 and 6. Since the contract has not been brought to an end in either of those ways, it must, at any rate for the purposes of the law of contract, remain on foot. Even if the contract somehow failed to create a tenancy so that Mrs Berrisford does not have an estate in the property, there is in my opinion no principle of the law of contract which prevents the terms of the contract having effect as between the parties to it. In this regard I agree with the views of Lord Neuberger expressed at paras 57 to 64 above. Ms Berrisford has been living in the property for a considerable time and, except for a short period referred to by Lord Neuberger at para 7, has been paying rent at the rate provided for in the contract. It would to my mind be bizarre for the law to imply or infer a contract between the parties to the effect that there was a periodic tenancy between them at the contractual rate. That would mean that Mexfield can bring the contract to an end by giving one months notice to quit. I see no basis for such an inference or implication. It would be contrary to the express terms of the agreement, namely that the only way that Mexfield can determine it is under clause 6. There is no need for any process of implication or inference because the parties have expressly agreed the position. In particular, Ms Berrisford at no time agreed that Mexfield could give her a months notice to quit. If, as a matter of law, the parties have created a licence and not a tenancy, so be it. I appreciate that the point just discussed is Ms Berrisfords alternative case and is discussed as such by Lord Neuberger. I take it first because it seems to me to be of critical importance to ascertain the contractual position between the parties. It follows that, as I see it, even if the contract does not create a tenancy, it creates rights and obligations between the parties, so that in an appropriate case Ms Berrisford could in principle obtain an injunction against Mexfield for a threatened breach of contract. In the meantime the contract remains on foot. On the question whether there is a valid tenancy between the parties, with some misgiving I shall assume that Mr Wonnacotts concession that the contract is not capable, as a matter of law, of creating a tenancy in accordance with its terms because it is an agreement for an uncertain term is correct. However, I agree with Lord Neuberger for the reasons he gives at paras 36 to 42 that, at any rate before 1926, the arrangement between the parties would have been treated as a tenancy or lease for life, determinable before her death in accordance with its terms. I further agree with him (at paras 43 to 54) that the effect of section 149(6) of the Law of Property Act, which applies to arrangements made before and after the 1925 Act came into force, is that the lease for life is converted to a lease or contract for a term of 90 years determinable on Ms Berrisfords death. For these reasons, which are essentially the same as those given by Lord Neuberger, I agree with him that the appeal should be allowed. I am pleased to be able to arrive at this conclusion because any other conclusion would be contrary to the agreement freely entered into by the parties and, in particular, would be most unjust to Ms Berrisford. LORD DYSON I agree that this appeal should be allowed for the reasons stated by Lord Neuberger in his comprehensive judgment. My views can be summarised quite shortly. The starting point must be the true construction of the Agreement applying ordinary principles of contractual interpretation. In this respect, an agreement which purports to create a tenancy agreement is no different from any other agreement. For the reasons given by Lord Neuberger, I have no hesitation in concluding that, as a matter of construction, the Agreement provides that Mexfield can only determine it on one of the grounds specified in clause 6: it cannot determine it by simply serving one months notice to quit. The next point is that there is nothing in the general law of contract which makes such an agreement void or unenforceable according to its terms. But this is not an ordinary contract. On its face, it purports to be a tenancy agreement ie an agreement which purports to grant an interest in land. It is notorious that the law of landlord and tenant is highly technical, not least because its development has been affected by rules of law of ancient origin. It is, therefore, necessary to turn to the law of landlord and tenant to see whether the fact that the Agreement purports to create a tenancy determinable by Mexfield, but only on the grounds specified in clause 6, requires a different approach to be adopted to the ascertainment of its meaning and effect. As Lord Neuberger explains (paras 24 to 33), it seems to have been long established that an agreement for an uncertain term cannot be a tenancy in the sense of being a term of years; and a fetter on a right to serve a notice to determine a periodic tenancy is ineffective if the fetter is of uncertain duration. Such a fetter is repugnant to a periodic tenancy: see Doe d Warner v Browne (1807) 8 East 165, 166. As Lord Browne Wilkinson said in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386, 396, this bizarre outcome results from an application of an ancient and technical rule of law for the genesis of which there is no satisfactory rationale and for which there is no apparent useful purpose. Despite the concern expressed by Lord Browne Wilkinson that to depart from a rule relating to land law which has been established for many centuries might upset long established titles, there is much to be said in favour of getting rid of the rule. But I think that, rather than the court introducing a change to such a fundamental tenet of the law of landlord and tenant, it would be better if this were done by Parliament after full consultation of interested parties of the kind that is routinely undertaken by the Law Commission. At all events, as a result of Mr Wonnacotts impressive and scholarly research (which was not placed before the Court of Appeal), it is clear that it is unnecessary to get rid of the uncertainty rule in this case. This is because before the enactment of the Law of Property Act 1925 (the 1925 Act), the tenancy purportedly created by the Agreement would have been treated as a tenancy for life, defeasible by determination on any of the grounds specified in clauses 5 and 6. Lord Neuberger has referred to some of the pre 1926 authorities at paras 37 to 39. The position is well summarised in the last edition of the standard work on land law before the 1925 legislation, Joshua Williams Law of Real Property, 23rd ed (1920), p 135 in these terms: Where land is given to a widow during her widowhood, or to a man until he shall become bankrupt, or for any other definite period of time of uncertain duration, a freehold estate is conferred, as in the case of a gift for life. Such estates are regarded in law as determinable life estates (emphasis added). Accordingly, a periodic tenancy determinable on an uncertain event was treated as a defeasible tenancy for life. In disputing this proposition, Mr Gaunts principal submission was that, before the enactment of the 1925 Act, the question whether a periodic tenancy determinable on an uncertain event was a defeasible tenancy for life was one of construction of the particular agreement. But, as Lord Neuberger explains, it is clear from the authorities that this is incorrect. It was a rule of the common law that such a tenancy was automatically treated as a tenancy for life. It had nothing to do with the intention of the parties. The effect of section 149(6) of the 1925 Act was to convert such a tenancy into a term for 90 years, subject to earlier termination in accordance with its terms. It follows that the Agreement is such a tenancy and all the terms of clause 6 apply with full force and effect. Mexfield cannot terminate the Agreement by serving a notice to quit as if this were a simple monthly tenancy without more. This is a just result which plainly accords with the intention of the parties. But it may legitimately be said that it is not satisfactory in the 21st century to have to adopt this chain of reasoning in order to arrive at such a result. It is highly technical. There should be no need to have to resort to such reasoning in order to arrive at the result which the parties intended. That is why the radical solution of doing away with the uncertainty rule altogether is so attractive. There is the further point that the section 149(6) route to the right result can only be followed where the purported tenant is an individual and not a corporate entity. To treat an individual and a corporate entity differently in this respect can only be explained on historical grounds. The explanation may lie in the realms of history, but that hardly provides a compelling justification for maintaining the distinction today. To conclude, in my view the answer to this appeal lies in the law of landlord and tenant and the appeal must be allowed. I do not find it necessary to address the alternative arguments advanced by Mr Wonnacott. I would, however, go so far as to say that, like Lord Neuberger (paras 57 to 62), I am strongly attracted by the submission that, if by reason of the uncertainty argument the Agreement did not create a tenancy, then it was enforceable as a contract according to its terms like any other contract. |
The liability of employers for deaths caused by mesothelioma has pre occupied courts and legislators over recent years. The present appeals concern claims to pass the burden of this liability on to insurers, made either by employers or in the case of insolvent employers by the personal representatives of former employees using the mechanism of the Third Party (Rights against Insurers) Act 1930. The appeals concern employers liability insurance. This is in contrast with Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 where public liability insurance was in issue. Employers liability focuses necessarily upon the relevant employment relationships and activities. Public liability relates to any of the insureds relationships and to activities affecting the world at large. Another feature of employers liability is that, under the Employers Liability (Compulsory Insurance) Act 1969 (the ELCIA), it has since 1 January 1972 been compulsory for every employer other than local authorities carrying on any business in Great Britain to insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain The appeals arise because the relevant insurers maintain that the employers liability insurances which they issued respond (or, better, could only have responded) to mesothelioma which developed (or, possibly, manifested itself) as a disease during the relevant insurance periods all long past. In contrast, the relevant employers and personal representatives maintain that the insurances respond to mesothelioma which develops and manifests itself later; all that is required, they say, is exposure of the victim during the insurance period to asbestos in circumstances where the law attributes responsibility for the mesothelioma to such exposure. These alternative bases of response (or triggers of liability) have been loosely described as an occurrence (or manifestation) basis and an exposure (or causation) basis. It is in issue whether the ELCIA, after it came into force, mandated any particular basis of response. A secondary issue, arising if the insurances only respond on an occurrence basis, is whether the aetiology of mesothelioma justifies a conclusion that there was during the relevant insurance period an occurrence sufficient to trigger liability under the insurances. Burton J, [2008] EWHC 2692 (QB), concluded that the relevant insurances all responded on an exposure basis. The Court of Appeal, [2010] EWCA Civ 1096, by a majority (Rix and Stanley Burnton LJJ), upheld the judge in relation to some of the insurances (particularly those covering disease contracted during the relevant insurance period); but they concluded that others (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. Smith LJ would have upheld the judges judgment in its entirety. The full judgments in both courts repay study. They have been of great assistance to this court and make it possible to go directly to the heart of the issues. Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres: Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, para 1, per Lord Phillips. It is a cancer of the pleura, which are thin linings around the lungs and on the inside of the rib cage. It is usually undetectable until shortly before death. Its unusual features include what Burton J in this case at para 30 described as the unknowability and indescribability of its precise pathogenesis. In particular, it is impossible to know whether any particular inhalation of asbestos (at least any occurring more than ten or so years prior to diagnosability) played any or no part in such development. Because of this unusual feature, the law has developed a special rule. The special rule was the product of judicial innovation in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. It was modified by statutory intervention in the form of the Compensation Act 2006, section 3. Leaving aside exposures occurring within the ten or so years prior to diagnosability, the rule can now be stated as being that when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a "material increase in risk" of the victim contracting the disease will be held to be jointly and severally liable in respect of the disease. Burton Js findings in the present case justify certain further propositions, mostly also corresponding with the summary in Lord Phillips judgment in Sienkiewicz (para 19): (i) A significant proportion of those who contract mesothelioma have no record of occupational exposure to asbestos. The likelihood is that (vi) in their case the disease results from inhalation of asbestos dust that is in the environment. There is, however, a possibility that some cases of mesothelioma are "idiopathic", i.e. attributable to an unknown cause other than asbestos. (ii) The more fibres that are inhaled, the greater the risk of contracting mesothelioma. (iii) There is usually a very long period between the exposure to asbestos and the development of the first malignant cell. Typically this can be at least 30 years. (iv) For a lengthy period (perhaps another five years) after the development of the first malignant cell, there remains a possibility of dormancy and reversal, but at a point (Burton J thought a further five years or so before the disease manifested itself, and was thus diagnosable) a process of angiogenesis will occur. This involves the development by malignant cells of their own independent blood supply, so assuring their continuing growth. (v) The mechanism by which asbestos fibres cause mesothelioma is still not fully understood. It is believed that a cell has to go through 6 or 7 genetic mutations before it becomes malignant, and asbestos fibres may have causative effect on each of these. It is also possible that asbestos fibres have a causative effect by inhibiting the activity of natural killer cells that would otherwise destroy a mutating cell before it reaches the stage of becoming malignant. Mesothelioma currently claims about 3000 lives a year in the United Kingdom. This speaks to the common use of asbestos materials up to the 1960s and 1970s. In Annex I to his judgment Rix LJ set out the insuring clauses of the various forms of policy wording in use from time to time. Subject to re ordering to reflect the development of the language, Annex A to this judgment includes the same and some further wording. It can be seen that the Excess policies and the first two MMI policies promise to indemnify the insured employer against liability if at any time during the period of insurance (or of any renewal) any employee shall sustain under the earlier policies personal injury by accident or disease or under the later policies [any] bodily injury or disease in the case of the first Excess policy while engaged in the service of the Employer or in other cases arising out of and in the course of [his] employment by the insured employer. In the case of the Independent policy, the insurer, under the recital, promised to indemnify the employer during the period of insurance or of any renewal. The insuring clause itself contains no express limitation to any period. It promises indemnity against all sums for which the employer shall be liable for damages for such injury or disease if any employee shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule. The third MMI policy and the BAI policies were in more developed form. The former promises indemnity in respect of legal liability for sums payable as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any employee when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy. The latter promised indemnity against all sums which the Insured may become liable to pay to any Employee . in respect of any claim for injury sustained or disease contracted by such Employee during the period of insurance or any renewal. The insurers party to the present appeals have at all times represented only a small part of the employers liability insurance market. By far the larger part of the market consists of companies who until the late 1960s (when competition rules intervened) operated a tariff system which bound them to adopt a specified policy form and specified rates. Until 1948 tariff insurance was focused on Workmens Compensation Act claims, but in 1948 legislative changes (in particular the abolition by the Law Reform (Personal Injuries) Act 1948 of the doctrine of common employment) made a common law claim for future accruing causes of action much more attractive. It may well have been in anticipation of these changes that the tariff companies introduced a new form of policy in May 1948, still in widespread use today, providing indemnity if any employee shall sustain any personal injury by accident or disease caused during the period of insurance. Under this tariff wording, sustain looks to the occurrence of an accident or development of a disease at any time, while caused makes clear that the trigger to cover is that the accident or disease has been caused during the insurance period. The present insurers were non tariff companies, and have always been free to set their own wordings. From dates after the insurances the subject of this appeal, three of the insurers in fact ceased to use the wordings set out in Annex A, and themselves moved expressly to causation based wordings Excess in about 1976, Independent in the mid 1980s, and BAI in 1983. As a matter of insurance practice, however, until the decision in Bolton in 2006, all these wordings, whether tariff or non tariff and whether using the language caused, sustain or sustained or contracted, paid out on long tail claims (including the mesothelioma claims which became increasingly frequent in the 1980s) by reference to the date(s) of exposure. Where successive employers with different insurers had exposed a particular employee victim to asbestos, liability was in practice apportioned between the employers, and so insurers, broadly according to the extent of exposure for which each employer was responsible. The rival cases Insurers submit that all the wordings in Annex A require the injury or disease to occur during the period of insurance or of any renewal. In the alternative, if the use of the word contracted in the third MMI policy and the BAI policies or the different formulation of the Independent policy leads to any different conclusion in any of such cases, they submit that this leaves unaffected the clear meaning of the Excess and first two MMI policy wordings. The employers and interested employees contend that all these policies are to be understood as operating on an exposure or causation basis. The implications of these alternative interpretations are clear. On insurers primary contention, the policies set out in Annex A would not respond to current mesothelioma claims. It is unlikely that most of them would have responded to many, if any, mesothelioma claims, since it was only in the 1980s that such claims began to emerge to any great extent. Policies written on a causation basis since the dates indicated in paragraph 10 above would also not respond to current mesothelioma claims. Insurers response is that any insurance must be read according to its terms. Until 1 January 1972, when the ELCIA came into force, it was not obligatory for employers to have any form of employers liability insurance. Further, viewed on an occurrence or manifestation basis, the policies would pick up long tail claims arising from exposure occurring at any time in the past. In this connection, it is to be noted that various long tail diseases were well recognised perils from the era of Workmens Compensation legislation before 1948. Instances were scrotal cancer, pneumoconiosis and more specifically (from the time of Merewether and Prices 1930 Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry) asbestosis. All these would only develop over and could manifest themselves after considerable periods of years. Following upon the 1930 report, The Asbestos Industry Regulations 1931 (SI 1931/1140) were introduced to regulate factories handling and processing raw fibre, and in 1969 The Asbestos Regulations 1969 (SI 1969/690) extended this regulation more widely it appears in the light of an appreciation that mesothelioma could result from exposure to small quantities of asbestos dust (see In re T & N Ltd (No 3) [2006] EWHC 1447 (Ch), [2007] 1 All ER 851, para 118). The Court of Appeals conclusions The force of insurers case rests in the use of the word sustain, whether in connection with the phrase personal injury by accident or disease or bodily injury or disease or in the conjunction injury or disease . sustained or contracted or injury sustained or disease contracted. Rix and Stanley Burnton LJJ concluded that the word sustain looked prima facie at the experience of the suffering employee rather than its cause (paras 232 and 343). Insurances responding to injury or disease sustained during the insurance period would not, on this basis, cover mesothelioma sustained long afterwards. Rix LJ had some compunction about the result because of what he (though not Stanley Burnton LJ) felt was a tension with the commercial purpose of employers liability insurance in the extraordinary context of mesothelioma (para 235). Rix LJ would have liked to hold that mesothelioma sufferers sustained sufficient injury on exposure to asbestos to trigger the insurances in force at the date of such exposure, but felt bound by Bolton to conclude the contrary (paras 277 289). However, Rix LJ, though not Stanley Burnton LJ, considered that the particular wording of the Independent insurances did not explicitly require the injury or disease to be sustained during the insurance period, and could be read as covering the sustaining of injury at any time arising out of and in the course of employment during the insurance period (paras 300 and 350). Rix and Stanley Burnton LJJ differed as to the significance of the ELCIA extension provisions included in the Independent wording, the third MMI wording and the second BAI wording, as quoted in Annex A. Rix LJ thought that the ELCIA required employers to insure on a causation basis (paras 184 and 186) although, since he also expressed the view that an insurance arranged and maintained on a sustained basis could comply with the ELCIA, he may perhaps only have meant required in practice. At all events, he held that the ELCIA extension provisions covered liability incurred to the personal representatives of employees on a causation basis, while enabling insurers to recoup themselves so far as possible from the relevant employers in respect of liability they would not otherwise have had to meet (paras 292, 300 and 302). Stanley Burnton LJ did not agree that the ELCIA required causation wording (para 342), but considered that it required insurance to be taken out and maintained in respect of ex employees, or at least those who were or had been employed at any time after the coming into force of ELCIA (para 342; and see Rix LJs comments at paras 305 307). Rix, Smith and Stanley Burnton LJJ were all agreed that, where provision was made for disease contracted, this could and should be construed as introducing cover on a causation basis, even if or though wording such as injury (or disease) sustained could only respond on an occurrence basis. Analysis Annex A sets out the insuring clauses. Insurers case is, as I have said, rooted most strongly in the word sustain, particularly when it is used by itself, rather than in conjunction with a more ambivalent alternative in the phrase sustained or contracted. The natural meaning of the word sustain, taken in isolation and as defined in the Shorter Oxford English Dictionary from an appropriate date (1965, 3rd ed), is, with respect to injury, undergo, experience, have to submit to, or, possibly, to have inflicted upon one, suffer the infliction of. But the insurance cover granted (and no doubt required) extended expressly beyond injury by accident to embrace disease. This was achieved by less natural conjunctions, such as sustain [any] personal injury by accident or disease or sustain [any] bodily injury or disease. Conscious perhaps that the verb sustain does not fit naturally with the concept of disease, some companies (MMI in its third wording and BAI in its first and second wordings) introduced the different verb contracted in the formulations sustained or contracted or injury sustained or disease contracted. This use of contracted with respect to disease is considerably more natural, but is clearly open to an interpretation that it looks back to the initiating or causative factor of the disease, and (whatever the answer on that point) highlights a question whether any substantial difference exists in this connection between such wordings and other wordings referring more awkwardly to the sustaining of personal injury by disease or the sustaining simply of disease. To resolve these questions it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more broadly. As Lord Mustill observed in Charter Reinsurance Co Ltd v Fagan [1977] AC 313, 384, all such words must be set in the landscape of the instrument as a whole and, at p 381, any instinctive response to their meaning must be verified by studying the other terms of the contract, placed in the context of the factual and commercial background of the transaction. The present case has given rise to considerable argument about what constitutes and is admissible as part of the commercial background to the insurances, which may shape their meaning. But in my opinion, considerable insight into the scope, purpose and proper interpretation of each of these insurances is to be gained from a study of its language, read in its entirety. So, for the moment, I concentrate on the assistance to be gained in that connection. A first point, made very clearly below by Rix LJ (para 263), is that the wordings on their face require the course of employment to be contemporaneous with the sustaining of injury. This leaves open what is meant either by sustaining or by injury. Rix LJ thought that the Independent wording could be understood differently in effect, as if it had expressly read: If any person who is under a contract of service or apprenticeship with the Insured shall at any time sustain bodily injury or disease arising out of and in the course of his employment by the Insured during the policy period in connection with the Contract specified or type of work described in the Schedule . That interpretation assumes that sustain in this context equates with the occurrence, rather than causation, of the injury or disease, and only arises for consideration if that assumption is correct. A second point is that the insurance wordings demonstrate a close link between the actual employment undertaken during each insurance period and the premium agreed to be payable for the risks undertaken by insurers in respect of that period. Premium is linked expressly to actual wages, salaries and earnings during the insurance period under the Excess policies, the first MMI wording and the BAI policies. The second and third MMI wordings contemplate that premium may be linked to wages, salaries and earnings, and, to the extent that any inference regarding the general nature and scope of cover under these standard wordings can be drawn from such a link, it must be capable of being drawn whether or not premium was actually so linked in any particular case. As to the Contractors Combined Policy issued by the Independent, it is a probable inference that the estimates which were provided and were to be updated will have included, in respect of the employers liability cover in section 1, wages, salaries and other earnings paid. Finally, the Independent cover is linked to the actual contract or work which the employer is undertaking during the insurance period. These links are in my view significant. True, premium may sometimes be calculated on a rough and ready basis. Minor discrepancies between the premium calculation and the risk may be understandable: see e.g. Ellerbeck Collieries, Ld v Cornhill Insurance Co [1932] 1 KB 401, 418, per Greer LJ (who pointed out that any such discrepancy there was more apparent than real, since workmen not earning wages because off work would not actually be at risk of any fresh accident, even though they would remain susceptible to certification for disablement). Here the position is quite different. Great care is taken in all the policies to tie premium to the actual employment undertaken during the insurance period, and in the case of the Excess, Independent and MMI policies to tie cover to a business, contract or activities described in the schedule. The natural expectation is that premium is measured by reference to actual employment or work during the insurance period because it is the risks attaching to such employment or work which are being undertaken by insurers. At the very least, the drawing of this link makes improbable the contention advanced by some of the insurers that the present insurances were apt to pick up liabilities emerging during the insurance period which could be attributable to employment and activities undertaken and negligent conduct committed at times long past. The number of employees, their employment activities and the risks involved at those times could be very different. The significance which attaches to the employment current during the insurance period is underlined by legal and practitioner texts. As long ago as 1912, MacGillivray on Insurance (1st ed), pp 966 wrote: The nature and scope of the employers business must be clearly defined in the insurance policy, and workmen employed outside the scope of the assureds business as described in the policy will not be covered In the section on Employers Liability Insurance in Stone & Coxs Accident, Fire and Marine Year Book (1957), pp 688 689, the authors stressed the importance of identifying any special hazards, such as signs of careless management or lack of control or careless workmen, and observed: The surveying of Employers Liability risks has probably become more general than formerly. Apart from the question of the possibilities of accident, there is now the serious question of disability due to disease and in particular the disease known as pneumoconiosis. In 1974 MMI produced a Guide to Insurance Officers in Local Government, which it said that it would like to see on the desk of every insurance officer for ready reference at any time; this, after noting that employers liability was almost invariably dealt with by a separate policy and that its importance had been increased by the ELCIA, went on: "7. Premiums are usually based on wages and salaries this is not only a convenient yardstick but is logical since loss of earnings usually represents a substantial part of claims. Rates of premiums vary according to the nature of the work of the labour force, and the claims experience. 8. A feature of employers liability claims is the length of time which often elapses between the date of the accident and the final settlement, and the cost of servicing claims tends to be high. Injury caused at work during the period of insurance even though it may not be diagnosed till years afterwards can be a liability under the policy." I note in parenthesis that 1974 was the year in which MMI changed from a pure sustain form of wording to a form covering bodily injury or disease suffered, when sustained or contracted during the currency of the policy. Yet there is no suggestion in the Guide of any change in substance. It is in this light improbable that the present insurances can or should be read as offering cover in respect of ancient, as opposed to current, employment and activities. But there is a third point. If insurances in the present form only address risks arising from employment during the insurance period, then, on insurers case, there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to injury or disease in another later period. If the employment relationship spans both insurance periods and the employer remains insured with the same insurers in both periods, there may be no problem. The employee is employed at all relevant times and the insurance may be viewed as a single continuing contract. The policy wordings set out in Annex A, with their references to insurance during the period of insurance or during any subsequent renewal period, would support the latter view. But, even in the days of more stable long term employment and insurance relationships, employees could and would move employment or retire, or employers would cease business, or change insurers. On the basis that the insurances only cover risks arising from employment during the insurance period, there would be no cover unless the liability arose from and in the course of and involved injury or disease during the currency of the same employment and the same insurance (including any renewal). Fourthly, on insurers case, employers would as a result be vulnerable to any decision by insurers not to renew; and such a decision might arise from the simple performance by employers of their common law duty to disclose past negligence to insurers upon any renewal. Employers who discovered or came to appreciate that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease (e.g. by exposing their employees to asbestos) would have such a duty. Insurers could then, on their own case, simply refuse any renewal or further cover. Employers could then have to disclose that refusal also to any further insurers to whom they made a proposal for cover. One response made by insurers to such problems is that they would not arise in the large bulk of cases. That is no doubt true. Most employers liability cases involve short tail claims: typically, an accident involving injury. It is not surprising if the language of the insurances fits more easily with situations in which cause and effect coincide in time. But, by the same token, this does not mean that the underlying risk being assumed was in either partys mind limited to circumstances in which a cause gave rise to an effect during one and the same insurance period. Rix LJ, in accepting that cover depended upon injury being sustained in the sense of experienced during the insurance period, was influenced by the thought that this was not an absurd or meaningless interpretation. The insurance could operate entirely successfully in some 99% of cases (para 235). In the light of this Courts recent decision in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, para 30, this, in my view, gives too little weight to the implications of the rival interpretations and to the principle that where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense. The 1% of cases in which there might be no cover could not be regarded as insignificant. Well before 1948, there was general awareness of the existence of long tail diseases which would only develop and manifest themselves after considerable periods of years (see para 12 above; and see also Cartledge v E Jopling & Sons Ltd [1963] AC 758). The connection between asbestos exposure and mesothelioma became generally known in the mid 1960s, following the publication in 1965 of Newhouse and Thompsons report on Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area and a Sunday Times article. Yet on insurers case, the present insurances would not cover any situation where, after the termination of employment or the expiry of an insurance, injury or disease developed from an employers breach of duty to a relevant employee during an insurance period. A fifth point concerns the way in which the policies deal with the issue of extra territorial scope. The first Excess wording stands apart from the others in its treatment of that issue. Cover only exists in respect of any employee in the employers service who shall sustain any personal injury by accident or disease while engaged in the service of the employer in Great Britain, Northern Ireland, the Isle of Man or Channel Islands, in work forming part of the process in the employers business. As soon as one postulates a delay in time between the causation and experiencing of a disease, it becomes apparent that this wording could operate to very curious effect if sustain looks to the latter rather than the former. A disease (e.g. a cancer) experienced during employment could be covered although caused by pre employment exposure, while a disease caused by employment would not be covered if only experienced while working abroad. The natural inference to draw from the references to being engaged in the employers service and in work forming part of the employers business process is that it was envisaged that the accident or disease would and should arise out of such service and work, rather than merely occur during it. That points to an underlying focus on causation, even if the assumption was that in the majority of cases causation and experiencing of any injury by accident or disease would coincide. As to the other policies, at the very least, the way they deal with territorial issues throws doubt on any proposition that their wordings are so carefully or well chosen that a court should be careful to stick literally to whatever might be perceived as their natural meaning. They address territorial scope by specific exclusions, but the cover and the exclusions use different language. Thus, although the second and third Excess wordings cover liability to employees who sustain personal injury by accident or disease, the territorial exclusion is in respect only of accidents occurring outside Great Britain, etc, leaving it unclear how disease, whether caused or developing outside Great Britain, should be dealt with. The Independent wording also covers liability to employees who sustain bodily injury or disease, while the territorial exclusion is for injury, illness, loss or damage caused elsewhere than in Great Britain, etc. While the contrast in language is capable of lending some support to a view that sustain looks to experiencing, rather than to causation, an alternative possibility is that the two words were understood as having the same effect and that the cover was understood as focused on causation. The language of this exclusion thus cuts both ways, as Rix LJ recognised (para 297). A similar position applies to the contrast between injury or disease sustained and injury or disease caused outside Great Britain, etc. under the first two MMI wordings. Under the third wording, the language of the cover and the exclusion have been deliberately matched. Under the BAI wordings, however, there is an incongruity between cover for injury sustained or disease contracted and the exclusion in respect of liability for accidents . arising outside the United Kingdom. Again, this leaves the position in respect of disease unclear, and the difference between injury sustained and accidents arising can be read either as deliberate or as suggesting that no significance was attached to the difference or that the real concern was with causation. The history and Workmens Compensation Acts Much attention was, both below and before the Supreme Court, paid to the development of employees rights to compensation in respect of personal injury and disease, at common law and under the scheme of the Workmens Compensation Acts (WCAs). The WCAs were in force from 1897 until replaced in 1948 under the National Insurance (Industrial Injuries) Act 1946. The history and a number of the decisions under the WCAs were examined by Rix LJ in paras 126 to 165 of his judgment. He concluded that such an examination yields in the present context not a lot. To a considerable extent, I agree and I shall not repeat the whole exercise, but identify some potentially relevant aspects. Etymologically, some of the language presently in issue can be traced back to statutory language found in the Employers Liability Act 1880 and the WCA 1897. The 1880 Act modified the common law doctrine of common employment, by entitling employees to recover common law compensation for injury caused by specified matters for which employers were responsible, provided that they gave notice, within six weeks of sustaining the injury of its cause and the date at which it was sustained. The 1897 Act, applying to personal injury by accident arising out of and in the course of employment, also required notice to be given of the accident as soon as it occurred, stating the cause of the injury and the date at which it was sustained. These Acts therefore distinguished the causation and the sustaining of an injury, but not in any presently relevant context. Further, any reference to sustaining disappeared from the Workmens Compensation scheme in the 1906 Act, which amended the scheme to require a notice stating the cause of the injury and the date at which the accident happened. The 1906 WCA also expressly extended the scheme to cover certain diseases specified in section 8. In that context, it provided that, where a workman was certified as disabled or suspended from employment or died due to a disease and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous the date of the disablement or suspension, whether under one or more employers, then he or his dependants shall be entitled to compensation under this Act as if the disease or such suspension . were a personal injury by accident arising out of and in the course of that employment . Section 8(a) provided: The disablement or suspension shall be treated as the happening of the accident. Under section 8(c), the compensation was recoverable from the employer last employing the employee within the previous twelve months, providing the employee furnished that employer with particulars of all his other employers in the employment to the nature of which the disease was due. It was not necessary to prove that the disease actually arose from the last employment, merely to prove that the relevant employment gave rise to a risk of such a disease: Blatchford v Staddon and Founds [1927] AC 461. The 1906 Act may be regarded in this respect as involving an early statutory instance of the kind of liability recognised in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572. However, failing such particulars, the last employer could excuse himself upon proving that the disease was not contracted whilst the workman was in his employment (section 8(c)(i)). The last employer might also join any other employer (within the last twelve months) and it was provided that upon proof that the disease was in fact contracted whilst the workman was in the employment of that other employer, that other employer shall be the employer from whom the compensation is to be recoverable (section 8(c)(ii)). Finally, section 8(c)(iii) provided that: if the disease is of such a nature as to be contracted by a gradual process, any other employer within the last twelve months was liable to make such contributions as might be agreed or determined by arbitration under the Act. Under this scheme, therefore, compensation for disease was initially based upon the nature of the employment and its potential for causing, rather than upon proof that it caused, such a disease. The paternal benevolence of the Legislature (as Visc Sumner put it in Blatchford: p 469) is well known, and if the price of that benevolence is paid by the last employer, who thus has to bear others burdens, that is nothing new in this kind of legislation. However, the last relevant employer could seek, in specified circumstances, to avoid or to pass on to another employer responsibility by proof that the disease was not actually contracted in his employment. Alternatively, in the case of a disease of such a nature as to be contracted by a gradual process, all relevant employers within the last twelve months would be liable to contribute. The scheme was, as I see it, concerned with either the risk of or actual causation, and in its use of the word contracted it appears to me to have been directing attention to the causation, rather than the mere experiencing or manifestation, of disease. The WCA scheme was the subject of further amendment by the 1925 Act. Section 43 superseded section 8 of the 1906 Act as regards scheduled diseases, while section 47 made specific provision for the introduction of a parallel scheme covering silicosis. Effect was given to this by inter alia the Metal Grinding Industries (Silicosis) Scheme which came into force in July 1927, making provision for obtaining compensation from the last employer within the previous three years, and giving such employer rights to look to other such employers within the last five years. An insurance covering employers liability in this connection was considered in Smith & Son v Eagle Star (1933) 47 Ll. L.R. 88, (1934) 48 Ll. L.R. 67. Mr Hill had been employed in processes giving rise to silicosis for some 20 years. For the last two of these years, from 31 March 1928 to 16 June 1930, he worked for Smith & Son. From 30 June 1927 to 17 June 1930, Smith & Son had an insurance against WCA liability in respect of any personal injury or disease which at any time during the continuance of this policy shall be sustained or contracted by any workmen . The policy was expressly extended to cover any liability in connection with any claim made by employees in respect of silicosis, and the decision of the Court of Appeal rested on this ground. But Scrutton LJ also examined the main policy language, and in particular what was meant by contracted. He noted that there has been a good deal of discussion in the Courts about a disease which is gradually contracted commencing at some stage and through the process going on increasing the disease until at last it results in total disablement (p 70), and concluded that the word was not to be read as first contracted, but in the sense of influenced or increased until it ultimately comes to total disablement. This, although not directly focusing on the first development of a disease from some earlier cause, suggests a flexible view of the word contracted, directed once again to the employments responsible for causing the disease. Confirmation that this was Scrutton LJs view can be found in the earlier case of Ellerbeck Collieries Ltd v Cornhill Insurance Co [1932] 1 KB 401. Two workmen who had been in the colliery companys service for many years were on respectively 11 and 12 March 1929 (dates they were actually off work) certified as suffering from miners nystagmus. The Cornhill had on 8 March 1929 issued the colliery company with a three month provisional cover note insuring in terms matching the wording of the insuring clause in the first Excess wording (i.e. against liability in respect of any employee who shall sustain any personal injury by accident or disease while engaged in the service of the employer). Failing a satisfactory survey, the cover note actually expired on 18 March 1929. The first point decided was whether the employees had sustained personal injury by accident or disease during the period of validity of the cover note (8 to 18 March 1929). It was held that they did. The judgments in the Court of Appeal are of interest for a number of reasons. First, both Scrutton LJ (p 408) and Greer LJ (p 417) approached the question of construction on the basis that the policy was intended to protect the employers against their liability to their workmen under the WCAs. Scrutton LJ added that it seems to me that the policy was intended to cover the liability of the employers for the results of industrial diseases caused by the employment (p 409). His description of the policy, covering in terms any employee sustaining personal injury by accident or disease in service, as intended to cover liability . for the results of diseases caused by the employment fits precisely with the analysis which I consider correct (paragraphs 18 28 above). Second, Scrutton LJ went on to refer to the difficulties in saying when an industrial disease, such as miners nystagmus or lead poisoning, begins, and in these circumstances the difficulty for an employee to pick the proper employer to sue. He described the way in which Parliament, by what became section 43 of the WCA 1925, had addressed such difficulties by providing a conventional and artificial means for enabling the workman to get compensation, leaving the various employers to fight out their proportion of the liability between themselves (p 409). He said that the last employer, liable under the WCA scheme, then claims on the insurance company on the ground that he is liable to make compensation for an injury by disease, and the date of the injury or disablement is by statute and certificate fixed as happening between the dates for which he is provisionally covered (p 411). On this basis, and in the light of the House of Lords decision in Blatchford, Scrutton LJ concluded that he was bound to hold that an accident has happened within the period of the provisional cover against the consequences of which the insurance company is bound to indemnify the employer (p 413). In short, the conventional and artificial provisions of the WCA defined what constituted an accident and when personal injury by accident or disease was sustained for the purposes of the insurance. Greer LJ, more shortly, adopted the same approach (p 418). Only Slesser LJ (p 421) expressed a reservation about the possibility that the artificial deeming provisions of section 43(a) of the WCA 1925 might only apply as between employee and employer, and that it might have been necessary to consider separately the date of the sustaining of injury as between the employer and the insurer, had there been any admissible evidence that the two employees had actually contracted the scheduled disease before the granting of the statutory medical certificate. Commercial purpose and practice Much general evidence was directed or elicited before Burton J in relation to the commercial purpose of the present insurances, and to practice relating to their operation in the years before the present issue arose. It was argued that there was, prior to the decision in Bolton, a universal usage of the insurance industry to pay out mesothelioma or similar claims under [employers liability] policies by reference to the date of inhalation/exposure whatever the wording, or an estoppel by convention to like effect. Burton J rejected the argument (paras 180 to 201, esp. para 201), for the reasons that, first, there was no evidence relating to years earlier than the 1980s which could be put down to any kind of arguable usage, second, any usage was not certain, not least because of the multiplicity of approaches to or bases for it and, third, it was not binding. It was not incorporated into the insurance contracts. No issue of estoppel by convention was pursued to the Court of Appeal (Rix LJ, para 24, and Stanley Burnton LJ, paras 332 and 335) and the issue of a universal custom was only pursued by Zurich Insurance Company (Rix LJ, para 24). By a multiplicity of approaches to or bases for insurers practice, Burton J was referring to evidence that insurers followed the practice they did in some cases because they believed that their contracts were to be interpreted on a causation/exposure basis, in others because they believed that the aetiology of diseases such as mesothelioma was such that injury was in fact sustained (in the sense of experienced) at the date of inhalation, while yet others may have failed to realise that their historically relevant wordings had been on a different basis to the causation wordings to which they had since switched or may have failed to address their minds to any relevant issue at all in relation to an insured who was usually a longstanding repeat client. Rix LJ (para 228) contented himself with agreeing with Burton Js reasoning on this aspect, while Stanley Burnton LJ noted and agreed in particular with Burton Js second reason, relating to the believed aetiology of mesothelioma (para 335). Smith LJ, on the other hand, treated the commonly held understanding that diseases such as mesothelioma involved injury at the date of inhalation as part of the factual matrix of all the insurance contracts (paras 322 323), and considered against that background that no difference in meaning should be held to exist between policies using sustained and causation wording, until the time when the two sides of the insurance industry should be considered to have appreciated that some diseases, including mesothelioma, do not occur until many years after exposure to the causative agent (para 327). She put that as around the time of the decision in Bolton, after which parties using a sustained wording must be taken to have meant only to cover injuries actually occurring during the policy period (para 327). The argument of a binding usage was not pursued before the Supreme Court, rightly so for the reasons given by the judge and the majority in the Court of Appeal. Equally, there has been no suggestion of estoppel by convention, along the lines recognised as possible in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 47. However, on the issues of policy interpretation, Mr Stuart Smith QC for Zurich Insurance, maintained before the Supreme Court an argument that there was a consensus based on market practice, whereby, for one reason or another, such policies would respond to long tail diseases by reference to the date of exposure, and that this could constitute relevant background to their construction. Assuming that, short of a binding usage or estoppel by convention, a practice, if known to or shared by the relevant parties, could in some circumstances be relevant background (see e.g. Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989), still, in my opinion the argument fails in the present case. It fails in particular in the light of the judges findings, even in relation to policies made in and after the 1980s. A practice based on a mistaken understanding, by only some insurers, that the policies operated on a causation basis cannot be relevant background to the interpretation of every policy; on the judges findings other insurers do not appear to have understood that the policies operated on that basis. A practice based on a mistaken understanding by others in the market as to when long tail diseases could be said to have been experienced or to involve injury is likewise an unpromising start for construing all policies; if the understanding were good, it would mean that such diseases fell within the policies, even though the policy cover was restricted to injury or disease experienced during the policy period. The understanding would not therefore carry any imperative to read a sustained wording as meaning caused. Before the Supreme Court, both employers and employees continued to rely upon the evidence given at trial regarding the general purpose of employers liability insurance as part of the background to the interpretation of the present insurances. Rix LJ (paras 223 to 235) gave it some weight as such, but Stanley Burnton LJ thought that there was little if any assistance to be gained by reference to the commercial purpose of EL insurance, as this was simply to provide the cover defined in the policy (para 333). The Supreme Court was provided with a useful summary of the considerable volume of evidence relied upon in this connection. It consisted in general of answers given by insurers, two at least of them with experience going back to the 1940s. They were asked (frequently in response to leading though not inadmissible on that score questions in cross examination) about their or others views, understandings or perceptions as to the purpose of the policies, and the way in which these would or should respond, in relation to injuries arising from exposure in the course of activities during the policy period. In my judgment, Stanley Burnton LJ was right to reject such evidence as inadmissible. The parties cannot be asked what they meant by their contract, and, failing any binding usage, it is equally inadmissible to ask other persons operating in the market to give general evidence as to what they would have understood the parties to have meant by the words used in the context in which they were used. The evidence does not seem to have amounted to more than that. However, I do not agree with Stanley Burnton LJs suggestion that no useful conclusions can be drawn about the commercial purpose of the policies, save that it was to provide the defined cover. In my opinion, relevant conclusions about the general nature and purpose of the individual policies can be drawn in this case, just as they could in the case of the different (and wordier) instrument in issue in In re Sigma Finance Corporation [2009] UKSC 2, [2012] 1 All ER 571 (see especially paras 10, 12 and 37). They can be drawn from an overall consideration of the individual insurance wordings, and particularly from the features which tie cover to the employees and activities during the relevant policy period and the five points considered in paragraphs 18 to 28 above. Further, if the policies are on any view apt to cover employers liability for long tail diseases which initiate during, but only manifest themselves years after, the original policy period, one may look with scepticism at an interpretation which distinguishes this situation from other situations where a long tail disease is caused but does not strictly begin during the policy period, and only manifests itself years later. This is particularly so if a conclusion that the latter diseases fell outside the policy cover meant that they would or might well not fall within any subsequent employers liability policy. ELCIA 1969 Section 1 of the ELCIA provides: 1. (1) Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain (3) For the purposes of this Act (a) approved policy means a policy of insurance not subject to any conditions or exceptions prohibited for those purposes by regulations. 4. (1) Provision may be made by regulations for securing that certificates of insurance in such form and containing such particulars as may be prescribed by the regulations, are issued by insurers to employers entering into contracts of insurance in accordance with the requirements of this Act . (2) . the employer shall during the currency of the insurance and such further period (if any) as may be provided by regulations (a) comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees; . The only conditions or exceptions ever prohibited were certain exemptions from liability. Under section 3, the ELCIA did not however apply to local authority employers, such as most of MMIs insureds. Under section 4, provision might be made for certificates of insurance to be issued to employers, and in that event the employer was, obliged during the currency of the insurance and such further period (if any) as may be provided by regulations to comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees. In reaching his conclusions on the ELCIA (para 16 above), Rix LJ engaged in an impressive analysis, to which I would refer (paras 166 to 186). The only doubt this leaves is how, if the ELCIA requires a causation wording, an employer could properly insure on a wording which only covered injury sustained in the sense of experienced (see para 186 and paragraph 16 above). The scope of the ELCIA is, as Rix LJ indicated, open to three alternative analyses: that it requires cover in respect of (i) all future liability incurred during the insurance period, whenever the negligence or injury, or (ii) liability for all future injury or disease sustained (in the sense of experienced) by employees during the insurance period, whenever the negligence, or (iii) liability for all negligence or breach of statutory duty during the insurance period giving rise to liability as in (ii). The retrospectivity of cover involved in (i) and (ii) is unlikely to have been intended. The only one of the three possibilities not involving a degree of retrospectivity is (iii). A duty on every employer to insure, and maintain, insurance is consistent with a requirement to have the insurance in place during, though to maintain it after, the relevant insurance period. The provision, contemplated by section 4, for copies of insurance certificates to be issued by insurers and to be displayed by any employer for the information of his employees during the currency of the insurance and such further period as may be provided by regulations indicates, first, a desire to assure employees of their insurance protection during the relevant insurance period, and, secondly, an awareness that this assurance might need to remain in place after such insurance period; it is therefore suggestive of (iii), rather than (i) or (ii). As Rix LJ observed, it is only cover in accordance with (iii) that can give an employee the assurance that any injury or disease suffered as an employee and arising out of and in the course of [his] employment will be covered by insurance, the benefit of which would, if necessary, be available to him at the time under the Third Party (Rights against Insurers) Act 1930. An obligation to have a policy in force only at or by the time when injury is actually experienced would leave employees or ex employees at the mercy of compliance with the statute by their employers or ex employers at uncertain future dates. It would also leave such employees or ex employees at the mercy of employers who, for whatever reason, ceased to carry on business either in Great Britain or (for example due to insolvency) at all. Further, if injury or disease suffered or contracted bears the same meaning as insurers suggest that injury or disease sustained or contracted bears, then an employee, who had the misfortune to succumb to a disease abroad caused by his employment or previous employment in Great Britain, would not be covered (unless regulations intervened to ensure that he was). Stanley Burnton LJ thought that any issue as to the nature of the insurance required under ELCIA was resolved by its use of the word sustained, rather than caused. He went on to conclude that the ELCIA covered any injury sustained (in the sense of experienced) during a period of insurance, by anyone who was then or had at any previous time been an employee. However, that latter conclusion introduces a retrospectivity into the scope of the ELCIA, which, as already indicated, I think unlikely to have been intended. The statute could have used the tariff wording of causation instead of sustained. But in the statutory language the word sustained is not coupled with a phrase such as during the period of the insurance. Even if sustained means experienced in the context of the statute, the statute may require insurance on what is effectively a causation basis; the words sustained by his employees may well mean sustained at any future time by his current employees. The key to the meaning of the statutory language seems to me the combination of the phrases arising out of and in the course of their employment in Great Britain and not including injury or disease suffered or contracted outside Great Britain. Together, and for reasons given in the last two paragraphs, they indicate a statutory requirement to insure in respect of activities during the course of employment in Great Britain which may in the future give rise in or out of Great Britain to liability to the employees involved in such activities. In my judgment, therefore, the conclusion which gives proper effect to the protective purpose of the legislation is that the ELCIA requires insurance on a causation basis. The ELCIA extension provision to the Independent and second BAI wordings (see Annex A), as well as a similar extension provision to the MMI policy intended for insureds who were not local authorities, achieved this result expressly in relation to policies written subsequent to the coming into force of the ELCIA, at least for the purpose of ensuring that employees claims were covered by insurance. Any other subsequent insurances not containing that extension provision should, if possible, be read as providing the relevant employers cover required by statute. This is a powerful tool in the interpretation of such insurances. Bolton M.B.C. v Municipal Mutual Insurance Ltd The Court of Appeal in the present case was bound by its previous decision in Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 on public liability policies. The majority regarded that case as, in effect, determining the meaning which must be put on the word sustained in the present employers liability policies: see paras 284, per Rix LJ, and 339, per Stanley Burnton LJ, who however also found the logic of Longmore LJs judgment convincing in relation to the latter type of policies. Smith LJ on the other hand considered that public liability and employers liability insurances gave rise to different considerations (para 328). In my opinion, that is right. Employers liability policies are subject to particular terms and considerations, analysed above (particularly in paragraphs 18 28 and, in the case of policies effected after the coming into effect of the ELCIA, paragraphs 41 46). These considerations are not or certainly not necessarily applicable to public liability insurances. The present case was concerned with employers liability not public liability insurances, and it may well be that not all the relevant facts relating to the latter are before us. We certainly have not heard full argument on the proper conclusions which may be drawn regarding the basis of liability or trigger generally applicable under the latter. In these circumstances, I would proceed on the basis that we are not bound by Bolton, that this does not involve any view about the correctness or otherwise of Bolton, but only that it is unnecessary to consider what the position generally may be under public liability policies. Assuming that, in relation to public liability insurance, the position generally is as stated in Bolton, that does not alter the conclusions which I reach. It merely means, in their light, that public liability insurance generally and the present employers liability policies operate on different bases, because of their different backgrounds, terms and purposes. Contracted There is no difficulty about treating the word contracted as looking to the causation or initiation of a disease, rather than to its development or manifestation. In relation to the two BAI wordings and the third MMI wording, this interpretation obtains strong support from the general nature and purpose of the relevant policies, derived from their immediate context and terms and analysed in paragraphs 18 to 28 and 41 above. To the limited extent that the WCA background may assist to inform the meaning of later policies, it can be seen overall as a legislative scheme which was concerned with either the risk of or actual causation (para 32 above). Even if, in the phrase sustained or contracted or injury sustained or disease contracted, the word sustained is to be understood as meaning experienced, that would reflect no more than the fact that the cause and effect of an injury commonly coincide; I would still unhesitatingly conclude, as did the Court of Appeal, that the word contracted used in conjunction with disease looks to the initiating or causative factor of the disease. Sustained The majority of the Court of Appeal considered that it was impossible to view policies with pure sustained wordings as operating by reference to the initiating or causative factor of a disease. They did so primarily by reference to the wording of the insuring clauses. In my view, as indicated in paragraphs 18 19 above, a broader approach is necessary. The general nature and purpose of these policies can be derived from their immediate context and terms, analysed in paragraphs 18 to 28 and 41 above. It is true, as Rix LJ said, that phrases such as injury sustained by an employee or an employee who shall sustain injury, in either case by accident or disease, appear to address the impact of the accident or disease on the employee. But the underlying focus of the insurance cover is on the employees and activities current during the insurance period. The cover would be potentially incomplete, and employers would be potentially exposed to uninsured risks, were sustained to be understood as meaning developed or manifested. This is so, even before the ELCIA came into force. Any policies written subsequent to the coming into force of the ELCIA either afford cover consistent with the Acts requirements by virtue of an ELCIA extension provision, or, to the extent that this is not the case, should be construed, if at all possible, as meeting employers obligations under that Act. In my view, such obligations included taking out insurance in respect of negligence during the insurance period affecting an employee in a manner giving rise to bodily injury or disease then or at any subsequent time. On this basis, I consider that, although the word sustained may initially appear to refer to the development or manifestation of such an injury or disease as it impacts employees, the only approach, consistent with the nature and underlying purpose of these insurances both before and after the ELCIA, is one which looks to the initiation or causation of the accident or disease which injured the employee. The disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself subsequently. Disease sustained, read as meaning experienced or incurred Rix LJ was attracted by the submission that, even if sustaining disease meant experiencing or incurring it during the period of the insurance, long tail diseases could be said to have been sustained during the period of insurance in this sense. He asked rhetorically whether an employee who had inhaled asbestos had not sustained an injury in the form of an assault of the fibres, as a result of which he was worse off through having dangerous fibres in his lungs (para 280). He noted that, although there was at most trivial injury or damage, and nothing that could create actionable damage, nevertheless, when mesothelioma develops, it is the risk of mesothelioma created by the exposure which is the damage (see . Barker ) and it is the exposure, and the risk of mesothelioma, that is the damage (para 281). He only felt bound to reject this analysis (para 284) because of the Court of Appeals previous decision in Bolton. It may be that in the case of some long tail diseases, the victim can be said to have incurred or caught them at the same time as the initial ingestion or scratch giving rise to them. But it is clear that this is not the position with inhalation of asbestos in relation to either asbestosis or mesothelioma. No cause of action arises from exposure or inhalation alone: Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281. Further, for reasons which I develop in paragraphs 64 65 below, the exposure and risk are not by themselves damage in any sense known to the law. Damage is only incurred when mesothelioma develops. Only when it develops does the victim incur damage which is legally relevant, and even then this is not because any physical link necessarily exists or can be proved between the mesothelioma and the original exposure. The rule in Fairchild and Barker imposes liability for the mesothelioma upon persons who have exposed the victim to asbestos, and so created a risk of mesothelioma. But it is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure. And, even if it were viewed simply as a rule imposing retrospective liability on employers for exposing their employees to the risk of mesothelioma, the insurance policies do not insure risks of physical injury or disease, but only actual injury or disease. The application of the insurances in respect of mesothelioma At the outset of these appeals, the application of the insurances in respect of mesothelioma suffered by employees exposed to asbestos during their employment by an insured employer did not appear controversial. This changed after a question from Lord Phillips on day 4 of the hearing, followed by a later written note. All the same, the transcript pages containing any argument on the point numbered only 40 out of a total of some 1140. So far as Mr Edelman made any submissions on this point, in his written case or orally, they were to this effect: if the correct analysis of the Houses decision in Fairchild be that an employer who exposes an employee to asbestos is deemed to have caused that employees mesothelioma, then employers liability insurances held by the employer on a causation basis should respond; but, if the policies do not respond on a causation basis, there is no justification for treating the employee as having suffered injury or a disease during their currency, because employers cannot prove that any particular inhalation caused any injury. This led to some discussion, particularly with counsel for employers and employees, of the points which I have already addressed in paragraphs 50 52 above. The point now expressed forcefully by Lord Phillips in his judgment is that exposure to the risk of mesothelioma is the correct analysis of the Fairchild principle, at least as subsequently interpreted, and that such exposure can satisfy neither the concept of injury nor the concept of causation for the purposes of the policies. If that is right, then the present insurance claims must all fail. Indeed, the great bulk of insurance claims settled by other insurers (e.g. former tariff insurers) or by the present insurers under the causation policies they have issued in more recent years (paragraph 10 above) should presumably also have failed. The only exception may be the case of an employee exposed to asbestos in only one employment by an employer holding insurance throughout with only one insurer. In such a case it might (perhaps) be said that, whichever particular inhalation(s) may have been responsible for the employees mesothelioma, it (or they) must have been insured. Even then, the logic of the Supreme Courts reasoning in Fairchild and Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229 might lead to the conclusion that causation was still unprovable in the light of the possibilities of environmental or idiopathic causation of mesothelioma. Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts. Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context. In their leading work on Causation in the law (Clarendon Press, 2nd ed 1985) Professor H. L. A. Hart and Tony Honor examined both this understanding and its relationship to legal decision making. Generally, but not always, a cause must involve an act or omission that was at least a sine qua non of the injury in respect of which responsibility attaches (the but for test). But sometimes two separate acts or omissions may each independently have been sufficient to give rise to that injury (as when A and B simultaneously, but independently shoot C dead), and then we may as a matter of legal policy accept a weaker causal relationship for the imposition of responsibility: see p lxv in the preface to and p 123 of the 2nd edition. Other cases where causal requirements have been relaxed include Bonnington Castings Ltd v Wardlaw [1956] AC 613; there, materially contributing to part of an accumulation of dust which cumulatively led to pneumoconiosis gave rise to liability for the whole disease (although it has been suggested that some apportionment might now be possible in fact and law). Another relevant authority is McGhee v National Coal Board [1973] 1 WLR 1; there, liability for dermatitis was held to exist because the defendant had materially contributed to part of the claimants exposure to dirt, any part of which might, independently of any other, have given rise to the abrasion leading to the claimants dermatitis. It was recognised that this involved liability based on materially contributing to the risk of the injury. Lord Reid at p.4G H described the result as reached taking a broader view of causation, and Lord Wilberforce at p 5G viewed it as involving a conclusion as to the causal connection that had to exist between the default and the disease complained of. The contrary view (viz, that proof of risk was insufficient without proof that the risk caused or materially contributed to the disease) had a logic which Lord Wilberforce acknowledged, but rejected for policy and evidential reasons set out at p.6C F. In Fairchild, McGhee was seen as a precursor of the decision there reached. Putting aside the possibility of an idiopathic or environmental cause, a Fairchild type situation exists when (a) there are two separate potential causes exposing the claimant to the same risk, one involving an act or omission by the defendant, (b) either one of which causes would have been sufficient to give rise to the injury, and (c) one of which did so, but (d) neither of which can as a matter of probability be shown to have done so. Taking into account the later decisions in Barker v Corus and Sienkiewicz, the Fairchild principle extends to any case where there has been an act or omission exposing a person to asbestos, which exposure may have caused the mesothelioma, but which cannot be shown as a matter of probability to have done so. On that basis, the House held in Barker v Corus that each or any persons liability should only be proportionate to the extent that he had exposed another to the risk of mesothelioma. Parliament by the Compensation Act 2006 reversed that conclusion and made each such person liable in respect of the whole of the damage caused by the mesothelioma. Lord Phillips in his judgment addresses the basis of Fairchild in the light of Barker v Corus, the 2006 Act and Sienkiewicz. He accepts that, if Fairchild is now correctly to be understood as a special rule deeming employers who have exposed an employee to asbestos to have caused any subsequently suffered mesothelioma, then the insurance policies should apply (para 109). But he concludes that Fairchild must be understood as creating liability not for the disease, but for the creation of the risk of causing the disease. It follows in his view that employers and employees gain no assistance from the special rule in asserting that mesothelioma suffered by any person was caused or initiated in any particular policy period. On this basis, even though the insurances respond to injuries caused or initiated during their periods, the employers and employees fail for want of proof. It is not fruitful to repeat the exercise undertaken in Barker v Corus of examining in detail the significance of the speeches in Fairchild. The House was not agreed about this in Barker, but the majority speeches of Lords Hoffmann, Scott and Walker were at pains to reject any analysis of Fairchild as proceeding upon a fiction that each exposure had caused or materially contributed to the disease: see paras 31, 61 and 104; they each also referred to the liability created by Fairchild as being not for causing the disease, but for materially increasing the risk of the mesothelioma which was in fact suffered: paras 31, 36 and 40, 53, 61 and 113. Lord Rodger (dissenting) perceived the majority to be misinterpreting Fairchild by failing to acknowledge that it was based on an equation of materially increasing risk with materially contributing to causation, an equation which he thought had been accepted as sufficient causation in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1. It is on the apparently bright line distinction said to have been drawn by the majority in Barker between materially contributing to increasing the risk of, and causing, a disease that Lord Phillips now founds his judgment in these appeals. The Compensation Act 2006 applies where a person who has exposed someone to asbestos is liable in tort in connection with damage caused to the latter by mesothelioma whether by reason of having materially increased a risk or for any other reason (section 3(1)(d)). It makes the former person liable in respect of the whole of the damage (section 3(2)(a)). On its face, the Act assumes rather than creates the liability, and only alters the measure of recovery. That was the view expressed in Sienkiewicz by Lords Phillips, Rodger and Brown (paras 70, 131 and 183). However, on further analysis, the distinction identified in paragraphs 58 59 above proves more elusive. Even in Barker itself, Lord Walker described exposing the employee to the risk of mesothelioma as being equated with causing his injury and the result as an explicit variation of the ordinary requirement as to causation (para 104), and spoke of the rule as one by which exposure to the risk of injury is equated with legal responsibility for that injury (para 109). However, it is conceivable that he meant that the ordinary requirement of causation of the disease was entirely replaced by another liability creating rule. It is in the later authority of Sienkiewicz that the difficulty of drawing any clear cut distinction between creating a risk and causation of the disease becomes most apparent. Lord Phillips there stated that the rule in its current form was that the person responsible for the exposure and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease (para 1). Later, he said that the law was presently contained in Fairchild and Barker which had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances (para 70). That was the analysis of Fairchild advanced by Lord Rodger in Barker v Corus (paras 73 and 83) but rejected there by the majority. Lord Brown in Sienkiewicz spoke of a more relaxed approach to causation (para 178) and flexibility in the approach to causation (para 187). I referred to Fairchild and Barker as involving a special rule of causation (para 188), and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims (para 196) and to adjustments in the burden of proof (paras 198 and 200). Lord Rodger was, on the other hand, loyal to the majority view in Barker by referring to liability as based on materially increas[ing] the risk (para 113), and Lord Dyson was cautious in speaking of materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207). Lord Phillips has in para 123 set out a passage from an extra judicial commentary written by Lord Hoffmann in Perspectives on Causation (2011), p 8. In it, Lord Hoffmann describes the two ways in which the changes introduced by Fairchild and Barker could be characterised, one as changing the causal requirements for an action for damages for mesothelioma ; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent; the other as creat[ing], exceptionally, a cause of action for the increased risk of mesothelioma, rather than for the disease itself. Lord Hoffmann notes that the House in Barker (Lord Rodger dissenting) adopted the second explanation of what had happened in Fairchild. But in the next sentence, not quoted by Lord Phillips, Lord Hoffmann went on: Parliament almost immediately reversed this decision by a statute giving effect to the first explanation, which had been advocated by Lord Rodger in his dissenting speech. Lord Hoffmanns extra judicial (or judicial) words cannot by themselves alter the true effect of a statute, but his comments do again show that the suggested distinction is more fluid than might at first appear. It is relevant to look more closely at what Barker decides. In Barker, Lord Hoffmann spoke of Fairchild as applying an exceptional and less demanding test for the necessary causal link between the defendants conduct and the damage (para 1) and of the requirement of a sufficient causal link between the defendants conduct and the claimants injury (para 17). In his note in Perspectives on Causation, he picked up this language with references to the causal requirements of the relevant rule and to the issues in cases of mesothelioma and analogous situations as involving the causal requirements for an action for damages for mesothelioma. Lady Hale in Barker also viewed the common law rules governing the measure of recovery as closely linked to the common laws approach to causation, and said that there was no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations (para 122). In paras 123 and 124, she made clear that in her view the issue in Barker could be seen as arising from the expanded perceptions or developed concept of causation which the law had accepted. These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker v Corus as one concerned with the issue of the causal requirements or causal link, as between the defendants conduct and the disease, which the common law requires in order for there to be an action for mesothelioma. But analysis of the rule arrived at after Fairchild and Barker justifies further propositions. Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops. Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281; the House there decided that not even the emergence of pleural plaques marking the past exposure to asbestos constituted injury for the purpose of giving a cause of action. In order to fall within the principle in Fairchild and Barker, the development of mesothelioma is a pre condition: see Barker, per Lord Hoffmann (para 48) and Lord Scott (para 53). Lady Hale went further, stressing that she in fact agreed with Lord Rodgers view that the damage which is the gist of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma (para 120). In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply for the risk created by exposing someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically not the law: see Rothwell and the statements in Barker itself, cited above. The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim. As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma. In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised. What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim. The actual development of mesothelioma is an essential element of the cause of action. In ordinary language, the cause of action is for or in respect of the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild and Barker, held responsible for and in respect of both that exposure and the mesothelioma. This legal responsibility may be described in various ways. For reasons already indicated, it is over simple to describe it as being for the risk. Another way is to view a defendant responsible under the rule as an insurer, but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault. A third way is to view it as responsibility for the mesothelioma, based on a weak or broad view of the causal requirements or causal link appropriate in the particular context to ground liability for the mesothelioma. This third way is entirely natural. It was adopted by Lords Reid and Wilberforce in McGhee, by Lord Hoffmann, Lady Hale and (possibly) Lord Walker in Barker and by Lord Hoffmann in his extra judicial commentary. It seems to have received the perhaps instinctive endorsement of a number of members of this Court, including myself, in Sienkiewicz. Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear. They have the meanings assigned to them and understood in ordinary usage in their context. A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforces words in McGhee, p 6C F (cited in para 56 above). The present appeals concern the meanings we assign to the concept of causation, first in the context of considering employers liability to their employees and then in considering the scope of employers insurance cover with respect to such liability. It is instructive in this connection to look more closely at the Compensation Act 2006. Section 3(3) states that section 3(2) does not prevent (a) one responsible person from claiming a contribution from another, or (b) a finding of contributory negligence. Section 3(4) goes on to provide that [I]n determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible . Section 3(3) necessarily relates to the legal bases for claiming contribution or asserting contributory negligence, which are to be found in, respectively, the Civil Liability (Contribution) Act 1978 and the Law Reform (Contributory Negligence) Act 1945. The 1978 Act addresses the situation where two or more persons are liable in respect of the same damage (section 1(1)), while section 2(1) provides for contribution in such situations to be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage in question. Although under section 3(4) of the 2006 Act, the court must have regard to the relative lengths of the exposure for which each was responsible, the same damage which is a pre condition to the application of the 1978 Act must be the mesothelioma. It cannot be the risk created by the person by or from whom contribution is sought, because each person and exposure creates a separate risk, and no one person or exposure creates the total risk resulting from all exposures. The 2006 Act, by its reference to the 1978 Act, thus assumes that every person, who has exposed to asbestos a victim who later experiences mesothelioma, incurs responsibility for the mesothelioma. That language again fits an analysis whereby the rule in Fairchild and Barker identifies the appropriate weak or broad causal link between the exposure and the mesothelioma. A similar position applies under the 1945 Act. Under section 1(1), that Act applies [w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons. In that event, the damages recoverable are to be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage. The application of this section, as contemplated by the 2006 Act, is only possible on the basis that a mesothelioma sufferer may be said to have suffered the mesothelioma partly as the result . of the fault of anyone who has exposed him to asbestos. In other words, the rule in Fairchild and Barker must have been viewed by the drafters in my opinion entirely understandably as establishing a causal link, between the exposure and the mesothelioma, sufficient for it to be said that the mesothelioma was the result of each (and every) exposure. A similar view is also implicit in the provisions of the Act drafted on the basis that insurers who would commonly of course be employers liability insurers would be among the persons by or for whose benefit or against whom contribution would be sought in cases of multiple responsible persons: see section 3(7)(b) and (10)(a) of the 2006 Act. Those provisions necessarily assume that employers liability insurances, written generally on a causation basis, would respond to Fairchild/Barker type liability incurred by employers. Ultimately, the present appeals raise the questions how the present employers liability insurance policies respond as a matter of construction in circumstances within the rule in Fairchild and Barker. Where two contracts are linked, the law will try to read them consistently with each other. This is so with language in a bill of lading, incorporated from a charterparty: The Njegos [1936] P 90. A similar approach applies to language in a reinsurance incorporated from the insurance: Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852 and Groupama Navigation et Transports v Catatumbo CA Seguros [2000] 2 Lloyds Reports 350, even though there is no guarantee that a reinsurance will in every possible circumstance that may develop pick up every liability that may be held to exist under an insurance: see Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHC 40, [2010] 1 AC 180. The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured. Thus, as Scrutton and Greer LJJ accepted in the Ellerbeck Collieries case (paragraph 34 above), an employers liability insurance could have been expected to respond to the conventional and artificial definition in the WCAs as to what constituted an accident and when personal injury by accident or disease was sustained for the purposes of employers liability to employees. Furthermore, if the common law during or even after the currency of an insurance develops in a manner which increases employers liability, compared with previous perceptions as to what the common law was, that is a risk which the insurers must accept, within the limits of the relevant insurance and insurance period. Eady J correctly identified this in Phillips v Syndicate 992 Gunner [2003] EWHC 1084 (QB), [2004] Lloyds Insurance and Reinsurance Reports 426, 429 (left). The declaratory theory does not presume the existence of an ideal system of the common law, which the judges from time to time reveal in their decisions. But it does mean that, when judges state what the law is, their decisions do . have a retrospective effect in the sense that the law as stated will, generally speaking, be applicable not only to the case coming before [them] but, as part of the common law, to other comparable cases which come before the courts, whenever the events which are the subject of those cases: Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, 378G H, per Lord Goff. The declaratory theory is a pragmatic tool, essential when cases can only come before the court some time, perhaps some years after the relevant events occurred, and when the law [must] be applied equally to all, and yet be capable of organic change (p 379A). A similar principle must, generally speaking, apply in relation to a statute such as the Compensation Act 2006, which changes or corrects the common law to what Parliament perceives to be a more appropriate result for the purposes of all future cases coming before the courts, whenever the events giving rise to them. In the case of that Act, the result was one which the courts might as a matter of common law well have themselves accepted (and which indeed Lord Rodger in his powerful dissent in Barker v Corus believed that the common law had accepted) in Fairchild. Concluding, as I have done, that the present insurances covered employers liability for injuries or diseases caused during the relevant insurance periods, the question is whether they cover employers liability for mesothelioma arising under the rule in Fairchild and Barker from having exposed employees to asbestos during such periods. It is not in dispute that, if the rule is characterised as a rule of deemed causation, then the policies must respond. A parallel example, so familiar that it is easy to overlook, is the vicarious liability to an employee, A, which rests on any employer, B, who has not himself been negligent but must answer vicariously for the negligence of another employee, C. We have no hesitation in saying that the employer B has in such a case caused the injury or disease suffered by A. But this is so in reality only because a rule of law requires us to equate the acts or omissions of C with those of B. The argument, accepted by Lord Phillips, is that the rule in Fairchild and Barker is not one of deemed causation of or, therefore, liability for the disease, but one of liability for the risk created by the exposure. For reasons which I have set out, I regard this distinction as too simple. The liability arises only because of the incurring of the disease and is for the disease. A condition of such liability is that the employer (negligently) exposed the victim to asbestos. The insurance policies, read as operating on a causation basis, are aimed at covering liability generated by employers activities during their insurance periods: see paragraphs 18 28 and 41 above; unless liability for mesothelioma flowing from negligent exposure during an insurance period is covered by the policies, this aspect of employers activities will not in practice be covered at all. In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient weak or broad causal link for the disease to be regarded as caused within the insurance period. It would, I think, have been anomalous and unjust if the law by deeming there to have been causation of the disease could have created policy liability (which is common ground), but the law by insisting that the liability in respect of mesothelioma was for the risk of causation achieved a quite different result. As I have sought to show, it is not in any event accurate to treat the liability as being either solely or strictly for the risk. The risk is no more than an element or condition necessary to establish liability for the mesothelioma. The reality, reinforced by provisions in the 2006 Act, is that the employer is being held responsible for the mesothelioma. For this purpose, the law accepts a weak or broad causal link. The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease. But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond. The concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild and Barker. Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond. Conclusion I would therefore dismiss the appeals by insurers so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. ANNEX A The policy wordings (dates are approximate) (1) Excess First Wording (late 1940s): Whereas . (hereinafter called The Employer) carrying on the business of . has made a proposal . this Policy witnesseth that in consideration of the payment of . as premium to the Company on the estimated total amount, as set forth in the Schedule hereto, of the wages, salaries, and other earnings of Employees, a description of whom is set forth in the said Schedule (which premium is subject to adjustment as hereinafter provided) the Company agrees to indemnify the Employer in the manner following, namely That if at any time during the period commencing on theday of19 , and ending on theday of19 (both days inclusive) and for such further period or periods as may be mutually agreed upon, any employee in the Employer's immediate service shall sustain any personal injury by accident or disease while engaged in the service of the Employer in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands, in work forming part of or process in the business above mentioned, and in case the Employer shall be liable to damages for such injury, either under or by virtue of the Common Law, the Fatal Accidents Acts 1846 to 1908, or the Law Reform (Miscellaneous Provisions) Act 1934, the Company will indemnify the Employer The Schedule required a description of the insured companys employees and their estimated total wages, salary and other earnings. Condition 1 of the policy further provided that: the Employer shall truly record in a wages book the name of every employee and the amount of wages, salary and other earnings paid to him. Second Wording (late 1950s to 1960s): Whereas the Employer . carrying on the business described in the . Schedule has made . a written proposal and declaration, containing particulars and statements which it is hereby agreed are the basis of this Contract . and has paid the premium mentioned in the Schedule, which premium is subject to adjustment as hereinafter provided, this Policy witnesseth that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in work forming part of the process in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease The policy provided that the Company should not be liable under it in respect of accidents occurring elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands. The policy provided that premiums were to be regulated by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with a wages book being kept open to inspection for that purpose and the employer supplying the correct amounts within one month of the expiry of each insurance period. Condition 1 and the Schedule were in similar form to those in the first wording. Third Wording (1970 to 1976) After a recital in the same form as the second wording, this wording provided: that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease Under the third wording, there was the same territorial limitation as under the second wording in relation to accidents occurring elsewhere than in Great Britain, etc. Premiums were also regulated by reference to wages, salaries, etc. and condition 1 and the Schedule were in the same terms as in the second wording. (2) Independent Sole wording in Issue (1972 to 1987): This was a Contractors Combined Policy, covering Employers Liability (section 1), Public Liability (section 2) and Loss of or Damage to Contract Works (section 3). It provided: NOW THIS POLICY WITNESSETH that during the Period of Insurance or during any subsequent period for which the Company may accept payment for the continuance of this Policy and subject to the terms, exceptions and conditions contained herein and or endorsed hereon, the Company will indemnify the Insured as hereinafter specified. SECTION 1 EMPLOYERS' LIABILITY If any person who is under a contract of service or apprenticeship with the Insured shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule the Company will indemnify the Insured against all sums for which the Insured shall be liable at law for damages for such injury or disease The Policy provided that the Company was not to be liable for injury, illness, loss or damage caused elsewhere than in Great Britain, the Isle of Man or the Channel Islands. As a result of the ELCIA 1969 making insurance in respect of employers liability compulsory, the Independent wording also contained the further provision (the ELCIA extension provision): "AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY The indemnity granted by section 1 of this Policy is deemed to be in accordance with the provisions of any law relating to compulsory insurance of liability to employees in Great Britain. It is agreed the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the provisions of such law. " The policy Schedule contains spaces for entry of first, annual and minimum premium, as well as of the name of the Principal for whom the insured is undertaking work, the details of the contract or type of work covered by the policy and its situation. Condition 7 provides that the premium is based on estimates provided by the Insured, for record keeping, for the supply of updated information as required by the Company within one month of the expiry of each insurance period and for adjustment of the premium on that basis. (3) MMI First Wording (1949 to 1958) the Company hereby agrees that if at any time during the period of insurance specified in the schedule or thereafter during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified in the said schedule, or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any personal injury by accident or disease arising out of and in the course of his employment by the Insured in their activities described in the schedule and if the Insured shall be liable to pay damages for such injury or disease then, subject to the terms and conditions contained herein or endorsed hereon, the Company shall indemnify the Insured against all sums for which the Insured shall be so liable The policy was expressed not to apply to or include liability in respect of injury or disease caused elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands. Condition 5 regulated premiums by reference to wages, salaries, etc, and made provision for a wages book and adjustment to like effect to the Excess second wording. The policy Schedule provided for the classification of staff and employees according to departments and job description, with corresponding figures for estimated total remuneration. Second Wording (1958 to 1974) the Company hereby agrees that if at any time during the First Period of Insurance specified in the said Schedule or during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified as the Renewal Premium in the said Schedule or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any bodily injury or disease arising out of and in the course of his employment by the Insured in the Insured's activities described in the said Schedule and if the Insured shall be liable to pay damages for such injury or disease or for death resulting from such injury or disease then, subject to the terms, exceptions and conditions contained herein or endorsed hereon or set out in the Schedule to this Policythe Company will indemnity the Insured against all sums for which the Insured shall be so liable. Like the first wording, this wording contained a territorial exclusion of liability in respect of injury or disease caused elsewhere than in Great Britain, etc. The policy Schedule provided for the entry of the Estimates (if any) on which the premium is calculated, including in particular any such estimate of wages, salaries, etc. paid to staff, and cross referred to condition 7, which provided that, if the premium had been based on any estimates, an accurate record should be kept (of actual amounts), the insured should provide insurers with such particulars and information as might be required within one month of the expiry of the policy period and the premium adjusted accordingly. Third Wording (1974 to 1992) The Company agrees to indemnify the Insured in respect of all sums without limit as to amount which the Insured shall be legally liable to pay as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any person under a contract of service or apprenticeship with the Insured when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy. The policy Schedule contemplated a premium adjustable in accordance with condition 5, which in turn provided (in like manner to condition 7 of the second wording) for the adjustment of any premium so calculated by reference to actual amounts at the end of the policy period. (4) BAI First Wording (1953 to 1974) . the Company willindemnify the Insured against all sums of money which the Insured may become liable to pay to any Employee engaged in the direct service of the insured or any dependent of such Employee in respect of any claim for injury sustained or disease contracted by such Employee betweenandboth inclusive The policy carried the note: This policy does not cover the insureds liability for accidents to workmen arising outside the United Kingdom. Conditions 1 and 2 made elaborate provision for the regulation of premiums by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with pay sheets and books of account being kept open to inspection for that purpose and the employer making a return, and the premium being adjusted, subject to a minimum, at the end of each insurance period. Second Wording (1974 to 1983) the Company willindemnify the Insured against all sums of money which the Insured may become legally liable to pay in respect of any claim for injury sustained or disease contracted by any person engaged in and upon the service of the Insured and being in the Insured's direct employment under a Contract of Service or Apprenticeship between theday ofand theday ofboth inclusive This wording also excluded insurers from liability in respect of accidents to employees arising outside the United Kingdom. Like the Independent and third MMI wordings, the BAI second wording also included the ELCIA extension provision. Conditions 1 and 2 provided for the regulation and adjustment of premiums by reference to actual wages, salaries, etc. during each insurance period, in like terms to conditions 1 and 2 in the first wording. (5) Zurich The Municipal First Select wording (1993 to 1998) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury sustained during the Period of Insurance by any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits. The Municipal Second Select wording (1998 ) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury caused during the Period of Insurance to any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits. The tariff wording (1948 ) if any person under a contract of service or apprenticeship with the Insured shall sustain any personal injury by accident or disease caused during the period of insurance and arising out of and in the course of his employment by the Insured in the business above mentioned and if the Insured shall be liable to pay damages for such injury or disease the Association shall indemnify the Insured against all sums for which the Insured shall be so liable. LORD CLARKE Like other members of the Court, I agree with Lord Mance on the construction issue. Thus I agree that, for the purposes of the EL policies, mesothelioma is sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the asbestos fibre or fibres which cause the disease. I do not wish to add to Lord Mances reasoning on the construction issue. I do however wish to add some words of my own on the causation issue which sharply divides Lord Phillips and Lord Mance. I wish to say shortly why I prefer the conclusion of Lord Mance to that of Lord Phillips. As I see it, the effect of Fairchild, Barker and Sienkiewicz may be summarised in this way. An employer who, in breach of duty, has exposed an employee to asbestos is liable in damages if the employee subsequently suffers the disease. The employees cause of action is not that he was exposed to the risk of mesothelioma. He has no claim unless he in fact suffers the disease. It is the disease which represents the damage which completes the cause of action and it is only then that his cause of action accrues and the relevant time limit begins to run. It is axiomatic that, in order to succeed in tort, the employee must show a sufficient causal link between the breach of duty, namely the exposure to asbestos, and the disease which represents the damage, namely mesothelioma. The effect of the majority opinion in Barker is that, where there are two or more employers who have exposed the claimant to the risk of mesothelioma, they are not jointly and severally liable to the claimant for the whole of the consequences of the disease but only severally liable for an aliquot part. That decision was reversed by the Compensation Act 2006, so that such employers are jointly and severally liable for the whole of the consequences. The question in this appeal is whether the employers liability insurers are liable to indemnify the employers in respect of that liability. It would in my opinion be a remarkable result if they were not. Lord Phillips notes at para 109 that Mr Edelman QC accepted that, if the correct analysis of the special rule, which (using Lord Phillips definitions) was the result of the combined effect of the special approach in Fairchild and Barker and the Compensation Act 2006, was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust, the insurers would be liable. Lord Phillips accepts that that concession was correctly made. I agree, for the reasons he gives at paras 109 to 114. The question is therefore whether the correct analysis of the special rule is indeed that the employers were deemed to have caused the mesothelioma. I accept that in such a case the employee cannot show on the balance of probabilities that the employers negligence caused the disease. The effect of Fairchild and Sienkiewicz was however that the employer is liable where the exposure contributed to the risk that the employee would suffer the disease and where the employee in fact suffers the disease. That is not in dispute. Lord Phillips says at para 124 that the majority in Barker drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease. He quotes para 2 of Lord Hoffmanns speech as follows: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised. Lord Phillips further notes that at para 125 Lord Hoffmann advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance. See also the passages to like effect referred to by Lord Mance at para 61. I accept that Lord Hoffmann and others did indeed advance that view of Fairchild but it is I think important to note that it was in the context of the question whether, in a case of two or more employers, each was severally liable for a proportion of the consequences of the mesothelioma or whether each was jointly and severally liable for the whole. Lord Hoffmann cannot have intended to hold, without more, that the basis of liability was the wrongful creation of the risk or chance of causing the disease because there would be no liability at all but for the subsequent existence of the mesothelioma. It seems to me that, whether the majority in Barker were correct or not, there is no escape from the conclusion that, in all these cases, where it is not possible to show that the particular employer caused the claimant to suffer mesothelioma, the underlying question is who should be held responsible for causing the mesothelioma which in fact struck down the employee. None of the cases is authority for the proposition that causation is irrelevant. On the contrary, the quest is for the employer who can fairly be held liable for the consequences of the disease and therefore for the employer who can fairly be said to have caused the disease. The courts have embarked on similar quests over the years. Lord Mance has given a number of examples. As Lord Mance shows at para 56, they include Bonnington and McGhee, where Lord Reid was prepared to take a broad view of causation and Lord Wilberforce rejected a traditional approach for policy or evidential reasons. In my opinion the reasoning in Sienkiewicz is of some significance in this context. Lord Mance has given the relevant references in para 61. Thus, as Lord Mance observes, at para 61 Lord Phillips said that Fairchild and Barker had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances. Lord Mance further refers to Lord Brown speaking of a more relaxed approach to causation and flexibility in the approach to causation at paras 178 and 187. Lord Mance had himself referred to Fairchild and Barker as involving a special rule of causation at para 188, and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims at para 196 and to adjustments in the burden of proof at paras 198 and 200. Again, as Lord Mance observes at para 61 above, Lord Dyson referred (at para 207) to materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207). Both Mr Beloff QC and Mr Stuart Smith QC addressed these issues in their oral submissions. They both in effect submitted that the effect of Fairchild, Barker and Sienkiewicz was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust. They both recognised that the ordinary rule of causation could not apply and that some element of policy or doctrine was required in order to explain Fairchild. Mr Stuart Smith submitted that the effect of Fairchild was that each material exposure to asbestos dust is doctrinally held responsible for the mesothelioma. Mr Beloffs submission was to much the same effect. He relied upon a dictum of Lord Walker in Barker at para 109: A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury entails the possibility that an employer may be held liable for an injury which was not in fact caused by that exposure (though in the present state of medical science, that fact can be neither proved nor disproved). The injury is of course the mesothelioma, which is necessary to complete the cause of action. On that basis it seems to me that Lord Walkers statement that the risk of injury is equated with legal responsibility for the injury is in effect to say that, by creating the risk of mesothelioma in the future, the employer is deemed to have caused the mesothelioma, if it should develop in the future. It appears to me that these conclusions are supported by Lord Mances analysis of section 3 of the Compensation 2006 at paras 67 and 68, with which I agree and to which I do not wish to add anything. Given Mr Edelmans concession that, if that is correct, the employers are liable under the policies (and this Courts acceptance of it) I would hold that the causation point does not assist the insurers. I would only add this. It appears to me that, once it is held that, on these facts, the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies. Rather as in AXA, the whole purpose of the policies was to insure the employers against liability to their employees. That purpose would be frustrated if the insurers submissions on this point were accepted. I agree with Lord Mance, for the reasons he gives at paras 69 73 that these policies respond to these claims. For these reasons, I too would dismiss the appeals by insurers so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. LORD DYSON I too agree with Lord Mance on the construction issue. As to the causation issue, I agree with the reasoning of Lord Mance and Lord Clarke. Accordingly, I would dismiss the appeals by insurers in so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. LORD PHILLIPS Introduction So called long tail industrial diseases have raised peculiar difficulties in the field of tort. These diseases result from the effect on the body of exposure to noxious substances. The effect can be long, drawn out and mysterious, in as much as medical science has not yet identified the precise mechanism, or chain of causation, by which the noxious substance causes the disease. Mesothelioma is a long tail disease in which the problems raised have been particularly acute. The problems arise in the application of principles of law that do not ordinarily give rise to difficulty. An employer will be liable in damages if by an act or omission that is negligent or in breach of statutory duty he causes physical harm to an employee. In the vast majority of cases there will be no difficulty in identifying the moment at which the negligence or breach of duty causes the physical harm, for the harm will take the form of an obvious injury. This is not the position in respect of mesothelioma. Asbestos dust, inhaled into the lungs, is the agency that causes mesothelioma, but as long as forty or fifty years may elapse before the effects on the body of dust inhaled culminate in symptoms of mesothelioma. Once the symptoms are felt, the disease will develop swiftly to bring about an inevitable and extremely unpleasant death. Where a victim of mesothelioma was exposed to asbestos dust over a period of years it is impossible, even with hindsight, to determine on balance of probabilities whether dust inhaled in a particular year caused or contributed to the development of the mesothelioma. It follows that, where the victim worked for a series of employers, each of whom exposed him to asbestos dust, it is impossible to prove on balance of probability that any particular employer caused or contributed to the victims mesothelioma. This means that the normal principles of the law of tort provide no remedy to the employee or his dependants. The manifest injustice of this position led the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572 to create what I shall describe as a special approach to causation in respect of mesothelioma, whose effect was immediately varied by Parliament by section 3 of the Compensation Act 2006. I shall describe the composite result achieved by the House of Lords and Parliament as the special rule. I shall examine the nature of this special rule in due course. Its effect was, however, to place each employer in the same position as that employer would have been under at common law if it were proved, on balance of probability, that its negligence or breach of duty in exposing the employee to asbestos dust had contributed to causing the employees mesothelioma. These developments of the law of tort have formed the backdrop to the issue that has occupied almost all of the eight days that this Court has devoted to this appeal. I shall call this issue the construction issue. The construction issue relates to the true construction of a number of policies of insurance against employers liabilities (EL policies) with similar, but not identical, provisions as to the cover provided. The EL policies provided cover by reference to specific periods usually of a year. The central issue relates to the event or events that, on true construction of each policy, had to occur within the period of the policy in order to render the insurer liable to indemnify the employer in respect of liability for causing an employees mesothelioma. The policies provided cover in respect of diseases sustained or contracted during the period of the policy. The meaning of each of those words, in its context, lies at the heart of the construction issue. It does not seem that the construction issue initially received a great deal of consideration. Insurers treated the policies as if they covered an employer whose breach of duty within the period of the policy had contributed to causing the disease and regarded this requirement as satisfied if the employer was held liable because he had exposed the employee to asbestos dust during that period. Where more than one insurer was liable on this basis, they apportioned liability according to the period of exposure covered by each. The attitude of four of the five insurers party to this appeal changed as a result of the decision of the Court of Appeal in Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50; [2006] 1 WLR 1492. Those insurers are MMI, Excess, BAI and Independent, each of which is in run off. I shall describe them collectively as the insurers. Their opponents I shall describe collectively as the employers, although they embrace solvent employers, individuals claiming under the Third Party (Rights against Insurers) Act 1930, and Zurich, which has a community of interest with these. Bolton concerned the scope of cover of a public liability policy (PL policy) in relation to liability for causing mesothelioma. The policy provided cover in respect of an injury that occurs during the currency of the policy. The argument proceeded on the premise that the chain of causation of mesothelioma, once it was diagnosed, could be traced back to the initial inhalation of asbestos dust. The issue was whether the mesothelioma could properly be said to have occurred at the time of the initial inhalation. The Court of Appeal held that it could not. The injury only occurred, at earliest, at the stage of development of the disease at which malignancy occurred. This was, on the evidence, ten years, give or take a year, from the date on which it became possible to diagnose the existence of the tumour but very many years after the initial inhalation of asbestos dust. This decision led the insurers to take the point that a similar approach should be taken to the interpretation of the cover afforded by the EL policies. Mesothelioma was not, on true construction of the policies, sustained or contracted at the time of the initial inhalation of asbestos dust. It was only sustained or contracted at the much later stage when, as a consequence of the process initiated by asbestos dust, an actionable injury in the form of malignancy, developed. Before Burton J, the Court of Appeal and this Court the construction issue has been argued at great length and in great detail. I agree, as do the other members of the Court, with the conclusions reached by Lord Mance on the construction issue. These conclusions have application not merely to mesothelioma but to employers liabilities in relation to other long tail industrial diseases such as asbestosis and pneumoconiosis. For the purpose of EL policies, these diseases are sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the noxious substance that causes, or contributes to the cause or the extent of, the disease. Throughout the hearing of this appeal there has lurked a second issue. It has not been the subject of argument below, nor does it feature in the agreed Statement of Facts and Issues. This is, perhaps, because it relates to a point that does not arise out of Bolton. It has always been there for the taking, but insurers have not hitherto chosen to raise it, perhaps because its consequences are unattractive. It arises out of a problem that is similar to that which led the House of Lords to formulate the special approach in Fairchild and Barker. It is not possible for an employer to prove that an employees mesothelioma was, in fact, caused in whole or in part by any particular period of exposure to asbestos dust. Thus the employer cannot prove, on balance of probability, that the mesothelioma for which he has been held liable under the special rule was, in fact, initiated in any particular policy year. How, then, can he prove that his liability falls within the scope of the cover, even if the policy bears the construction contended for by the employers and upheld by this Court? How can he prove that his liability arises out of disease sustained or contracted within the policy period, giving these words the same meaning as initiated? I shall call this issue the causation issue. The causation issue and the judgments below Although the causation issue was not raised in argument below, it was dealt with, at least implicitly, in the judgments of both courts. Burton J at first instance, and Rix and Stanley Burnton LJJ in the Court of Appeal proceeded on the basis that, in the case of a mesothelioma victim, exposing the victim to asbestos dust could be treated as equivalent to causing his disease. This approach was based on the special rule. Thus Burton J at paras 42 to 58 summarised, without significant comment, what he described as the special mesothelioma jurisprudence as it was at the time of his judgment. This included Fairchild, Barker and the 2006 Compensation Act. He thereafter proceeded on the basis that exposing a mesothelioma victim to asbestos dust could be treated as having been equivalent to causing the victim to contract the disease. Thus, when summarising his conclusions at para 243 he said: I conclude, in relation to the policies in issue before me, that they respond, just as would policies with caused wording, to claims against insurers where employers are liable on the basis of inhalation by employees during the policy period. They respond, consistently with other EL policies, in respect of mesothelioma claims, on an exposure basis. For the purposes of these policies, injury is sustained when it is caused and disease is contracted when it is caused, and the policies fall to be so construed. Rix LJ drew a distinction between the meaning of contracted and sustained. Contracted referred to the time of the diseases causal origins para 245. He felt constrained by Bolton, however, to hold that no injury was sustained until the disease reached the malignant stage. Implicit in his judgment was the premise that exposure to asbestos dust during the period of the policy could be treated as the causal origin of the disease see for example his comments at para 244. A difficult passage in his judgment at paras 280 283, when considering the meaning of injury, suggests that this premise was founded on the special rule. Thus he was able to conclude that the disease was contracted at the time that the victim was exposed to asbestos dust albeit that injury was not sustained at that point. In a short judgment Stanley Burnton LJ adopted similar reasoning. He stated, at para 338: We are agreed that in any year in which there was substantial exposure to asbestos, mesothelioma was caused by that exposure during that year. The fact that the disease did not develop for some years does not break the chain of causation. Submissions on the causation issue The causation issue was not raised by the insurers as a discrete issue. It none the less surfaced in a passage of the written case for Excess that was addressing the employers case that personal injury by disease was sustained at the moment of inhalation of asbestos dust that triggered the process of sustaining personal injury by disease. One of the arguments advanced by Excess in answer to this submission read as follows: Medically and empirically, one cannot be said to have suffered an injury on a particular day because it cannot be known in (say) a 10 year occupational exposure period on which of the 3652 days the fatal dose was inhaled (and it may be on more than one). It is likely that any ingestion on a particular day was irrelevant to the development of the final condition. There has been a tendency on the part of the claimants to treat inhalation as a single event from which an unbroken line can be drawn to malignancy. It is not. Inhalation (and hence on this theory) injury may occur over several thousands of days. Each day does not bring injury. Any particular day cannot therefore be selected as injury day. To overcome problems of medical causation in a personal injury action against an employer, the House of Lords extended the McGhee principle to mesothelioma in Fairchild. However this was a rule of causation and not definition. There is no such rule in insurance policies which defines what amounts to an injury. The Supreme Court in Sienkiewicz stressed the limits of the Fairchild exception in no uncertain terms, and it is submitted that it would be quite wrong for it now to invade the law of contract. A liability policy responds only to indemnify against a liability (i.e. actionable injury). There is no such liability on inhalation. Injury occurs when the claimant has a personal injury by disease. Thus Excess took the point that the special rule could not properly be invoked to establish that, on true construction of the contracts of insurance, injury was sustained upon inhalation of asbestos dust. This passage appeared after a submission at para 209 that it was only possible to equate the inhalation of a culpable quantity of asbestos dust with sustaining personal injury by disease by, inter alia, creating a special rule governing the response of EL policies in respect of mesothelioma, and possibly other long tail diseases. This proved to be what counsel for the employers sought to do when invited by the Court to address the causation issue. They did so in short oral submissions that cannot, when taken together, have occupied more than half an hour of the eight day hearing. The relevant submissions made by Mr Beloff QC for Akzo and AMEC and the Local Authorities are reported at pp 120 122 of the transcript for 15 December 2011. He started by observing that we had to cut the Gordian knot. He suggested that we should do so by equating creation of a risk with causing bodily injury. This he submitted was permissible because the object of the policy was to provide cover to an employer who, in breach of duty to employees, caused them compensatable damage. Were this approach not adopted, it would be impossible to show that any of a number of insurers providing cover over a period of years was liable. The law should rebel against such a result. In support of this submission Mr Beloff cited a statement by Lord Walker of Gestingthorpe in Barker at para 109 suggesting that the special approach to mesothelioma equated the exposure to the risk of injury with legal liability for the injury. Mr Stuart Smith QC for Zurich dealt with the causation issue at rather greater length in a passage reported at pp 126 to 131 of the same transcript. He started by accepting that it was impossible to know when the metabolic changes that led to the development of mesothelioma in fact occurred. Fairchild dealt with this problem by creating a doctrinal rule under which each significant exposure to asbestos dust was held to be responsible for the mesothelioma. Thus doctrinally the process of developing mesothelioma started upon inhalation. This doctrinal framework for the application of the law of tort was that within which policies of insurance against tortious liability had to operate. Mr Stuart Smith agreed with this summary of his argument advanced by Lord Mance: If the law of tort treats someone, an employee, as having sustained a personal injury and treats the employer as liable to pay damages for such personal injury, then the policy answers. These submissions on behalf of the employers raise the following questions: i) Will the policies respond to fictional or doctrinal events that are deemed to have occurred under the special rule? If so: ii) Does the special rule deem that events have occurred to which the policies should respond? If not: iii) Can this Court properly reformulate the special rule in such a way as to require the policies to respond? Will the policies respond to fictional or doctrinal events? On the premise that he failed on the construction issue, Mr Edelman accepted that, if the correct analysis of the special rule was that the employers were deemed to have caused the mesothelioma by exposing the victims to asbestos dust, then the policies should properly respond. Because of the view that I take of the next two questions I do not need to decide whether the concession was properly made. I have, however, concluded that it was. The policies exist to provide protection against employers liability in tort. If the law of tort, whether laid down by the courts or by Parliament, resorts to legal or doctrinal fictions, it seems logical that the policies should respond as if the fictions were facts. A purposive approach to construction of the policies would lead to this result. Two examples illustrate this approach. Ellerbeck Collieries Ltd v Cornhill Insurance Co Ltd [1932] 1 KB 401 involved a policy of insurance against liability under the Workmens Compensation Act 1925. The terms of the policy entitled the employer to indemnity if at any time during the currency of the insurance any employee sustained any personal injury by accident or disease. The 1925 Act imposed a fictitious test for identifying when an industrial disease was sustained, namely the date on which a certifying surgeon issued a certificate that the employee was suffering from the disease. On the strength of a certificate issued within the currency of a policy of insurance an employer was held liable to two workmen who had, in fact, sustained the relevant disease before the period of the insurance began. The Court of Appeal held that this liability fell within the cover of the policy. The argument for applying the fictional date was a strong one because, as Greer LJ observed at p 417, the policy was intended to cover the employers liability under the Act. The parallel between Ellerbeck and the present case would have been stronger had the relevant policies been taken out after the special rule had been created. In Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 the House of Lords held that pleural plaques caused by exposure to asbestos dust did not constitute actionable injury because they produced no adverse physical effects. The Scottish Parliament responded to this decision by introducing the Damages (Asbestos related Conditions) (Scotland) Act 2009 (the Scottish Act). That Act provides by section 1 that asbestos related pleural plaques constitute a personal injury which is not negligible and that accordingly they constitute actionable harm for the purpose of an action for damages for personal injury. In AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2011] 3 WLR 871 the Supreme Court rejected a challenge by insurers to the lawfulness of this Act. The Scottish Act effected a limited alteration to the common law in decreeing that asymptomatic pleural plaques constituted non negligible personal injury and thus actionable damage. Lord Mance at para 88 suggested that the main target of the legislation was employers insurers. He went on at para 89 to consider whether the Act would, in fact, alter the meaning to be given to bodily injury under a policy of insurance: A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland. However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world. Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury. I say no more about the answer, which may be elicited in another context or suit. While Lord Mance left open the effect of the Scottish Act on the construction of policies of liability insurance, Lord Brown was in no doubt that the effect of the Scottish Act was to subject insurers to liabilities to which they would not have been subject prior to that Act. He referred at para 80 to the undoubted, and deliberate, impact of the legislation upon pending claims. Earlier, at para 77, he drew an analogy with the effect of the decision in Fairchild on EL insurers liability: Had the House of Lords in Rothwell decided that asymptomatic pleural plaques of themselves constitute a non negligible personal injury and thus actionable damage decided in other words that in this particular context the common law should develop in this admittedly novel way the appellants would doubtless have deplored the decision but they could certainly not have questioned its legitimacy. No doubt they would have resented the fact that, as a consequence of the decision, they would unexpectedly have had to pay out on claims resulting from the employees exposure to asbestos upwards of 20 years (quite likely up to 40 years) previously. But they could no more have advanced an [article 1, Protocol 1] challenge to this development of the law than they could have challenged the House of Lords decision some four years earlier in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 to adopt a less stringent than the usual but for test for establishing the necessary causal connection between an employers negligence and a claimants condition in, most notably, mesothelioma cases. Employers (and their liability insurers) necessarily take the risk of the common law developing in ways which may adversely affect them with regard to personal injury claims. In this passage Lord Brown assumed that the effect of Fairchild was to bring employers liabilities in respect of mesothelioma within the scope of the cover afforded by EL policies. I am about to consider whether he was correct in this. I agree, however, with the general principle expressed in the last sentence of the extract from his judgment that I have just cited. It is for this reason that I would give an affirmative answer to the first of the three questions posed at para 108 above. I turn to the second. What is the special rule? The employers submissions on the causation issue proceed on the premise that the special rule deems exposure to asbestos dust of an employee who is subsequently diagnosed with mesothelioma to have been a cause of the mesothelioma. I have reached the conclusion that that premise is unsound. In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229 I summarised the special rule as follows at para 1: When a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease. This is certainly the effect of the special rule, but in order to discover the juridical basis of the rule it is necessary first to identify the basis of the special approach adopted by the House of Lords in Fairchild and Barker and then to consider the effect of section 3 of the Compensation Act, which adapted the special approach into the special rule. The special approach In Sienkiewicz, at para 70, I stated that Fairchild and Barker developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances, which include ignorance of how causation in fact occurs. As I shall show, this was not an accurate summary of the special approach adopted in those cases. In Fairchild the House of Lords confronted the position where a mesothelioma victim had worked consecutively for a number of employers, each of which had exposed him to asbestos dust. One or more of these had caused his mesothelioma, but because of the limits of medical knowledge it was not possible, on balance of probability, to identify which. In these circumstances their Lordships adopted a special approach that enabled them to find that each of the employers was jointly and severally liable for the mesothelioma. In doing so they purported to be following a similar approach adopted by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1. They were not, however, all agreed as to the basis of that approach. Lord Hutton, at para 109, held that it was based on the drawing of a factual or legal inference leading to the conclusion that the breach of duty [in exposing the employee to asbestos dust] was a cause of the disease. The majority of the House did not agree. Lord Bingham said, at para 35: I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts. Lord Nicholls of Birkenhead said, at para 42: So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established." Lord Hoffmann at para 65 rejected the suggestion that the House in McGhee held that materially increasing the risk of the disease should be treated as equivalent to material contributing to the injury. He concluded: I would respectfully prefer not to resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability. Lord Rodger of Earlsferry did not agree. His reasoning was close to that of Lord Hutton. He held, at para 168: Following the approach in McGhee I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness. What then happened has been summarised by Lord Hoffmann in Perspectives on Causation (2011) at p 8: There are two ways in which one could characterise this change in the substantive law of negligence. One is to say that the causal requirements for an action for damages for mesothelioma have been changed; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent. The other is to say that the House created, exceptionally, a cause of action for the increased risk of mesothelioma rather than for the disease itself. In the former case, satisfying the new causal requirement would entitle the claimant to sue for the whole injury caused by contracting the disease. In the latter case, he would be able to sue only for the loss caused by the risk of his contracting the disease having been increased. That would be a proportion of the injury caused by the disease, depending on the extent to which the risk had also been created by other causes. In Barker v Corus the House of Lords (Lord Rodger of Earlsferry dissenting) adopted the second explanation of what had happened in Fairchild. I believe that this summary of the position is essentially correct. The majority in Barker were persuaded that justice would best be served if the special approach adopted in Fairchild were applied in such a way as to render each defendant who had wrongfully exposed the claimant to asbestos dust severally liable for that proportion of the mesothelioma that represented the proportion of the wrongful exposure attributable to that defendant. This was achieved by holding that the liability of each defendant resulted from adding to the risk that the employee would contract mesothelioma. It did not result from an implication that each defendant had actually contributed to the cause of the disease. At the start of his speech at para 2 Lord Hoffmann drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised. Lord Hoffmann went on to adopt the latter analysis as the basis of liability in Fairchild. At para 31 he held that the majority in Fairchild had not proceeded upon the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease. The creation of a material risk of mesothelioma was sufficient for liability. At para 35 he advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance. Liability for the mesothelioma that developed should be apportioned according to the contribution that each defendant made to the risk that mesothelioma would be contracted. Lord Scott of Foscote and Lord Walker of Gestingthorpe expressly agreed with both Lord Hoffmanns conclusion that liability for the mesothelioma fell to be apportioned and with his reasons for so concluding. Lord Scott held at para 53 that it was essential to keep firmly in mind that liability in Fairchild was not imposed on any of the defendant employers on the ground that the employers breach of contract had caused the mesothelioma. That causative link had not been proved against any of them. It was imposed because each, by its breach of duty, had materially contributed to the risk that the employee would contract mesothelioma. At para 61 he emphasised that the Fairchild principle was not based on the fiction that each defendant had actually caused the eventual outcome. It was based on subjecting the victim to a material risk. Lord Walker, having stated that he was in full agreement with Lord Hoffmanns reasons went on at para 104 to make a statement that was inconsistent with them, this being to the same effect as the statement relied on by Mr Beloff see para 106 above. Lord Walker stated that the decision in Fairchild equated exposing the victim to the risk of injury with causing his injury. This was the same mistake as I made in Sienkiewicz see para 117 above. Had this been the case, each defendant would have been jointly and severally liable for the injury. Lord Walker went on to say, however, that the result in Fairchild was achieved, not by some fiction, but as an explicit variation of the ordinary requirement as to causation. At para 113 he stated that Fairchild was decided by the majority, not on the fictional basis that the defendants should be treated as having caused the victims damage, but on the factual basis that they had wrongfully exposed him to the risk of damage. Lady Hale did not adopt Lord Hoffmanns thesis that the creation of risk constituted the damage for which each defendant was liable. In general, however, she agreed with the majority. She held that in Fairchild, for the first time in our legal history defendants were made liable for damage even though they might not have caused it at all. It was not said that the defendants had caused or materially contributed to the harm. All that could be said was that each had contributed to the risk of harm. In these circumstances it was sensible and fair to apportion liability for the harm in proportion to the contribution that each had made to the risk of harm. Lord Rodger of Earlsferry vigorously dissented from the reasoning of the majority and from the result in so far as it apportioned liability. He observed at para 71 that the majority were not so much reinterpreting as rewriting the key decisions in McGhee and Fairchild. At para 85 he stated that the new analysis that the House was adopting would tend to maximise the inconsistencies in the law. I have some sympathy with the observations of Lord Rodger. It would, I think, have been possible for the House in Barker to have defined the special approach in Fairchild as one that treated contribution to risk as contribution to the causation of damage. The important fact is, however, that the majority did not do so. They were at pains to emphasise that the special approach was not based on the fiction that the defendants had contributed to causing the mesothelioma. Liability for a proportion of the mesothelioma resulted from contribution to the risk that mesothelioma would be caused and reflected the possibility that a defendant might have caused or contributed to the cause of the disease. This was no obiter expression of opinion. It formed the basis of the substantive decision that liability was severable and not joint. The special rule The special approach rendered each employer who had wrongfully exposed a mesothelioma victim to asbestos dust liable for a proportion of the mesothelioma without creating any inference or legal fiction that the employer in question had actually contributed to causing the disease. Section 3 of the Compensation Act altered the position by imposing joint and several liability on those who were only severally liable under the special approach. Did the special rule that resulted involve a different basis of liability to that which formed the basis of the special approach? This question is considered by Jonathan Morgan in his interesting Chapter 4 of Perspectives on Causation headed Causation, Politics and Law: The English and Scottish Asbestos Saga. At p 79 he poses the following question: Has Parliament, by implication, therefore also reversed Lord Hoffmanns principled reinterpretation of Fairchild? Is the nature of Fairchild liability now after all for causing mesothelioma and not increasing risk? Mr Morgan gives a negative answer to this question, expressing the view that Barker has altered the jurisprudential basis of the Fairchild liability irrevocably. I agree that section 3 of the Compensation Act did not alter the jurisprudential basis of the special approach laid down by the House of Lords in Fairchild and Barker. All that it did was to alter the effect of the special approach by making each defendant jointly and severally liable for the whole of the injury sustained. Section 3(1) provides that the section applies where (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure [for which the defendant was responsible]or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort(whether by reason of having materially increased a risk or for any other reason). It is not possible to read section 3 as imposing a different basis of liability to that identified by the majority in Barker. The consequence of the special rule Having regard to its jurisprudential basis I cannot see how the employers can found upon the special rule as identifying the policy year or years in which a victims mesothelioma is initiated. The position is that it is impossible to prove on balance of probability when mesothelioma is initiated, or contracted, or sustained, giving each of those words the same meaning. The special rule does not fill the gap for it raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. Should this Court redefine the special rule in order to engage the EL policies? The special approach of the majority in Barker had the object of ensuring that employers who had wrongfully subjected their employees to asbestos dust should bear what the majority considered to be a fair share of responsibility for their wrongdoing. It does not seem likely that the majority gave consideration to the implications for the responsibility of EL insurers of the manner in which this object was achieved. Should this Court now redefine the special rule with the object of enabling claims to be brought under the EL policies? This would, I think, involve holding that the majority in Barker erred in their analysis and that the true basis of the special approach in Fairchild was that contribution to risk should be deemed to be contribution to causation. I would give a firm No to this question. The adoption of the special approach in Fairchild has provoked considerable criticism, both judicial and academic. An example of the former is to be found in the judgment of Lord Brown in Sienkiewicz. An example of the latter is Mr Morgans closely reasoned Chapter 4 of Perspectives on Causation. But the object of the special approach in Fairchild and Barker was at least to ensure that those who had breached the duties that they owed to their employees did not escape liability because of scientific uncertainty. It would be judicial law making of a different dimension to create a legal fiction as to the policy years in which cases of mesothelioma were initiated in order to render liable insurers who could not otherwise be shown to be liable. The Secretary of State has intervened in this appeal and has submitted that, should the claims of employees or their dependants not be met by insurers, they are likely to be a burden on the public purse. It is open to question whether this is a proper consideration, even when considering whether the special rule should be redefined for what are essentially reasons of policy. In any event it seems to me that the position is somewhat more complex than the Secretary of State suggests. The burden of claims in respect of mesothelioma on a scale that was never anticipated is reducing both employers and insurers to insolvency. If this Court were to redefine the special rule so as to impose liability for mesothelioma claims on EL insurers where it could not otherwise be made out, this would in many cases be at the expense of others with claims on the same insurers founded on facts and not legal fictions. The liabilities in respect of mesothelioma will increase the overall shortfall on the part of insurers and this is also likely to have implications for the public purse. So far as I am concerned, however, these considerations have little relevance. Even if there were a compelling case for contending that a means should be found to render EL insurers liable, my reaction would be that this was a matter for Parliament not the courts. It would be wrong in principle for this Court to depart from the reasoning of the majority in Barker for the sole purpose of imposing liability on EL insurers. |
Recitals 4, 5 and 7, taken together with Article 1, of Council Directive 2003/9/EC (the Reception Directive), encapsulate its purpose. They respectively provide: The recitals (4) The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy. (5) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter [inviolability of human dignity and the guarantee of the right to asylum with due respect to the Geneva Convention 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees] (7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down. Article 1 Purpose The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States. Notwithstanding the seemingly clear terms of these provisions, the appellant in these cases argues that where an asylum seeker makes a second application for asylum after his first application has been finally rejected, he is not entitled to the benefits that are conferred by the Reception Directive. Those benefits include (in Article 11) certain provisions in relation to entitlement to be employed while awaiting the outcome of an asylum application. The Secretary of States argument was rejected by the Court of Appeal (Regina (ZO (Somalia) and others) v Secretary of State for the Home Department [2009] 1 WLR 2477, [2009] EWCA Civ 442) in its judgment delivered on 20 May 2009, allowing appeals by ZO (Somalia) and MM (Burma) from a decision of HH Judge Mackie QC of 25 June 2008. The Court of Appeal had also dismissed an appeal by the Secretary of State from a decision of Blake J of 11 December 2008 in the case of DT (Eritrea). Originally the appellant had appealed to this court against all three decisions of the Court of Appeal. Subsequently, however, DT was granted indefinite leave to remain in this country and, with the agreement of all the parties, the Secretary of State was permitted to withdraw the appeal in that case. The facts and history of proceedings ZO is a Somali national who arrived in the United Kingdom in 2003. She applied for asylum. That application was refused on 17 February 2004. A number of challenges were made to that refusal but the last of these finally foundered towards the end of 2004. On 31 March 2005 the Immigration Appeal Tribunal issued its determination in the case of NM and others (Lone Women Ashraf) (Somalia) CG [2005] UKIAT 00076. On 9 May 2005, solicitors acting on behalf of ZO made further submissions to the Secretary of State based on the IATs determination in the NM case. It was contended that this amounted to a fresh claim for asylum within the meaning of rule 353 of the Immigration Rules. AT the time of the hearing of this appeal, the Secretary of State had yet to decide whether leave to enter the UK should be given to ZO or whether the further submissions made on her behalf constitute a fresh claim. On 27 February 2007 ZO was granted permission to apply for judicial review to challenge the delay in dealing with her further submissions. On 5 June 2007 she wrote to the Secretary of State asking for permission to work. She advanced this claim on the grounds of hardship and suggested that, if it could not be granted, she would seek priority for her application for judicial review. The Secretary of State refused to prioritise consideration of ZOs further submissions and on 31 August 2007 refused permission to work. ZO renewed her application for permission to work on 8 October 2007, referring to rule 360 of the Immigration Rules (which deals with applications for permission to work) but this was rejected on 15 October 2007, on the ground that her application for asylum had been refused on 17 February 2004. Prompted by consideration of the decision of the High Court in R (FH) v Home Secretary [2007] EWHC 1571 (Admin), ZO conceded the ground of her application in relation to delay but in November 2007 she was given permission to amend the judicial review proceedings in order to challenge the refusal of permission to work under rule 360 of the Immigration Rules. The gravamen of the grounds of this latter challenge was that she had made an asylum claim on 9 May 2005. At an oral hearing on 30 January 2008, Stanley Burnton J set aside the grant of permission on the delay ground and refused permission to apply for judicial review on the Secretary of States refusal of consent to her taking up employment. She was subsequently given permission to appeal the dismissal of her application in relation to the employment ground and by a consent order of 7 May 2008, the Court of Appeal granted permission to apply for judicial review. This was the application that was subsequently heard and dismissed by HH Judge Mackie QC. MM is a Burmese national who made an application for asylum after he arrived in the United Kingdom in 2004. That application was refused and all attempts to challenge the refusal had failed by March 2005. On 9 May 2005 he also made further submissions which, he said, amounted to a fresh claim based on new evidence. Again in his case the Secretary of State has not yet decided whether to grant MM leave to enter the United Kingdom or whether he has made a fresh claim for asylum. On 27 July 2007 MM wrote to the Secretary of State asking for permission to work and referring to rule 360. This application was refused on 26 September. On 25 October 2007 MM applied for judicial review to challenge the delay in considering his further submissions and to challenge the refusal of permission to work. As in the case of ZO he based this on the circumstance that he had made an asylum application some 2 years and 5 months previously. On 10 March 2008, applying the decision in FH, the High Court refused permission to apply for judicial review on the delay ground but granted permission on the refusal of consent to take up employment. This application was also dismissed by Judge Mackie and allowed by the Court of Appeal. The issues On the hearing of the appeal to this court two principal issues were identified. The first was whether Article 11 of the Reception Directive applies to a person who has had an application for asylum in the United Kingdom finally determined against him when he makes a further application for asylum. Article 11 (2) of the Reception Directive is the critical provision in this instance. It provides: If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant. The second main issue was whether this court should make a request of the Court of Justice for the European Union under Article 267 of the Treaty on the Functioning of the European Union (TFEU) for a preliminary ruling on the proper interpretation of the Reception Directive, in particular whether it is a measure intended to cover only the first application for asylum made by an individual to a Member State. A subsidiary argument was made in the printed case for MM and supported by ZO in her printed case. It was contended that, even if the Secretary of States claimed interpretation of the Reception Directive was accepted, the policy of refusing permission to work was in violation of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. Blake J had dealt with this argument in the case of DT. He held that the Secretary of States policy was unlawful as an unjustified interference with the right to respect for a private life. The Court of Appeal did not address the Article 8 issue because of its conclusion on the reach of the Reception Directive. Notwithstanding this, Mr Fordham QC for MM submitted that this court should deal with the Article 8 argument and uphold the reasoning of Blake J. The court indicated that, if we required argument on the Article 8 point, an opportunity would be given to present it. In the event, however, since we have reached the same conclusion as did the Court of Appeal on the interpretation of the Reception Directive, this is not necessary. The case for the Secretary of State For the appellant Mr Tam QC submitted that the clear purpose of the Reception Directive was to devise minimum standards for those who were received by Member States for the first time as asylum seekers. He drew particular attention to the use of the expression reception in Article 1 and the title of the Directive. This, he said, indicated that the Directive was concerned with the initial encounter between the asylum seeker and the receiving State. That this was its purpose was reinforced by consideration of the corresponding words in some of the other Community languages, for example, opvang, accueil, aufnahme, accoglienza, acogida which translated to acceptance, reception or welcome. Mr Tams second argument was that the Directive had a settled meaning at the time of its adoption. That meaning could not be influenced by subsequent EU measures such as Directive 2004/83/EC of 29 April 2004 (the Qualifications Directive), Council Directive 2005/85/EC of 1 December 2005 (the Procedures Directive) or Council Regulation 343/2003/EC (the Dublin Regulation) adopted on 18 February 2003. The Court of Appeal had been wrong, Mr Tam said, to have had regard to these subsequent measures in reaching a conclusion on the interpretation to be applied to the Reception Directive. Mr Tam also argued that support for the interpretation that he advanced was to be found in various of the specific provisions of the Reception Directive. He suggested that, if the literal interpretation that the respondents contended for was adopted, a number of anomalies in the application of those provisions would be produced. He further claimed that the scheme that the Directive contained for dealing with abuse was inapt for repeat applications. If the Reception Directive was held to apply to such applications there was no effective mechanism to deal with abuse of the system. The enactment of the Directives, the Immigration Rules and the Dublin Regulation The Reception Directive was made pursuant to the power conferred by Article 63 (1) (b) of the Treaty Establishing the European Community (TEC). Article 63 was introduced to the TEC by the Treaty of Amsterdam which was concluded on 2 October 1997 and came into force on 1 May 1999. So far as is material, Article 63 provides: The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt: 1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas: (a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States, (b) minimum standards on the reception of asylum seekers in Member States, (c) minimum standards with respect to the qualification of nationals of third countries as refugees, (d) minimum standards on procedures in Member States for granting or withdrawing refugee status; Quite clearly, a comprehensive charter dealing with the various aspects of asylum applications was contemplated. This circumstance alone suggests that an identity of purpose for all the measures adopted to implement the proposed scheme was to be expected and, as we shall see, this conclusion is reinforced by examining the legislative history of those measures. The Reception Directive was adopted on 27 January 2003 and by Article 26 (1) it was required to be transposed into national law by 6 February 2005. Immigration Rules intended to implement the Directive were laid before Parliament on 11 January 2005. Rules 360 and 360A provide: 360 An asylum Applicant may apply to the Secretary of State for permission to take up employment which shall not include permission to become self employed or to engage in a business or professional activity if a decision at first instance has not been taken on the Applicant's asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application if, in his opinion, any delay in reaching a decision at first instance cannot be attributed to the Applicant. 360A If an asylum Applicant is granted permission to take up employment under Rule 360 this shall only be until such time as his asylum application has been finally determined. Rules 353 and 353A of the Immigration Rules deal with the question of whether submissions made after an asylum claim has been refused should be treated as a fresh claim. They provide: 353 When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: had not already been considered; and (i) (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas. 353A Consideration of further submissions shall be subject to the procedures set out in these Rules. An Applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise. This paragraph does not apply to submissions made overseas. The Secretary of State does not treat as an asylum seeker a person who has made a new application for asylum until that application has been accepted as a fresh claim. Once it is accepted, however, the asylum seeker enjoys the same rights of appeal as those given to a person whose first claim for asylum in this country has been rejected. He is also given the right to apply for permission to work (PTW). The Enforcement Instructions and Guidance Manual (the manual) issued by the Secretary of State provides in paragraph 23.10.4: Permission to work Fresh claims If a failed asylum seeker makes a fresh asylum claim then provided it is accepted as a fresh claim the procedures set out above should be followed, i.e. the Claimant will be entitled to apply for PTW provided he satisfies the criteria in Paragraph 360 of the Rules, otherwise any request for PTW would be a mandatory refusal. If the new asylum claim is not accepted as a fresh claim the person will have no entitlement to apply for PTW. As a matter of general practice the Secretary of State does not make a preliminary decision on whether a repeat application constitutes a fresh claim. Instead, the decision on whether the new application is to be treated as a fresh claim is made at the same time as the decision to either allow or reject the claim. On this account, the Court of Appeal unsurprisingly decided that paragraph 23.10.4 was unlikely to benefit a subsequent asylum seeker. It was also concluded that the fact that para 23.10.4 of the manual gives the potential benefit of article 11 to a subsequent asylum seeker whose claim has been accepted as a fresh claim does not assist in the interpretation of the Reception Directive. A short time after the adoption of the Reception Directive, on 18 February 2003, the Dublin Regulation was adopted. This established the criteria and mechanisms for determining which Member State should have the responsibility of examining an asylum application lodged in one of the Member States by a third country national. It came into force on 17 March 2003. The Qualification Directive was adopted on 29 April 2004. It prescribed minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection to be granted to them. The Procedures Directive was adopted on 1 December 2005. As Mr Tam pointed out, this was some ten months after the Reception Directive was required to be transposed into national law. The Procedures Directive set out minimum standards on procedures in Member States for granting and withdrawing refugee status. The interpretation of application for asylum in the Reception and Procedures Directives Article 2 of the Reception Directive contains definitions of the expressions, application for asylum and applicant or asylum seeker as follows: (b) 'application for asylum' shall mean the application made by a third country national or a stateless person which can be understood as a request for international protection from a Member State, under the Geneva Convention. Any application for international protection is presumed to be an application for asylum unless a third country national or a stateless person explicitly requests another kind of protection that can be applied for separately; (c) 'applicant' or 'asylum seeker' shall mean a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken; Virtually identical definitions are contained in Article 2 of the Procedures Directive: (b) "application" or "application for asylum" means an application made by a third country national or stateless person which can be understood as a request for international protection from a Member State under the Geneva Convention. Any application for international protection is presumed to be an application for asylum, unless the person concerned explicitly requests another kind of protection that can be applied for separately; (c) "applicant" or "applicant for asylum" means a third country national or stateless person who has made an application for asylum in respect of which a final decision has not yet been taken; There can be no doubt that subsequent applications for asylum come within the definitions contained in Article 2 of the Procedures Directive and Mr Tam did not seek to argue otherwise. Subsequent applications are mentioned in recital 15 of the Procedures Directive and in Articles 7 (2), 23 (4) (h), 32, 34 and 39 (1) (c). It is clear that the scheme of the Directive is workable only if the definition covers repeat applications. In particular, Article 32 gives power to Member States to undertake a preliminary examination of a subsequent application in order to ascertain whether new elements or findings have arisen or have been presented by the applicant which touch on the question whether he or she qualifies as a refugee. This unquestionably means that a subsequent application is an application for asylum within the meaning given to that term in Article 2 (b). On the Secretary of States case, the expression application for asylum must be given a markedly different meaning in the Reception Directive from that in the Procedures Directive. Mr Tam seeks to dismiss this apparent anomaly by suggesting that the purpose of each of the Directives is quite different. By way of preliminary observation on this claim, one may note that, if it is correct, it is surprising that the draftsman of the later measure did not employ a different formulation for the definitions of the terms application for asylum and applicant for asylum from those used in the Reception Directive. If Mr Tam is right, using almost identical language was, at best, highly misleading. But it is even more surprising, if the Reception Directive was not intended to apply to subsequent applications, that the text of the Directive did not make it unequivocally clear that these would not be covered. It is in any event clear that the purpose of both Directives (and, incidentally the Qualification Directive and the Dublin Regulation) is the same. Apart from mirroring the definitions contained in Article 2 of the Reception Directive, the critical recitals in the Procedures Directive bear a striking resemblance to those in the Reception Directive. While Mr Tam may be right that, as a matter of general principle, later legislation should not operate to change the established meaning of an earlier enactment, the manner in which the later legislation is framed may provide an insight into the proper interpretation of the earlier instrument. Whatever may be said on this matter on a theoretical basis, however, the matter is put beyond any doubt by an examination of the legislative history of the two measures. Much was made by Mr Tam of the fact that the Procedures Directive was a much later instrument than the Reception Directive but it is quite clear that both Directives shared if not an exactly time coincident genesis at least a broadly common ancestry. In fact, the proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status was first made on 20 September 2000 whereas the proposal for the Reception Directive was published in the Official Journal of the European Union on 31 July 2001 (Official Journal 213E, 31/07/2001 P. 0286 0295). The proposal for the Reception Directive contained an overview of the standards that the Directive would be designed to cover. Among these were the reception conditions that should be granted, in principle, at all stages and in all kinds of asylum procedures (the emphasis has been added). The most significant portion of the proposal document, however, is found in the part that deals with definitions. The proposed definition for application for asylum is in broadly similar terms to those that ultimately were enacted. The proposal for Article 2 (c) is particularly illuminating. It is in these terms: Applicant or applicant for asylum means a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken. A final decision is a decision in respect of which all possible remedies under Council Directive //EC [on minimum standards on procedures in Member States for granting and withdrawing refugee status] have been exhausted; From this it is indisputably clear that it had always been intended not only that the definitions of applicant for asylum in both Directives should be congruent with one another but also that an application should not be regarded as having been subject to a final decision until all possible remedies had been pursued and determined. This can only mean that subsequent applications would fall within the purview of the definitions of application for asylum and asylum seeker in the Reception Directive. If further proof that this was so was needed, it is provided in a document which sets out the suggested amendments of the proposal document. Amendment 114 deals with Article 2 (c). It states: (c) Applicant means a third country national or a stateless person who has made an application for asylum or another form of international protection in respect of which a final decision has not yet been taken. A final decision is a decision in respect of which all possible remedies have been exhausted (original emphasis but underlining added). I therefore conclude that an application for asylum in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and that the term asylum seeker should be construed accordingly to include a person who makes such a subsequent application. This conclusion seems to me to chime well with the spirit of the recitals to the Directive, particularly recital 7. The Directive seeks to set minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living. It would be, in my view, anomalous and untoward that an applicant who makes a subsequent application after his first application has been finally disposed of should be denied access to standards that are no more than the minimum to permit him to live with some measure of dignity. Moreover, if the Directive was found not to apply to subsequent applications for asylum this would give rise to a surprising incongruity. First time applications for asylum made long after an asylum seeker arrived in this country would be governed by the Directive but a perfectly genuine applicant who makes a subsequent application, perhaps within a relatively short time of arrival, would be denied the benefits that it affords. Article 3 applies the Directive to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State. It is clear, therefore, that a person who has been in the United Kingdom for some time can apply for asylum and, on the interpretation that the appellant espouses, such a person would be entitled to the benefits of the Reception Directive whereas an applicant who has made an application immediately on arrival would lose those benefits forever after the first application has been determined. The Court of Appeal considered that the strongest argument in favour of the interpretation advanced by the Secretary of State was that the word reception had been used so prominently in the Directive. I have therefore considered that argument carefully but, as Mr Fordham pointed out, one can be received, or have an application received, or return to reception more than once. The Directive stipulates what must happen when one is received into the asylum system. There is nothing unusual or untoward in the notion that one can be received into that system on more than one occasion. I do not consider that the corresponding words of the other Community languages on this point detract from that conclusion. One can be received, accepted or even welcomed several times. I would therefore dismiss the appeals. Since, however, much of the argument for the appellant was devoted to the anomalies that, it was said, would arise if the Reception Directive was held to apply to subsequent applications, it is right that I should deal, albeit briefly, with those claims. By way of preamble, however, I should observe that, while seeking to deduce the purpose of an item of legislation from claimed difficulties that its literal implementation will involve is not an illegitimate exercise, it is one that must be approached with caution. Where a different purpose from that canvassed is unmistakably clear from, for instance, the text of the instrument and its enacting history, supposed problems that may arise from giving effect to that purpose cannot be permitted to frustrate the intention of the legislative body. The claimed anomalies Articles 5 and 6 of the Reception Directive deal respectively with information and documentation that must be given to an applicant for asylum. Mr Tam pointed out that there is no reference in either article to subsequent applications and it is therefore to be supposed that, if the Reception Directive applies to these, the same information and documentation will have to be provided on each occasion. In order to assess the administrative burden that Mr Tam suggests will thereby be cast on the Home Department, it is necessary to look at the actual provisions. Article 5 is in the following terms: Article 5 Information 1. Member States shall inform asylum seekers, within a reasonable time not exceeding fifteen days after they have lodged their application for asylum with the competent authority, of at least any established benefits and of the obligations with which they must comply relating to reception conditions. Member States shall ensure that applicants are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions, including health care. 2. Member States shall ensure that the information referred to in paragraph 1 is in writing and, as far as possible, in a language that the applicants may reasonably be supposed to understand. Where appropriate, this information may also be supplied orally. The information that is required to be provided under this Article is likely to be of a routine nature and one may reasonably anticipate that in most cases it will involve no more than issuing precisely the same material as was provided when the first application was made. Presumably, it could be conveniently held on file and generated more or less automatically on receipt of a second or subsequent application. On that basis, it is difficult to accept that this would impose a substantial logistical burden on the authorities. In any event, it is not in dispute that subsequent applicants for asylum must be provided with information under Article 10 (1) (a) of the Procedures Directive which provides: 1. With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for asylum enjoy the following guarantees: (a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2004/83/EC. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 11; To have to provide the further information that Article 5 of the Reception Directive requires does not seem to me to be a significant encumbrance. There has to be a relay of information in any event. The extra material that has to be provided will in most cases have been prepared already. In those circumstances, I find it impossible to accept that the requirement to supply the Article 5 information again could be described as an anomaly. Moreover, as Mr Fordham put it, a renewed entitlement to information is not in the least absurd. If it is considered that the provision of the information on the first application for asylum is vital, why should it not be considered important on subsequent applications? Article 6 of the Reception Directive provides: Documentation 1. Member States shall ensure that, within three days after an application is lodged with the competent authority, the applicant is provided with a document issued in his or her own name certifying his or her status as an asylum seeker or testifying that he or she is allowed to stay in the territory of the Member State while his or her application is pending or being examined. If the holder is not free to move within all or a part of the territory of the Member State, the document shall also certify this fact. 2. Member States may exclude application of this Article when the asylum seeker is in detention and during the examination of an application for asylum made at the border or within the context of a procedure to decide on the right of the applicant legally to enter the territory of a Member State. In specific cases, during the examination of an application for asylum, Member States may provide applicants with other evidence equivalent to the document referred to in paragraph 1. 3. The document referred to in paragraph 1 need not certify the identity of the asylum seeker. 4. Member States shall adopt the necessary measures to provide asylum seekers with the document referred to in paragraph 1, which must be valid for as long as they are authorised to remain in the territory of the Member State concerned or at the border thereof. 5. Member States may provide asylum seekers with a travel document when serious humanitarian reasons arise that require their presence in another State. The provision of a document that confirms the holder as an asylum seeker is obviously important to any applicant for asylum. Without it, he or she is liable to be removed from the jurisdiction. So far from being anomalous that this should be provided to someone who has made a subsequent application for asylum, it seems to me that, in order to forestall removal, the availability of such a document is imperative so that the applicants continued entitlement to remain in the jurisdiction may be established. I do not therefore accept that the need to provide documentation under Article 6 on subsequent applications can be characterised as irregular or anomalous. Furthermore, there is no requirement under the Procedures Directive to supply the documentation specified by Article 6 of the Reception Directive. Plainly, an asylum seeker who makes a subsequent application must be entitled to remain in the jurisdiction in which the application is made until the procedures provided for in the Procedures Directive have been completed. This is a clear indication that Article 6 of the Reception Directive was intended to apply to subsequent applications for asylum and, by the same token, an obvious sign that the Procedures Directive was drafted on the assumption that this was so. Otherwise, one would have expected that the Directive which was enacted later would have contained provision for the supply of documentation that would have protected the asylum seeker from removal. The next avowed anomaly that Mr Tam identified was in the application of Article 9. It provides that Member States may require medical screening for applicants on public health grounds. He suggested that this power makes sense only in the context of an initial encounter between an asylum seeker and a Member State. Properly understood, the appellants complaint about this Article being applied to subsequent applications, is that it is unnecessary rather than anomalous for this to happen. Even if this is so, it is contrived to argue that because medical screening is not necessary for subsequent applications for asylum, it must be taken that the entire Reception Directive should be held not to apply to such applications. This is a power to be used when required and it is entirely unsurprising that it is expressed in the general and pithy way in which it appears in the Directive. The assertion made by the appellant in relation to Article 10 falls into essentially the same category. It provides: Schooling and education of minors 1. Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to the education system under similar conditions as nationals of the host Member State for so long as an expulsion measure against them or their parents is not actually enforced. Such education may be provided in accommodation centres. The Member State concerned may stipulate that such access must be confined to the State education system. Minors shall be younger than the age of legal majority in the Member State in which the application for asylum was lodged or is being examined. Member States shall not withdraw secondary education for the sole reason that the minor has reached the age of majority. 2. Access to the education system shall not be postponed for more than three months from the date the application for asylum was lodged by the minor or the minor's parents. This period may be extended to one year where specific education is provided in order to facilitate access to the education system. 3. Where access to the education system as set out in paragraph 1 is not possible due to the specific situation of the minor, the Member State may offer other education arrangements. The appellant is unquestionably right that some of the provisions contained in this Article cannot be fitted comfortably into second time applications. The power to postpone access to education, for instance, provided for in para 2 of the Article cannot have been intended to be exercisable by the Member State on more than one occasion. But this is not a sound basis on which to reason that, as a consequence, it cannot have been intended that the Reception Directive should apply to subsequent asylum applications. The Article should be understood for what it is a general purpose provision setting out various duties and powers covering a variety of circumstances. It would perhaps have been preferable if the Article had stated which of its parts should not apply to subsequent applications but the absence of such a statement does not establish that those applications are not covered by the Directive. I have concluded therefore that none of the claimed anomalies (or their collective impact) constitutes a reason for believing that it was intended that the Reception Directive should not apply to subsequent applications for asylum. I am reinforced in that view by the consideration that, if the Reception were held not to apply, some decidedly curious consequences would follow. For instance, the duties under Article 8 of the Directive (to maintain as far as possible family unity) and under Article 13 (2) (to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence) and 15 (1) (the provision of necessary health care) would not apply to those who make subsequent applications for asylum. When one considers that many of these will be genuine applicants, it is impossible to believe that it was intended that they should not have access to these basic amenities and facilities. Mr Tam submitted that, if the Reception Directive is held to apply to subsequent applications, the potential for abuse of the system of applications for asylum is greatly increased. Wholly unmeritorious claims would be put forward by applicants who saw the opportunity of not only delaying their removal but also of gaining access to the benefits that the Directive confers. This argument was rejected by the Court of Appeal on, according to Mr Tam, two grounds first that administrative problems because of unmeritorious claims should not determine the proper interpretation to be given to the Directive and, second, that abuse of the system by lodging subsequent applications was sufficiently catered for by Article 16 of the Directive which provides: Reduction or withdrawal of reception conditions 1. Member States may reduce or withdraw reception conditions in the following cases: (a) where an asylum seeker: abandons the place of residence determined by the competent authority without informing it or, if requested, without permission, or does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law, or has already lodged an application in the same Member State. When the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the reception conditions; (b) where an applicant has concealed financial resources and has therefore unduly benefited from material reception conditions. If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when these basic needs were being covered, Member States may ask the asylum seeker for a refund. 2. Member States may refuse conditions in cases where an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival in that Member State. 3. Member States may determine sanctions applicable to serious breaching of the rules of the accommodation centres as well as to seriously violent behaviour. 4. Decisions for reduction, withdrawal or refusal of reception conditions or sanctions referred to in paragraphs 1, 2 and 3 shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 17, taking into account the principle of proportionality. Member States shall under all circumstances ensure access to emergency health care. 5. Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative decision is taken. Systemic difficulties which the interpretation adopted by the Court of Appeal would create were not advanced in order to influence the choice of interpretation, Mr Tam claimed, but to demonstrate that an interpretation that leads to such difficulties is not consistent with the purpose of the Reception Directive. As a general principle, it is of course correct that difficulties in implementing legislation may provide a useful guide to the identification of the true purpose of an enactment but where, as here, the purpose of the Directive is unmistakably clear, the fact that this may give rise to administrative difficulties cannot impel an interpretation which is inconsistent with that purpose. It appears to me that Hooper LJ was saying no more when he observed in para 70 that he would be loath to interpret the Reception Directive restrictively because of the administrative problems which this country faces dealing with the backlog. It is, I think, clear that the impact of Article 16 will fall principally on first time applications for asylum. I consider that there is force in the appellants argument that the first and second tirets of Article 16 (1) (a) cannot sensibly be applied to subsequent applications. Mr Tam accepted, however, that the third tiret could perform an effective attenuation of abuse but he characterised this as a bootstrap argument. In other words, just because the third tiret can be applied to those who re apply for asylum after their first application has been finally determined, this is not a reason to expand the overall relevance of the Directive to subsequent applications. This argument is eclipsed, however, by the determination that, for the reasons given earlier, the Directive does apply to subsequent applications. Once that position is reached, the efficacy albeit limited of Article 16 (1) (a) to subsequent applications emerges. Mr Tam is also undoubtedly right in saying that Article 16 (2) does not apply to subsequent applications but his submission on this point is met by his own bootstrap argument. Simply because one aspect of a particular provision is not capable of adaptation to a particular species of application it does not follow that it must fall outside the Directives ambit. In other words, although the principal focus of Article 16 is on first applications, it should not be assumed that it was not intended to cover subsequent applications as well. Article 16 (4) requires individual attention to be given to decisions for reduction, withdrawal or refusal of reception conditions and the appellant has argued that the detailed assessment that this will entail would impose an onerous burden on the immigration authorities which would in turn limit the scope for withdrawal or reduction of reception conditions. I cannot accept this argument. There does not appear to be any reason in principle why the State should not be able to adopt what the respondents described as the screening short cut of accelerated determinations, particularly in view of the inroads which Mr Tam has told us are being made in the backlog of repeat applications. The answer to the possibility of abuse in the making of repeat applications must surely lie in the devising of streamlined procedures for identifying and rejecting promptly those that are devoid of merit. This is undoubtedly what was contemplated by certain provisions in the Procedures Directive, particularly Article 24 (1) (a) (which empowers Member States to create specific procedures to allow for a preliminary examination for the purposes of processing cases); and Article 32 (2) (which permits a specific procedure to be applied after a decision has been taken on a previous application). Recital 15 of the Procedures Directive is also relevant. It states: (15) Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure. In these cases, Member States should have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant. These provisions point powerfully to the way in which the problem of unmeritorious applications should be confronted and dealt with. This is not to be achieved by disapplying the Reception Directive to all repeat applications whether or not they have merit. The problem of undeserving cases should be counteracted by identifying and disposing promptly of those which have no merit and ensuring that those applicants who are genuine are not deprived of the minimum conditions that the Directive provides for. A reference under Article 267 of TFEU? In support of the application for a reference to ECJ under Article 267 of TFEU, the appellant relied on Case 283/81 CILFIT Srl v Ministro della Sanita [1982] ECR 3415. At paragraph 16 of its judgment in that case, the ECJ had said: the correct application of Community Law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it. This sets what appears at first sight to be a very high standard. The national court must not only be convinced that there is no reasonable doubt as to how the question should be answered but must also be of the unequivocal view that its opinion would be shared by courts in all the Member States and the Court of Justice. But I do not believe that this passage was meant to convey to national courts the need to conduct an analysis of how the matter might be approached in all of those other courts. Rather, it seems to me that what is required is for the national court to conduct a careful examination of the reasoning underlying any contrary argument ranged against the view that it has formed. If, having done so, the court is of the opinion that such an argument, on any conventional basis of reasoning, could not be accepted, a reference should not be made. Having anxiously assessed the appellants arguments against this yardstick, I have come firmly to the view (particularly in light of the legislative history of the Reception Directive and the Procedures Directive) that a reference is not required in this case and I would therefore also dismiss the appellants application under Article 267 of TFEU. |
On 22 January 2014, we gave judgment in Marley v Rawlings [2014] UKSC 2, [2014] 2 WLR 213, in which we allowed Mr Marleys appeal against the Court of Appeals dismissal of his appeal against the decision of Proudman J. She had refused to admit to probate a document as the validly executed will of Alfred Rawlings (the will). On its face, this document appeared to be the will of his late wife (who had predeceased him), but it had been signed by Mr Rawlings. This was because, when the solicitor who had drafted the wills (the Solicitor) had visited the couple for the purpose of executing their wills, Mr and Mrs Rawlings had accidently been presented with, and each had signed, the will intended for the other. Mr Marley was the residuary beneficiary under the will, if it was valid, whereas the two sons of Mr and Mrs Rawlings (the respondents) would have inherited on an intestacy. The issue which arises now is how the costs of the proceedings should be allocated. Mr Marleys primary contention is that the respondents should pay his costs of the proceedings, including the two appeals, in addition, of course, to having to pay their own costs. The respondents, on the other hand, contend that the costs of Mr Marley and the respondents should be paid out of the late Mr Rawlingss estate, or, in the alternative, that those costs should be ordered to be paid by the Solicitor, as he was responsible for the unfortunate error. The Solicitor is, of course, insured against such liabilities. Those insurers have also made submissions on costs, and they contend that the respondents should pay Mr Marleys costs. These submissions all have to be seen in the light of the fact that the value of Mr Rawlings estate (the estate) is in the region of 70,000. The position is complicated by the fact that, in the Supreme Court, the respondents solicitors and two counsel were each acting under a conditional fee agreement (a CFA), although they were acting on the traditional basis in the Court of Appeal and at first instance. I will first address the position on the assumption that the respondents solicitors and two counsel were acting on a traditional basis throughout (which will dispose of the costs below), and will then turn to the costs in the Supreme Court in the light of the CFAs. The position disregarding the CFAs On the face of things at any rate, it is possible to justify more than one different order for costs in this unfortunate case. I describe the case as unfortunate, because it has involved a hearing in the High Court, a hearing in the Court of Appeal, and a hearing in the Supreme Court, with each side represented by experienced counsel and solicitors, in order to reach a final decision as to how an estate of 70,000 is to be distributed. Even if the costs have been kept at a modest level at all stages, there is unlikely to be much, if anything, left in the estate if the only order in respect of costs which this court makes is that primarily sought by the respondents, namely all parties costs being paid out of the estate. If there had been no question of negligence on the part of the Solicitor, it would have very difficult to decide what order to make as between Mr Marley and the respondents. On the one hand, there is considerable force in Mr Marleys argument that, although this litigation relates to the validity of a will, and it is a case where both parties can say that they had a reasonable argument, it was ultimately hostile litigation between two parties fighting over money, and that, in those circumstances, the normal rule of loser pays applies, so that Mr Marley should receive his costs from the respondents. There is some support for this in the authorities. On the other hand, the authorities also reveal that, where there is an unsuccessful challenge to the validity of a will, and the challenge is a reasonable one and is based on an error which occurred in the drafting or execution of the will, the court often orders that all parties costs come out of the estate. In the present instance, therefore, and still ignoring the possible liability of the Solicitor, there is a case for saying that Mr Marley should recover his costs from the respondents because they took their chance in hostile litigation and lost, but there is equally a case for saying that the correct order is that the costs of all parties should be paid out of the estate, not least because the cause of the error was in the execution of the will, and the stance adopted by the respondents was far from unreasonable, as is evidenced by the fact that they succeeded both at first instance and in the Court of Appeal. A pragmatic approach might well suggest that, if the estate had been very substantial, the correct order would be to direct that costs be paid out of the estate, but one should hesitate long and hard before making such an order in a case such as the present, where the estate is modest: it would deprive the successful party, in this case Mr Marley, of any benefit from the litigation or from the estate. However, this is not a case where it could possibly be right to ignore the position of the Solicitor. Indeed, there is, at least in terms of broad common sense, considerable attraction in the notion that the Solicitor should bear all the costs, in the sense that he was the person whose unfortunate error was responsible for the litigation. On the other hand, as the insurers point out, (1) a court should always be wary before making an order for costs against a third party, (2) it would, at any rate on the face of it, be odd to require the Solicitor to pay the respondents costs, given that he owed no duty to the respondents, and (3) it was not the Solicitors fault that the respondents chose to fight the case. Although those three arguments have some force, at least on the face of it, I do not find them particularly persuasive. It was the error of the Solicitor which caused the problem that gave rise to the proceedings, as is reflected by the fact that the insurers accepted liability to Mr Marley for his costs in the Court of Appeal and the Supreme Court. Further, when Mr Marley intimated that he had a claim against the Solicitor, the insurers required him to bring proceedings to seek to have the will upheld as valid. I turn to the three specific points raised by the insurers on behalf of the Solicitor. As to point (1), it is by no means unusual to make an order for costs against a party who was funding the litigation or who was responsible for the litigation. As mentioned, the insurers are funding the litigation to the extent of underwriting Mr Marleys costs of the two appeals; further, not only was the Solicitor primarily responsible for the whole problem that gave rise to these proceedings, but the insurers required Mr Marley to bring these proceedings by way of mitigation. Further, the Solicitor has no defence whatsoever to a damages claim from Mr Marley, and therefore this is a particularly strong case for holding a third party liable for costs. As to point (2), given that the respondents decision to fight this litigation was not unreasonable, it would be harsh if they had to pay any substantial costs, as explained above. Consequently, there is considerable force in the notion that they should obtain their costs out of the estate. However, if that happened, those costs would be ultimately borne by Mr Marley, because he is entitled to the estate, and he would suffer to the extent that it is diminished by the respondents costs, and therefore could recover that diminution from the Solicitor. As to point (3), it was both foreseeable to the Solicitor and to the insurers that the respondents would contest the claim, and it was scarcely unreasonable of them to do so all the way, as is demonstrated by the fact that they won in the High Court and the Court of Appeal. Because an order that all parties be paid out of the estate would result in Mr Marley being able, in effect, to reconstitute the estate through a claim for damages against the Solicitor, it appears to me that the position is equivalent to one where the estate is very substantial in nature. Accordingly, an order that the parties recover all their costs out of the estate also seems justified in pragmatic terms, on the basis that all those costs would, in practice, be recovered by Mr Marley from the Solicitor, and by the Solicitor from the insurers. In those circumstances, rather than ordering that the parties receive all their costs out of the estate, and leaving it to Mr Marley to recover the costs from the Solicitor, and leaving it to the Solicitor to be indemnified by the insurers, it seems to me that, assuming that the respondents had funded the litigation traditionally, it would be appropriate to order that the insurers pay all the costs of Mr Marley and the respondents in relation to these proceedings throughout. I take some comfort from the fact that this was the order which was agreed on behalf of the negligent solicitor in not dissimilar circumstances in In re Bimson [2010] EWHC 3679 (Ch), an agreement which, at para 23, Henderson J referred to as very proper, and that in Gerling v Gerling [2010] EWHC 3661(Ch), para 50 HH Judge Hodge QC said in a similar case that he assume[d] that there will be no order as to costs because the costs are going to be borne by the insurers acting for the solicitors who drafted the Will. Such an order would therefore be appropriate in relation to the costs up to and including those incurred in the Court of Appeal, but it is now necessary to consider what order is appropriate in respect of the respondents costs in the Supreme Court, given that their solicitors and counsel were acting under CFAs. The effect of the CFAs in the Supreme Court Two issues arise. The first is whether the CFAs render the respondents liable for any costs in the Supreme Court. The second issue, which only arises to the extent that the answer to the first question is yes, is whether the costs we order to be paid include any uplift. These issues are in fact connected on the unusual facts of this case, as I shall explain in paras 24 27 below. As to the first issue, the insurers argue that, on a true construction of the CFAs in this case, the respondents are not obliged to pay any costs to their lawyers and therefore, given the terms which I would otherwise propose in para 12 above, no order should be made in respect of the respondents costs in the Supreme Court. This submission is based on the basis of the so called indemnity principle as explained by Sir Herbert Cozens Hardy MR in Gundry v Sainsbury [1910] 1 KB 645 and more recently by Judge LJ in Bailey v IBC Vehicles Ltd [1998] 3 All ER 570. The resolution of this issue turns on the terms of the CFAs, to which I now turn. The CFA entered into with the solicitors is short, but it incorporates a Law Society document, the effect of which is that (i) the respondents are liable for the solicitors costs if they recover any damages or in any way derive benefit from pursuing the claim, and (ii) if the respondents lose, the solicitors may require [them] to pay [their] disbursements. The respondents primary claim in connection with the solicitors costs is based on item (i). So far as that is concerned, the reference to pursuing the claim may mean, as the respondents contend, resisting the appeal to the Supreme Court, or it may mean the appeal to the Supreme Court. Whichever it means, at any rate at first sight the respondents (and their solicitors) are not assisted by item (i), as they lost the appeal. However, they contend that they derive[d] benefit from resisting the appeal or from the appeal because they avoided an order to pay Mr Marleys costs here and below and they recovered their own costs as a result of the order I have proposed in para 12 above. I would reject that argument. The result of Mr Marleys appeal to the Supreme Court is that the respondents are plainly worse off so far as the substantive issue is concerned, and certainly no better off so far as costs are concerned, so it is hard to see how they can fairly be said to have obtained any benefit from the appeal. The fact that this Court has decided that they should not have to pay Mr Marleys costs, and can recover their costs from the estate, can scarcely be characterised as a benefit gained from resisting the appeal: it is a mitigation or removal of a disadvantage which they might have otherwise suffered as a result of resisting the appeal. However, I accept that item (ii) assists the respondents (and their solicitors) in the present context, albeit that it is only of limited value to them. This is because, as they lost, the respondents could be rendered liable for their solicitors disbursements, which could include counsels fees payable pursuant to counsels CFAs, as explained above. While it is true that the respondents solicitors may not choose to pursue the respondents for such disbursements, they would have the right to do so. The CFA entered into with each counsel provides that the solicitors were liable for costs if, inter alia, (i) the appeal [is] dismissed, (ii) the deceased [is] held intestate, (iii) any outcome which has a value equal to a minimum of 1 or (iv) either the opposing party (to include the estate) agrees to pay or the court orders that they pay your costs. The respondents rely on items (iii) and (iv). I do not consider that item (iii) assists the respondents for the same reason that I have given for rejecting the primary case advanced by the respondents in relation to the solicitors CFA in para 17 above. As to item (iv), the submissions of both the insurers and the respondents seem to assume that the word your means the clients, ie the respondents. It may be that the word your should be interpreted as referring to the solicitors, given that the CFA is a contract between the solicitors and counsel, and the Client is a defined term. However, on any view, the word your is inappropriate, and it makes little sense that the recoverability of counsels costs should depend on the recoverability of solicitors costs as opposed to the recoverability of the clients costs. Accordingly, I am prepared to proceed on the basis of the view adopted by both parties, which appears to be quite probably correct. In my judgement, on this basis, item (iv) is satisfied, provided that I adhere to the proposal expressed in para 12 above that the respondents costs in the Supreme Court are paid by the insurers. It is true that that proposal would involve the costs being paid by the insurers rather than the estate, but that is simply a practical short circuiting of an order that (a) the estate pays the costs, (b) the estate be reimbursed by the Solicitor, and (c) the Solicitor be reimbursed by the insurers. In other words, it is because I consider that the estate should pay the respondents costs that I propose that the costs be paid direct by the insurers. Accordingly, subject to the vexed second issue, that of the uplift on counsels fees, the logic of the order proposed in para 12 above when applied to the costs in the Supreme Court would be that (i) it applies to counsels fees in the Supreme Court, but (ii) it only applies to the solicitors disbursements in connection with the appeal to the Supreme Court, but not to the other costs of the solicitors. That leaves the second issue, namely whether counsels fees should include the 100% uplift agreed in their CFAs. The parties are rightly agreed that the court has a discretion in this connection see rule 46(1) of the Supreme Court Rules 2009. I am prepared to accept the respondents submission that it would usually be inappropriate not to allow the lawyers who have acted for successful clients under a CFA an uplift (and normally, I expect, it would be the agreed uplift). However, this case is a very long way indeed from being normal. Counsels lay clients in this case have not been successful; far from it: the respondents have lost the appeal. In those circumstances, it can be said with real force that their counsel are lucky to be getting anything. In my opinion, it would be quite inappropriate if any costs order resulted in the unsuccessful respondents counsel receiving a success fee, or, to put it another way, if any costs order resulted in any party, whether the respondents solicitors, the respondents or the insurers, having to pay a success fee to the unsuccessful respondents counsel. On the very unusual facts of this case, reflecting the order I would make as set out in para 12 above, I would be prepared to include counsels base fees in the scope of any order against the insurers, but I would not be prepared to include any uplift for counsel. However, it seems to me that, if we were to allow the respondents to recover their counsels base fees from the insurers, the 100% uplift may very well either be recoverable from the respondents or from the solicitors (and if it could be recovered from the solicitors, it may very well be that they could recover the uplift from the insurers as disbursements). As I have indicated, it would, in my view, be quite wrong to permit this. Accordingly, I consider that, unless both the respondents counsel are prepared to waive their success fees, it would be right to depart from the order which I would otherwise propose, so that the respondents would be entitled to recover no costs from the insurers in respect of counsels fees in connection with the Supreme Court appeal. This is, I appreciate, a fairly remarkable course to take, but the unusual facts of this case coupled with the many unsatisfactory aspects of the CFA system under the Access to Justice Act 1999 (as illustrated in our very recent decision in Coventry v Lawrence (No 2) [2014] UKSC 46), appear to me to require and justify an unusual approach in order to achieve a just result. Conclusion In all these circumstances, it seems to me that the right order to make in this case is that (i) the insurers of the Solicitor pay the costs of these proceedings (a) of Mr Marley up to and including the Supreme Court and (b) of the respondents up to and including the appeal to the Court of Appeal, and that (ii) the insurers of the Solicitor pay (a) the respondents solicitors disbursements and (b) provided that both counsel for the respondents disclaim for all purposes the right to recover any uplift to which either of them would otherwise be entitled under their respective CFAs, counsels base fees, in relation to the further appeal to the Supreme Court. If counsel are not prepared to provide such a disclaimer, the order I would make is that the insurers pay the costs of these proceedings (a) of Mr Marley up to and including the Supreme Court, and (b) of the respondents up to and including the appeal to the Court of Appeal, and that there be no order for costs in the Supreme Court, save that the insurers pay the solicitors disbursements. In the usual way, a copy of this judgment was sent in draft to counsel for the parties and for the insurers of the Solicitor, with an invitation to make comments. Save for some helpful typographical corrections and the like, the only response of substance came from the respondents counsel, who formally confirmed that they disclaimed any entitlement which they may have had under their CFAs to uplift or success fees for all purposes. Accordingly, the costs order we make is as set out in the first sentence of para 27 above. Hilary Term [2014] UKSC 2 On appeal from: [2012] EWCA Civ 61 Marley (Appellant) v Rawlings and another JUDGMENT (Respondents) before Lord Neuberger, President Lord Clarke Lord Sumption Lord Carnwath Lord Hodge JUDGMENT GIVEN ON 22 January 2014 Heard on 3 December 2013 Appellant Robert Ham QC Teresa Rosen Peacocke (Instructed by Hugh Cartwright & Amin) Respondents Nicholas Le Poidevin QC Alexander Learmonth (Instructed by Gillan & Co) LORD NEUBERGER (with whom Lord Clarke, Lord Sumption and Lord Carnwath agree) 1. A husband and wife each executed the will which had been prepared for the other owing to an oversight on the part of their solicitor; the question which arises is whether the will of the husband, who died after his wife, is valid. The factual and procedural background The factual background 2. On 17 May 1999, Alfred Rawlings and his wife, Maureen Rawlings, were visited by their solicitor to enable them to execute the wills which he had drafted on their instructions. The wills were short and, except for the differences required to reflect the identity of the maker, they were in identical terms. Each spouse left his or her entire estate to the other, but, if the other had already died or survived the deceased spouse for less than a month, the entire estate was left to the appellant, Terry Marley, who was not related to them but whom they treated as their son. 3. The will prepared for Mr Rawlings was in these terms: This is the last will of me ALFRED THOMAS RAWLINGS of 15A Hillcrest Road Biggin Hill Kent TN16 3UA 1. I REVOKE all former wills and testamentary dispositions. 2. IF MY wife MAUREEN CATHERINE RAWLINGS survives me by a period of one calendar month then I appoint her to be the sole Executrix of this my will and subject to my funeral and testamentary expenses fiscal impositions and all my just debts I leave to her my entire estate. 3. IF MY said wife MAUREEN CATHERINE RAWLINGS fails to survive me by a period of one calendar month I appoint TERRY MICHAEL MARLEY to be the sole Executor of this my will and subject to my funeral and testamentary expenses fiscal impositions and all my just debts I leave to him my entire estate. IN WITNESS whereof I the said ALFRED THOMAS RAWLINGS have hereunto set my hand the day of 1999: . SIGNED by the testator in our presence and then by us in his: Signature, name, address Signature, name, address of attesting solicitor: of attesting secretary: . . 4. The will prepared for Mrs Rawlings was in identical terms save that it was, of course, in her name instead of that of her husband, so that ALFRED THOMAS RAWLINGS was replaced by MAUREEN CATHERINE RAWLINGS, and my [said] wife MAUREEN CATHERINE RAWLINGS, her, his, and testator were respectively replaced by my [said] husband ALFRED THOMAS RAWLINGS, him, her, and testatrix. 5. By an oversight (which he candidly admitted in his witness statement in these proceedings), the solicitor gave each spouse the others draft will, and nobody noticed. Accordingly, Mr Rawlings signed the will meant for Mrs Rawlings, and Mrs Rawlings signed that meant for Mr Rawlings, and the solicitor and his secretary attested the signature on each document, which was then dated 17 May 1999. 6. Mrs Rawlings died in 2003, and her estate passed to her husband without anyone noticing the mistake. However, when Mr Rawlings died in August 2006, the error came to light. 7. At the time of his death, Mr Rawlings was a joint tenant with the appellant of the house in which they both lived, so the tenancy passed to the appellant through the doctrine of survivorship. In addition, there was some 70,000 in Mr Rawlingss estate. 8. The respondents, Terry and Michael Rawlings, Mr and Mrs Rawlings two sons, challenged the validity of the will which Mr Rawlings had signed. If it was valid, the appellant would inherit the 70,000 under its terms, whereas if it was invalid, Mr Rawlings would have died intestate, and the respondents would inherit the 70,000. The procedural background 9. The appellant began probate proceedings, which came before Proudman J. She gave a judgment based on the understanding that his case was that Mr Rawlingss will (the Will) should be rectified so as to record what he had intended, ie so as to contain what was in the will signed by his wife (the wifes Will), and that probate should be granted of the Will as so rectified. 10. The Judge dismissed Mr Marley's claim, on the grounds that (i) the Will did not satisfy the requirements of section 9 of the Wills Act 1837 (the 1837 Act), and (ii) even if it had done so, it was not open to her to rectify the Will under section 20 of the Administration of Justice Act 1982 (the 1982 Act) [2011] 1 WLR 2146. 11. The appellant appealed to the Court of Appeal, who upheld the decision of Proudman J on the first ground, namely that the Will did not satisfy section 9(b) of the 1837 Act (as well on at least one other ground), and they did not find it necessary to consider the second ground [2013] Ch 271. 12. The appellant now appeals to this court. The legal background 13. There are, unsurprisingly, a large number of cases in which courts haves had to consider the validity of a will and the interpretation of a will, and a few cases where rectification of a will has been considered. The formalities have for a long time largely been laid down by the 1837 Act. By contrast, until very recently at any rate, the interpretation and possible rectification of wills was an issue which Parliament was content to leave to the judges. The formal requirements of a will 14. So far as validity is concerned, the centrally important statutory provision, both in general terms and for present purposes, is section 9 of the 1837 Act (section 9). That section has been amended or re enacted on a number of occasions. Most recently, it was re enacted by section 17 of the 1982 Act, which is headed Relaxation of formal requirements for making wills. 15. wills, and it provides as follows: No will shall be valid unless In its current form, section 9 is headed Signing and attestation of (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary. In addition to these statutory requirements, as Chadwick LJ explained in 16. Fuller v Strum [2002] 1 WLR 1097, para 59: It is not, and cannot be, in dispute that, before admitting the document to probate, the judge needed to be satisfied that it did truly represent the testators testamentary intentions; or, to use the traditional phrase, that the testator knew and approved its contents. Nor is it in dispute that, if satisfied that the testator knew and approved of part only of the contents of the document, the judge was bound, before admitting the document to probate, to require that those parts with respect to which he was not so satisfied be struck out. Interpretation of wills 17. Until relatively recently, there were no statutory provisions relating to the proper approach to the interpretation of wills. The interpretation of wills was a matter for the courts, who, as is so often the way, tended (at least until very recently) to approach the issue detached from, and potentially differently from, the approach adopted to the interpretation of other documents. 18. During the past forty years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900. 19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any partys intentions. In this connection, see Prenn at 1384 1386 and Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham, and the survey of more recent authorities in Rainy Sky, per Lord Clarke at paras 21 30. 20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, No one has ever made an acontextual statement. There is always some context to any utterance, however meagre. To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that [c]ourts will never construe words in a vacuum. 21. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, per Lord Steyn at 770C 771D, and Lord Hoffmann at 779H 780F. 22. Another example of a unilateral document which is interpreted in the same way as a contract is a patent see the approach adopted by Lord Diplock in Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 243, cited with approval, expanded, and applied in Kirin Amgen at paras 27 32 by Lord Hoffmann. A notice and a patent are both documents intended by its originator to convey information, and so, too, is a will. 23. In my view, at least subject to any statutory provision to the contrary, the approach to the interpretation of contracts as set out in the cases discussed in para 19 above is therefore just as appropriate for wills as it is for other unilateral documents. This may well not be a particularly revolutionary conclusion in the light of the currently understood approach to the interpretation of wills (see eg Theobald on Wills, 17th edition, chapter 15 and the recent supplement supports such an approach as indicated in RSPCA v Shoup [2011] 1 WLR 980 at paras 22 and 31). Indeed, the well known suggestion of James LJ in Boyes v Cook (1880) 14 Ch D 53, 56, that, when interpreting a will, the court should place [itself] in [the testators] arm chair, is consistent with the approach of interpretation by reference to the factual context. 24. However, there is now a highly relevant statutory provision relating to the interpretation of wills, namely section 21 of the 1982 Act (section 21). Section 21 is headed Interpretation of wills general rules as to evidence, and is in the following terms: (1) This section applies to a will in so far as any part of it is meaningless; in so far as the language used in any part of it is a) b) ambiguous on the face of it; c) in so far as evidence, other than evidence of the testators intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. (2) In so far as this section applies to a will extrinsic evidence, including evidence of the testators intention, may be admitted to assist in its interpretation. 25. In my view, section 21(1) confirms that a will should be interpreted in the same way as a contract, a notice or a patent, namely as summarised in para 19 above. In particular, section 21(1)(c) shows that evidence is admissible when construing a will, and that that includes the surrounding circumstances. However, section 21(2) goes rather further. It indicates that, if one or more of the three requirements set out in section 21(1) is satisfied, then direct evidence of the testators intention is admissible, in order to interpret the will in question. 26. Accordingly, as I see it, save where section 21(1) applies, a will is to be interpreted in the same way as any other document, but, in addition, in relation to a will, or a provision in a will, to which section 21(1) applies, it is possible to assist its interpretation by reference to evidence of the testators actual intention (eg by reference to what he told the drafter of the will, or another person, or by what was in any notes he made or earlier drafts of the will which he may have approved or caused to be prepared). Rectification of wills 27. Rectification is a form of relief which involves correcting a written instrument which, by a mistake in verbal expression, does not accurately reflect the [parties] true agreement The Nai Genova [1984] 1 Lloyds Rep 353, 359. It is available not only to correct a bilateral or multilateral arrangement, such as a contract, but also a unilateral document, such as a settlement see In re Butlins Settlement Trusts [1976] Ch 251. However, it has always been assumed that the courts had no such power to rectify a will see eg Harter v Harter (1873) LR 3 P&D 11 per Hannen P, and In re Reynette James decd [1976] 1 WLR 161, per Templeman J. 28. As at present advised, I would none the less have been minded to hold that it was, as a matter of common law, open to a judge to rectify a will in the same way as any other document: no convincing reason for the absence of such a power has been advanced. However, it is unnecessary to consider that point further, as Parliament has legislated on the topic, in section 20 of the 1982 Act (section 20). Section 20 is headed Rectification, and subsection (1) provides as follows: If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions. Section 20(2) provides that, save with the courts permission, no application for rectification under subsection (1) can be made more than six months after the grant of probate. Section 20(3) protects executors who distribute in accordance with the terms of a will before it is rectified after the six month period referred to in subsection (2). Mr Ham QC, for the appellant, realistically accepted that it would be inappropriate for the court to hold that it had wider powers to rectify a will than those which were conferred by section 20. Given that Parliament decided to confer a limited power of rectification at a time when there was clear authority that the court had no inherent power to rectify, it would be wrong for any court to hold, at least in the absence of a compelling reason, that it actually had an inherent power which was wider than that which the legislature conferred. The issues on this appeal The appellant rested his case on three different contentions. The first was that Mr Rawlingss Will, properly interpreted, should be read, in effect, as if it was the document signed by his wife on 17 May 1999. The second contention was that the extent of Mr Rawlingss knowledge and approval of the contents of the Will was such that it could be validated, albeit with deletions. The third contention was that the Will should be rectified so as to accord with Mr Rawlingss intentions. I shall consider those contentions in turn. Although Mr Ham primarily based his contention that the Will was valid on the ground of rectification (which was the sole basis on which the case was considered in the courts below), he accepted that the interpretation argument ought to be considered first, and the deletions argument second. The appellants contention on interpretation The argument that the Will, properly interpreted, is valid and effective is based on two propositions. The first is that the Will can be read together with the wifes Will, given that it is clear from the face of the two documents that they were signed on the same date, by a cohabiting husband and wife, and were in very similar terms and in the same style, and had the same witnesses. While not mutual wills (ie separate wills entered into pursuant to an agreement between the two testators as to the terms of their wills), they were clearly closely related, and therefore each could properly be looked at when interpreting the other. The second proposition is that, when one looks at the two documents, it is obvious what has happened, and in particular it is obvious that Mr Rawlings intended the Will to be in the form of the wifes Will. Accordingly, runs the appellants case, that is how the Will should be interpreted and read. For the respondents, Mr Le Poidevin QC realistically does not challenge the basis of this argument, namely that the two documents can be read together, and that, on that basis, it is clear what happened and what was intended by Mr Rawlings. However, he contends that this exercise is not one of interpretation at all, but one of rectification. This contention raises a point of some potential importance and difficulty. In Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912H 913E, Lord Hoffmann set out the principles which the court should apply when interpreting documents in five propositions. Most of the content of that passage is unexceptionable, although, in one or two places, the language in which the propositions are expressed may be a little extravagant; thus, the words absolutely anything in his second proposition required some qualification from Lord Hoffmann in Bank of Credit and Commerce, para 39. However, the second sentence of Lord Hoffmanns fifth proposition in Investors Compensation is controversial. That sentence reads, so far as relevant, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Hoffmann took that approach a little further in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, paras 21 25. Having observed that the exercise of interpretation involves decid[ing] what a reasonable person would have understood the parties to have meant by using the language which they did and referring to the correction of mistakes by construction, he said this: [T]here is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant. In a forcefully expressed article, Construction and Rectification after Chartbrook [2010] CLJ 253, Sir Richard Buxton has suggested that Lord Hoffmanns approach to interpretation in these two cases is inconsistent with previously established principles. Lewison on The Interpretation of Contracts (fifth ed (2011), para 9.03, footnote 67, in an illuminating chapter dealing with mistakes) suggests that Sir Richard has made out a powerful case for the conclusion that the difference between construction and rectification has reduced almost to vanishing point, if Lord Hoffmanns analysis is correct. At first sight, it might seem to be a rather dry question whether a particular approach is one of interpretation or rectification. However, it is by no means simply an academic issue of categorisation. If it is a question of interpretation, then the document in question has, and has always had, the meaning and effect as determined by the court, and that is the end of the matter. On the other hand, if it is a question of rectification, then the document, as rectified, has a different meaning from that which it appears to have on its face, and the court would have jurisdiction to refuse rectification or to grant it on terms (eg if there had been delay, change of position, or third party reliance). This point is made good in relation to wills by the provisions of section 20(2) and (3). In my judgment, unless it is necessary to decide this difficult point, we should not do so on this appeal. Interpretation was not the basis upon which the courts below decided this case and it was not the ground upon which Mr Ham primarily relied. Furthermore, and no doubt because of those points, only limited argument was directed to the issue of whether the issue was one of interpretation or of rectification. For the reasons developed below, I consider that this appeal succeeds on the ground of rectification, so I shall proceed on the basis that it fails on interpretation. It should be added that Mr Ham also relied on section 21(2). I do not think that it can take his case any further, although it would enable him to rely on Mr Rawlingss subjective intention, because his argument is still one based on interpretation. This point was made in In re Williams decd [1985] 1 WLR 905, 911G H, where Nicholls J seems to have taken an orthodox view of interpretation. He said that if, however liberal may be the approach of the court, the meaning is one which the word or phrase cannot bear, I do not see how the court can declare that meaning to be the meaning of the word or phrase, and varying or contradicting the language used, would amount to re writing, which is to be achieved, if at all, under the rectification provisions in section 20. The appellants contention on deletions The appellants case under this head rests on two propositions. The first is that, in order to be a valid will, the testator must have known and approved of its contents see Fuller quoted in para 16 above. There is a rebuttable presumption that the testator knew and approved the contents of a regularly executed will with unexceptional provisions. However, that presumption may be rebutted by evidence of the circumstances in which the will was prepared or executed. It can also be rebutted where the will is so worded as to cast doubt on whether the testator can have known or approved of its contents. In the present case, the Will, as literally interpreted, plainly did not represent Mr Rawlingss intentions: accordingly, he cannot have known or approved of its contents, as it stood. The second proposition invoked in the present connection is that, where the testator did not know or approve of only part of a will, that part can be notionally excised by the court, with the remainder being valid and admitted to probate as described in the last sentence quoted from Fuller in para 16 above. Examples of such cases are cited in Theobald, op cit, para 3 028. On this basis, Mr Ham ingeniously argued that the Will can be validated by deleting (i) the opening sentence, (ii) clause 2, (iii) the first phrase of clause 3, and (iv) the reference to Mrs Rawlings at the end of the Will. If this were permissible, it would simply leave the Will as stating that the signatory, Mr Rawlings, revokes his previous wills and leaves his entire estate to the appellant. In my view, this argument must be rejected. The most typical case where only part of a will is rejected on the ground that it was not known and approved by the testator, is where that part is self contained eg a particular clause or subclause. One such example is in In the Goods of Oswald (1874) LR 3 P&D 162, 164, per Sir James Hannen P. However, it is also true that, in some cases, a simple word or expression can be deleted if shewn to have been inserted by mistake per Jeune J in In the Goods of Boehm [1891] P 247, 250. However, it is quite inappropriate to invoke this principle in order to justify selecting phrases and provisions for deletion from a will intended to be signed by someone else, to enable the will, effectively by happenstance, to comply with the testators intentions. I note that Sir James Hannen P and Sir Gorell Barnes P took the same view in, respectively, In the Goods of Hunt (1875) LR 3 P&D 250, at 252, and In re Meyer [1908] P 353, 354. Further, as Jeune J pointed out in Boehm at 251, there is obvious difficulty [in] rejecting words where their rejection alters the sense of those which remain. The appellants proposed exercise in deletion summarised in para 45 above would involve converting what is a simple and beneficial principle of severance into what is almost a word game with haphazard outcomes. That is well illustrated by the fact that, in this case, the suggested deletions from the Will only achieve the intended result because Mrs Rawlings pre deceased her husband, because clause 2 is deleted: therefore, if Mr Rawlings had pre deceased his wife, this argument would not work. valid will by making the deletions suggested on behalf of the appellant. The appellants contention on rectification: introduction The principal ground upon which the appellant contended that the Will should be held to be valid was that it should be rectified pursuant to section 20, so that it had the effect which Mr Rawlings intended, namely that it essentially stated what was in the wifes Will. As I see it, three possible objections may be raised to this contention. The first is that the correction which needs to be made to validate the Will is I would accordingly reject the argument that the Will can be treated as a too extreme to amount to rectification. The second is that section 20 only applies to a will, and, because the Will, as executed, does not satisfy section 9 and/or because it was not executed with Mr Rawlingss knowledge and approval of its contents, it was not a will, and therefore section 20 cannot be invoked. The third argument is that the rectification cannot be justified under either para (a) or para (b) of section 20(1). I shall consider those arguments in turn. The appellants contention on rectification: is it rectification? The first argument did not really figure in the reasoning of the courts below or, unless it was impliedly subsumed in the third argument, in Mr Le Poidevins submissions. Either way, without calling into question the third argument for the moment, I consider that the first argument should be rejected. The fact that it can be said that the claimed correction would effectively involve transposing the whole text of the wifes Will into the Will does not prevent it from being rectification of each of the Wills. As a general proposition, there may be force in the point that the greater the extent of the correction sought, the steeper the task for a claimant who is seeking rectification. However, I can see no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the courts power to rectify, as a matter of principle. On the contrary: to impose such a restriction on the power of rectification would be unprincipled and it would also lead to uncertainty. Subject to the other two points, the present circumstances seem to give rise to a classic claim for rectification. As Black LJ, who gave the leading judgment in the Court of Appeal, observed in para 7, [t]here can be no doubt as to what Mr and Mrs Rawlings wanted to achieve when they made their wills and that was that [the appellant] should have the entirety of their estate and that [the respondents] should have nothing (subject, of course, to the survivor enjoying the entirety of their property until his or her death). Thus, there is certainty as to what Mr Rawlings wanted, and there is certainty as to how he would have expressed himself (as there can be no doubt that he would have signed the will prepared for him if he had appreciated the mistake). Accordingly, this is a very clear case for rectification subject always to the two other points raised by the respondents. The appellants contention on rectification: is the document a will? That brings me to Mr Le Poidevins second argument, which impressed both Proudman J and the Court of Appeal. Black LJ, with whom Sir John Thomas P and Kitchin LJ agreed, considered that the Will was not a will for the purposes of section 20, because (i) (at least arguably) it failed to satisfy section 9(a), (ii) it failed to satisfy section 9(b), and (iii) it was not made with the knowledge and approval of Mr Rawlings; and that therefore it could not be rectified. As already indicated in para 43 above, I accept that, on the basis that it must be interpreted at face value, the Will was plainly not executed by Mr Rawlings with his full knowledge and approval. However, I have been persuaded by Mr Ham that it did not fall foul of section 9(a) or (b). While it is clear, even on a cursory reading of the Will, that something has gone seriously wrong, it is unchallengeable that Mr Rawlings signed it, and that he did so, both on the face of the document, and as a matter of fact, with the intention of it being his last will and testament. Thus, whatever else may be said about the document, it is, on its face (and was in fact according to the evidence), unambiguously intended to be a formal will, and it was, on its face (and was in fact according to the evidence), signed by Mr Rawlings, in the presence of two witnesses, on the basis that it was indeed his will. It is important to bear in mind that section 9 is concerned with formalities. The fact that it is pretty clear from the provisions which it contains that a will may well face problems in terms of interpretation or even validity does not mean that it cannot satisfy the formality requirements. In that connection, it is worth referring to what Lord Wilberforce said in In re Reschs Will Trusts [1969] 1 AC 514, 547E, where (approving what had been said by Luxmoore J in In re Hawksleys Settlement [1934] Ch 384, 395 396) he discussed the difference between the function of the court when considering whether to admit a will to probate and the function of the court if it subsequently interprets the will. As he explained, [t]he fact that a document has been admitted to probate does not prevent a court of construction from coming to the conclusion that this document has no operative effect. It is true that the Will purports in its opening words to be the will of Mrs Rawlings, but there is no doubt that it cannot be hers, as she did not sign it; as it was Mr Rawlings who signed it, it can only have been his will, and it is he who is claimed in these proceedings to be the testator for the purposes of section 9. Accordingly, section 9(a) appears to me to be satisfied. It is true that the Will does not make sense, at least if taken at face value, but that is a matter for a court of construction, as Lord Wilberforce explained. There can be no doubt, however, from the face of the Will (as well as from the evidence) that it was Mr Rawlingss intention at the time he signed the Will that it should have effect, and so it seems to me that section 9(b) was also satisfied in this case. Notwithstanding the fact that the contents of the Will, unless rectified, did not satisfy the requirement that they had the full knowledge and approval of Mr Rawlings, and even if the Court of Appeal had been right in their view that the Will did not satisfy the requirements of section 9(b) or (possibly) section 9(a), I consider that it would still be open for the appellant to invoke section 20. In other words, it does not appear to me that a document has to satisfy the formal requirements of section 9, or of having the testators knowledge and approval, before it can be treated as a will which is capable of being rectified pursuant to section 20. Black LJ said at para 39 that the logical place to start indeed, it seems to me the only place to start is with the question of the formal validity of the will, and, only if it was formally valid would it be open to the court to consider whether to rectify it. In terms of academic linguistic logic, I see the force of that point, but it appears to me to be wrong for a number of reasons. First, the approach adopted by the Court of Appeal takes away much of the beneficial value of section 20. If it could not be invoked to rectify a document which was currently formally invalid into a formally valid will, that would cut down its operation for no apparently sensible reason. Secondly, it seems to me to be equally logical, but plainly more consistent with the evident purpose of the amendments made to the law of wills by sections 17 (which contains the new section 9) and 21 of the 1982 Act, to deal with the validity and rectification issues together, at least in a case such as this, where the two issues are so closely related. Thirdly, the observation of Lord Wilberforce, quoted in para 58 above, demonstrates that a document which subsequently turns out to be invalid as a will can be, and no doubt frequently is, admitted to probate. Thus, even in the context of an entirely traditional approach, there is no objection to treating a document which purports to be a will as a will, even though it may subsequently turn out to be invalid. Fourthly, while it would be wrong to express this as an exclusive definition (although it may be), it appears to me that the reference to a will in section 20 means any document which is on its face bona fide intended to be a will, and is not to be limited to a will which complies with the formalities. Indeed, the opening words of section 9 itself seem to use the word will to include a purported will which does not comply with the requirements of section 9(a) to (d). It provides that no will shall be valid unless it so complies, which clearly carries with it the irresistible implication that a document that does not so comply is none the less a will for the purposes of the section, but not a valid will. Even if that were not right, as a matter of statutory interpretation I can see no reason why the word will in section 20(1) could not be read as meaning a document which, once it is rectified, is a valid will. After all, rectification operates retrospectively see eg per Lord Sterndale MR and Warrington LJ in Craddock Brothers v Hunt [1923] 2 Ch 136, 151 and 160. Fifthly, in another area of the law where formalities are required for validity, land contracts, rectification was permitted even where it had had the effect of converting an ineffective (albeit not an invalid) contract into an enforceable contract: see Domb v Isoz [1980] Ch 548, 559A C per Buckley LJ, with whose reasoning Bridge and Templeman LJJ agreed. (That case was concerned with section 40 of the Law of Property Act 1925, which has now been replaced by section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989, which, in subsection (4) specifically envisages a contract which does not comply with subsection (1) being rectified so that it does.) The appellants contention on rectification: is it a clerical error? The final issue raised by the appellants rectification claim is whether it is within the ambit of section 20(1). It is not suggested that the claim falls within para (b), a failure to understand [the testators] instructions, but Mr Ham argued that it is within para (a), a clerical error. There is no doubt that there was an error. The question is whether it can be said to be clerical. Proudman J concluded that it could not, and the Court of Appeal did not determine the point. It is clear that, owing to the solicitors error in muddling the two draft wills, the contents of the Will except for three signatures and details of the witnesses, that is the opening words, the three operative clauses and the declaration at the end, were wrongly included in the document signed by Mr Rawlings, as they were intended for Mrs Rawlingss will. Accordingly, if they are to comply with Mr Rawlingss intention, they should be replaced by the equivalent provisions of the wifes Will. The question is whether this can properly be achieved under section 20(1)(a). The meaning and ambit of section 20(1)(a) has been considered in a number of cases at first instance, which are helpfully discussed in Hodge on Rectification (first ed (2010), paras 7 37 to 7 46). Those cases, like the present case, require one to consider what sort of error constitutes a clerical error for the purposes of section 20(1)(a). However none of those cases involves the sort of error which arose in this case, although they do provide some insights into the problem raised here. The best judicial summary of the effect of the cases so far decided on section 20(1)(a) was given by Blackburne J in Bell v Georgiou [2002] EWHC 1080 (Ch) (quoted in para 7 42 of Hodge op cit): The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. The remedy is only available if it can be established not only that the will fails to carry out the testators instructions but also what those instructions were. If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20(1)(a). It is hard to see why there should be a different outcome where the mistake is, say, the insertion of a wrong clause because the solicitor cut and pasted a different provision from that which he intended. Equally, if the solicitor had cut and pasted a series of clauses from a different standard form from that which he had intended, I do not see why that should not give rise to a right to rectify under section 20(1)(a), provided of course the testators intention was clear. Accordingly, the notion that a wholesale replacement of the provisions of a will is permissible under section 20(1)(a) is demonstrated by the fact that it is difficult both as a matter in principle, and also in practice, to see where the line should otherwise be drawn. However, Mr Le Poidevin contended that, even if a slip of the pen, a mistyping, or a failure to cut and paste correctly, which extend to virtually the whole of the document, can all be characterised as clerical errors, giving the testator the wrong will is a mistake of a rather different character, which cannot naturally be referred to as a clerical error. I accept that the expression clerical error can have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case. However, the expression is not one with a precise or well established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly be described as clerical, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called a clerical error. For present purposes, of course, clerical error is an expression which has to be interpreted in its context, and, in particular on the assumption that section 20 is intended to represent a rational and coherent basis for rectifying wills. While I appreciate that there is an argument for saying that it does nothing to discourage carelessness, it seems to me that the expression clerical error in section 20(1)(a) should be given a wide, rather than a narrow, meaning. First, rectification of other documents (including unilateral documents) is not limited to cases of clerical error, however wide a meaning that expression is given. Accordingly, given that there is no apparent reason for a different rule for wills, it would appear appropriate that the grounds for rectification is as wide for wills as the words of section 20(1) can properly allow. Secondly, there is no apparent limit on the applicability of section 20(1)(b), which supports the notion that section 20(1)(a) should not be treated as being of limited application. However, section 20(1)(b) also has a potential limiting effect on the ambit of section 20(1)(a), in the sense that section 20(1)(a) should not be given a meaning which significantly overlaps with, let alone subsumes, that of section 20(1)(b). Thirdly, sections 17 to 21 of the 1982 Act are, as I see it, all aimed at making the law on wills more flexible and rendering it easier to validate or save a will than previously. Section 17, which re enacts section 9, is concerned with the relaxation of formalities (see para 14 above); sections 18 and 19 introduce greater flexibility in relation to the effect of the testators marriage and death of his issue; section 20 introduces rectification for the first time for wills, and section 21 permits the testators subjective intention to be taken into account for the first time. The whole thrust of the provisions is therefore in favour of a broad interpretation of a provision such as section 20(1)(a). Fourthly, I consider that the law would be somewhat incoherent if subtle distinctions led to very different results in cases where the ultimate nature of the mistake is the same. If a solicitor is drafting two wills, and accidentally cuts and pastes the contents of Bs draft will onto what he thinks is As draft will, and hands it to A, who then executes it as his will, that will would be rectifiable under section 20(1)(a), as the solicitors mistake would, on any view, be a clerical error see paras 72 and 73 above. On the other hand, if the solicitor accidentally gives Bs will to A to execute, and A executes it, that would not, on the respondents case, be a clerical error and therefore rectification would not be available. While I accept that fine distinctions can often lead to different outcomes where one is near the limits of the scope of some statutory provisions, a distinction of this sort seems to me to be capricious or arbitrary. The position is essentially the same in the two cases. In each case, it was because his solicitor accidentally handed A a document which contained Bs will rather than As will, that A executed Bs will thinking that it was his will. In each case, the reason that the will which A executed did not represent his intentions was a silly mistake by the solicitor in the mechanics of faithfully carrying out his instructions. In neither case did the mistake involve the solicitor misunderstanding or mischaracterising the testators intention or instructions, or making any error of law or other expertise, so the error may fairly be characterised as clerical and there is no question of trespassing into section 20(1)(b) territory. As explained in para 75 above, the term clerical error can, as a matter of ordinary language, quite properly encompass the error involved in this case. There was an error, and it can be fairly characterised as clerical, because it arose in connection with office work of a routine nature. Accordingly, given that the present type of case can, as a matter of ordinary language, be said to involve a clerical error, it seems to me to follow that it is susceptible to rectification. I accept that the error in this case is not within the narrower meaning of clerical error, as is reflected by the approach to the expression summarised by Blackburne J in Bell as representing the effect of the first instance authorities. However, for the reasons given in paras 75 82 above, I have concluded that, the expression can, and, in the context of section 20(1)(a) should, be given its wider meaning, which covers the mistake made in this case. For completeness, I should make two further points. First, in the course of argument, we were taken to parts of the Law Reform Committees 19th Report (Interpretation of Wills) Cmnd 5301 (1973). It seems clear that much of Part IV of the 1982 Act stems from the 1973 Report. In my view, however, the Report does not help, because, while it gives an example of a clerical error, it does not spell out the intended limits of the expression. Further, it seems that, in enacting Part IV of the 1982 Act, Parliament did not give effect to the recommendations of the Report in their entirety. Secondly, during our deliberations, we wondered what Scots law would make of the problem thrown up by this appeal. In that connection, it is instructive to read Lord Hodges judgment. As frequently happens, the law north and south of the border each appear to have something to learn from the other, and to involve slightly different ways of arriving at the same outcome. Conclusion I would therefore allow this appeal, and hold that the Will should be rectified so that it contains the typed parts of the will signed by the late Mrs Rawlings in place of the typed parts of the will signed by Mr Rawlings. I agree and confine myself to some observations on how Scots law LORD HODGE might have dealt with the problem if it were the governing law. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 introduced the remedy of rectification of legal documents into Scots law. The 1985 Act implemented the recommendations of the Scottish Law Commissions report on rectification of contractual and other documents (Scot Law Com no. 79), which was published in 1983 shortly after the introduction of the rectification of wills into English law by section 20 of the Administration of Justice Act 1982. Section 8(6) of the 1985 Act excludes from the scope of the statutory remedy any document of a testamentary nature. The reason for the exclusion was a postponement of a policy decision rather than a rejection of the policy of extending rectification to such documents. The Commission had concluded (report para 3.11) that a policy decision on the rectification of such documents should be made in the context of a review of the law of succession when problems and policies relating to the interpretation of wills had been resolved after due consultation. That work began in 1986 but has taken a long time to bear fruit. The Commissions consultation did not disclose good reasons for denying the remedy of rectification to testamentary documents. In 1990 the Commission recommended in its report on succession (Scot Law Com no. 124) that the remedy be extended to such documents. The Commission repeated that recommendation in its 2009 report on succession (Scot Law Com no.215) and set out a draft statutory provision in section 27 of the draft Bill appended to the report. It proposed to confine the remedy to the rectification of a will prepared by someone other than the testator because of the very great difficulties in obtaining evidence to satisfy the court of the need to rectify a home made will. Until 1985 the only remedy for defective expression which Scots law provided was the rather cumbersome device of partial reduction of the document and a declarator of the terms which were to be treated as having always had effect. This remedy was available for both multilateral and unilateral documents. I have not found any case in which the remedy was applied to a will; but the case law is sparse. As this court has not been addressed on the issue of Scots law, my views do not have the benefit of counsels researches, and must be treated accordingly. I see no reason in principle why the remedy of partial reduction and declarator should not be available to cure defective expression in a will. In Hudson v St John 1977 SC 255 Lord Maxwell used the remedy to correct errors in an irrevocable inter vivos deed of trust. A trust of that nature may have attributes similar to a will, and in particular beneficiaries who are not parties to the document. In Scots law the remedy of partial reduction and declarator is not confined to errors of expression caused by the person who prepared the document. In the leading Scottish case on reduction as a method of correcting defective expression, Anderson v Lambie 1954 SC (HL) 43, Lord Reid stated (at 59) that the court could remedy an error on the part of the professional who instructed the preparation of a document as well as an error by the person who prepared it. He thought that the phrase clerical error, which had been used in the case law, did not prevent the remedy from being available where a solicitor who had two old contracts gave his clerk the wrong one to copy as the style for a new contract. That is a circumstance not far removed from the facts in this appeal. In this case both the testators intention and the solicitors mistake are clear. I see no reason why in Scots law there would not be a remedy of partial reduction and declarator or, in principle, a rectification if the Scottish Law Commissions proposals are enacted. |
The Leasehold Reform Act 1967 is on its face a statute about houses, not commercial buildings. The buildings with which we are concerned were originally designed and used as houses, but at the relevant date were used entirely for commercial purposes, one for offices, the other (in the judges words) as a self catering hotel. In both cases the courts below felt constrained to hold that they were houses within the meaning of the 1967 Act, with the consequence that the lessees were entitled to enfranchise, that is, to acquire the freeholds compulsorily from their lessors on the terms fixed by the Act. In the Court of Appeal [2010] EWCA Civ 748; [2010] 1 WLR 2317 Lord Neuberger of Abbotsbury MR regretted this result. He saw it as the probably unintended consequence of amendments made by the Commonhold and Leasehold Reform Act 2002, removing the previous residence requirements. However, he felt bound to apply his view of the relevant provisions as they stood after those amendments, rather than to decide what the legislature would have said if it had fully appreciated the consequences (para 57). From the material we have been shown, he was clearly right to think that his interpretation did not reflect Parliaments intentions. The thinking behind the 2002 legislation is apparent from the preceding Draft Bill and Consultation Paper Commonhold and Leasehold Reform (Cm 4843), published by the Lord Chancellor in 2000. It included proposals for the introduction of an entirely new form of tenure, known as Commonhold, and for amendment of the existing provisions relating to leases of flats (under the Leasehold Reform, Housing and Urban Development Act 1993) and of houses (under the 1967 Act). The first paragraph of the Introduction leaves no doubt that its purpose was to address perceived flaws in the residential leasehold system (p 107), not in the leasehold system more generally. In relation to flats, the governments view was that the residence tests under the 1993 Act were too restrictive, for example, in excluding someone subletting a flat, or occupying a flat as a second home. The residence requirement would therefore be abolished; but, to restrict the scope for short term speculative gains, it would be replaced by a rule requiring the qualifying tenant to have held the lease for at least two years (pp 155 6). A similar approach was proposed for leases of houses under the 1967 Act: This would bring the residence test for houses in line with the proposals for flats. It would allow long leaseholders of second homes to benefit and would also enable leaseholders who lease houses through a company to enfranchise. Furthermore, as in the case of flats, it would restrict the scope for short term speculative gains (p 189). There is no evidence then or thereafter of any ministerial or parliamentary intention to extend the scope of the Act more generally, or in particular to confer statutory rights on lessees of buildings used for purely non residential purposes. Although the 1967 Act like the 1993 Act is in a sense expropriatory, in that it confers rights on lessees to acquire rights compulsorily from their lessors, this has been held not to give rise to any interpretative presumption in favour of the latter. As Millett LJ said of the 1993 Act: It would, in my opinion, be wrong to disregard the fact that, while the Act may to some extent be regarded as expropriatory of the landlord's interest, nevertheless it was passed for the benefit of tenants. It is the duty of the court to construe the 1993 Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which Parliament must have intended them to enjoy. (Cadogan v McGirk [1996] 4 All ER 643, 648) By the same token, the court should avoid as far as possible an interpretation which has the effect of conferring rights going beyond those which Parliament intended. Statutory definition Section 2(1) defines house in the following terms: 'house' includes any building designed or adapted for living in and reasonably so called, notwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes; and (a) where a building is divided horizontally, the flats or other units into which it is so divided are not separate 'houses', though the building as a whole may be; and (b) where a building is divided vertically the building as a whole is not a 'house' though any of the units into which it is divided may be. In the present cases, nothing turns directly on the qualifications introduced by the word notwithstanding (which I shall refer to as the proviso). We are concerned with the main part of the definition, which raises two separate but overlapping questions: (i) is the building one designed or adapted for living in? (ii) is it a house reasonably so called? Both questions remain live in Hosebay; in Lexgorge the first has been conceded in favour of the lessees. The two parts of the definition are in a sense belt and braces: complementary and overlapping, but both needing to be satisfied. The first looks to the identity or function of the building based on its physical characteristics. The second ties the definition to the primary meaning of house as a single residence, as opposed to say a hostel or a block of flats; but that in turn is qualified by the specific provision relating to houses divided horizontally. Both parts need to be read in the context of a statute which is about houses as places to live in, not about houses as pieces of architecture, or features in a street scene, or names in an address book. The facts The first case (Hosebay) concerns three properties, 29, 31, and 39 Rosary Gardens, South Kensington, London SW7. They were originally built as separate houses as part of a late Victorian terrace forming the west side of Rosary Gardens. The current leases of Nos 29 and 39 were granted in 1966 for terms expiring in December 2020, subject to covenants for their use as 16 high class self contained private residential flatlets. The current lease for No 31 was granted in 1971 for a term expiring in December 2030, subject to a covenant restricting its use to that of a single family residence or a high class furnished property for accommodating not more than 20 persons. It was common ground that the current use, which had begun some time before 1981, was not in accordance with the covenants. It was unclear from the evidence when the premises had been converted to their present layout. The judge (para 83) proceeded on the basis that the conversions may well have been carried out substantially before the current leases were granted in 1966 and 1971. Although there was no evidence as to the actual purpose of the conversions, the Master of the Rolls on the balance of probabilities inferred (principally from the lack of documentation in the hands of the landlords to indicate otherwise) that they had been for the uses described in the leases (para 37). Hosebay Ltd acquired all three leases in 1996. On 23 April 2007 it served notices on its landlords under section 8 of the 1967 Act to acquire the freeholds of the three properties. Judge Marshall QC found that the three properties were at the relevant date being used together to provide short term accommodation for tourists and other visitors to London, or what she described as a self catering hotel (paras 8 and 19). Each of the three properties had been fully adapted to provide individual rooms for letting out (para 9), with the exception of two rooms in No 31, one of which was used for office and reception purposes, and the other for storage. The great majority of the rooms could be described as rooms with self catering facilities. Each room had between one and four beds, furniture, and limited storage space, cooking facilities, and small wet rooms with shower, basin and WC. Fresh bed linen and room cleaning, but no other services, were provided to those staying in the rooms. On these facts, the judge concluded that each of the three properties was physically adapted for living in even though the current use was itself too transient to qualify as such. The Court of Appeal agreed. I quote the Master of the Rolls: 33. My primary reason for that conclusion is that, in order to determine whether premises are adapted for living in, one looks at the most recent works of adaptation, and assesses objectively, whether they resulted in the property being adapted for living in 36. In this case, I consider that the effect of the most recent works of conversion to the three properties, if they were works of adaptation, adapted those properties for living in. Ignoring one or two rooms, each room in the three properties is a self contained unit of accommodation, with its own basic small shower room/WC, and its own even smaller and more basic cooking facilities. As Moore Bick LJ pointed out in argument, the rooms are entirely appropriate for letting to students on three year degree courses, and, as Mr Johnson rightly accepted, if they had been, all the rooms, and therefore the three buildings, would have been used for living in. Even if, as Mr Johnson argued and I am prepared to assume without deciding, the current use of the three properties is not for living in, that certainly does not mean that, viewed objectively, the three properties were not adapted for living in. The judge and the Court of Appeal held also that the properties were houses reasonably so called, as the Master of the Rolls explained: externally, each of the three properties has the appearance of being a relatively large town house; internally, each of the three properties has been converted so that almost every room can be used as a self contained unit for one or more individuals, with cooking and toilet facilities. I find it hard to see how the judge could be faulted for concluding that, even if each of the three properties might be called something else as well, they could each reasonably be called a house. (para 38) The other case (Lexgorge) relates to 48 Queen Anne Street, in Marylebone, London W1. It was built in the early 18th century as a house comprising five floors including basement, in a terrace of substantial houses. It was occupied for that purpose for many years until 1888, when it began to be used for commercial purposes. Coming to more recent times, planning permission was granted in December 1949 for conversion of the second and third floors into a self contained maisonette, and there is some evidence that it was implemented. However, from about 1961, all four upper floors were used as offices, and they were so used when the notice was served under the Act on 4 March 2005. The whole building was still in office use in June 2005. However, by the time of the trial in October 2009, when the judge inspected the property, the upper two floors were in use for residential purposes. The office use of the lower floors continued. The current lease was granted in 1951 for a term of 110 years. The lease described the property as a messuage or residential and professional premises, and restricted its use (subject to landlords' consent) to self contained flats or maisonettes on the upper two floors, professional offices on the first and ground floors, and in the basement storage and lavatory in connection with other parts of the demised premises. In 1978, the lease was acquired by Lexgorge Ltd. At the time of the notice the office use of all floors had become established, and therefore lawful for planning purposes, although in breach of the lease as respects the upper floors. The building is listed as a building of special architectural or historic interest (grade 2); English Heritages records describe it as a Terraced House. In this case, as already noted, it is conceded by the lessors that at the material date the premises, although used for offices, were still at least in part designed or adapted for living in. It was held by the judge (Judge Dight) and by the Court of Appeal that it was a house reasonably so called, and therefore within the definition. The Master of the Rolls said: 53. If the upper two floors of the property had been empty, I have little doubt but that the property could reasonably have been called a house, bearing in mind its external character and appearance (a classic town house in London's West End), its internal character and appearance at least on the upper two floors (which were, as I understand it, substantially as constructed), the description of the property in the lease as messuage or residential or professional premises, and, to the extent that it is relevant, the terms of the lease (restricting the use of the upper two floors to residential). I find it hard to see why the fact that the upper two floors had been used (even for many years) as offices (in contravention of the terms of the lease) should wreak such a change that the property could no longer reasonably be called a house. The authorities The first relevant case under the Act was Lake v Bennett [1970] 1 QB 663. However, I find it helpful to start from an authority in a different statutory context, Lord Denning MRs judgment in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320. The case related to compulsory acquisition of two properties for the purpose of slum clearance under the Housing Acts. The level of compensation would vary significantly depending on whether the property was or was not a house. In the absence of a statutory definition of house, Lord Denning adopted the following formula: a building which is constructed or adapted for use as, or for the purposes of, a dwelling (p 1324). In Lake v Bennett he suggested that the draftsman of the 1967 Act definition had adopted these words, but added the limitation reasonably so called (p 670). Ashbridge itself concerned two adjoining buildings in the same terrace, which had been designated for compulsory purchase, the first (No 17) as an unfit house, the second (No 19) as a building other than a house. The buildings were very similar in appearance; both had been designed as shops with rear living rooms and living quarters above, but neither was in current use for living purposes. No 17, which had undergone no structural alterations, was held by the Minister to have retained its identity as a dwelling. No 19, by contrast, was held to have lost its identity as a dwelling, following structural alterations involving the extension of the shop into the rear living area (p 1325). The latter decision was described in the Court of Appeal as extraordinary (p 1327, per Harman LJ), but that did not undermine the validity of the decision in relation to No 17. Lord Dennings formula can be seen as his way of expressing the present identity (in the inspectors words), or perhaps function, of a building not currently in use, defined by reference to the purpose of its construction or subsequent adaptation. Lake v Bennett itself concerned a three storey house, the ground floor of which had been converted into a shop. There was no issue as to the first part of the definition, as it was clear that the building was at least in part adapted for use for living in. The Court of Appeal held that notwithstanding the commercial element, the building as a whole was a house reasonably so called and was therefore within the scope of the 1967 Act. The reasoning of Lake v Bennett was adopted and extended by the House of Lords in Tandon v Trustees of Spurgeons Homes [1982] AC 755, which remains the leading House of Lords authority on this part of the definition. Unfortunately the reasoning of the single majority speech of Lord Roskill, although carrying the unqualified support of Lord Scarman and Lord Bridge, is not without difficulty. Further, the case needs to be read in its factual context. As in Lake v Bennett, the main problem was to reconcile the statutory recognition (under the proviso) that the building need not be solely designed or adapted for living in, with the need for the building as a whole to be a house reasonably so called. This is not a problem in the present cases. At the end of his judgment Lord Roskill referred with approval to Lake v Bennett, which he welcomed as stating a principle and [confining] the question of fact to a narrow area , and from which he deduced the following three propositions of law : (1) as long as a building of mixed use can reasonably be called a house, it is within the statutory meaning of house, even though it may also reasonably be called something else; (2) it is a question of law whether it is reasonable to call a building a house; (3) if the building is designed or adapted for living in, by which, as is plain from section 1(1) of the Act of 1967, is meant designed or adapted for occupation as a residence, only exceptional circumstances, which I find it hard to envisage, would justify a judge in holding that it could not reasonably be called a house. They would have to be such that nobody could reasonably call the building a house. (p 767) Although expressed as propositions of law, they do not in my view offer much assistance as such, at least beyond the facts of the case. The first proposition was in terms directed to a building in mixed residential and commercial use. Such a building could plausibly be described either as a house with a shop below, or as a shop with a dwelling above. That was enough to show that it could reasonably be called a house. That proposition cannot in my view be applied more generally. The mere fact that a building may be described as a house for other purposes (for example, in the English Heritage list) is not enough to bring it within this part of the definition. The second proposition, that what is a house reasonably so called is a question of law, is not easy to extract from the judgments in Lake v Bennett. Lord Denning described the judges negative answer to that question as an inference from primary facts depending in part at least on the true interpretation of the words reasonably so called, and one with which the court could interfere if it was a conclusion to which the judge could not reasonably come ([1970] 1 QB 663, 671). Salmon LJ described it as partly a question of fact but also a question of law as to the true construction of the meaning of the word house in this Act. (p 672). Elsewhere Lord Roskill himself had accepted counsels submission that the definition of house was a mixed question of fact and law ([1982] AC 755, 765), but he saw it as one in which, in the interests of consistency, the question of fact should be confined within narrow limits: p 767. More modern authorities have leant against such conceptual debates (see, for example, Lord Hoffmann, in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929, paras 25 27). In any event, none of these formulations throws much light on how the question should be answered in any particular case. The third proposition is again in terms hard to extract from Lake v Bennett. Lord Denning described the case before them as a typical case, but thought that difficult issues might arise in other cases: [1970] 1 QB 663, 671. He did not suggest that, in such cases, an affirmative answer to the first question would lead to any presumption in respect of the second. The examples given in the judgments (pp 671, 672) of cases that would not satisfy the second test a block of flats, the Ritz Hotel or Rowton House (a working mens hostel) can hardly be described as exceptional. Rather than a free standing proposition of law, deduced from Lake v Bennett, this proposition seems more an expression of Lord Roskills own view as to the correct policy approach to a building of the kind before him, which was adapted at least in part for occupation as a residence. It may be that the real difference between the majority and the minority in Tandon came down to one of policy. Lord Wilberforce (in the minority) thought it clear that the building could not reasonably be called a house; it was rather a mixed unit consisting in part of a shop and in part of a dwelling, and as such was not within the policy of the Act: [1982] AC 755, 760. For Lord Roskill (in the majority) Parliament had made clear that such mixed units were not in principle to be excluded. He noted that such small shops combined with living accommodation were a familiar feature of towns and villages across the country (p 766). In this he echoed the view of Salmon LJ (Lake v Bennett [1970] 1 QB 663, 672), who thought that a tenant living above a shop in the circumstances of that case was obviously the sort of person to whom the legislature intended to give security of tenure. Such policy considerations do not assist the lessees in this case. For the reasons already given, policy if anything points the other way. Of more significance for present purposes is the relative lack of weight given by the majority to the appearance of the buildings as a factor in answering the second question. Lord Fraser of Tullybelton (in the minority) had regarded appearance as the main element in the character of a building: [1982] AC 755, 762. He attached particular weight to the photograph which showed a shop in a row of shops, in contrast with the converted house in Lake v Bennett; to him it was obvious from the photograph that the building could not reasonably be called a house (p 763). That, however, was not the approach of the majority. Lord Roskill had apparently accepted that in determining the character of the building for these purposes, physical appearance could be relevant, as also its history and the terms of the lease (p 766). However, those factors played no detectable part in the final decision. The determinative points were that the proportion of residential use, even if only 25%, was substantial (p 766), and that a tenant occupying such a building as his residence was within what was perceived to be the scope of the protection intended by Parliament (p 766). Those factors were enough to bring the case within the principle established by Lake v Bennett notwithstanding the differences from that case in relation to the original design and physical appearance of the respective buildings. The only other relevant authority at the highest level is the much more recent decision in Boss Holdings Ltd v Grosvenor West End Properties Ltd [2008] UKHL 5; [2008] 1 WLR 289. The House of Lords held that a building previously designed or adapted for living in remained a house, even though at the material time it was not only disused but in parts stripped out to the basic structural shell (para 24). In contrast to Tandon this case was concerned solely with the first question. It was not in dispute that if that question was answered in the affirmative the building qualified as a house reasonably so called. As will be seen I do not regard the case as determinative in either of the present appeals. However, some comment is desirable, in view of the change of view of Lord Neuberger on one aspect of his leading speech. He had proposed the following grammatical analysis of the relevant words of the statutory definition: 18. In my judgment, the words designed or adapted for living in, as a matter of ordinary English, require one first to consider the property as it was initially built: for what purpose was it originally designed? That is the natural meaning of the word designed, which is a past participle. One then goes on to consider whether work has subsequently been done to the property so that the original design has been changed: has it been adapted for another purpose, and if so what purpose? When asking either question, one is ultimately concerned to decide whether the purpose for which the property has been designed or adapted, was for living in. 19. The notion that the word designed in section 2(1) is concerned with the past is reinforced by the later words in the same section was or is [not] solely designed or adapted. The use of the past tense is striking in a section which contains a number of verbs only in the present tense. In my judgment, the expression is to be construed distributively: thus, the word was governs designed, and the word is governs adapted. The present tense is appropriate for adapted because, as Lord Scott of Foscote pointed out in argument, there could have been several successive adaptations, and it is only the most recent which is relevant. The word was is in any event difficult to reconcile with Grosvenor's case (as accepted by the judge and the Court of Appeal), as it would be irrelevant whether the property could have been fit for residential occupation at any time in the past. Later in his speech, he considered the implications of this analysis for other cases, including how the definition should apply to a property which had been designed for living in, but had subsequently been adapted to another use. As a matter of literal language, he thought such a property would be within the definition. If, as appeared, designed and adapted were alternative qualifying requirements, a building which had been designed as a house would remain within the definition in spite of its adaptation to other uses. Such a conclusion, he accepted, might seem surprising, but it could have been more readily understandable when taken with the residence requirement in the original Act (para 26). It was on this latter point that, as Master of the Rolls in the present case, he has had second thoughts. It had been put directly in issue by the tenants in Hosebay, who argued (as they have in this court) that because the buildings were originally designed for living in, that was sufficient to bring them within the definition, regardless of any subsequent adaptation to other uses. On reconsideration, Lord Neuberger felt bound to reject the argument. Although the literalist meaning of designed or adapted was that either alternative would do, that was not by any means what the words naturally convey. His earlier thoughts had been based on an over literalist approach to the language used by the legislature: [2010] 1 WLR 2317, para 31. In his revised view, a building originally designed for living in, but adapted for some other purpose, was not designed or adapted for living in, unless subsequently re adapted for that purpose (para 40). I have no doubt, with respect, that Lord Neubergers second thoughts on this point were correct. Context and common sense argue strongly against a definition turning principally on historic design, if that has long since been superseded by adaptation to some other use. However, that approach may also have implications for the earlier part of his grammatical analysis in Boss Holdings (see para 31 above). The expression was or is designed or adapted is, as he says, to be read distributively: that is, as equivalent to was designed or is adapted. While that may support the view that the word designed is directed to the past, the same cannot be said of the expression is adapted. Nor (pace Lord Scott) is that grammatically the same as was most recently adapted. Logically that expression can only be taken as directed to the present state of the building. Once it is accepted that a literalist approach to the definition is inappropriate, I find myself drawn back to a reading which accords more closely to what I have suggested was in Lord Dennings mind in Ashbridge [1965] 1 WLR 1320, that is a simple way of defining the present identity or function of a building as a house, by reference to its current physical character, whether derived from its original design or from subsequent adaptation. Furthermore, I would not give any special weight in that context to the word adapted. In ordinary language it means no more than made suitable. It is true that the word is applied to the building, rather than its contents, so that a mere change of furniture is not enough. However, the word does not imply any particular degree of structural change. Where a building is in active and settled use for a particular purpose, the likelihood is that it has undergone at least some physical adaptation to make it suitable for that purpose. That in most cases can be taken as the use for which it is currently adapted, and in most cases it will be unnecessary to look further. That interpretation does not of course call into question the actual decision in Boss Holdings. The basis of the decision, as I understand it, was that the upper floors, which had been designed or last adapted for residential purposes, and had not been put to any other use, had not lost their identity as such, merely because at the material time they were disused and dilapidated. It was enough that the building was partially adapted for living in, and it was unnecessary to look beyond that: see [2008] 1 WLR 289, para 25. That reasoning cannot be extended to a building in which the residential use has not merely ceased, but has been wholly replaced by a new, non residential use. Finally I must refer to Prospect Estates Ltd v Grosvenor Estate Belgravia [2008] EWCA Civ 1281; [2009] 1 WLR 1313. The Court of Appeal held that a building which had been designed and built as a house, but which for many years had been used almost wholly as offices, was not a house within the definition. As in Tandon the case turned ultimately only on the second question, whether the building was a house reasonably so called. The facts were much closer to those of the present cases. The leading judgment was given by Mummery LJ. The building had been built in the 1850s as a house for residential occupation, but since 1958 it had been used substantially (88.5% of the floorspace) for office purposes. Under the most recent lease granted in 1972 the use was restricted to offices on all floors, except the top floor which was limited to use as a flat for a director or senior employee of a business occupying the offices below. It was accepted by the lessors that there had been insufficient works of adaptation to conclude that it had ceased to be designed for living in (Mummery LJ, para 9), but they challenged the judges conclusion that it was a house reasonably so called. That had been based, as the overwhelmingly significant factor, on the fact that the building was designed for living in and that its structure and appearance have (largely) remained unchanged (para 8). Mummery LJ held that the judge had given too much weight to those factors, and insufficient weight to the prescriptive terms of the lease, the actual uses of the building and the relative proportions of the mixed use at the relevant date (para 20). Goldring LJ, agreeing, found it impossible to accept that a building can reasonably be called a house although no one can lawfully live in virtually 90% of it (para 23). In the present case, the Master of the Rolls ([2010] 1 WLR 2317, para 43) questioned the weight placed on that case by counsel for the present appellants in Hosebay: There can be no doubt that the external and internal appearance of the properties are highly relevant factors on this issue, and it is clear from the Prospect Estates case [2009] 1 WLR 1313 that, in so far as user is significant, the permitted use under the lease is a relevant factor. In those circumstances, even assuming that actual use is also relevant, I find it hard to see how it can be sensibly said that each of the three properties cannot reasonably [be] called a house. To hold otherwise would involve concluding that the actual user, even where it involved people occupying virtually all the rooms in the building for relaxing, sleeping, cooking and washing, albeit on a short term basis, trumped all the other factors to the extent of disabling the building from being able to be a house . reasonably so called. He also doubted the decisive weight placed by Goldring LJ on the terms of the lease. He thought the thrust of the judgments in Lake v Bennett [1970] 1 QB 663 and the opinion of Lord Roskill in Tandon [1982] AC 755 was that the question was to be determined essentially by reference to [the buildings] external and internal physical character and appearance (para 46). He was not convinced that it would occur to most people, asked whether a building could reasonably be called a house, to ask about the permitted use under any lease, or that they would be influenced if told what the permitted use was (para 47). He suggested that the ratio of Prospect Estates should be treated as being limited to a case where residential use is either prohibited entirely, or restricted to a very small part of the building, and the actual use accords with that (para 49). As will be apparent from my earlier analysis of Tandon, I cannot agree that Lord Roskill regarded external and internal physical character and appearance as the determining factors. I agree with the Master of the Rolls that the terms of the lease as such should not have been treated as the major factor. However, in so far as Mummery LJ treated the use of the building, rather than its physical appearance, as determinative, his approach was in my view entirely consistent with the reasoning of the majority in Tandon as I have explained it. I consider that Prospect Estates [2009] 1 WLR 1313 was rightly decided, and that the ratio need not be limited in the way the Master of the Rolls proposed. The present cases which I can deal with briefly. I would allow the appeal in Hosebay on the grounds that a building which is wholly used as a self catering hotel is not a house reasonably so called within the meaning of this statute. As appears from para 38 of their judgment (quoted above), the contrary view of the Court of Appeal turned on two main points: (i) the external appearance of each property as a town house; (ii) the internal conversion to self contained units, with cooking and toilet facilities. I find it difficult with respect to see the relevance of the second point to this part of the definition, which only arises in relation to a building which is in some sense adapted for living in under the first part. It is not suggested that the building is divided in a way which comes within the proviso. The first point, for the reasons given in my analysis of Tandon, should not have been given determinative weight. The fact that the buildings might look like houses, and might be referred to as houses for some purposes, is not in my view sufficient to displace the fact that their use was entirely commercial. I turn to consider the application of these principles to the present appeals, In these circumstances I find it unnecessary to reach a concluded view on the application of the first part of the definition in this appeal. I agree with the appellants (and the judge) that living in means something more settled than staying in; and that the present use does not qualify as such. There is more room for debate, however, whether the premises are to be taken as adapted solely for such use, to the exclusion of longer term occupation. The Court of Appeal, as I understand it, were influenced not only by the consideration that the rooms might be used (for example) for longer term student occupation, but also that their current layout probably dates from earlier adaptation to the uses described in the leases, which could well be regarded as sufficiently settled to qualify as living in. One of the values of the two part definition is that it becomes unnecessary to resolve such narrow factual issues. In Lexgorge I would also allow the appeal on similar grounds. A building wholly used for offices, whatever its original design or current appearance, is not a house reasonably so called. The fact that it was designed as a house, and is still described as a house for many purposes, including in architectural histories, is beside the point. In this case no issue arises under the first part of the definition. It is unnecessary to consider whether the concession in that respect was rightly made, although it is possible that it was based on a wider interpretation of Boss Holdings [2008] 1 WLR 289 than my own analysis would have supported. In summary, I would allow both appeals, and hold that neither building was on the relevant date a house within the meaning of section 2 of the 1967 Act. |
These appeals raise a number of points, some technical, others fundamental, relating to the requirements of and consequences of non compliance with the short and inflexible time limits introduced by the Extradition Act 2003. Parts 1 and 2 of that Act deal with extradition to respectively category 1 territories in practice other member states of the European Union party to the Council Framework Decision of 13 June 2002 (2002/584/JHA) introducing the European Arrest Warrant, to which Part 1 gives effect and category 2 territories in relation to which a different and more traditional scheme applies. Each of the schemes contained in Part 1 and 2 leads to the person whose extradition is requested being brought before a judge. The judge then decides, by considering a series of questions laid down in the Act, whether or not, in the case of Part 1, to order extradition or, in the case of Part 2, to send the case to the Secretary of State for his decision whether to extradite. Depending upon the judges decision, there are rights of appeal to the High Court on law and fact. These are given under Part 1 to the individual (section 26) or to the authority issuing the warrant (section 28) and under Part 2 to the individual (section 103) or the authority acting on behalf of the category 2 territory seeking extradition (section 105). Rights of appeal also exist under Part 2, if the Secretary of State orders extradition (sections 108(1) and 110(1)). These rights of appeal must all be exercised within short time limits, described as the permitted periods. Thus, section 26(4) provides in the case of an order for extradition to a Part 1 territory that: Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made. Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven day permitted period starting with the day on which the order for the persons discharge is made. Sections 103, 105, 108 and 110 provide for appeals from a judges order sending a case to the Secretary of State for his decision whether a person is to be extradited and from any order subsequently made by the Secretary of State for extradition. In each case the permitted period within which notice of an appeal must be given in accordance with rules of court is 14 days starting with the day on which the Secretary of State informs the person affected or the person acting on behalf of the category 2 territory (as the case may be) of the order. In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276, the House of Lords held by a majority (Lord Rodger dissenting) that the requirement in sections 26(4) and 103(9) that notice of an appeal be given within the relevant permitted period meant that it had both to be filed in the High Court and served on all respondents to the appeal within such period. A similar requirement must necessarily exist under sections 28, 105, 108 and 110. The Supreme Court was asked on the present appeal to revisit and reverse that decision. The House in Mucelli distinguished between the requirement to give notice of an appeal within the permitted period and the requirement that such notice should be given in accordance with the rules. Failure to comply with the mandatory requirement (interpreted in Mucelli as involving both filing and service) is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can, on the other hand, be cured by the court in the exercise of its discretion under (in England) CPR 3.9 and 3.10. The result is similar to that achieved in Pollard v The Queen [1995] 1 WLR 1591, where the Privy Council held that a notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice. The House in Mucelli further held that the rules of court were incapable of cutting down the statutory permitted period; thus, CPR 3.6 providing (at the relevant time) that any document served after 16.00 should be deemed to be served on the next day was incapable of rendering out of time a notice of appeal served by Mr Moulai after 16.00 on the seventh and last day of the permitted period. Subsequent case law in the High Court shows the distinction between requirements of the statute and of the rules to have proved contentious. One line of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a wrong date of arrest (the effect of such endorsement being that, on the face of the notice, the 40 day period allowed for the court to begin to hear the substance of the appeal would have expired a month early). In a series of further cases, the court accepted that service of an unsealed notice of appeal was, at most, a procedural error: Pawel Sciezka v Court in Sad Okregowy, Poland [2009] EWHC 2259 (Admin), Dunne v High Court Dublin [2009] EWHC 2003 (Admin), Arunthavaraga v Administrative Court Office [2009] EWHC 18921 (Admin) and R (Kane) v Trial Court No 5 Marbella, Spain [2011] EWHC 824 (Admin); [2012] 1 WLR 375. In Kaminski v Judicial Authority of Poland [2010] EWHC 2772 (Admin) the court refused to strike out appeals where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the court also thought that the rules made no provision for grounds). Other courts have taken a more stringent line. In Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin); [2012] 1 WLR 363, service of an unsealed copy notice of appeal was held insufficient to satisfy the statutory requirement under section 28 a decision which meant that it was the Polish authority that was out of time to appeal. In R (Bergman) v District Court in Kladno, Czech Republich [2011] EWHC 267 (Admin), a notice of appeal was prepared by an unrepresented defendant who had been remanded in custody, and was then faxed in draft to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or indeed received back by the defendant, until much later. Following Walerianczyk, it was held that there could be no appeal, although Irwin J, at para 10, recorded his "concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff". In Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), a clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellants notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal. There was held to be no valid appeal. Sullivan LJ observed (para 18) that: this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear. In the cases of Lukaszewski, Pomiechowski and Rozanski [2011] EWHC 2060 (Admin); [2012] 1 WLR 391, now before the Supreme Court, each of the appellants is a Polish citizen who is the subject of a European Arrest Warrant issued by the Polish court on the basis that he is wanted in order to serve an existing sentence, and, in the case of Mr Lukaszewski, that he is also wanted to stand trial on ten charges of fraud. The appellants were arrested and brought before the City of Westminster Magistrates Court, where their extradition was ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Mr Lukaszewski and Mr Rozanski had each only been arrested on the day before such order. Mr Pomiechowski was also brought before the court on the day after his arrest, but his case was twice adjourned and he was remanded in custody until 2nd March 2011. He was then refused a further adjournment, and his extradition was ordered. Westminster Magistrates Court is the dedicated court for extradition proceedings, with three of its ten court rooms apparently being devoted to that purpose. It is a busy court. Article 11(2) of the Framework Decision stipulates that a person arrested for the purpose of the execution of a European Arrest Warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. At the City of Westminster Magistrates Court, such legal assistance is provided by duty solicitors before though not, it appears, after an extradition order is made by a magistrate. On Mr Lukaszewskis (untested) account, he was able to speak to the duty solicitor only briefly for two or three minutes through the glass of the dock immediately before the hearing with the security guard by him, and was not aware that the matter would proceed straight to a decision. Mr Pomiechowski was, in contrast, provided after his first appearance with a solicitor, and wished to oppose extradition on the grounds of delay, but on his account the solicitor had not produced a skeleton on this point by the 2nd March 2011, when a further adjournment was refused. In the event, none of these three appellants argued any substantive points before the magistrate in opposition to extradition. It is not difficult to see how, under such circumstances, the statutory right of appeal might prove relevant. Having regard to the dates on which their extradition was ordered, the permitted periods for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski to give notices of an appeal expired at midnight on respectively 3rd February, 8th March and 10th March 2011. Each appellant was remanded in custody (Mr Rozanski because he was unable to meet a condition of bail that he lodge security of 1,500), and taken to HMP Wandsworth. All three had been made aware, by the magistrate and/or the relevant duty solicitor or legal representative, at least in general terms of the permitted period of 7 days for appealing. Each had at this point no legal assistance, but each was assisted by a prison officer working in the prisons Legal Services Department to complete a Form N161 notice of appeal. Officers working in the prison legal services department have no legal background, but have completed a three day training course, which does not include extradition training. They seek to help unrepresented prisoners and to facilitate their appeals against extradition. For completeness, I record that Mr Lukaszewski sought to raise issues relating to his mental health, put later as involving a risk of suicide and as entitling him to protection from extradition under sections 25 and 21 of the 2003 Act. Mr Pomiechowskis grounds are not before the court, but appear to have invoked the delay elapsed since he left Poland in 2000. Mr Rozanski invoked compassionate grounds and inhuman conditions that he said that he would face in a Polish prison. However, no point arises or has been raised at this stage on the contents or merits of these appellants notices of appeal. The points before the Supreme Court are points of principle, which affect the admissibility of appeals, however good or bad. The legal services department faxed the notices of appeals to the Administrative Court for filing and stamping. The Administrative Court faxed a copy of the sealed front page back to the legal services department. The legal services department then faxed to the Crown Prosecution Service (as the legal representatives of the judicial authority of the state requesting surrender) a copy of the sealed front page together with a cover sheet. In the case of each of these three appellants all this occurred within the seven day permitted period. In the case of Mr Lukaszewski, the cover sheet faxed on 2nd February 2011 bore the words Sealed copy and his name with the explanation extradition appeal, and in the case of Mr Pomiechowski the cover sheet faxed on 8th March 2011 identified the copy as sealed and said see attached front page of Extradition paperwork for Mr Pomiechowski. Objection was not at once taken to the service only of a sealed front page. But, once taken, it was accepted by the High Court. It was also only after the course of events recounted in the previous paragraphs that the solicitors now acting for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski first became involved. In the cases of Lukaszewski and Pomiechowski, [2012] 1 WLR 391, para 20, Laws LJ and Kenneth Parker J held on 15th June 2011 that, in order [to] be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminksi v Judicial Authority of Poland [2010] EWHC 2772, set out at least the gist of the basis on which the appeal is sought to be presented. Laws LJ reasoned that: So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests. The case of Rozanski came on later, on 17th November 2011, before Moore Bick LJ who followed the decision in Lukaszewski and Pomiechowski. The fourth appellant before the court is Mr Halligen, a British citizen whose extradition is sought to the United States of America under Part 2 of the 2003 Act to face allegations of wire fraud and money laundering. He was arrested and brought before the City of Westminster Magistrates Court which on 4th November 2010 ordered that the case be sent to the Secretary of State for her to decide whether Mr Halligen should be extradited, and remanded Mr Halligen in custody. Mr Halligens extradition was ordered by the Secretary of State under section 93 on 22nd December 2010. The order and a letter setting out the Secretary of States reasons were sent not only by post, but also by fax (timed at either 15.48 or 16.48) to Mr Halligens solicitors on the same day. The Secretary of States letter addressed an objection which Mr Halligen had raised with reference to alleged national security grounds (see section 208 of the 2003 Act). It also informed Mr Halligen of his right under section 108 to give notice of appeal within 14 days to the High Court, pointing out explicitly that the giving of such notice requires both filing and service of the appellants notice within such 14 days and that under the rules any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. Mr Halligen had solicitors. Evidently, they were quick to prepare grounds of appeal, since those attached to the notice of appeal are dated 23rd December 2010. The notice of appeal (by which he sought to pursue his alleged national security points by reference to the Secretary of States failure to exercise her powers under section 208 of the 2003 Act) was filed and stamped on prescribed form N161 on 29th December 2010. This was well within the fourteen day permitted period. If one takes 22nd December 2010 as the date on which the Secretary of State informed Mr Halligen of his decision, that period expired at midnight on 4th January 2011. Also on 29th December 2010, Mr Halligen himself wrote from prison by fax to the Home Office, asking them to accept this letter as notice & service of my intent to appeal that decision, and adding that My solicitors have been duly instructed and this letter is only necessitated by the imposed due date of 4th January 2011 and my inability to make contact with them given the restrictions imposed by HMP Wandsworth. His apparent concern was justified, since his solicitors let him down. It was only on 5th January 2011 that they sent the notice of appeal to the Crown Prosecution Service by fax and to the Home Office by post, reaching the latter on 6th January 2011. On 25th February 2011 the Treasury Solicitor wrote stating that there would be an application to have the appeal dismissed accordingly. In the ensuing High Court proceedings and before the Supreme Court, Mr Halligen has been represented by different solicitors to those to whom reference has been made in this paragraph. The High Court on 19th April 2011 accepted it had no jurisdiction to hear Mr Halligens appeal. Applying Mucelli Stadlen J, giving a judgment with which Laws LJ agreed, rejected a submission that the court had power to dispense with service. The High Court rejected a submission that Mr Halligens letter dated 29th December 2010 constituted or purported to constitute a notice of appeal to the Secretary of State. It rejected a submission that, assuming that the fax of 22nd December 2010 was sent at 16.48 (rather than 15.48), the Secretary of State should be treated as having informed Mr Halligen of her decision only on 23rd December 2010, with the result that the fax sent to the Crown Prosecution Service on 5th January 2011 would have been in time. This submission was advanced on the basis that it was only open to the Secretary of State to inform someone of an extradition decision within normal working hours, which could in turn be regarded as ending at 16.30, by analogy with CPR 6.26, governing documents to be served in accordance with the CPR or any Practice Direction. Finally, it rejected more general submissions that the court should under section 3 of the Human Rights Act 1998 read the mandatory requirements of section 108(4) of the 2003 Act as subject to an implied qualification and/or to the power of relief contained in CPR 3.10, in order to cater for the large number of public holidays that occurred during the relevant 14 day period and/or to avoid the loss of the right of appeal which would otherwise follow from Mr Halligens solicitors failings. Nevertheless Stadlen J commented (para 31): It would seem to offend basic principles of fairness that a person served with a notice of extradition should be deprived of a statutory right of appeal through no fault of his own. The first question is whether the Supreme Court should apply or decline to follow the Houses decision in Mucelli. Lord Rodgers dissenting approach in that case was that all that the statute required was filing, and not service, within the statutory period. I understand the attraction of preferring this dissenting approach, in so far as to do so would enable all the current hard cases to be resolved quite easily in the appellants favour. That would not itself be a good reason for adopting such an approach. It would also not resolve other hard cases, for example those which could well arise if a negligent solicitor failed to file notice of appeal with the court within the permitted period, or if a prison riot or a defendants collapse and illness following receipt of information about an extradition decision prevented him giving any instructions to lodge notice of appeal (see in this connection para 70 of Lord Neubergers speech in Mucelli). Further, it would not address the very real considerations which led the majority in Mucelli to their decision. The structure of the relevant sections, with the distinctions drawn between appealing, or bringing an appeal, to the High Court and giving notice of an appeal within the relevant permitted periods, is itself difficult to reconcile with any conclusion that some form of notice to the respondents is not required (a point to which Lord Neuberger referred at para 65). I would not therefore depart from Mucelli in so far as it requires not merely filing of an appeal, but also some form of notice of an appeal being given to the respondents, both within the permitted period. The question remains what form of notice of an appeal is required. In Mucelli the argument and majority judgments proceeded on the basis that what was required was service of the notice of appeal. It was however recognised, and was one plank of Lord Rodgers dissent, that in Scotland the requirement is that a note of appeal should be served (necessarily in draft) before lodging with the court (Mucelli, para 19). Mucelli concerned the question whether the statute (as opposed to the rules) required notice of an appeal to be given to all respondents within the permitted period. The House spoke of a statutory requirement of service. But the question what sort of notice was required by the statute (as opposed to the rules) was not the focus of decision. The statute requires notice of an appeal to be given in accordance with rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question what constitutes giving notice of an appeal to the respondents which, if not in accordance with the rules, nonetheless satisfies the statutory requirement and is capable of being cured. In my view, a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal. This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the courts permission to cure the position under the rules. However, it follows from the foregoing that I cannot agree with Laws LJs reasoning in the cases of Lukaszewski and Pomiechowski. To have any prospect of success an appeal must at some point be supported by grounds. Rules may provide that such grounds must be stated or summarised in the appeal notice, and do in fact do so: CPR 52.4, read with note 52.4.4, prescribed form N161 section 6 and Practice Direction Appeal, para 3.2 at 52PD.5. Non constat however that a purported notice of appeal is a nullity unless accompanied from the outset by grounds. If, contrary to rules of court, it is not, that is an irregularity, but one which can in an appropriate case be cured under CPR 3.9 and 3.10. This is the position in principle. As a matter of practice also, there is no attraction in a conclusion whereby a notice without any grounds would be a nullity incapable of grounding any appeal, whereas a notice with palpably inadequate grounds would be merely irregular and capable of cure by amendment. The front page of the notices of appeal returned by the court and served by fax in the cases of Lukaszewski, Pomiechowski and Rozanski showed the relevant High Court references and stamps with the dates of filing as well as the names and addresses of the appellants and the respondent Polish court. The subsequent pages which were not returned or served identified matters such as the decision appealed (though in current extradition practice this would be a decision of the Westminster Magistrates Court), its date, the grounds and a statement of belief. The irregularity involved in their absence was capable of cure, and on the present facts certainly merited this. The Crown Prosecution Service can have had no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison Legal Services Department should lead to these appellants losing any right of appeal. I would therefore allow the appeals in all three Polish cases, and remit the appeals against the relevant extradition decisions to the High Court to be heard there. The position in Halligen is more problematic. Again his notice of appeal was filed with the court in time, but notice was required to both the Secretary of State and the Crown Prosecution Service. Taking the Secretary of State first, Mr Halligen has to rely on his letter dated 29th December 2010, which he asked the Home Office Extraditions Section to accept as notice & service of my intent to appeal. In terms of the rules, this was a highly irregular notice of any appeal, and, although it was dated the same date as his solicitors in fact filed notice of appeal with the court on his behalf, it was framed as notice of my intent to appeal, rather than as notice of an actual appeal. Nonetheless, the statute is capable of embracing the Scottish practice, whereby a draft note of an appeal is served before being lodged with the court. It follows that notice of an intent to appeal must be within the statutory language. I would regard Mr Halligens letter as notice to the Secretary of State of an appeal within the statute, albeit that the letter was highly irregular in terms of the rules. Provided it counts as a notice within the statute, the court is able to cure the irregularity if it thinks fit. The circumstances again militate strongly in favour of doing this. However, Mr Halligen faces the further difficulty that he has to show that notice of an appeal was given to the Crown Prosecution Service. The first submission made on his behalf in this connection is that the Secretary of State informed him on 23rd rather than 22nd December 2010. Like the High Court, and for the same reasons, I am unable to accept this submission. Making the assumption in Mr Halligens favour, in the absence of any evidence either way, that the relevant fax was timed at 16.48 rather than 15.48 on 22nd December 2010, there is no basis for applying, directly or by analogy, CPR 6.26 which only governs documents to be served in accordance with the CPR or any Practice Direction. I add that, even if it were relevant (which it is not in my view) to consider whether the notice was transmitted at an hour when it would be expected to come to the attention of someone responsible in the receiving solicitors firm, there would be no basis for treating 16.48 as not being such an hour. Indeed, as far as anyone knows, the fax was immediately read and addressed, and some support for this may be found in the dating of the grounds in the notice of appeal on the next day (23rd December 2010). It was also faintly submitted that the fourteen day period should be extended by reference to the large number of public holidays occurring during it. But, contrary to the situation considered by Lord Neuberger in Mucelli at paras 83 84, the last day of the fourteen day period was not a public holiday. Lord Neubergers approach allows for the human propensity to think about things at the last moment, but I do not think that it should be extended to situations where the last moment is a business day on which the intended appellant could have filed and served a notice of appeal. It follows that no notice of an appeal was given to the Crown Prosecution Service within the permitted period, and Mr Halligens appeal is on its face impermissible as against both respondents. It is therefore necessary to consider whether the apparently inflexible time limits for appeals in the 2003 Act are subject to any qualification or exception. The appellants in the cases of Lukaszewski, Pomiechowski and Rozanski have in particular sought to rely on article 5(4) of the Human Rights Convention, read with section 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read the relevant sections in a way which is compatible with the Convention. Article 5(4) reads that Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The appellants submit that, in so far as the 2003 Act provides rights of appeal, such rights cannot consistently with article 5(4) be made subject to limitations which restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired and that any such restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, para 59. Tolstoy was a case concerning appeals in a context to which Article 6(1) applied, but the appellants in invoking article 5(4) rely by analogy upon the case law under article 6(1). The difficulty which these appellants face in relying upon article 5(4) is that their grievance relates to the extradition decision, rather than the fact, incidental to that decision, that they were remanded in custody pending extradition. In MT (Algeria) v Secretary of State for Home Department [2009] UKHL 10; [2010] 2 AC 110, the House was concerned with challenges to deportation decisions upheld in partly closed proceedings before the Special Immigration Appeals Tribunal (SIAC). The appellants were by reason of such decisions detained with a view to deportation, and submitted on that basis that the proceedings before SIAC were subject to article 5(4). The House did not accept the submission. Lord Phillips noted that the European Court of Human Rights had held in Chahal v United Kingdom (1996) 23 EHRR 413 that the lawfulness of the detention of a person with a view to deportation did not depend upon whether the underlying decision to deport could be justified, and that the appellants had not made an independent challenge of [sic] his detention as opposed to the decision to deport him (paras 89 90). Lord Hoffmann noted, at para 173, that the European court in Chahal had decided that an alien who was detained pending deportation was entitled by virtue of article 5(4) to a substantial measure of procedural justice in proceedings to determine the lawfulness of his detention (paragraph 131) but not to a judicial tribunal to review whether the underlying decision to expel could be justified under national or Convention law (paragraph 128). Lord Hope and Lord Brown and I all expressed our agreement with these parts of Lord Phillips and Lord Hoffmanns speeches (paras 226, 252 and 262). In Chahal, para 128, the European Court in fact said this: 128. The Court refers again to the requirements of Article 5 para. 1 (article 5 1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (article 5 4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law. The present appellants suggest that the conclusion and reasoning in MT (Algeria) requires reconsideration in the light of other authority in which article 5(4) has been relied upon as indicating that a court must have jurisdiction to consider whether an extradition decision involves an abuse of process. In R (Kashamu) v Governor of Brixton Prison [2002] QB 887, the Divisional Court (Rose LJ and Pitchford J) was faced with a series of pre Human Rights Act decisions at the highest level: Atkinson v United States of America [1971] AC 197, R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64 and In re Schmidt [1995] 1 AC 339. These cases had held that, despite the development in other fields of a general power on the part of a court to intervene on the grounds of abuse of process, any challenge on such grounds to the lawfulness of a decision ordering a persons extradition and detention with a view to extradition was a matter for the Secretary of State rather than the courts: the courts could become involved at most only on a subsequent application for judicial review of the Secretary of States decision. In Kashamu the Divisional Court relied upon section 6(1) of the Human Rights Act 1998 and upon article 5(4) to hold that such decisions could no longer be applied, and that it was, under schedule 1 to the Extradition Act 1989, incumbent on the district judge to consider whether there had been abuse of process rendering the detention unlawful under article 5(4), rather than to leave this issue for a minister to consider. The abuse of process alleged is only briefly outlined in relation to one of the three persons concerned in Kashamu. In relation to him it consisted of a prior arrest, conceded to have been irregular due to non disclosure (para 11). It seems clear that the abuse asserted would have affected not only any detention pending extradition but also, more fundamentally, any possibility of extradition. Under para 6(1) of Schedule 1 to the Extradition Act 1989, the district judge in Kashamu had had the same powers, as near as may be, . as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales. On a summary trial, those powers would have included considering and applying article 5(4) in relation to any issue whether detention was justified. In these circumstances, I am not surprised that the Divisional Court held that the district judge had the power to investigate the possibility of abuse, which earlier authority had confined to the High Court by way of judicial review. The decision in Kashamu was followed and approved by the Privy Council in Fuller v Attorney General of Belize [2011] UKPC 23. There was in Fuller no equivalent provision to para 6(1) to Schedule 1 to the Extradition Act 1989, and the Board simply treated article 5(4) and its Belizean analogue, section 5(2)(d) of the Constitution, as applicable to detention for the purpose of extradition. As the Board made clear the abuse alleged went, in that case also, to the extradition as much as to any prior detention: paras 5 and 53 54. Indeed, Mr Fuller had been released on bail, although it is established for the purposes of a challenge to extradition under domestic law that an applicant for habeas corpus is to be treated as effectively in custody, even if released on bail: R v Secretary of State for the Home Department, Ex p Launder (No 2) [1998] QB 994, 1000G 1001G and 1011G H. Where detention and the extradition proceedings as a whole stand and fall together, according to whether or not they involve an abuse of process, then Fuller suggests that article 5(4) may be an effective means by which a root and branch challenge to extradition may be pursued. The decision in MT (Algeria) was not however cited in Fuller, and both Kashamu and Fuller were concerned with a question whether the previous restriction on an extradition courts ordinary power to restrain proceedings conducted in abuse of process should continue to be recognised. It is unsurprising that the courts should conclude that this limitation was no longer appropriate. There is no suggestion of any abuse of process at the root of the present extradition proceedings. The present appeals concern the single question whether proceedings to challenge an extradition decision are subject to the procedural guarantee contained in article 5(4). Proceedings to challenge an extradition decision are capable of raising a whole range of issues which have nothing to do with abuse of process or, indeed, with the question whether the person concerned is actually detained in the sense clearly envisaged in article 5(4). For example, they may raise questions whether the alleged offence is an extradition offence (section 10), whether extradition is barred by the rule against double jeopardy, extraneous considerations, the passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom or earlier transfer to the International Criminal Court (sections 11 to 19A) and whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21). The reasoning in Kashamu and Fuller does not suggest, or justify a conclusion, that all such questions engage the procedural guarantee contained in article 5(4). This is so whether the person concerned is in custody or whether, even if he is not, he is to be treated as if he were for the domestic law purposes of a challenge to the proceedings by writ of habeas corpus. I do not therefore consider that either Kashamu or Fuller affects the careful distinction drawn by the European Court of Human Rights in Chahal between challenges to detention and to the underlying decision to remove an alien from the jurisdiction. The same careful distinction was followed in MT (Algeria), which in my view governs the present situation of a challenge made essentially to an extradition decision. I would therefore hold that article 5(4) did not apply and that the present appellants were not entitled to a judicial decision under article 5(4). Article 5(4) is not however the only potential string in the appellants bow. Mr Halligen also invokes article 6(1). The respondent, the Secretary of State, in reply submits that it is clear that article 6(1) has no application to decisions to expel or extradite. She cites a number of decisions of the European Court. H. v Spain (Application no. 10227/82) concerned an American citizen whose extradition from Spain was sought by the United States and who complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional. The Commission held the complaint inadmissible on the ground that extradition proceedings do not involve the determination of a criminal charge within article 6(1), because in this context the word determination involves the full process of the examination of an individuals guilt or innocence of an offence. E.G.M. v Luxembourg (Application No 24015/94) concerned a Colombian national whose extradition from Luxembourg was sought by the United States. He complained that the extradition proceedings in Luxembourg violated the principle ne bis in idem and his rights of defence. The Commission held that the former principle was not guaranteed by the Convention, in the context of different criminal proceedings in different states, and that the rights and freedoms recognised in the Convention do not include any right not to be extradited. It referred in the latter connection to a prior statement to this general effect in G.K. and B.J.F. v The Netherlands (Application No 12543/86), based in turn on a similar general statement in X v Belgium (Application No 7256/75). Another case in which a similar statement appears is Salgado v Spain (Application No 65964/01). These were all again cases concerning aliens, in the first and third complaining that he would be ill treated in the requesting country and in the second that his extradition violated the terms of an extradition treaty. Lastly, the Commission in E.G.M. v Luxembourg referred to its established case law whereby the words determination . of a criminal charge . relate to the full process of the examination of an individuals guilt or innocence, and not merely to the process of determining whether or not a person may be extradited to another country, citing H v Spain and Kirkwood v United Kingdom (Application No 10479/83), (1984) 37 DR 158. In Kirkwood the applicant, a United States national, claimed that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross examine the witnesses against him in the United Kingdom. The Commission held that, although the tasks of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant and [t]his necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultim[at]e trial, nevertheless, these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concluded that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention (para 9). The House of Lords cited and applied para 9 of the Commissions ruling in Kirkwood, when rejecting similar claims to rely on article 6(3)(d) by the appellants in R (Al Fawwaz) v Governor of Brixton Prison [2001] UKHL 69 [2002] 1 AC 556. In Maaouia v France (2001) 33 EHRR 42, a Tunisian citizen sought to resist his exclusion from France on the ground that the length of the proceedings had been unreasonable and excessive. He failed emphatically, for reasons which emphasised his position as an alien. The Court said: 37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a "civil right" for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention. 39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not characterised as criminal within the Member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6(1). The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either. 40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. In Mammatkulov and Askarov v Turkey (2005) 41 EHRR 494, in the context of complaints about the fairness of Turkish extradition proceedings, the European Court reiterated, at para 82, that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. This examination of Strasbourg case law shows that the Commission and Court have stood firm against any suggestion that extradition as such involves the determination of a criminal charge or entitles the person affected to the procedural guarantees provided in the determination of such a charge under article 6(1) or 6(3). The cases involved are all also cases involving the extradition of aliens. The last two decisions emphasise that proceedings for the extradition of aliens do not involve the determination of any civil rights within the meaning of article 6(1). By the same token they underline a potential difference in this respect between aliens and citizens. Both in international law and at common law British citizens enjoy a common law right to come and remain within the jurisdiction, and Mr Halligen is such a citizen. Blackstone (Commentaries on the Laws of England 15th ed (1809) vol 1, p 137) stated: But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal. This passage was cited and approved by Lord Hoffmann in R (Bancault) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 44. In R v Bhagwan [1972] AC 60, 77G Lord Diplock spoke of the common law rights of British subjects . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. In Case 41/74 Van Duyn v Home Office [1975] Ch 358, para 22, the European Court of Justice recognised that: it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence. The principle is the necessary corollary of a states right (subject to obligations undertaken by e.g. the Geneva Refugee Convention and the European Convention on Human Rights) to refuse aliens permission to enter or stay in its territory. Were it otherwise, the Flying Dutchman would be no fleeting phantom. In these circumstances, Mr Halligen enjoyed a common (or civil) law right to enter and remain in the United Kingdom as and when he pleased. The next question is whether proceedings under the Extradition Act 2003, in that they may affect his freedom to remain in the United Kingdom at least for the duration of American criminal proceedings, involve the determination of that civil right. The 2003 Act has the authority of Parliament, and to that extent Mr Halligens right to remain in the United Kingdom is potentially qualified. But under the Act it is only through domestic extradition proceedings that this right can be affected and suspended for the purpose and period of any American proceedings and of any sentence which might thereafter be passed on him, if found guilty. In so far as it may be suspended, the extradition proceedings determine whether Mr Halligen may continue to enjoy his common law right for whatever proves to be the relevant period. A claim to extradite him does not involve the determination of a criminal charge, and he is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common law right to remain within the jurisdiction. In these circumstances, it follows in my view that the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing the very essence of the right, pursue a legitimate aim and involve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdoms Extradition Arrangements of 30 September 2011 identified the time limits as an unsatisfactory feature about the appeals process, and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that On the whole we prefer the former, as this is an area in which certainty and finality is important. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The very essence of the right may be impaired in individual cases and there may still be no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicators decision on the ground of such advisers negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al Mehdawi [1990] 1 AC 876. Any other decision would, it was said, come at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making: per Lord Bridge, at p 901E. In Ex p Al Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the partys absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al Mehdawi, the Court of Appeal held that there was no universal surrogacy principle which (reformulated) rules would have to depart from in order to operate justly (para 46). The rules were framed so as to be productive of irremediable procedural unfairness. Both the appellants were among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault (para 48). This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention on Human Rights. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligens case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair the very essence of the right of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. What then does this mean for Mr Halligen? The opposed possibilities are, on the one hand, that the statute can be read in a manner consistently with the Convention rights, pursuant to the courts duty under section 3 of the Human Rights Act so to read it so far as it is possible to do so, and, on the other hand, that the statutory time limits are simply incompatible with article 6(1). The former solution may involve reading in words, provided that they are compatible with the underlying thrust of the legislation and do not go against the grain of the legislation: Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, paras 33, per Lord Nicholls, and 121, per Lord Rodger; and see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, where statutory restrictions on cross examination were read as subject to a further implied exception to enable a fair trial under article 6(1), and Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), [2008] 1 WLR 276, para 18, where the High Court was prepared to read a statutory prohibition on sending another person certain material as subject to an implied provision that this was not to apply where the prohibition would involve a breach of the senders Convention rights under article 10. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously. The position of others who are not British citizens of the United Kingdom and do not enjoy the protection of article 6(1) is not, as it happens, relevant to the outcome of any of the appeals now before the Supreme Court. However, their position, as well as that of persons enjoying the protection of article 6(1), would, on the information before the court, appear to deserve attention. This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring. For the reasons I have explained, I would allow Mr Halligens appeal and remit his case, as well as those of Mr Lukaszewski, Pomiechowski and Rozanski (see paragraph 19 above), to the High Court for the hearing of all their four appeals against the relevant extradition decisions. LADY HALE I agree that these appeals should be allowed for the reasons given by Lord Mance. They have highlighted a number of aspects of the present law which may be thought unsatisfactory. First, section 26(4), section 103(9) and section 108(4) of the Extradition Act 2003 lay down tight deadlines within which the requested person must give notice of appeal against, respectively, an extradition order under Part 1 of the 2003 Act, a decision to send the case to the Secretary of State under Part 2, and the Secretary of States extradition order under Part 2. Sections 35 and 117 lay down tight deadlines within which the person must be extradited if no notice of appeal is given before the end of the permitted period. In Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, therefore, the House of Lords proceeded on the assumption that, unless the appellant gave notice to the respondent(s) within the permitted period, the extraditing authorities would not know whether the clock had stopped. We now know that that assumption is incorrect, for two reasons. The first is that the respondent(s) to the appeals are not the extraditing authorities for this purpose. The respondents will be those acting on behalf of the issuing judicial authority (in Part 1) or the requesting authority and the Secretary of State (in Part 2). The extraditing authority is the Serious Organised Crime Agency (SOCA) in Part 1 and the Secretary of State in Part 2. So giving notice to the respondent(s) is not, in itself, sufficient for the extraditing authority to know that the clock has stopped. Secondly, the uncontradicted evidence of Mr Evans, solicitor for the first two appellants, is that Westminster Magistrates Court informs SOCA by email when an extradition order is made and that the High Court emails SOCA when an appeal is filed. That is what alerts SOCA to the fact that it is no longer obliged, or indeed entitled, to extradite the requested person within the required period. This undermines a substantial part of the reasoning of the majority in Mucelli at least in relation to Part 1 cases. The best point remaining is the linguistic difference between an appeal . may be brought in section 26(3), section 103(4), (7) and (8)(b), and section 108(4), and notice of an appeal . must be given in section 26(4), section 103(9) and section 108(4). But there is no magic in those words. Different terms are used for the process of bringing an appeal in the three different jurisdictions which make up the United Kingdom. In Lord Rodgers view, the draftsman has just chosen a familiar form of words for referring to the bringing of an appeal [14]. It would have been so easy for the draftsman to have said filed and served if that is what he had meant but he did not. Be that as it may, this court is not constituted to depart from the decision in Mucelli and there is no need for it to do so in the Polish cases. However, the new information does underline the fact that there is no good practical reason for the court to construe what is meant by giving notice to the respondents in a demanding way. The clock will have stopped, but if the rules about service have not been properly complied with, the court has power either to grant an extension or to impose sanctions, including the sanction of striking out the appeal, as appropriate. Secondly, however, the court does have to contend with Mucelli in the case of Mr Halligen. We can treat his letter to the Secretary of State as notice for this purpose, but we cannot treat his notice to Crown Prosecution Service as arriving in time. There are two possible ways of solving the problem, should we think this result to be unnecessary and unjust. One is to depart from Mucelli. For the reasons indicated earlier, we could conclude that it was not the intention of Parliament that there should be no jurisdiction to entertain an appeal in such circumstances. The other is to employ the obligation of conforming interpretation in section 3(1) of the Human Rights Act 1998 in cases where the ordinary interpretation produces results which are incompatible with the Convention rights of the requested person. Section 3(1) requires that So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. As is now well established, this requires the court (and others) to read (and give effect to) legislation compatibly with the Convention rights even if this is not what, on ordinary principles of construction, Parliament intended, so long as it is possible to do so. The appellants and the Secretary of State consider that it is possible in this case. The respondents consider that it is not, and if (which they do not accept) the strict application of the time limit for service is incompatible, the only course would be a declaration of incompatibility under section 4 of the 1998 Act. The right of a person to enter and remain in the country of which he is a national is the most fundamental right of citizenship. The United Kingdom has signed but not ratified Protocol No 4 to the ECHR, article 3 of which makes this right crystal clear. But, as Lord Mance has demonstrated, it has been part of United Kingdom law for centuries. It is perhaps more questionable whether it counts as a civil right for the purpose of the right to a fair hearing in article 6(1) of the Convention. As originally conceived, this did not apply to the rights enforceable only in public law. But that limitation has been steadily eroded: see the jurisprudence discussed by Lord Hope in Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, [28] to [49]. And in any event, this right is not like a claim to a social security benefit (which is a civil right) or to a social service (which currently is not), for these can only be enforced as provided for by the statute or by judicial review. Should the need arise, this right could be claimed in ordinary civil proceedings against a person who was denying it. I therefore agree with Lord Mance that the extradition proceedings against Mr Halligen involve the determination of his civil rights for the purpose of article 6(1). I also agree that to insist upon the time limit for service in the particular circumstances of his case is a disproportionate limitation upon his right of access to the appeal process. I further agree that it is possible to read and give effect to section 108(4) and, it would necessarily follow, section 26(4) and section 103(9) in the manner which Lord Mance suggests at paragraph 39. However, it does seem to me unsatisfactory that we are taking this course, rather than the more straightforward course of departing from Mucelli. There is very good reason to think that the House decided Mucelli on a mistaken factual assumption. There were very good reasons, trenchantly expressed in Lord Rodgers dissenting opinion, to think that the intention of Parliament was to insist only on filing, rather than on service, of the notice of appeal before the deadline. For my part, I consider it more satisfactory to comply with the actual intention of Parliament than to resort to the obligation of conforming interpretation (whether under the European Communities Act 1972 or the Human Rights Act 1998). Resorting to section 3 of the 1998 Act, although two of the parties consider this possible, produces two distortions in the extradition process. It discriminates between nationals and aliens. It also discriminates between the requested persons and the requesting authorities, for the latter can have no convention rights which mandate a compatible interpretation. Thus section 28(4), section 105 (5) and section 110(5), which impose the same time limits upon appeals against discharge by the first instance court or by the Secretary of State, cannot be read down so as to forgive such trivial failures as these on the part of the requesting authorities. Thirdly, however, whichever of the above courses is taken in this case, recognition that the right of a citizen to remain in this country is a civil right for the purposes of article 6(1) of the ECHR leaves open the possibility that section 26(4) and also section 103(9) and section 108(4) would also have to be read down if the rigid time limits for the filing of a notice of appeal were to be held a disproportionate limitation on a citizens right of access to the appeal process. There was talk during the hearing of riots, strikes or fires at the prison to which the requested person was remanded making the service of notice impossible, but such extraordinary events might also make the filing of a notice of appeal impossible. As things currently stand, a requested person who is remanded in custody does not always have access to a lawyer who can protect his interests. While we know that HMP Wandsworth has a Legal Services Department staffed by prison officers who provide assistance, we do not know whether similar facilities are available to requested persons who are remanded to other prisons. We do know that, given the pace of proceedings, quite properly arguable grounds for resisting extradition or the execution of a European arrest warrant may not have been put before the district judge. I do not, of course, say that it would indeed be possible to read down the legislation in such circumstances, but merely that our decision in this case makes the argument possible. Had other members of the court been of the same mind, therefore, I would have allowed all these appeals, but for reasons other than those given by Lord Mance. But those reasons are not incompatible with the reasons which he gives and with which I am also content to agree. |
This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards, set out in the Mental Capacity Act 2005 (the Mental Capacity Act). If they do not, no independent check is made on whether those arrangements are in the best interests of the mentally incapacitated person, although of course the health or social care bodies who make the arrangements do so in the hope and belief that they are the best which can practicably be devised. It is no criticism of them if the safeguards are required. It is merely a recognition that human rights are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else. The statutory background The deprivation of liberty safeguards were introduced into the Mental Capacity Act by the Mental Health Act 2007. In a sense the wheel has turned full circle. Throughout the 19th century it was assumed that persons of unsound mind (then known as either lunatics or idiots) should be kept in some form of confinement and reformers concentrated upon providing more and better institutions where they could live. But it was also recognised that there was a risk of unjustified confinement and assumed that some form of judicial certification was the best protection against this. This was therefore the approach adopted under the Mental Deficiency Acts of 1913 and 1927, under which publicly funded institutions were established for people whose mental handicaps ranged from the severe (known as idiots), through the moderate (known as imbeciles), to the mild (known as feeble minded). Those Acts did not provide for a voluntary status for patients who were able to consent to their admission to hospital, nor did they provide for an informal status for those who lacked the capacity to consent but raised no objection to their admission. However, unlike the institutions providing for people with mental illnesses, the institutions in question were not prohibited from admitting patients without formal certification. During the 1950s, therefore, this was first encouraged for patients admitted for a short time; and the Report of the Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954 1957 (chaired by Lord Percy), recommended that this could and should become the general practice without waiting for legislative reform (1957, Cmnd 169). Certification was seen, not only as bringing with it some stigma, but also as inconsistent with the goal of normalising the care and treatment of these patients and bringing it into line with the care and treatment of people with physical disorders and disabilities. A legislative basis for such informal admissions to hospital was provided by section 5(1) of the Mental Health Act 1959, now contained in section 131(1) of the Mental Health Act 1983 (the 1983 Act): Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act . But that, of course, begged the question of the underlying law: on what legal basis could a person who lacked the capacity to decide to go into hospital or indeed anywhere else be admitted and treated there, whether for mental or physical disorder? The answer came in the case of In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. The House of Lords confirmed that there was no one authorised by law to consent to treatment on behalf of an adult who lacked the capacity to consent for himself, nor was there any jurisdiction in the courts to give such consent. It was, however, lawful for him to be given such treatment and care as was necessary in his own best interests. In cases of doubt or dispute, moreover, the High Court could declare whether or not proposed treatment would be lawful. That principle has now been given statutory backing in section 5 of the Mental Capacity Act; as originally enacted, however, section 6(5) of the Act was designed to make it clear that this did not permit hospitals or other carers to deprive a person of his liberty. This was prompted by the litigation concerning HL. Quite how far the necessity principle might extend at common law was tested in the case of R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458. HL was autistic and profoundly mentally disabled. He had lived in a hospital for many years before being discharged to live with paid foster carers, Mr and Mrs E. One day he became agitated at his day centre and, as the foster carers could not be contacted, a social worker and doctor were called, he was sedated and taken to A & E, where he was examined by a psychiatrist. The psychiatrist assessed that he needed in patient treatment, but by then he appeared fully compliant, and so he was admitted informally. Although the plan was to return him to Mr and Mrs E as soon as the hospital staff thought it possible, their contact with him was restricted and he would have been prevented from leaving had he tried to do so. Habeas corpus and judicial review proceedings were brought on his behalf. These succeeded in the Court of Appeal (whereupon HL was promptly sectioned under the Mental Health Act), but failed in the House of Lords. The majority held that the hospital had not detained him. Lord Nolan and Lord Steyn held that it had. Lord Steyn expressed himself with some force, at p 495: Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale. Nevertheless, both he and Lord Nolan agreed with the majority that what had been done was justified by the necessity principle and that section 131(1) covered, not only a patient who was able to and did give a valid consent, but also a patient who was unable to do so. The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL. Key passages from the judgment are these: 89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance. 90. . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. 91. the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Courts view, fairly described by Lord Steyn as stretching credulity to breaking point and as a fairy tale. It therefore became necessary for this country to introduce some such machinery for the many thousands of mentally incapacitated people who are regularly deprived of their liberty in hospitals, care homes and elsewhere. The Mental Health Act 2007 amended the Mental Capacity Act accordingly. Section 6(5) was repealed and replaced with sections 4A and 4B. Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the persons condition while a case is pending before the court. The safeguards have the appearance of bewildering complexity, much greater than that in the comparable provisions for detaining mental patients in hospital under the Mental Health Act; but their essence is to secure professional assessment, by people independent of the hospital or care home in question, of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for the purpose of care or treatment (Schedule A1, para 15), and (b) whether it is in his best interests to be detained (para 16). The procedures are administrative, but the authorisation can be challenged in the Court of Protection under section 21A. There have been far fewer authorisations under Schedule A1 than was predicted before the amendments came into force, although the numbers are rising (from 7157 applications in 2009 2010 to 11,887 in 2012 13). There have also been very few cases coming before the Court of Protection seeking authority to deprive someone of his liberty in a setting other than a hospital or care home (it is not known how many of the 88 applications made in 2012 were challenges under section 21A or for orders under section 16). It would not be at all surprising if those arranging for the care of people with severe learning disabilities were reluctant to see those arrangements, made in what they think are the best interests of the people concerned, as also depriving them of their liberty. As with detention under the Mental Health Act, they may worry that it carries a stigma. They may also baulk at the bureaucracy of the procedures and the time they take. They may even see the procedures as a return to the bad old days before the Mental Health Act 1959, when all mental patients were seen as prisoners rather than patients or residents like any others. Legal formalities may be seen as the antithesis of the normalisation which it is the object of both the Mental Health and the Mental Capacity Acts to achieve. The facts of the two cases before us are a good illustration of the sort of benevolent living arrangements which many might find difficult to characterise as a deprivation of liberty. What follows are the facts as they were when the cases were heard in the Court of Protection, which is now a long time ago. The facts: P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sisters and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour. Until 2007 they lived with their mother and from 1997 also with their step father. They were ill treated and neglected there. They were removed from home after siblings made allegations of sexual abuse against their step fathers father, and then against their step father and their mother. Their step father was later convicted of raping their half sister and their mother of indecently assaulting her. At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her mummy). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication. MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister. In 2008, when the sisters were aged 17 and 16, the care proceedings were transferred to the Court of Protection, the interim care orders expired, and Court of Protection proceedings were issued instead. (The Court of Protection has jurisdiction over people aged 16 or more, whereas a family court cannot make a care order once a child has reached 17: Children Act 1989, s 31(3).) On 15 April 2010, Parker J decided that the sisters living arrangements were in their best interests and concluded that they did not amount to a deprivation of liberty: [2010] EWHC 785 (Fam), [2011] Fam Law 29 (sub nom In re MIG and MEG). The Court of Appeal agreed: [2011] EWCA Civ 190 [2012] Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the relative normality of the sisters lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the greater fulfilment in an environment more free than they had previously had (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that what may be a deprivation of liberty for one person may not be for another (para 40). The facts: Cheshire West and Chester Council v P P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Downs syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the local authority. Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to Ps family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one waking member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a body suit of all in one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication. By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not go anywhere, or do anything, without their support and assistance (para 59). Further, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty (para 60). Nevertheless it was in his best interests for those arrangements to continue: [2011] EWHC 1330 (Fam). The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: [2011] EWCA Civ 1257, [2012] PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of relative normality adopted in P and Q, and considered it appropriate to compare Ps life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. the right comparison is with another person of the same age and characteristics as P (para 120). What is a deprivation of liberty? In cases under the Human Rights Act 1998, the courts have frequently to consider how far their duty, in section 2(1), to take into account the jurisprudence of the European Commission and Court of Human Rights goes. That problem does not trouble us in this case. Section 64(5) of the Mental Capacity Act states that: In this Act, references to a deprivation of a persons liberty have the same meaning as in article 5(1) of the Human Rights Convention. As the object was to avoid the violation identified in HL 40 EHRR 761, it seems clear that we are expected to turn to the jurisprudence of the Strasbourg Court to find out what is meant by a deprivation of liberty in this context. There is no case in Strasbourg which concerns the type of placements with which we are here concerned. However, there have been several relevant decisions in Strasbourg since the judgments in the courts below. The most important is probably the decision of the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 696, because this concerned the placement of a mentally disabled man in a care home rather than a hospital. The Court summarised the general principles in the context of people with mental disorders or disabilities. It is therefore convenient to repeat each of those principles, together with an explanation of the previous case law from which it is taken. First, 115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by article 2 of Protocol No 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of article 5 depends. In order to determine whether someone has been deprived of his liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question. This is a reference back to the well known cases of Guzzardi v Italy (1980) 3 EHRR 333, paras 92 93, where the same points were made, derived from Engel v Netherlands (1976) 1 EHRR 647, paras 58 and 59, and to Storck v Germany (2005) 43 EHRR 6, para 71, where they were repeated. Guzzardi was a case of internal exile, where a suspected Mafioso was confined to a small area on an island with various other restrictions designed to prevent his engaging in Mafia activities. This was held to deprive him of his liberty. Secondly, 116. In the context of deprivation of liberty on mental health grounds, the court has held that a person could be regarded as having been detained even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital. This is a reference to Ashingdane v United Kingdom (1985) 7 EHRR 528, para 42. Ashingdane was concerned with the rather different question of whether article 5 could protect a patient from being detained in a secure hospital such as Broadmoor when he did not need to be there. But the court accepted that a compulsory patient is deprived of his liberty in the hospital where he is detained, irrespective of the openness or otherwise of the conditions there. Thirdly, 117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a persons confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question. (Emphasis supplied) This is again a reference to Storck v Germany 43 EHRR 6, para 74. That case concerned a young woman who had twice been admitted to a private clinic for psychiatric treatment. The first time she had gone there with her father, had been placed in a locked ward and forcibly medicated, had tried to escape and been returned to the clinic by the police. The court held that she could not be taken to have consented to her confinement. The second time she had presented herself to the clinic and had not tried to escape, so the court accepted the factual finding of the national court that she had not been confined against her will. Fourthly, 118. The court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request, had unsuccessfully attempted to leave the hospital; (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape; and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave. (a) is a reference to Shtukatarov v Russia (2008) 54 EHRR 962, para 108; (b) is another reference to Storck, at para 76; and (c) is a reference to HL v United Kingdom 40 EHRR 761, at para 90 (see para 7 above). Fifthly, 119. The court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that person is legally incapable of consenting to, or disagreeing with, the proposed action. The first reference is to De Wilde, ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, paras 64 65, and the second is again to HL v United Kingdom 40 EHRR 761, para 90 (see para 7 above). Finally, and for completeness, 120. In addition, the court has had occasion to observe that the first sentence of article 5(1) must be construed as laying down a positive obligation on the state to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. Thus, having regard to the particular circumstances of the cases before it, the court has held that the national authorities responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicants guardian and detention in a private clinic. The references are once again to Storck and to Shtukaturov. On occasions, therefore, the state may be accountable even for arrangements which it has not itself made. The applicant in Stanev had spent many years in a social care home where conditions were so bad that the court also found they amounted to inhuman and degrading treatment for the purpose of article 3. But the court also considered that (i) the objective requirement of deprivation of liberty was met because he had been kept at the home, in a mountain region far from his home town, needing permission to go out to the nearest village and leave of absence to visit his home, entirely at the discretion of the homes management which kept his identity papers and managed his finances, and accordingly he was under constant supervision and was not free to leave the home without permission (para 128); and (ii) the subjective element was met because he could understand his situation and had expressed his wish to leave, thus setting the case apart from the decision in HM v Switzerland (2002) 38 EHRR 314, where the court found that there was no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and after her arrival there had agreed to stay (para 131). HM v Switzerland concerned an old lady who was placed, by order of the authorities confirmed by the courts, in a care home because of severe neglect in her own home. It is a difficult case, not least because the Swiss legislation in question referred to the deprivation of liberty. In deciding that she had not been deprived of her liberty, the Strasbourg court referred to the fact that she had freedom of movement and was able to entertain social contacts with the outside world (para 45), that she hardly felt the effects of her stay and was undecided as to which solution she in fact preferred (para 46), that after she had moved there she agreed to stay (para 47), but in particular the fact that the Cantonal Appeals Commission placed the applicant in the foster home in her own interests in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene, and also taking into consideration the comparable circumstances in the case of Nielsen v Denmark (para 48). There was a powerful dissent from Judge Jorundsson, who pointed out that it was clear that she was not permitted to leave the institution and go home; and that if she did, she would have been brought back (para O 16). This reference to the benevolent purpose of the placement is inconsistent with the later Grand Chamber decisions of Creanga v Romania (2012) 56 EHRR 361, para 93, and Austin v United Kingdom (2012) 55 EHRR 14, para 58. There it was stated that an underlying public interest motive has no bearing on the question whether that person has been deprived of his liberty . The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty (para 58). In HL v United Kingdom, the Court distinguished HM v Switzerland principally on the basis that she had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay, although it also referred to a regime entirely different to that applied to the present applicant (para 93). However, the court has also distinguished it in four later cases concerning placements in social care homes rather than in hospitals. In Stanev v Bulgaria 55 EHRR 696, the court distinguished it on the basis that she had agreed to stay whereas the applicant in that case had at no time consented to the placement or accepted it tacitly. In DD v Lithuania (Application no 13469/06), 14 February 2012, the Court distinguished it on the same basis, coupled with the procedural safeguards, including judicial scrutiny, which were in place to protect HM (para 147). In Kedzior v Poland (Application no 45026/07), 16 October 2012, the government relied upon HM v Switzerland, but the court did not refer to it in its assessment. Finally, in Mihailovs v Latvia (Application no 35939/10), 22 January 2013, the court referred to it, not during its assessment of the objective element of confinement but only during its assessment of the subjective element of consent (see para 135). The Court did not refer in its assessment in any of these later cases to Nielsen v Denmark (1988) 11 EHRR 175, which concerned a 12 year old boy placed in a childrens psychiatric unit by his mother (who alone had parental responsibility for him). The court held, by a majority of nine to seven, that he had not been deprived of his liberty. The restrictions to which he was subject were no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions . did not, in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated (para 72). Hence his hospitalisation did not amount to a deprivation of liberty within the meaning of article 5, but was a responsible exercise by his mother of her custodial rights in the interest of the child (para 73). The seven dissenting judges considered that placing a 12 year old boy who was not mentally ill in a psychiatric ward for several months against his will was indeed a deprivation of liberty. It would appear, therefore, that the case turns on the proper limits of parental authority in relation to a child. As already mentioned (para 4 above) there is no equivalent in English law to parental authority over a mentally incapacitated adult. In any event, the Strasbourg court was not deterred from finding a deprivation of liberty in the cases of Stanov, DD, Kedzior and Mihailovs by the fact that the placements were arranged by the person who had been appointed legal guardian of the applicant. In all these cases, the applicant lacked the legal capacity to consent to the placement. In Shtukaturov v Russia 54 EHRR 962, decided in 2008, the applicant had been placed in a psychiatric hospital at the request of his legal guardian, which in Russian law was regarded as a voluntary admission. Although he lacked the de jure legal capacity to decide for himself, this did not necessarily mean that he was de facto unable to understand his situation (para 108). Indeed, he had evinced his objections. The subjective element of lack of consent was made out (para 109). The court took the same view in DD (para 150) and in Kedzior (para 58). Thus it appeared to give some weight to the objections of a person who lacked legal capacity when deciding that the subjective element was made out despite the consent of the persons legal guardian. But in Mihailovs, the court seems to have gone further. In relation to one of the care home placements, the court held that there was a deprivation of liberty, because although the applicant lacked legal capacity he subjectively perceived his compulsory admission there as such a deprivation (para 134). In relation to a later placement, however, he did not raise any objections or attempt to leave and the court concluded that he had tacitly agreed to stay there and thus had not been deprived of his liberty (paras 139, 140). In contrast, of course, in HL v United Kingdom, the patient was deprived of his liberty in the hospital despite his apparent compliance. The Strasbourg case law, therefore, is clear in some respects but not in others. The court has not so far dealt with a case combining the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to normal home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. The issue, of course, is whether that authorisation can continue indefinitely or whether there must be some periodic independent check upon whether the placements made are in the best interests of the people concerned. The arguments The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in Ps case appears to have thought that it is not, for he criticised the trial judge for failing to grapple with the question whether the limitations and restrictions on Ps life at Z house are anything more than the inevitable corollary of his various disabilities. The truth, surely, is they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. Ps life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker Js phrase, dictated by his disabilities and difficulties (para 110). In the same way, both Lloyd LJ in that case, and Smith LJ in P and Q, thought that a persons life had to be compared with that of another person with his same characteristics. What was a deprivation of liberty for some people might not be a deprivation for others. The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty. Allied to the inevitable corollary argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty. The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to everyone (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present day conditions and continued: It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008). The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is. Ms Jenni Richards QC, who appears for both the local authorities involved, relies heavily on the statement in Guzzardi v Italy, which is repeated in all the later cases, that the difference between restriction and deprivation of liberty is one of fact and degree in which a number of factors may be relevant. Simply asking whether a person is confined is not enough except in obvious cases. The starting point is always upon the concrete situation of the particular person concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question: 3 EHRR 333, para 92. The presence or absence of coercion is also relevant. Thus there is no single touchstone of what constitutes a deprivation of liberty in this or any other context. She contrasts the concrete situations of those who were held to have been deprived of their liberty in hospitals or care homes with others who were not: in particular in this context, Nielsen v Denmark and HM v Switzerland. She also refers to Haidn v Germany (Application no 6587/04), 13 January 2011, para 82, where the court expressed serious doubts whether instructing the applicant to live in an old peoples home which he was not to leave without his custodians permission amounted to a deprivation rather than a restriction of liberty. However, the court did not have to decide the question, as the applicant was complaining about his preventive detention in prison after the expiry of his sentence for serious sexual offences. Mr Gordon argues that, in this context, the answer is clear: it is, as expressed in HL v United Kingdom 40 EHRR 761, para 91, whether the concrete situation of the person concerned is that he [is] under continuous supervision and control and [is] not free to leave the accommodation where he has been placed. By free to leave he means what Munby J meant in JE v DE [2007] 2 FLR 1150, para 115: The fundamental issue in this case . is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution: I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses . Freedom to leave in this sense was the crucial factor, not only in HL v United Kingdom, where the complainant was placed in a hospital, but also in Stanev v Bulgaria, where the complainant was placed in a care home, as were the complainants in DD v Lithuania, Kedzior v Poland, and Mihailovs v Latvia. In each of these, the courts focus when considering the confinement question was on whether the complainant was under the complete supervision and control of the staff and not free to leave. The fact that these were social care settings with relatively open conditions was no more determinative than had been the open hospital conditions in Ashingdane. In these more recent cases, HM v Switzerland, another care home placement, has consistently been distinguished because of the complainants willingness to be in the home, rather than because of the conditions within the home. Although Nielsen has not been departed from, it is to be regarded as a case of substituted consent, and thus not fulfilling component (b). In none of the more recent cases was the purpose of the confinement which may well have been for the benefit of the person confined considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46: I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified? This view has been confirmed by the rejection in Austin v United Kingdom 55 EHRR 359, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania 56 EHRR 361). Nevertheless, while a benevolent or beneficial purpose may be irrelevant, the context of the measures may not. Mr Paul Bowen QC, for the Equality and Human Rights Commission, has analysed the deprivation of liberty cases into two types. Type 1 consists of those situations which are catered for in article 5(1), including the detention of convicted criminals and of persons of unsound mind. In such cases, the Strasbourg Court has not had to concern itself with questions of degree, because the confinement is always potentially justifiable. Hence a person can be deprived of his liberty in an open prison, in an unlocked hospital ward, or in the ordinary conditions of a care home. The problem lies with type 2 cases, where deprivation of liberty is not catered for in the exhaustive list of permissible deprivations in article 5(1)(a) to (f) and thus what has happened, if it is a deprivation, cannot be justified. This was the position in Guzzardi v Italy, which concerned preventive measures against a suspected Mafioso, and for that matter in the English control order cases (such as Secretary of State for the Home Department v JJ [2008] AC 385), which concerned preventive measures against suspected terrorists. It was also the position in Austin v United Kingdom, which concerned kettling to maintain public order at a demonstration. Ms Richards rejects any such distinction. Indeed it cannot be found in the Strasbourg case law, which, as we have seen, repeats all the principles irrespective of the context. Nevertheless, we may find it helpful in understanding some of its decisions: for example, why it was not a deprivation of liberty to kettle people at Oxford Circus for some seven hours (Austin) while it was a deprivation to confine a person for several hours in a police station (Creanga) or in a sobering up centre (Litwa v Poland (2001) 33 EHRR 1267). We may therefore find it most helpful to consider how the question has been approached in the particular context, in this case the placement of mentally incapacitated people, whose lawful detention in any setting designed for their care is always potentially justifiable under article 5(1)(e). Discussion In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage. For that reason, I would reject the relative normality approach of the Court of Appeal in the case of P [2012] PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading. To some extent this approach was premised on the relevance of the reason for and purpose of the placement (para 76), derived from the House of Lords decision in Austin, and later disapproved by the Grand Chamber. It is in any event inconsistent with the view that people with disabilities have the same rights as everyone else. I have much more sympathy with the relative normality approach in P and Q, where the lives which MIG and MEG were living were compared (by the majority) with the ordinary lives which young people of their ages might live at home with their families. This seems both sensible and humane. But the fact remains that the lives which MIG and MEG were leading were not the same as those which would be led by other teenagers of their age. Their comparative normality in the sense of their home like quality does not answer the question of whether in other respects they involved a deprivation of liberty for which the state was responsible. So is there an acid test for the deprivation of liberty in these cases? I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required. Ms Richards is right to say that the Guzzardi test is repeated in all the cases, irrespective of context. If any of these cases went to Strasbourg, we could confidently predict that it would be repeated once more. But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their concrete situation on which we need to focus? The answer, as it seems to me, lies in those features which have consistently been regarded as key in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned was under continuous supervision and control and was not free to leave (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the persons compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach. Application in the case of P In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the persons care and movements (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the persons life, which in my view are not relevant factors. But when he considered the circumstances of Ps life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that Ps life was as normal as possible, but continued (para 59): On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that looked at overall, P is being deprived of his liberty (para 60) should be restored. Application in the case of P (MIG) and Q (MEG) Wilson LJ found MEGs case difficult and only reached the conclusion that she had not been deprived of her liberty after protracted thought: [2012] Fam 170, para 34. He relied upon the small size of the adolescent home, her lack of objection to life there, her attendance at the educational unit; her good family contact; and her fairly active social life. It is, however, very difficult to see how her case can be distinguished from that of P, who also enjoyed all of those features. She did not require the sort of restraint which P required because of his incontinence pads, but she did sometimes require physical restraint and she received medication to control her anxiety. Above all, the staff did exercise control over every aspect of her life. She would not be allowed out without supervision, or to see people whom they did not wish her to see, or to do things which they did not wish her to do. MIGs case was different in one important respect. She was living in an ordinary family home, and also going out to attend an educational unit, and enjoying good family contact. Both Parker J and Wilson LJ were concerned that if these arrangements constituted a deprivation of liberty for which the state was responsible, then so too would HLs placement with his foster carers: but no one had suggested this indeed, the restriction on contact with them was one of the features relied upon in concluding that the hospital had deprived HL of his liberty. But the court was not called upon to confront that issue. The reality is that MIGs situation is otherwise the same as her sisters, in that her foster mother and others responsible for her care exercised complete control over every aspect of her life. She too would not be allowed out without supervision, or to see anyone whom they did not wish her to see, or to do things which they did not wish her to do. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions. Several objections may be raised to the conclusion that both MIG and MEG are being deprived of their liberty. One is that neither could survive without this level of supervision and control: but that is to resurrect the comparison with other people sharing their disabilities and to deny them the same concept of liberty as everyone else. Another is that they are both content with their placements and have shown no desire to leave. If the tacit acceptance of the applicant was relevant in Mihailovs, why should the same tacit acceptance of MIG and MEG not be relevant too? I have found this the most difficult aspect of the case. But Mihailovs was different because he had a level of de facto understanding which had enabled him to express his objections to his first placement. The Strasbourg court accepts that there are some people who are not capable of expressing a view either way and this is probably the case with both MIG and MEG. As HL 40 EHRR 761 shows, compliance is not enough. Another possible distinction is that, if either of them indicated that they wanted to leave, the evidence was that the local authority would look for another placement: in other words, they were at least free to express a desire to leave. In the end, none of these suggested distinctions is satisfactory. Nor, in my view, should they be. It is very easy to focus upon the positive features of these placements for all three of the appellants. The local authorities who are responsible for them have no doubt done the best they could to make their lives as happy and fulfilled, as well as safe, as they possibly could be. But the purpose of article 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards which will secure that the legal justifications for the constraints which they are under are made out: in these cases, the law requires that they do indeed lack the capacity to decide for themselves where they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards. If P, MIG and MEG were under the same constraints in the sort of institution in which Mr Stanev was confined, we would have no difficulty in deciding that they had been deprived of their liberty. In the end, it is the constraints that matter. Policy Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us. Conclusion I would therefore allow both appeals. In the case of P I would restore the declaration of the judge. In the case of MIG and MEG I would make a declaration that their living arrangements at the relevant time constituted a deprivation of liberty within the meaning of section 64(5) of the Mental Capacity Act 2005. LORD NEUBERGER Having read the judgment of Lady Hale, with which Lord Kerr and Lord Sumption agree, and the judgment of Lord Carnwath and Lord Hodge, with which Lord Clarke agrees, I have come to the conclusion that I agree with Lady Hale. The issues raised by these appeals are both difficult and important, and the reasons which Lord Carnwath and Lord Hodge advance for differing from Lady Hale plainly merit serious consideration. Accordingly, I propose to explain the reasons for my conclusion, while avoiding retreading the ground covered by Lady Hale so far as I can. I start with the proposition that, particularly in the field of mental health, it would be highly desirable to have as much authoritative guidance, or, as Lord Carnwath and Lord Hodge put it, as focussed a test, as possible in order to decide whether the circumstances of a particular case involve a deprivation of liberty falling within article 5.4 or a restriction on liberty falling outside article 5. Psychiatrists, social workers, local authorities, charities, and no doubt many others responsible for the health and welfare of those suffering from mental and physical impairment, as well as those people whose liberty is being interfered with, need, and are entitled to, as much in the way of clear guidance as it is possible for the courts to give. Of course, the issue of whether a particular case involves deprivation or restriction must depend on the specific facts of that case, but that does not mean that there can be no focussed guidance. It is also true that, however clear the guidance, there will be cases where it will be difficult to decide which side of the line the facts fall, but that is not a reason for the courts not seeking to minimise the uncertainty. On the contrary. Accordingly, at least in principle, the approach proposed by Lady Hale appears to me to be attractive, and should be adopted unless there is good reason not to do so. Lord Carnwath and Lord Hodge suggest that there are two reasons for not adopting that approach, both of which reasons merit serious consideration. The first reason is that the Strasbourg jurisprudence has not gone as far as Lady Hales analysis, and this is a case where we cannot properly go beyond Strasbourg in the light of section 64(5) of the Mental Capacity Act 2005. The second reason is that Lady Hales analysis produces an undesirable or inappropriate outcome in cases such as those of P and Q in the appeal involving Surrey County Council. So far as the first reason is concerned, it is true that there has been no decision of the Strasbourg court involving the combination of factors which arise in the present cases. It is also true that, in almost every decision to which we were referred, the Strasbourg court has been at pains to emphasise that the question whether article 5.4 is engaged is highly fact sensitive, and that the distinction between deprivation and restriction is matter of degree or intensity. However, it is self evident that this does not mean that this court cannot seek to extract specific principles from those decisions, and then apply them to the facts of the cases before us. In agreement with Lady Hale, I consider that the Strasbourg court decisions do indicate that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement). In that connection, see Guzzardi v Italy (1980) 3 EHRR 333, para 95 (supervision carried out strictly and on an almost constant basis [and] not able to leave his dwelling between 10 pm and 7 am), HL v United Kingdom (2004) 40 EHRR 761, para 91 (under continuous supervision and control and not free to leave), Storck v Germany (2005) 43 EHRR 96, para 73 (continuous supervision and control and not free to leave), Kedzior v Poland (Application No 45026/07) 16 October 2012, para 57 (constant supervision and not free to leave), Stanev v Bulgaria (2012) 55 EHRR 696, para 128 (constant supervision and not free to leave), and Mihailovs v Latvia [2013] ECHR 65, para 132 (under constant supervision and not free to leave). The factors which are relied on by Lord Carnwath and Lord Hodge to support the point that these cases differ from those decided by the Strasbourg court are as follows: a) the person concerned lacks capacity to decide upon her placement but has not evinced dissatisfaction with or objection to it; the placement is in a small group or domestic setting which is as close as possible to normal home life; b) c) d) a court authorised that placement for the best interests of the person concerned; and the regime is no more intrusive or confining than is required for the protection and well being of the person concerned. It is convenient to take factor (d) first, followed by factor (a), and then factor (c), and finally factor (b). As to factor (d), the Grand Chamber made it clear in Austin v United Kingdom (2012) 55 EHRR 359, para 58 that the fact that the object is to protect treat or care in some way for the person taken into confinement has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified . To the same effect, the Grand Chamber said in Creanga v Romania (2012) 56 EHRR 361, para 93 that the purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the courts assessment of whether there has in fact been a deprivation of liberty, on the basis that the purpose is to be taken into account only at a later stage of its analysis, when examining the compatibility of the measure with article 5.1. So far as factor (a) is concerned, I consider that it would be inappropriate to hold that, if certain conditions amounted to a deprivation of liberty in the case of a person who had the capacity to object and did object, they may, or even worse would, not do so in the cases of a person who lacked the capacity to object. On one view, such a conclusion would mean that, however confining the circumstances, they could not amount to a deprivation of liberty if the person concerned lacked the capacity to object. That cannot possibly be right. Alternatively, there would be a different test for those who were unable to object and those who could do so. That would be a recipe for uncertainty. In addition, the notion that the absence of objection can justify what would otherwise amount to deprivation of liberty is contrary to principle. It is true, and indeed sensible, that a persons consent (provided that it is freely and properly given) may serve to defeat a contention that she has been deprived of her liberty. However, it involves turning that principle on its head to say that the absence of objection will justify what would otherwise be a deprivation of liberty save in those rare circumstances where the absence of objection can be said to amount to consent, as in Mihailovs v Latvia, paras 138 139. Further, if factor (a) had validity, it would tend to undermine the universality of human rights to which Lady Hale rightly refers. Over and above this, it seems to me that the principle referred to by the Grand Chamber in the decisions in para 66 would be infringed. I also draw support from the closing comments of the Strasbourg court in HL v United Kingdom 40 EHRR 761, para 90, where, after stating that a person should not lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, the court added especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. I am unimpressed with factor (c). The courts involvement in cases such as those to which these appeals relate is not equivalent to that of a court sentencing a criminal to a specific term of imprisonment. It is deciding that the circumstances of an innocent and vulnerable person, suffering from disability, are such that there must be an interference with his liberty. If that interference would otherwise amount to a deprivation of liberty, I find it hard to understand why it should be otherwise simply because the court has approved it. The courts approval will almost always justify the deprivation from its inception, but, again, it is hard to see why it should continue to justify it for a potentially unlimited future. The only reason which can be advanced to justify such a conclusion is, as I see it, based on the purpose of the interference with liberty which brings one back to the observations in the Grand Chamber referred to in para 8 above. Factor (b) forms the basis upon which Lord Carnwath and Lord Hodge rest their view that P and Q have not been deprived of their liberty. It is a fair point that the Strasbourg court has never had to consider a case where a person was confined to what may be described as an ordinary home. However, I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty. In that connection, however, I note that article 5.4 was held to be infringed in Guzzardi v Italy 3 EHRR 333, where, as mentioned above, the Grand Chamber referred to the applicant not being able to leave his dwelling between 10 pm and 7 am. I agree with Lord Carnwath and Lord Hodge that many people might react with surprise at simply being told that a person living in a domestic setting could complain of deprivation of liberty, but that is a point of little weight, particularly as such people may well retract the surprise when the consequences either way under article 5 are explained. In the case of children living at home, what might otherwise be a deprivation of liberty would normally not give rise to an infringement of article 5 because it will have been imposed not by the state, but by virtue of what the Strasbourg court has called the rights of the holder of parental authority, which are extensive albeit that they cannot be unlimited (see Nielsen v Denmark (1988) 11 EHRR 175, para 72, a decision which, at least on its facts, is controversial, as evidenced by the strength of the dissenting opinions). However, it is fair to say that, while this point would apply to adoptive parents, I doubt that it would include foster parents (unless, perhaps, they had the benefit of a residence order). But in the great majority of cases of people other than young children living in ordinary domestic circumstances, the degree of supervision and control and the freedom to leave would take the situation out of article 5.4. And, where article 5.4 did apply, no doubt the benignly intimate circumstances of a domestic home would frequently help to render any deprivation of liberty easier to justify. I do not accept that the cases cited by Lord Carnwath and Lord Hodge cast doubt on the notion that such confinement can fall within article 5.4. The comparison of the restrictions in the hospital in Nielsen v Denmark 11 EHRR 175, para 70 with a real home was made in connection with consideration of the contention that the treatment given at the hospital and the conditions under which it was administered were inappropriate in the circumstances. The case involved a child, and was decided on the basis that his mother was exercising her article 8 rights responsibly, in good faith and on the basis of medical advice see para 71. Indeed, the strength of the minority view to the contrary in that decision is a measure of the importance which the Strasbourg court attaches to the protection afforded by article 5.4. HM v Switzerland (2002) 38 EHRR 314 does not assist on the issue, not least because it turned on the consent given by the applicant, as explained in HL v United Kingdom 40 EHRR 761 para 93. HL itself seems to assist Lady Hales conclusion to the extent that, as explained by the Grand Chamber in Stanev v Bulgaria 55 EHRR 696, para 118, the court there held that there was a deprivation of liberty where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave. The serious doubts expressed in Haidn v Germany [2011] ECHR 39, para 82 take matters no further, not least because the factual circumstances are unclear. Accordingly, I agree with Lady Hale that the appeal of P and Q against Surrey County Council, as well as the appeal of P against Cheshire West and Chester Council, should be allowed. LORD KERR For the reasons given by Lady Hale and Lord Neuberger, with which I agree, I would allow these appeals. While there is a subjective element in the exercise of ascertaining whether ones liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on ones disposition to exploit ones freedom. Nor is it diminished by ones lack of capacity. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are and have to be applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is and must remain a constant feature of their lives, the restriction amounts to a deprivation of liberty. Very young children, of course, because of their youth and dependence on others, have an objectively ascertainable curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEGs liberty was not restricted. It is because they can and must now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty. Lord Clarke has commended the judgment of Parker J in the case of P and Q as setting out the factors relevant to an assessment of whether they are deprived of their liberty. The judgment is indeed a model of clarity but it is because it proceeds on the premise that liberty is to be judged subjectively that I cannot agree with it. Although the Strasbourg court has not had to confront precisely the situation in which the parties in these cases find themselves, it is clear, in my view, that the approach adopted by that court to the question of a deprivation of liberty is primarily rooted in an objective assessment of the conditions which are said to amount to that state. Thus in Stanev v Bulgaria (2012) 55 EHRR 696 and the cases which preceded it, the European Court of Human Rights was careful to point out that the starting point was the concrete situation of the person concerned. The rubric employed to describe the criteria to be taken into account, the type, duration, effects and manner of implementation of the measures confirms the paramount importance of an objective assessment. The subjective element in deprivation of liberty is the absence of valid consent to the confinement in question see para 117 of Stanev. This must be distinguished from passive acquiescence to the deprivation, particularly where that stems from an inability to appreciate the fact that ones liberty is being curtailed. In para 118 (c) the court said that deprivation of liberty occurs when an adult is incapable of giving his consent to admission to a psychiatric institution, even though he had never attempted to leave it. And, as Lady Hale has pointed out (in para 24 of her judgment) the court also said in para 119 that the right to liberty was too important to be lost simply because a person had given himself up to detention, especially where he is legally incapable of consenting to or disagreeing with it. Benevolence underpinning a regime which restricts liberty is irrelevant to an assessment of whether it in fact amounts to deprivation. Lord Carnwath and Lord Hodge suggest (in para 90 of their judgment) that the fact that a regime is no more intrusive or confining than is required for the protection and welfare of the person concerned, while principally relevant to justification of restriction of liberty, may also be taken into account in deciding whether the restriction amounts to deprivation of liberty. I cannot agree. The suggestion has echoes of some oblique observations in HM v Switzerland (2004) 38 EHRR 314 where it was found that the applicant had been placed in a nursing home in her own interests. But, as Lady Hale has pointed out (in para 28) this is inconsistent with later Grand Chamber decisions in Creanga v Romania (2012) 56 EHRR 361, and Austin v United Kingdom (2012) 55 EHRR 359. In Creanga the court said (at para 93) that the purpose of the measures which deprived applicants of their liberty was no longer decisive for the courts assessment of whether there has in fact been a deprivation of liberty. This factor was to be taken into account only at a later stage of [the courts] analysis, when examining the compatibility of the measure with article 5.1 of the Convention, in other words, whether the deprivation was justified. And in Austin at para 58 the point is made even more directly. There it was said that the courts jurisprudence made it clear that an underlying public interest motive has no bearing on the question whether [the] person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of article 5.1. These statements are consistent with the analysis of whether liberty has been deprived as involving principally an objective assessment. Placing restrictions on someones liberty for their own good or even to make available to them a range of activities that they might not otherwise be capable of does not transform the restrictions into something less than constraints. To suggest that the purpose of the restriction is relevant to whether it amounts to a deprivation of liberty is to conflate the object of the restraints with their true character. If, as Lord Carnwath and Lord Hodge have suggested, section 64(5) of the Mental Capacity Act 2005 ties us yet closer to the jurisprudence of Strasburg than does section 2 of the Human Rights Act 1998, this does not alter the requirement that we meet and deal with the claim that the restrictions on Ps and MIGs and MEGs liberty amount to a deprivation under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, even if there is no clear and constant line of authority from the European Court of Human Rights on similar facts to those which arise in the present appeals. Reference has been made to Lord Dysons judgment in Ambrose v Harris [2011] 1 WLR 2435 para 88, where he said that it may be possible to find a sufficiently clear indication in the Strasbourg jurisprudence of how the European court would resolve the question. But Lord Carnwath and Lord Hodge state that, in the absence of such a clear indication, this court should be cautious about extending a concept as sensitive as deprivation of liberty beyond the meaning which it would be regarded as having in ordinary usage para 93 of their judgment. With respect, I do not agree that caution is the appropriate reaction to an absence of authoritative guidance from Strasbourg. This court, in common with all public authorities, has the duty under section 6 of the Human Rights Act not to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it. This court must therefore resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. In any event for the reasons given by Lady Hale, it is apparent that two central features of the current Strasbourg jurisprudence point clearly to the conclusion that there is a deprivation of liberty in these cases. These are that the question of whether there has been a deprivation is to be answered primarily by reference to an objective standard and that the subjective element of the test is confined to the issue of whether there has been a valid and effective consent to the restriction of liberty. I do not accept that this clear guidance can be substituted with an ordinary usage approach to the meaning of deprivation of liberty. If deprivation of liberty is to be judged principally as an objective condition, then MIG, MEG and P are unquestionably subject to such deprivation, no matter how their situation might be regarded by those using ordinary language. LORD CARNWATH AND LORD HODGE We gratefully adopt the bulk of Lady Hales judgment, including her exposition of the legislative history, the relevant jurisprudence, and the facts of the cases before us. There is much common ground. We agree that the comparator should in principle be a person with unimpaired health and capacity for the reasons which the judgment advances. We also see real value in the clarity of a focused test as it would greatly assist the psychiatrists and other professionals who have to administer the Mental Capacity Act 2005 (the 2005 Act). We also recognise the arguments in favour of a policy of periodic supervision of arrangements made under that Act to safeguard those who have an incapacity in order to ensure that those arrangements are in their best interests. That is consistent with a commitment to give effective protection to vulnerable persons. On the other hand, as she recognises, there are legitimate concerns about the potential bureaucracy of the statutory procedures, and about including within the test the sort of benevolent living arrangements which many might find difficult to characterise as a deprivation of liberty (para 10). There is also common ground that the approach proposed by Lady Hale goes further than any existing Strasbourg case law. As she says, Strasbourg has not yet ruled on a case which combines the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to normal home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. To those we would add a fourth: (d) that the regime is no more intrusive or confining than is required for the protection and well being of the person concerned. We recognise that this fourth point, like the purpose of a regime, is principally relevant to the justification of that regime rather than the analysis of its nature: see Austin v United Kingdom (2012) 55 EHRR 359, para 58. But in our view the degree of intrusion is nonetheless relevant to the latter. The Strasbourg jurisprudence seems to us of added significance where, as Lady Hale notes (para 19), section 64(5) of the 2005 Act ties the concept of deprivation of liberty into article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms by providing that it will have the same meaning. As the Strasbourg court is the authoritative interpreter of the Convention, it appears to us that under the 2005 Act we are more closely tied to its interpretation of the Convention than we are under section 2(1) of the Human Rights Act 1998. In effect Parliament has decided that it is to the Strasbourg jurisprudence that we must turn to find out what is meant by deprivation of liberty. Even if we are wrong in suggesting that section 64(5) constrains us more than section 2 of the 1998 Act, we have clear and recent authority from a nine Justice Bench that we should follow a clear and constant line of decisions, especially those of the Grand Chamber (Manchester City Council v Pinnock (Secretary of State for Communities and Local Government Intervening) [2011] 2 AC 104, per Lord Neuberger (giving the judgment of the court) at para 48). See also R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2013] 3 WLR 1076 per Lord Sumption at para 121. We accept that the mere fact that Strasbourg has not yet had occasion to consider a case with this combination of factors does not of itself preclude us from forming our own view of how it would decide the matter if cases such as the present were to come before it. As Lord Dyson said, in Ambrose v Harris (Procurator Fiscal, Oban) [2011] 1 WLR 2435, para 88, it may be possible to find a sufficiently clear indication in the Strasbourg jurisprudence of how the European court would resolve [the] question. However, short of such a clear indication, we should be cautious about extending a concept as sensitive as deprivation of liberty beyond the meaning which it would be regarded as having in ordinary usage. We can see the attractions of a universal test, applicable to all regardless of any physical or mental disabilities, as Lady Hale proposes (para 46). But it is not a concept which we can find reflected in the Strasbourg cases. The court has remained wedded to a case specific test. It has consistently reaffirmed the need for an examination of the concrete situation taking into account a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question; and that the difference between deprivation of liberty and restrictions on liberty was merely one of degree or intensity, and not one of nature or substance. Turning to the individual cases discussed by Lady Hale, we would attach particular importance to Stanev v Bulgaria (2012) 55 EHRR 696, as a recent Grand Chamber decision in which the court also took the opportunity to review the early cases. It is important however to keep in mind that the focus of the judgment was on state run social care institutions, such as the one in issue in that case, rather than the more domestic environments with which we are concerned. The relevant facts have been sufficiently summarised by Lady Hale (para 26). We would highlight the following points in the judgment: (a) The test is not hard edged. The court repeated its standard Engel formula: In order to determine whether someone has been deprived of his liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (para 115) (b) The court summarised the effect of previous decisions in comparable cases: The court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v Russia (2008) 54 EHRR 962, para 108); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck v Germany (2005) 43 EHRR 96, para 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see HL v United Kingdom (2004) 40 EHRR 761, paras 89 94). (c) It is true that the court attached weight to the fact that he was under constant supervision and was not free to leave the home without permission whenever he wished (para 128), but this was not treated as conclusive in itself; it was only one of a number of factors leading to the overall assessment. (d) The court noted (at para 130) its previous holding that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, at para 108) In Stanev itself, the subject was well aware of his situation, and had expressed his desire to leave the social care home. Unlike HM (see below) it could not be said that he had consented to or tacitly accepted his placement there (para 130 131). It is notable that all the cases cited in the courts review related to people living in institutions of some kind, not in ordinary homes. Conversely, we have been referred to no Strasbourg case in which detention has been found in comparable circumstances to the present. A number of cases, in which no deprivation of liberty was found, contain pointers in the other direction: i) ii) iii) In Nielsen v Denmark (1988) 11 EHRR 175 it was significant that restrictions on the child applicants freedom of movement and contacts were no different from restrictions which might be imposed on a child in an ordinary hospital, the conditions being as similar as possible to a real home (para 70). In HM v Switzerland (2002) 38 EHRR 314 it was relevant that, though not able to go home (para 32), she had freedom of movement, was able to maintain social contact with the outside world and hardly felt the effects of her stay (paras 45 46). The case was regarded as comparable to Nielsen v Denmark (para 48). In HL v United Kingdom (2004) 40 EHRR 761, para 93 the court distinguished HM on the grounds that the nursing home in that case was an open institution which allowed freedom of movement and encouraged contacts with the outside world and offered a regime entirely different from that in HL. (It is true that in Stanev 55 EHRR 696, HM was distinguished in part on the basis that HM, unlike Stanev, had agreed to stay (para 131). However, that is not the ground on which HM was actually decided, and the fuller discussion in HL shows that such assumed agreement was only part of the story.) iv) In Haidn v Germany (Application No 6587/04) 13 January 2011, the subject, following release from detention on probation, was required by the court to live in an old peoples home, which he could not leave without his custodians permission (para 82). The court expressed serious doubts whether there was a deprivation of liberty, although did not need to decide the point. None of these cases is conclusive. As Lady Hale has shown, different interpretations are possible. However, if we are to look, in Lord Dysons words, for a clear indication of how Strasbourg would decide the matter, we are not persuaded that they provide sufficient support for the general test proposed by Lady Hale. We are concerned that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. We recognise that the concept in the Convention may be given an autonomous meaning by the Strasbourg court. But we are struck by how the judges in the courts below, with far more experience than we ourselves can claim, have laboured to keep the concept of deprivation of liberty in touch with the ordinary meaning of those words. Although we agree with some of the criticisms made of the Court of Appeal's relevant comparator approach, we understand what the judges were striving to achieve. We also share the concern of some of the judges below as to how such a test would have applied to HL, once returned from hospital to the placement with his foster parents, as required by the courts decision in that case. It is true as Lady Hale says (para 53) that no one suggested in that case that his position there would involve a deprivation of liberty. But that, surely, was because it had not occurred to anyone (including the court) that such a placement in an ordinary home environment could constitute a deprivation of liberty for the purpose of article 5, even though the degree of control for practical purposes would be the same as before. The present cases No doubt P and Q can be said to have had their liberty restricted, by comparison with a person with unimpaired health and capacity. But that is not the same as a deprivation of liberty. Parker J summarised their position in this way: 228 In neither placement in my judgment is there confinement in a restricted space for a not negligible length of time. [P] is living in a foster home and goes to college during the day; [Q] is living in a residential home and goes to college during the day. In the evenings they return to their respective homes 229 The concrete situation is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations. In our view that is entirely consistent with the Strasbourg jurisprudence and we would uphold her decision. In P v Cheshire West and Chester Council Baker J took a different view, on the facts of that case. Lady Hale has summarised the judges reasoning. He concluded: 59. On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasional aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. The Court of Appeal took a different view. While we agree with Lady Hales criticisms of parts of their reasoning, we see some force in their point that occasional restraint for purely therapeutic purposes should not be enough in itself to tip restriction over the edge into deprivation. As Munby LJ said: The measures described by the judge as applied from time to time to P are far removed from the physical or chemical restraints which one sometimes finds, for example, in mental hospitals. They are, in truth, the kinds of occasional restraint that anyone caring for P in whatever setting for example, his own mother if he was still living at home would from time to time have to adopt. ([2012] PTSR 1447, para 113) However, we think that this is too narrow a reading of the judges assessment overall and was not enough in itself to justify the court interfering with his decision in what in our view was a marginal case. Although we might not have reached the same decision, we are satisfied that he directed himself correctly on the legal principles, and that his conclusion was one which was reasonably open to him on the particular facts of the case. For these reasons, we would dismiss the appeal in P & Q but, in agreement with the majority, allow the appeal in P v Cheshire West. LORD CLARKE Introduction I agree with the conclusions and reasoning of Lord Carnwath and Lord Hodge. As I see it, the question in these appeals is whether, on the facts found, the appellants were deprived of their liberty or whether their liberty was interfered with. This is a question of fact which, as so often, depends upon all the circumstances of the case. The jurisprudence of the European Court of Human Rights (ECtHR), which is discussed in detail by others, shows to my mind that, in order to answer the question, it is necessary to conduct a multi factorial exercise which involves a balancing of a number of considerations. The ECtHR has not held that there is only one question (or acid test), namely whether the individual concerned is free to leave. Its approach is more nuanced than that. As Smith LJ put it in P and Q [2012] Fam 170, para 40, whether in each case MIG and MEG was deprived of her liberty or whether her liberty was merely interfered with is a question of fact and degree. It is essentially a jury question and thus a question for the trial judge. Given that it involves a balancing of many different considerations, the decision of the judge should not be interfered with by an appellate court unless it concludes that the judge has erred in principle or that the judge was wrong. An appellate court should not simply substitute its own view for that of the judge. In these cases the judges of first instance, Parker J in P and Q and Baker J in P, were very experienced in this field so that their opinions deserve great respect. In P and Q Parker J conducted a careful analysis of the facts relevant to each case: see paras 207 to 237. In para 224 she concluded (in my opinion correctly) that mere lack of capacity to consent cannot in itself create a deprivation of liberty. If it did, everyone placed by a local authority would be considered to be deprived of their liberty. She then said this: 225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made. 226. In my view it is necessary to analyse what specific measures or restraints are in fact required. The judge then referred to Salford City Council v GJ [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295 a case in which declaration had been made as to the lawfulness of certain measures and continued in this way. 227. No such declarations or authorisations were sought here. Specifically no authorisation was sought to prevent either from leaving the placement. No declaration was sought that it was lawful to administer Risperidone to MEG. In the draft order submitted at the hearing the relevant declarations sought in the event that I concluded that there was a deprivation of liberty were that each should live in their respective homes, attend C College, and have contact with family members as set out in the schedule to the draft order. There was no reference to medication. No more specific measures were referred to in the draft order, or in the care plans which were sought to be authorised. On the basis, as I have found, that placement in itself and lack of consent in itself is not sufficient to create a deprivation of liberty in the circumstances of this case, then there must in my judgment be some other specific course of action adopted or measure taken whereby restraints or restrictions are placed upon an individual of sufficient degree and intensity to constitute a deprivation of liberty. The guidance in the Deprivation of Liberty Safeguards Code supports this analysis. 228. In neither placement in my judgment is there confinement in a restricted space for a not negligible length of time. MIG is living in a foster home and goes to college during the day; MEG is living in a residential home and goes to college during the day. In the evenings they return to their respective homes. In their circumstances, and by comparison with the considerations in the control order cases, neither is subject to any form of house arrest or curfew. 229. The concrete situation is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations. Each is subject to limitations on her own autonomy and freedom of movement and ability to enjoy activities by being guided or accompanied in order to provide for her own immediate protection. 233. With specific regard to the measures said to amount to deprivation of liberty here, and to the Deprivation of Liberty Safeguards Code set out above, it is relevant that: i) Each was under the age of majority when admitted under the powers conferred by the Care Orders to their respective homes. Neither was admitted using restraint or medication. ii) The question of where each is to live is for the court, and no decision has been taken by MIG's foster mother (who is not staff) or the staff of B Home that either cannot leave; iii) Each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers. Each is under the continuous supervision and control of her carers (and in the case of MIG, of her foster family rather than staff) so as to meet her care needs rather than to restrain her in any way. iv) MEG is accommodated as a child in need. v) Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst. In my view the case of neither does this cross the line so as to constitute deprivation of liberty. vi) Medication is not administered to MEG so as to restrain her from leaving or to restrain her activities generally. In my view this does not cross the line either. vii) Neither is in a locked environment. viii) If either wished to leave in the immediate sense each would be restrained or brought back for their safety. If either were unhappy in their residential settings other arrangements would be sought. ix) Neither is deprived of social contacts, and in the school environment they can associate with whom they will, subject to the teachers or other support staff in that environment. Specific controls are placed on their contact with their mother and stepfather, but these controls are imposed not by their carers, but by court order. The arrangements in relation to contact with HG and SG are dictated by practicalities. x) Neither is in their respective homes all the time. They go to college for significant periods of time, where it is not suggested that either is deprived of her liberty, notwithstanding their respective lack of capacity to consent to attending college or to restraints on leaving that environment during the school day. xi) Some relatives support their placements and some do not. None actively objects to the placement. No relative objects to the care regime. No request by any interested person for either to be released into their care has been refused. xii) The fact that MEG is living in a residential home does not mean that she is deprived of her liberty. It is, to quote McFarlane J in LLBC v TG, JG and KR1, an ordinary care home where only ordinary restrictions on liberty applied; xiii) As in LLBC v TG, JG and KR, the subjects of these proceedings have at all times been the subject of either care orders or Court of Protection orders, under whose auspices they have been placed originally, and each person with an interest in the care and other arrangements for MIG and MEG has and has had the ability to apply to the court; xiv) No challenge to their placements has been made and the case has proceeded without any active attempt to invite the court to authorise deprivation of liberty until the final hearing; xv) No other arrangements less restrictive or invasive could be devised that would meet their care needs. 234. I have not met MIG or MEG but I have read much about them and heard much too. Their wishes and feelings are manifest and clearly expressed. They plainly have no subjective sense of confinement. In a non legal sense they have the capacity to consent to 1 [2007] EWHC 2640, [2009] 1 FLR 414, per McFarlane J at [105(i)] their placements. I cannot imagine that any person visiting MIG at the home of JW, or MEG at B Home would gain any sense of confinement or detention. 235. Those circumstances are in my judgment very far from the paradigm example of imprisonment. I have set out that part of Parker Js judgment in detail because it seems to me to set out the many relevant factors with clarity and to demonstrate why she was entitled to hold that MIG and MEG were not deprived of their liberty. For my part, I see no reason to hold that the judge reached a wrong conclusion. In particular I agree with the conclusions of Lord Carnwath and Lord Hodge that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIGs liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG. In conclusion, I would stress that, contrary to the view expressed by Lord Kerr in para 80, I do not read Parker J as adopting a subjective approach. As I see it she is essentially carrying out an objective assessment of the various factors in arriving at her conclusion. I have tried to do the same. This is not a comparative exercise with other people in different circumstances but an assessment of the position of MIG and MEG on the facts of their particular cases. For these reasons, in agreement with Lord Carnwath and Lord Hodge, I would dismiss the appeals in P and Q v Surrey County Council. Applying the same approach in P v Cheshire West and Chester Council, I would again decline to interfere with the conclusions of the judge at first instance, Baker J, and would allow the appeal. |
Mr David Price, the Solicitor Advocate acting for the defendants, who are the appellants, at one point described the claim as a storm in a teacup. He was correct, but the storm is considerable. It involves consideration of one of the most difficult areas of the law of defamation, the defence of fair comment. Over 40 years ago Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171 referred to the artificial and archaic character of the tort of libel. Some 20 years on Parker LJ in Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33, 46 commented on the absurdity of the tangled web of the law of defamation. Little has occurred in the last twenty years to unravel the tangle, and this is particularly true of the defence of fair comment. Statutory reform has been proposed in the form of Lord Lester of Herne Hills private members Defamation Bill and the Ministry of Justice has undertaken to publish a draft Defamation Bill early next year. Both Mr Price, and Mr Caldecott QC, who has intervened on behalf of and with the support of important newspaper and broadcasting interests, have invited the court to use this appeal as a vehicle for developing the common law defence of fair comment in a manner which goes well beyond what is necessary to resolve the issues raised by this appeal. What are currently the elements of the defence of fair comment? Sitting in the Court of Final Appeal of Hong Kong in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 Lord Nicholls of Birkenhead was concerned with the ingredients of malice that can defeat the defence of fair comment. Before considering that question he set out at paras 16 21, under the heading Fair Comment: The Objective Limits what he optimistically described as five non controversial matters, which were well established in relation to the defence of fair comment: 16. First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391. 17. Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson vs Smiths Weekly (1923) 24 SR (NSW) 20, 26: To say that a mans conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment. 18. Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available. 19. Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded. 20. Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject matter criticised. Dislike of an artists style would not justify an attack upon his morals or manners. But a critic need not be mealy mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174. 21. These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence. These five propositions relate to elements of the defence of fair comment in respect of which the burden of proof is on the defendant. Cheng was primarily concerned with a sixth element absence of malice. A defendant is not entitled to rely on the defence of fair comment if the comment was made maliciously. The onus of proving malice lies on the claimant. The second proposition. This merits elaboration. Jurists have had difficulty in defining the difference between a statement of fact and a comment in the context of the defence of fair comment. The example in Myerson (1923) 24 SR (NSW) 20, 26 cited by Lord Nicholls is not wholly satisfactory. To say that a mans conduct was dishonourable is not a simple statement of fact. It is a comment coupled with an allegation of unspecified conduct upon which the comment is based. A defamatory comment about a person will almost always be based, either expressly or inferentially, on conduct on the part of that person. Judges and commentators have, however, treated a comment that does not identify the conduct on which it is based as if it were a statement of fact. For such a comment the defence of fair comment does not run. The defendant must justify his comment. To do this he must prove the existence of facts which justify the comment. The fifth proposition. The requirement to show that the comment is germane to the subject matter criticised and is one that an honest person could have made, albeit that that person may have been prejudiced, or have had exaggerated or obstinate views, is one that is bizarre and elusive. I am not aware of any action in which this has actually been an issue. I shall describe this element as pertinence. The fourth proposition. It is this proposition that is directly in issue in this appeal. The facts on which the defendants wish to rely in support of their plea of fair comment include a fact to which they made no reference in the publication complained of. The claimants say that they cannot rely on this, for this would run foul of Lord Nicholls fourth proposition. Mr Price submits that far from being well established, that proposition is contrary to authority and wrong. Mr Caldecott supports that submission. The important issue raised by this appeal is thus the extent to which, if at all, the defence of fair comment requires that the comment should identify the matter or matters to which it relates. The facts The claimants are members of the musical acts The Gillettes and Saturday Night at the Movies. They perform in venues across the country, at wedding receptions and other events. The first claimant is a singer in both acts and is their de facto manager. The first defendant was at all relevant times one of the two directors (the other being his wife, Christina) of the second defendant, which at all relevant times provided entertainment booking services and advertised acts and performers on its website for weddings, drinks receptions, corporate entertainment and other events. On 13 October 2004 the first claimant agreed that the claimants acts could be promoted by the defendants. This involved completing an online agreement form. The agreement simply permitted the defendants to promote the claimants. It did not require the claimants to take up any booking that was offered to them. The agreement form contained a link to the terms and conditions that would apply in the event that a booking was made. Several performances were subsequently arranged by the defendants. These included a booking at the Landmarc Hotel arranged in December 2005 (the Landmarc booking). This was cancelled by the first claimant shortly after it was made. The first claimant claims that this was because of the existence of a previous booking, which he had over looked. This is denied by the defendants. They contend that the claimants cancelled this booking because they had received a better offer. On 19 April 2006 the first claimant signed a booking agreement in relation to a performance on 31 December 2006 at Bibis, a restaurant in Leeds (the Bibis booking). The terms and conditions included a re engagement clause, which provided that any further bookings at the venue in the following 12 months should be through the second defendant. The first claimant arranged a further performance at Bibis on 9 May 2007 directly with the venue. He admits that he was aware of the re engagement clause. He says that he deliberately decided not to inform the first defendant of the booking because the new manager of Bibis would not deal with the first defendant (the latter allegation is denied by the defendants). When the first defendant discovered this on 27 March 2007 he sent an email to the first claimant in the following terms: Craig It appears you have taken a booking directly with Bibis. We will be instructing our legal team to deal with this. I will also be discussing this with the Musicians Union as it does appear that, aside from having no commitment to those that give you work, you are also not able to abide by the terms of your contract. The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events. Forthwith, we will not be representing you any longer as we can only work with professional artists who can accept our terms and conditions. Kind regards The first claimants response on the same day prompted the first defendant to publish on the second defendants website the posting which is the subject of the claim (the posting). Only a small part of the first claimants email was set out in the posting and it was partially misquoted. The full email read as follows: Hi Jason It appears you do not know the meaning of freelance, that is what all my shows are. You are part of a cog which supplies all agents and artitses [sic] alike with work, one does not work without the other. You came to me Jason after viewing the quality of our show, your contract is mearly [sic] a formality and holds no water in legal terms. You should consider looking after your clients/venueus[sic] better then maybe you would not lose them. Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more. You [sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary. I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms and conditions. Thers [sic] is one outstanding show with you guys Aug 4th o7 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee 900.00 + vat. TOTAL =1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancellation [sic] of the show. Please confirm this can be organised within 7 days or I will cancel the date. I look forward to any legal trysts. Kind regards Craig (On behalf of the Gillettes) The words of the posting were: 1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract. What we say: The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK. However, following a breach of contract, Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of contracts hold no water in legal terms (27.03.07). For this reason, it may follow that the artists obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for the Gillettes and Saturday Night at the Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties. Instead we recommend any of the following professional bands and artists The posting was accessible for six weeks between April and May 2007 when it was removed following a letter from Equity on behalf of the claimants. The claimants allege that they lost a booking as a result of it. The defendants do not admit this. On 4 August 2007 the claimants performed at the wedding of Michael Coombes (the Coombes booking). This booking had been arranged by the defendants before the rupture between the parties in March. Shortly before the wedding the first claimant agreed to play for a further 30 minutes for 275 (cash), without VAT or the defendants commission that was charged on the main fee. The defendants allege that this was to evade their commission and tax. The claimants allege that they did not, in the end, perform the extra 30 minutes, which is why it does not appear on their records. In February 2008 the posting was inadvertently uploaded to a part of the defendants site where it could be accessed and it remained there until April 2008. The posting was removed following a solicitors letter on behalf of the claimants. The claimants allege that they lost a further booking in consequence. The defendants allege that this claim has been manufactured by the claimants. The claimants attach great significance to the difference between their email of 27 March 2007 and the brief summary of this in the defendants posting. They submit that their email merely challenged the validity of the defendants re engagement clause and cast no doubt on the claimants respect for their bookings with their customers. The defendants posting, however, suggested that the claimants had challenged the validity of contractual obligations in general, so that they could not be trusted to honour their engagements. The claimants contend that this misrepresentation of their email was deliberate. The pleadings The amended particulars of claim allege that the defendants posting bore the following meaning: the claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies. (para 8) The amended defence pleads justification in relation to the following meaning: Meanings that the defendant alleges to be true 9.1 The first claimant on behalf of the claimants has : 9.1.1. Conducted himself in such a manner so as to entitle the defendants to conclude that The Gillettes were not sufficiently professional to feature in the second defendants portfolio. 9.1.2. Breached the terms of agreements with the second defendant. 9.1.3. Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007. 9.2 In the circumstances, the claimants may not necessarily adhere to the terms of booking agreements signed by the first claimant. (para 9) The facts relied on in support of the plea of justification are: a) By passing the defendants when accepting a re engagement at Bibis; b) The first claimants email of 27 March 2007; c) The cancellation of the Landmarc booking when something better had come up. The defence then pleads fair comment in relation to the following parts of the posting: The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolioit may follow that the artists obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for The Gillettes and Saturday Night at the Movies may sign a contract for your booking but will not necessarily adhere to it. The facts relied upon in relation to the plea of justification are equally relied on as facts upon which the comment was based. The proceedings below On 27 April 2009, just over one month before the date fixed for the trial, the claimants issued an application for summary judgment, alternatively for an order striking out the defences, on the basis that there were no issues to go to the jury. Thus began the tortuous interlocutory proceedings that have culminated in this appeal. With hindsight it is apparent, and with a little foresight it should have been apparent at the time, that this relatively modest dispute raised issues of complexity, some of which might not prove decisive, and that the best course would be to proceed with the substantive hearing before a judge alone. In the event Eady J gave judgment on the claimants application on 22 May 2009. One issue, which occupied much time before the judge and the Court of Appeal, but which is no longer live, related to the effect on the claimants contractual obligations of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319). Neither party had been aware of these at the material time and it is not necessary to say any more about them. The claimants sought to persuade Eady J to strike out the particulars of justification on the ground that those particulars could not possibly justify the defendants posting. The judge declined to do so, holding that the plea of justification was sufficiently arguable to be a matter that had to be left to the jury. He gave the defendants permission to add to their particulars of justification conduct of the claimants that post dated the defendants posting. This related to the Coombes booking. The allegation was that the claimants had offered to play for an additional 30 minutes for a cash payment in respect of which they intended to evade both VAT and the claimants commission. The claimants were, however, successful in persuading Eady J to strike out the defence of fair comment. He gave the following reasons for doing so: 58. The defence of fair comment is attacked on three grounds. First, it is said that no part of the words complained of is capable of being classified as comment; that is to say, a jury would be perverse to come to such a conclusion. It is necessary to remember, in this context, that the defence is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear they are not objectively verifiable: see eg Gatley on Libel and Slander, 11th ed (2008), at para 12.7. For example, where a conclusion is expressed by the commentator in circumstances where it is obvious to the reader that he cannot know the answer (eg in relation to someones secret motives), it would be taken as comment rather than fact. 59. Here, the real sting of the libel (although this may well be for the jury to decide in due course) would appear to be the allegations that the claimants take a generally cavalier attitude to contractual obligations and are not to be trusted in business dealings. It seems to me that they are factual in character rather than the expression of opinions. All that is specifically relied upon is the allegation of a breach, which forms the subject matter of the justification defence. It may be thought, therefore, to add very little. 60. Also I cannot see that a (one sided) summary of a private contractual dispute can be said to constitute a matter of public interest. (I have already referred to the misquotation from the first claimants email of 27 March, where the impression was given that he was speaking of contracts in general rather than of the particular re engagement term sought to be imposed by the defendants. This does not arise for consideration in the present context, although it would plainly be relevant if the plea of fair comment were to survive in determining whether or not it had been made with reference to facts truly stated.) The Court of Appeal [2009] EWCA Civ 1075; [2010] ICR 642 declined to reinstate the defence of fair comment. Pill LJ gave the only reasoned judgment, with which Hooper and Wilson LJJ agreed. Pill LJ held that the words in their posting identified by the defendants as comment were, indeed, comment rather than allegations of fact (paras 29 to 31). Pill LJ did not refer to authorities which indicate that, if there is an issue of whether words are fact or comment, this is a matter for the jury. His finding can be upheld on the basis that the words in question are unarguably comment, and it has not been challenged in this court. So far as concerns the question of whether the comment related to a matter of public interest, Pill LJ said this, at para 37: I see no merit in the argument that the comment cannot constitute a matter of public interest. Those in the business of entertaining the public, a business in which many people are engaged, will be concerned, when serving the public, to know which artists can be relied on to perform their contracts and which cannot. The comment is arguably in the public interest. The last sentence suggests that Pill LJ considered that this issue was one for the jury, whereas the authorities indicate that it is a question of law for the judge. The claimants have, however, treated Pill LJs ruling as a finding that the subject matter of the comment was a matter of public interest and have not challenged that finding. Pill LJ accepted a point raised by the claimants by a respondents notice. They contended that the defence of fair comment was bad because the comment was founded on the statement allegedly made by the claimants in their email of 27 March 2007, which was falsely described in the defendants posting. They argued (i) that a defence of fair comment can only be founded on a comment which refers to or identifies the facts on which the comment is based and (ii) that those facts must be true. The defendants argued that, by virtue of the provisions of section 6 of the Defamation Act 1952, they could also rely to support their comment on the breach by the claimants of the Landmarc contract in 2005. In rejecting this submission Pill LJ applied the fourth proposition of Lord Nicholls in Cheng: 40. The words complained of, however, do also allege that the claimants have not been able to abide by the terms of their contract and that the email was written following a breach of contract, thus possibly attracting an application of section 6 of the Defamation Act 1952. Under the heading Fair Comment, the section provides: In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. 42. Clearly, the defendants real complaint against the claimants was a breach by the claimants of the re engagement clause in the contract between the claimants and the second defendant. There is no reference to that in the words complained of. The contract is not identified in the publication, still less the term allegedly breached. Moreover, the single specific allegation of fact in the words complained of is plainly untrue. 43. Mr Price relied, in a section 6 context, on the more general allegations repeated above. In paragraph 10.2 of the re amended defence, the defendants rely on the facts set out at in paragraph 9, other than in paragraph 9.16. Paragraphs 9.1 to 9.12 refer to the contract between the claimant and the second defendant and to the re engagement term. Paragraphs 9.13 and 9.14, however, refer to an alleged breach of a booking arrangement with Landmarc in Bournemouth in December 2005. That alleged breach was sufficiently identified in the words complained of, it was submitted. 44. As Lord Nicholls stated in Tse Wai Chun Paul, at para 19, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. Does section 6 of the 1952 Act permit the defendants, in this context, to rely on the breach alleged in paragraphs 9.13 and 9.14 [breach of Landmarc booking] 45. I have come to the conclusion that the defence of fair comment should not be permitted to stand, on an application of section 6, on the strength of an alleged breach of contract with a hirer in December 2005. The dispute arose in March 2007 following an alleged breach by the claimants of the re engagement term in their contract with the second defendant. That breach gave rise to the publication which led to the present action. 46. The breach of contract relied on for present purposes is of a contract with a hirer in 2005. As between the claimants and defendants, there were no repercussions in that contractual relations proceeded without complaint until March 2007. The words following a breach of contract in the words complained of cannot be taken as referring to the December 2005 breach. Nor, in my judgment, can the later words in the defendants comments. In my judgment, a jury could not properly base a finding of fair comment against the claimants, given the nature of the comment, upon a breach of contract in December 2005 14 months before the breach which led to the publication. On this ground, the judges decision to strike out the defence of fair comment is to be upheld. The issues The issues raised by this appeal are as follows: i) Can the defendants rely in support of their plea of fair comment on matters to which they made no reference in their comment? ii) Are the matters to which the defendants did refer in their comment capable of sustaining a defence of fair comment? The development of the defence of fair comment When citing from the relevant authorities I propose to place in italics passages that are of particular relevance to the issues on the appeal. The history of the defence of fair comment is helpfully summarised by Paul Mitchell in Chapter 8 of The Making of the Modern Law of Defamation (2005). It originated at a time when malice was an essential element in the tort of defamation but malice was normally implied unless rebutted. Originally criticism of literary works and works of art was protected in so far as no presumption of malice arose in respect of such publications. Of necessity such publications identified the subject matter of the comment and it was implicit in some judgments that the matter to which the criticism related would be set out before the criticism was made see Cooper v Lawson (1838) 8 Ad & E 746. In the first half of the 19th century the subject matter that could found a defence of fair comment was extended to other matters of public interest and, in particular, to the acts of persons in public life Turnbull v Bird (1861) 2 F & F 508. Campbell v Spottiswoode (1863) 3 B & S 769 is perhaps the most important foundation stone of the modern law of fair comment. The plaintiff was a dissenting Protestant minister who had a scheme for advancing the propagation of the gospel in China by promoting the sales of a newspaper containing a series of letters emphasising the importance of this. The defendant published an attack on the plaintiff in a rival newspaper alleging that the plaintiffs motive was not to take the gospel to the Chinese but to make money out of the sales of his newspaper, and that the names and descriptions of subscribers published in the newspaper were fictitious. The publication made it plain that these allegations were no more than inferences, albeit that they were inferences of fact. The court drew a distinction between attacking the scheme and attacking the character of its proponent. Cockburn CJ said, at p 777: I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest. Crompton Js judgment was to similar effect. He observed, at p 778: Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, the proceedings in courts of justice or in Parliament, or the publication of a scheme or of a literary work. But it is always to be left to a jury to say whether the publication has gone beyond the limits of a fair comment on the subject matter discussed. A writer is not entitled to overstep those limits and impute base and sordid motives which are not warranted by the facts, and I cannot for a moment think that, because he has a bona fide belief that he is publishing what is true, that is any answer to an action for libel. With respect to the publication of the plaintiffs scheme, the defendant might ridicule it and point out the improbability of its success; but that was all he had a right to do. It is not entirely clear whether the court was holding that defamatory inferences in relation to motive could be justified provided that they were reasonable, or whether it considered that such inferences had to be justified by showing that they were true. Certainly Mellor J, at pp 782 783, appears to have taken the latter view. In Merivale v Carson (1887) 20 QBD 275, 280 281 Lord Esher MR cited the passage from Crompton Js judgment in Campbell v Spottiswoode and then addressed the question of what was meant by fair comment: What is the meaning of a fair comment? I think the meaning is this: is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work . Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised? If it goes beyond that, then you must find for the plaintiff; if you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all. The nature of fair comment was further clarified by Collins MR in McQuire v Western Morning News Co Ltd [1903] 2 KB 100. The subject of the action was a swingeing condemnation of the merits of a musical play. The Master of the Rolls observed at p 108 that there was no evidence of actual malice, no personal imputations and no allegations of fact. In these circumstances he held at p 112 that if comment was to be fair it had to be relevant and not such as to disclose in itself actual malice. In Dakhyl v Labouchere, (Note) reported at [1908] 2 KB 325, the House of Lords was concerned not with literary criticism but with a publication that described a doctor as a quack of the rankest species. Lord Atkinson, who made the most substantial speech, expressed the view, at p 329, that a personal attack could form part of a fair comment on facts stated provided that it was a reasonable inference from those facts. His speech was cited at length by Fletcher Moulton LJ in Hunt v The Star Newspaper Co Ltd [1908] 2 KB 309. That appeal concerned publications imputing to the plaintiff improper conduct in the discharge of his duties as a deputy returning officer at a municipal election. Thus the complaint related to allegations of fact but the sting of the article was that the conduct of the plaintiff had been politically motivated. The Court of Appeal in that case drew a distinction between the test of fair comment in relation to literary criticism, as laid down in Merivale v Carson 20 QBD 275, and the test of fair comment in relation to a personal attack on an individual. In the present context, however, this decision is particularly significant for what was said in respect of the difference between comment and allegations of fact. Because of the significance attached to this judgment in later cases, I shall set out at a little length the most significant extracts, at pp 319 321: The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v Chapman (1853) 3 C & K 286. The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses. Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails. Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation. To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence. I agree that an allegation of fact may be justified by its being an inference from other facts truly stated, but in order to warrant it the jury must be satisfied that such inference ought to be drawn from those facts. Fletcher Moulton LJ, and the other members of the court, thus drew a distinction between (i) defamatory allegations of fact, which had to be clearly and fairly stated, and to be true; (ii) literary criticism, which need not be reasonable but had to be honest, and (iii) imputations of motive amounting to an attack on the character of the plaintiff, which had to be reasonably drawn from the facts. The judgment of Fletcher Moulton LJ is the first that deals with the question of whether the publication must set out or identify the facts upon which the defamatory comment is based. It is implicit in his judgment that it must and for a reason that he explains. The injustice that an unjustified defamatory comment can cause to the plaintiffs reputation will be mitigated if the reader can see the basis of the comment and thus be in a position to appreciate that it is not justified. The Lord Justice contrasted this position with one where the reader concluded that the facts upon which the comment was based were not set out in the article, but were within the personal knowledge of the writer. The clear inference was that the defence of fair comment could not apply to the latter situation. The defence of fair comment again received consideration by the House of Lords in Sutherland v Stopes [1925] AC 47. That case was largely concerned with the implications of the rolled up plea, and I have not found it of much assistance in relation to the issues arising on this appeal. A comment of Viscount Finlay, at p 64, is of interest for the light that it throws on the reason why the question of whether a comment is on a matter of public interest has been held to be one for the judge and not the jury: A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, Parliament itself, to be of no national or general importance In so stating Viscount Finlay treated this question as if fair comment was a variety of qualified privilege. Earlier, however, at p 62 he had summarised the law of fair comment as follows: The defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard to a matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence there must, of course, be a basis of fact on which the comment is made. This, then, was the state of the law when the important case of Kemsley v Foot [1951] 2 KB 34; [1952] AC 345 fell to be decided. Lord Nicholls made no reference to this case in Cheng [2001] EMLR 777 and Mr Price and Mr Caldecott submit that his fourth proposition is not consistent with it. The publication that was the subject of the claim in Kemsley v Foot was an article by Michael Foot in the Tribune that made a virulent attack on an article in the Evening Standard, a newspaper controlled by Lord Beaverbrook. The plaintiff was not, however, Lord Beaverbrook, but Viscount Kemsley, a rival newspaper proprietor. His claim was founded on three words that provided the heading to Michael Foots article. The words were Lower than Kemsley. The plaintiff pleaded that the meaning of these words, in their context, was that he used his position as a newspaper proprietor to procure the publication of statements that he knew to be false. The defence included a plea of fair comment on a matter of public interest, said to be the control by the plaintiff of the newspapers of which he was proprietor. Particulars of the specific facts upon which the said words are a fair comment were provided separately: [1951] 2 KB 34, 40 41. These contained excerpts from the plaintiffs newspapers which were alleged to be inaccurate, untruthful or otherwise colourable. The issue was whether the plea of fair comment should be allowed to stand in circumstances where the article itself set out no facts at all that related to the plaintiff or his newspapers. The judge held that it should not, and struck out the plea of fair comment and the particulars pleaded in support of it. The Court of Appeal reversed his decision and the House of Lords affirmed the decision of the Court of Appeal. The judgments are not easily analysed and the author of the headnote to the decision of the Court of Appeal is to be congratulated on this concise statement of the effect of the judgments of Somervell and Birkett LJJ, with each of whom Jenkins LJ agreed: Criticism of a newspaper proprietor directed to the manner in which news is presented in papers controlled by him is to be treated on the same lines as criticism of a book or a play or other matter submitted to the judgment and taste of the public, and the critic is not to be shut out from the plea of fair comment because in his criticism he had not given or referred to examples of the conduct criticised, so long as the subject matter of the comment is plainly stated. Somervell LJ, at p 42, identified two situations in which there was no need for a publication to set out details of the facts upon which the comment was based in order to found a defence of fair comment. The first was where the comment was on a play, a book or a work of art, put before the public for its approval or disapproval. The second was where the comment was on the actions of a public man that had been under such vigorous discussion that a bare comment would be taken by the reader as plainly referable to them. The Lord Justice, at p 43, contrasted these with a third situation: At the other end of the scale one may imagine a comment reflecting on the integrity of a subordinate official, whose activities had so far received no publicity, where it might be held that the defence was not available unless the facts relied on were substantially set out or indicated. He went on, at p 45, to hold that criticism directed at the manner in which a newspaper presented news was to be compared to criticism of a book. Birkett LJ drew a similar distinction. He held, at p 51: I do not think it is possible to lay down any rule of universal application. If, for example, a defamatory statement is made about a private individual who is quite unknown to the general public, and who has never taken any part in public affairs, and the statement takes the form of comment only and is capable of being construed as comment and no facts of any kind are given, while it is conceivable that the comment may be made on a matter of public interest, nevertheless the defence of fair comment might not be open to a defendant in that case. It is almost certain that a naked comment of that kind in those circumstances would be decided to be a question of fact and could be justified as such if that defence were pleaded. But if the matter is before the public, as in the case of a book, a play, a film, or a newspaper, then I think different considerations apply. Comment may then be made without setting out the facts on which the comment is based if the subject matter of the comment is plainly stated. Lord Porter gave the leading speech in the House of Lords: [1952] AC 345. At p 354 he described the question for the House as being whether a plea of fair comment is only permissible where the comment is accompanied by a statement of facts upon which the comment is made and to determine the particularity with which the facts must be stated. At pp 355 356 Lord Porter rejected the suggestion that there was a difference in principle between literary criticism of a play, book or newspaper and criticism that implicitly attacked the character of the person responsible for the work in question. He observed that in each case: the subject matter upon which criticism is made has been submitted to the public, though by no means all those to whom the alleged libel has been published will have seen or are likely to see the various issues. Accordingly, its contents and conduct are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject matter upon which the comment is founded. I am assuming that the reference is to a known journal: for the present purpose it is not necessary to consider how far criticism without facts upon which to base it is subject to the same observation in the case of an obscure publication. Lord Porter then summarised his conclusions in the following passage, at pp 356 357: The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander, 6th ed (1929), p 166. Sometimes, however, he says, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that such conduct is disgraceful, this is merely the expression of his opinion, his comment on the plaintiffs conduct. So, if with out setting it out, he identifies the conduct on which he comments by a clear reference. In either case the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the fact correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact. But the question whether an inference is a bare inference in this sense must depend upon all the circumstances. Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied from the terms of the impugned article and therefore the inquiry ceases to be Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes Is there subject matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such [as] an honest, though prejudiced, man might make? Lord Porter went on to deal with a matter which did not arise directly on the appeal, at pp 357 358: One further matter on which some discussion took place does not, in my opinion, directly arise on this appeal, but as it may be raised in interlocutory proceedings later in the course of the action, I think it desirable to express an opinion on it. In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in [the] particulars delivered in the course of the action? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject matter of the comment but facts alleged to justify that comment. In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that that press is a low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. 20 facts might be given in particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other 19 would not of necessity defeat the defendants plea. The protection of the plaintiff in such a case would, in my opinion, be, as it often is in cases of the like kind, the effect which an allegation of a number of facts which cannot be substantiated would have upon the minds of a jury who would be unlikely to believe that the comment was made upon the one fact or was honestly founded upon it and accordingly would find it unfair. At p 360 Lord Porter commented on the passage in the judgment of Fletcher Moulton LJ in Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 that I have quoted at para 39 above: He was seeking to distinguish facts from comment and in effect saying that the facts alleged must be such as to warrant an honest mans making the comment complained of. He had not to consider whether the facts must be set out in full or whether a reference to well known or easily ascertainable facts was a sufficient statement of those relied on. Lord Oaksey gave a short concurring speech. He said, at pp 360 361: The forms in which a comment on a matter of public importance may be framed are almost infinitely various and, in my opinion, it is unnecessary that all the facts on which the comment is based should be stated in the libel in order to admit the defence of fair comment. It is not in my opinion, a matter of importance that the reader should be able to see exactly the grounds of the comment. It is sufficient if the subject which ex hypothesi is of public importance is sufficiently and not incorrectly or untruthfully stated. A comment based on facts untruly stated cannot be fair. What is meant in cases in which it has been said comment to be fair must be on facts truly stated is, I think, that the facts so far as they are stated in the libel must not be untruly stated. Lord Porters remark, at pp 357 358, that where the facts were fully set out in the alleged libel each fact had to be justified echoed an observation at paragraph 87 of the 1948 Report of the Committee on the Law of Defamation (Cmd 7536), which Lord Porter had chaired. The Report made the following recommendations in relation to this, at paragraph 90: We accordingly recommend an amendment of the existing law analogous to that which we have recommended in relation to the defence of justification, namely that a defence of fair comment upon a matter of public interest should be entitled to succeed if (a) the defendant proves that so much of the defamatory statements of fact contained in the alleged libel is true as to justify the court in thinking that any remaining statement which has not been proved to be true does not add materially to the injury to the plaintiffs reputation, and (b) the court is also of opinion that the facts upon which the comment is based are matters of public interest and the comment contained in the alleged libel was honestly made by the defendant. Effect was given to the recommendations of Lord Porters Committee by the following sections of the Defamation Act 1952: 5 Justification In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiffs reputation having regard to the truth of the remaining charges. 6 Fair Comment In action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. It is significant that section 6 refers to facts alleged or referred to in the words complained of. The section lends no support to the proposition that fair comment can be based on facts which are neither alleged nor referred to in the words complained of. Weight was attached in argument before us to two observations of Lord Denning. He made the first, as Denning LJ, at pp 359 360 in Adams v Sunday Pictorial Newspapers (1920) Ltd and Champion [1951] 1 KB 354. The issue was whether interrogatories should be ordered in relation to the question of whether a defendant who was relying on the defence of fair comment had been activated by malice: The truth is that the burden on the defendant who pleads fair comment is already heavy enough. If he proves that the facts were true and that the comments, objectively considered, were fair, that is, if they were fair when considered without regard to the state of mind of the writer, I should not have thought that the plaintiff had much to complain about; nevertheless it has been held that the plaintiff can still succeed if he can prove that the comments, subjectively considered, were unfair because the writer was actuated by malice. The more relevant comment for present purposes was that made by Lord Denning MR in Cohen v Daily Telegraph Ltd [1968] 1 WLR 916. In that case the defendant pleaded, as matters on which its publication was alleged to be fair comment, facts that had occurred some weeks after the publication. These were struck out and the defendant appealed unsuccessfully to the Court of Appeal. Lord Denning observed, in an ex tempore judgment, at pp 919 920: In order to make a good plea of fair comment, it must be a comment on facts existing at the time. No man can comment on facts which may happen in the future. There is a passage in Gatley on Libel and Slander, 6th ed (1967), p 723 which goes further. It says: The facts which the defendant seeks to prove as the basis of his comment must have been known to him when he made the comment. I do not know that I would go quite so far as that. A man may comment on existing facts without having them all in the forefront of his mind at the time. Nevertheless it must be a comment on existing facts. If, which I doubt, Lord Denning intended to say that a defence of fair comment could be based on facts unknown to the defendant at the time of his comment, the other two members of the court did not agree. Davies LJ stated, at p 920: If it is necessary for the man making the comment to know the facts at the time he makes it, it follows as the night follows the day that it is impossible for him to rely on events which at that time had not happened. Russell LJ remarked, at p 921, that it was not disputed that the facts upon which a defence of fair comment were based could only be those known at the time of publication. Subsequently, in London Artists Ltd v Littler [1969] 2 QB 375, 391, Lord Denning MR stated: In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham Howie vs Dimbleby [1951] 1 KB 360,364. They are the facts on which the comments are based or from which the inferences are drawn as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley vs Foot [1952] AC 345; but he must get them right and be ready to prove them to be true. Judicial opinion in relation to this area of the law did not change over the next 20 years. In Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33 the issue was whether the defence of fair comment could be based on unproven statements if these were made on a privileged occasion. The Court of Appeal held that it could, but only if the publication set out a fair and accurate report of the proceedings in which the privileged statements were made. Bingham LJ made the following summary of the law of fair comment, at p 44: The civil law of libel is primarily concerned to provide redress for those who are the subject of false and defamatory factual publications. Thus in the simplest case A will be entitled to relief against B if B publishes a defamatory factual statement concerning A which B cannot show to be true. The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule already mentioned that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated. Failing that, the comment itself must be justified. Bingham LJ went on to hold, at p 45, that fairness to the subject of a defamatory comment based on a privileged statement required that the commentator should at least base his comment on a fair and accurate account of the occasion on which the statement was made. Part of the problem with the defence of fair comment relates to the identification of which, if any, elements of the defence are subjective and which are objective. This question bears intimately on the question of burden of proof in relation to the various elements. These questions received detailed consideration by the Court of Appeal and the House of Lords in Telnikoff v Matusevitch [1991] 1 QB 102; [1992] 2 AC 343. The plaintiff complained of a letter published by the defendant about an article written by the plaintiff. The primary issue was whether the defendant could refer to portions of the article not quoted in his letter in order to demonstrate that the letter consisted of comment rather than statements of fact. Reversing the Court of Appeal, the majority of the House of Lords held that he could not. A defence of fair comment could not be made out unless it was apparent from the publication itself that the matter complained of was comment rather than an allegation of fact. In the course of a dissenting opinion, Lord Ackner remarked, at p 361: In my judgment the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself. It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves. The defence of fair comment is available to a defendant who has done no more than express his honest opinion on publications put before the public. It is sufficient for him to have identified the publication on which he is commenting, without having set out such extracts there from as would enable his readers to judge for themselves whether they agreed with his opinion or not. A subsidiary but important issue was what it was that a defendant had to prove in order to establish the defence of fair comment. Counsel for the plaintiff submitted that the defendant had to establish that: (i) the words complained of were comment; (ii) the comment was on facts; (iii) the facts commented on constituted a matter of public interest; (iv) the comment was objectively fair; that is the comment was one that was capable of being honestly founded on the facts to which it related, albeit by someone who was prejudiced and obstinate; (v) the comment represented the defendants honest opinion. If he discharged all these burdens, the defence could none the less be defeated by proof of malice on the part of the defendant, but the onus of proving malice lay on the plaintiff. Both the Court of Appeal and the House of Lords held that there was no burden on the defendant to establish the fifth element. The defendants honesty was assumed unless the plaintiff could disprove it by establishing malice. The most significant development of the common law of defamation in recent times has been the creation of Reynolds privilege. In the course of his speech in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Lord Nicholls made some comments in relation to the defence of fair comment which were a precursor to what he subsequently said in Cheng [2001] EMLR 777. At p 193, he said: It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made see the discussion in Duncan & Neill on Defamation, 2nd ed (1983), pp 58 62. At p 201 he referred to the fact that proof of malice denied protection to defamatory statements, whether of comment or fact. He added: In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based. I cited at the outset of this judgment the five propositions in relation to fair comment advanced by Lord Nicholls in Cheng under the heading Fair Comment: The Objective Limits. At para 41 of that case he returned to the fourth proposition under the heading Motive: Proof of malice is the means whereby a plaintiff can defeat a defence of fair comment where a defendant is abusing the defence. Abuse consists of using the defence for a purpose other than that for which it exists. The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting on matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree. Lord Nicholls broke new ground in holding that malice in the context of fair comment had a different meaning from malice in the context of qualified privilege. In the former context, the motive for making the comment was irrelevant. All that mattered was whether or not the commentator honestly believed in the truth of his comment. This was an evolution of the view that Lord Nicholls had expressed in Reynolds at [2001] 2 AC 127, 201: Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth. The authors of Gatley, 11th ed, comment, at para 12.25: Formerly, it was widely believed that the idea of malice was essentially the same in fair comment [as in qualified privilege] and that the cases were essentially interchangeable. It has now been demonstrated that this is incorrect. In holding that not even spite or ill will constituted malice, Lord Nicholls The last sentence is a remarkable tribute to the standing of the Court of Final Appeal of Hong Kong and, more particularly, of Lord Nicholls. [2001] EMLR 777, para 48 once again returned to his fourth proposition: Thus, the comment is one which is based on fact; it is made in circumstances where those to whom the comment is addressed can form their own view on whether or not the comment was sound; and the comment is one which can be held by an honest person. Lord Nicholls fourth proposition has come under attack before that launched in the present action. It is questioned in Duncan & Neill 3rd ed at para 13.20 and in Gatley at para 12.8. Eady J dissented from it at para 57 of his judgment in Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB); [2007] QB 580. That decision merits attention, for it contains the carefully considered views of a judge who has great experience of the law of defamation on the subject matter of the present appeal. The publication complained of in that case was a short paragraph about matters that will have been of interest to a large number of football supporters: the replacement of the Manager of Southampton Football Club and the claimants acquisition of ownership of the Club by a reverse takeover. The defendants primary case was that the paragraph complained of contained comment and was protected by the defence of fair comment. In the alternative, in case the publication should be held to consist of fact rather than comment, there was a plea of justification. The defendant pleaded some 19 pages of facts which were claimed to support both the plea of fair comment and the plea of justification. No less than 16 interlocutory applications were listed before the judge, but the issues to which his judgment was essentially directed were: i) To what extent is it necessary for a defendant relying upon fair comment to be able to demonstrate that the facts upon which the comment was based are to be found in the text of the words complained of? ii) How far must the author of the words complained of be aware at the time of publication of the facts sought to be relied upon to support the comment? Eady J carried out a detailed analysis of many of the authorities to which I have referred and reached the following conclusions: (1) Any fact pleaded to support fair comment must have existed at the time of publication. (2) Any such facts must have been known, at least in general terms, at the time the comment was made, although it is not necessary that they should all have been in the forefront of the commentators mind. (3) A general fact within the commentators knowledge (as opposed to the comment itself) may be supported by specific examples even if the commentator had not been aware of them (rather as examples of previously published material from Lord Kemsleys newspapers were allowed). (4) Facts may not be pleaded of which the commentator was unaware (even in general terms) on the basis that the defamatory comment is one he would have made if he had known them. (5) A commentator may rely upon a specific or a general fact (and, it follows, provide examples to illustrate it) even if he has forgotten it, because it may have contributed to the formation of his opinion. (6) The purpose of the defence of fair comment is to protect honest expressions of opinion, or inferences honestly drawn from, specific facts. (7) The ultimate test is the objective one of whether someone could have expressed the commentators defamatory opinion (or drawn the inference) upon the facts known to the commentator, at least in general terms, and upon which he was purporting to comment. I have some difficulty with propositions (3) and (5). I do not understand the nature of the support for facts within the commentators knowledge that can be derived from facts of which he was not aware. Nor is it easy to understand how a commentator can know that a fact is one that he has forgotten. Dissenting from Lord Nicholls fourth proposition in Cheng Eady J said this, at para 57: Whilst it is necessary for readers to distinguish fact from comment, it is not necessary for them to have before them all the facts upon which the comment was based for the purpose of deciding whether they agree with the comment (or inference). I draw that conclusion with all due diffidence, since Lord Nicholls has twice expressed the opposite view, but it does seem consistent with principle and, in particular, with the undoubted rule that people are free to express perverse and shocking opinions and may nevertheless succeed in a defence of fair comment without having to persuade reasonable readers, or the jurors who represent such persons, to concur with the opinions. It is difficult to see why it should matter whether a reader agrees; what matters is whether he or she can distinguish fact from comment. Sometimes that will be possible, as it was in Kemsley v Foot, without any facts being stated expressly, because either they are referred to or they are sufficiently widely known for the readers to recognise the comment as comment. This concludes my summary of the authorities which form the basis of the discussion that is to follow. Before proceeding to that discussion it is necessary, however, to consider the Strasbourg jurisprudence, for Mr Price invoked article 10 of the European Convention on Human Rights (the Convention) and it is necessary for this court, when considering suggested developments of the common law of defamation, to take account of the Convention and the jurisprudence of the Strasbourg Court. The Strasbourg jurisprudence Article 10 of the Convention provides: Freedom of Expression 1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. In Karako v Hungary (Application No 39311/05) (unreported) given 28 April 2009, where the applicant invoked article 10, the Strasbourg Court held at para 23 that there was no conflict between this article and article 8, which protects the right to respect for private life. Reputation was only the external evaluation of the individual and damage to reputation would not necessarily impact on the inner integrity which article 8 protects. In Pfeifer v Austria (2007) 48 EHRR 175, however, where the applicant invoked article 8, another section of the Court held at para 35 that a persons reputation formed part of his or her personal identity and psychological integrity, and thus fell within the scope of private life to which article 8 applied. I think that it is obvious that the right to freedom of expression is in potential conflict with the right to private life and that the fact that each right is qualified means that the law must strike an appropriate balance between the two. As to the striking of that balance it is possible to draw a number of principles from the Strasbourg jurisprudence. The relevant principles are helpfully summarised at paras 28 and 29 of Sorguc v Turkey (Application No 17089/03) (unreported) given 23 June 2009. Freedom of speech may be restricted in order to protect reputation where this is necessary in a democratic society to meet a pressing social need. Thus a test of proportionality has to be applied. In applying that test there is a significant distinction between a statement of fact and a value judgment. A statement of fact will be true or untrue and the law can properly place restrictions on making statements of fact that are untrue. A value judgment is not susceptible of proof so that a requirement to prove the truth of a value judgment is impossible to fulfil, and thus infringes article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it Jerusalem v Austria (2003) 37 EHRR 567, para 43. In Lindon. Otchakovsky Laurens and July v France (2007) 46 EHRR 761 the Grand Chamber went further, stating at para 55: The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive. In Nilsen and Johnsen v Norway (1999) 30 EHRR 878, para 50 the court equated the imputation of improper motives or intentions with value judgments rather than statements of fact, having regard to the fact that from the wording of the statements and their context it was apparent that they were intended to convey the applicants own opinions. The Strasbourg Court also attaches importance to the extent to which the subject of a publication is a matter of public interest. The limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals Jerusalem v Austria (2001) 37 EHRR 567, para 38. In Hrico v Slovakia (2004) 41 EHRR 300, para 40g the court observed that there was little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest. These expressions of principle are in general consonant with the English law of defamation. If anything they suggest that the restrictions on the right to express opinion imposed under the law of fair comment may be over exacting. They do not, however, afford assistance with the question of the extent to which it is a proportionate element of the law of fair comment to require that a statement of defamatory opinion should include or identify the facts upon which the opinion is based. The defendants submissions Mr Prices submissions on behalf of the defendants fall into two parts. The first part of the submissions address the law as it is. Mr Price relies on section 6 of the 1952 Act. He submits that the facts alleged or referred to for the purpose of section 6 were: a. the claimants email of 27 March 2007 (a fact alleged); b. the breach of contract in relation to the Bibis booking (a fact referred to); c. the breach of contract in relation to the Landmarc booking (a fact referred to). Mr Price submits that it does not matter that the readers of the posting had no knowledge of the facts in relation to the two breaches of contract referred to, so that they were unable to judge for themselves how far the comment was well founded. In suggesting to the contrary in his fourth proposition in Cheng [2001] EMLR 777, para 19 Lord Nicholls had fallen into error. The error in misreporting the terms of the claimants email did not invalidate the defence of fair comment because the comment could be fairly founded on those of the facts alleged or reported that were accurate. Taken overall the three facts on which the comment was based were substantially true. Alternatively, Mr Price invites the Court to develop the common law of fair comment so that it is simplified and liberalised. He submits that the Court should: sweep away the requirement that the comment should relate to matter of public interest; hold that the subjective state of mind of the defendant is wholly irrelevant; restrict the requirements of the defence to (a) a requirement that the words complained of should be comment and (b) a requirement that there should be shown to exist one or more facts (or privileged statement) on which an honest person could have founded the relevant comment. Those facts could even come into existence after the date of the publication. Thus reliance could be placed on the claimants conduct in relation to the Coombes wedding. In short the existence of a defence of fair comment should depend on an entirely objective appraisal of the relevant facts in the same way as the defence of justification. Mr Price submitted that the defence should be renamed simply comment or opinion. The interveners submissions The submissions made by Mr Caldecott on behalf of the interveners were not so radical. He advanced six suggested principles: 1. To qualify for the protection of the defence of honest opinion a statement must be recognisable in its context as opinion. A statement of opinion may in context be an inference of fact drawn by the commentator from facts stated or indicated by him. Mr Caldecott submitted that even a statement of a fact that is verifiable can amount to a comment if the commentator makes it plain that he is merely expressing an opinion about the existence of the fact on the basis of an inference from other facts. 2. The opinion will qualify for protection if any person, however prejudiced, exaggerated or obstinate his views, could have honestly expressed it on proved facts or on alleged facts protected by privilege. Mr Caldecott submitted that this principle should apply to all opinions there should not be a more stringent test for opinions imputing dishonourable motives. 3. The opinion must be expressed on a matter of public interest. The interveners have not sought to abolish this requirement on the basis that such a change in the law should receive very close examination and detailed submission. 4. The defendant may rely on any proved facts or privileged material in existence at the time of publication, provided those facts relate to the subject matter of the comment. This answers the central issue of principle that arises on this appeal. It is the interveners case that the comment must identify its subject matter, but need not allege or refer to particular facts as the basis for the comment. There is no need to place the reader in a position to form his own view on the validity of the comment Lord Nicholls erred in so holding in Cheng [2001] EMLR 777, para 19. If facts exist at the time of the comment the commentator can rely upon them as the foundation for his comment, even if he was unaware of them when he made his comment. Events subsequent to the comment cannot, however, be relied upon. 5. If the defendant proves sufficient facts to satisfy the objective test set out in principle 2, then (subject to malice) the defence succeeds irrespective of whether facts referred to in the publication or facts relied on extrinsic to the publication are not proved or are misstated. This principle does not absolve a defendant from the obligation to prove defamatory statements of fact to be true (subject to section 5 of the 1952 Act). 6. The defence of opinion is lost where a claimant proves that the defendant did not act honestly in publishing the opinion complained of. The interveners do not seek to remove this residual element of subjectivity in relation to the defence of fair comment. They do, however, adopt Lord Nicholls removal from the malice that defeats fair comment the element of improper motive such as spite or ill will. Finally Mr Caldecott suggests that the description fair comment should be replaced by honest comment. Discussion The issue that has arisen in this case results from a change of emphasis in relation to the elements of the defence of fair comment. Those elements were, and still are: The statement in issue is comment and not fact; The matter in respect of which the comment is made is a matter of public interest; Where that matter consists of facts alleged to have occurred, the facts are true; The comment is fair; The statement is not made maliciously. The defence originated in respect of comments about work products such as: books, plays, theatrical performances, musical compositions and concerts. Comments in relation to such matters necessarily identified the work product to which they related, or they would have been meaningless. The matters commented on were matters of public interest. They had been placed by their authors or performers in the public domain. Where what was criticised was the artistic merit of the work product, the only issue that could arise was as to the fifth element. There was no question but that the statement made was comment. There was no doubt about the matter to which the comment related. No issue arose as to the truth of facts, for there were none. No issue was likely to arise as to whether the comment was fair, for beauty is in the eye of the beholder. The critic was doing no more than purporting to express his subjective reaction to what he had seen or heard. The only issue was malice. Was the critic fairly expressing his honest opinion, or was the opinion that he expressed dishonest, or motivated by spite or ill will? Where the criticism did not relate to the artistic merit of the work product, but the comments made amounted to an attack on the character of the author, then the fourth element might be in issue in as much as some cases identified a requirement that the inferences drawn by the comments made should be reasonable. Criticism of work products could, of course, cause considerable damage to the professional reputations of those responsible for them, and cause them financial loss. The right to make honest but derogatory expressions of opinion on such matters was and is an important safeguard for freedom of expression. A number of developments complicated the defence of fair comment. It was extended to cover the conduct of individuals, where this was of public interest. It thus became possible to make a pejorative or derogatory comment about a person which was inferentially based on his conduct, without expressly identifying the facts upon which the comment was based. Sometimes the conduct was notorious and thus in the public domain. Then the comment might inferentially identify the conduct on which it was based and no difficulty would arise in relation to evaluating the various elements of the defence. But it might not be possible to identify by inference the conduct in relation to which the comment was made. Indeed that conduct might not even be in the public domain. It might be known only to the person making the comment. The common law had to decide how to deal with a general or bare comment, which inferred discreditable conduct of some kind without giving any particulars of the conduct. The damage that such a comment can do is relatively limited. Actions speak louder than words. Most people judge their fellow men by the way that they behave, not on the basis of general opinions expressed by others. The common law might have held that bare comments were not actionable at all. Or it might have held that a defence of fair comment would lie in respect of a bare comment provided that the defendant could identify the factual basis for his comment by giving evidence of what it was that he had had in mind. It did not, however, take either course. It held that the defence of fair comment could not be invoked in relation to a comment that inferred that the claimant had conducted himself in some unspecified discreditable way. The ground for so holding was sometimes not happily expressed. In the 11th edition of Winfield and Jolowicz on Tort, (1979) p 304 the editors stated: To say that A is a disgrace to human nature is an allegation of fact, but if the words were A murdered his father and is therefore a disgrace to human nature, the latter words are plainly a comment on the former. Lord Walker commented in argument on the fallacy of the first part of this proposition. See also my comments at para 5 above. The courts have always held that the only defence to a bare comment which infers the existence of discreditable conduct but does not identify it is justification see for example Bingham LJ in Brent Walker [1991] 2 QB 33, 44H. In justifying a bare defamatory comment the defendant is entitled, in accordance with the principles that govern that defence, to plead any fact, whether or not it was known to him when he made the comment in order to show that the comment was justified. So far as the defence of fair comment is concerned, apart from some puzzling dicta by Bankes and Scrutton LJJ in Aga Khan v Times Publishing Co. [1924] 1 KB 675 at pp 679 680 and 681 682, until the decision in Kemsley v Foot [1951] 2 KB 34; [1952] AC 345 no authority to which this court has been referred put in doubt the fact that the defence of fair comment required the facts upon which the comment was made to be stated or identified in or from the comment itself. Kemsley v Foot is a difficult case. It was, of course, an absurd libel action. It was not about vindicating the reputation of Viscount Kemsley but about amour propre. Both the nature of the defamatory comment and the subject matter to which it related had to be inferred from the three words Lower than Kemsley. The issue was whether the defence of fair comment could be maintained when the comment did not specify any particular matters to which it related. The House of Lords followed the Court of Appeal in treating the relevant criticism as being an attack on a work product, the Kemsley Press, and to that extent an attack on the person responsible for it, Viscount Kemsley. In these circumstances it was held sufficient that the comment, by inference, identified generically the Kemsley Press as the subject matter of the criticism there was no need for the comment to identify specific extracts from Kemsley publications as the subject of the criticism. The passage from Lord Porters judgment that I have quoted at para 52 is not easy to analyse. As he observed, this dealt with a question that did not arise directly on the appeal. He was not dealing with whether the facts upon which the comment was based had to be identified by the comment, but on whether all the facts relied upon to support the comment had to be true. This was a strange question to ask in the context of criticism of journalistic material and the language used was appropriate to an issue of justification, rather than pertinence (see my explanation of this term at para 6 above). The distinction that Lord Porter drew between the subject matter of the comment and facts alleged to justify that comment is particularly elusive. The particulars pleaded in that case were expressly stated to be the specific facts upon which the said words are a fair comment: [1951] 2 KB 34, 40 41. They were the most significant parts of the subject matter of the comment. My reading of the position is as follows. The House had held that the defence of fair comment could be raised where the comment identified the subject matter of the comment generically as a class of material that was in the public domain. There was no need for the commentator to spell out the specific parts of that material that had given rise to the comment. The defendant none the less had quite naturally given particulars of these in order to support the comment. Lord Porter held that it was not necessary to prove that each of these facts was accurate provided that at least one was accurate and supported the comment. This passage does not support the proposition that a defendant can rely in support of the defence of fair comment on a fact that does not form part of the subject matter identified generically by the comment. Even less does it support the proposition that a defendant can base a defence of fair comment on a fact that was not instrumental in his forming the opinion that he expressed by his comment. The last sentence of the passage that I have cited makes this plain. I can summarise the position as follows. Where, expressly or by implication, general criticism is made of a play, a book, an organ of the press or a notorious course of conduct in the public domain, the defendant is likely to wish in his defence to identify particular aspects of the matter in question by way of explanation of precisely what it was that led him to make his comment. These particular aspects will be relevant to establishing the pertinence of his comment and to rebutting any question of malice, should this be in issue. Lord Porters speech indicates that the comment does not have to refer to these particular aspects specifically and that it is not necessary that all that are pleaded should be accurate, provided that the comment is supported by at least one that is. Can Lord Nicholls fourth proposition in Cheng [2001] EMLR 777, para 19 be reconciled with these propositions? The passage in Odgers, 6th ed (1929), p 166 that was cited with approval by Lord Porter (see para 51 above) suggested that where conduct is identified by a clear reference the defendant thereby enables his readers to judge for themselves how far his opinion is well founded. As Lord Ackner pointed out, however, in Telnikoff [1992] 2 AC 343, 361, it is fallacious to suggest that readers will be able to form their own view of the validity of the criticism of a matter merely because in the past it was placed in the public domain. Readers of The Tribune who did not read the Kemsley Press could no doubt have gained access to a representative sample of this, but this will not be possible where the criticism is of an ephemeral matter such as a concert, or the single performance of a play, or a football match, all of which can give rise to general criticism that is protected by the defence of fair comment. For these reasons I do not consider that Lord Nicholls fourth proposition in Cheng can be reconciled with Kemsley v Foot. Lord Nicholls proposition echoed what Fletcher Moulton LJ had said in Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 see para 39 above, but each observation was obiter. There is no case in which a defence of fair comment has failed on the ground that the comment did not identify the subject matter on which it was based with sufficient particularity to enable the reader to form his own view as to its validity. For these reasons, where adverse comment is made generally or generically on matters that are in the public domain I do not consider that it is a prerequisite of the defence of fair comment that the readers should be in a position to evaluate the comment for themselves. What of a case where the subject matter of the comment is not within the public domain, but is known only to the commentator or to a small circle of which he is one? Today the internet has made it possible for the man in the street to make public comment about others in a manner that did not exist when the principles of the law of fair comment were developed, and millions take advantage of that opportunity. Where the comments that they make are derogatory it will often be impossible for other readers to evaluate them without detailed information about the facts that have given rise to the comments. Frequently these will not be set out. If Lord Nicholls fourth proposition is to apply the defence of fair comment will be robbed of much of its efficacy. The cases have none the less emphasised repeatedly the requirement that the comment should identify the subject matter on which it is based, as is demonstrated by the passages in the judgments that I have emphasised by placing them in italics. If the requirement that the comment should identify the subject matter on which it is based is not imposed in order to enable the reader of the comment to form his own view of its validity, what is the object of the requirement? Bingham LJ in Brent Walker [1991] 2 QB 33, 44 said that the true facts must be stated or sufficiently indicated sufficiently for what? There are a number of reasons why the subject matter of the comment must be identified by the comment, at least in general terms. The underlying justification for the creation of the fair comment exception was the desirability that a person should be entitled to express his view freely about a matter of public interest. That remains a justification for the defence, albeit that the concept of public interest has been greatly widened. If the subject matter of the comment is not apparent from the comment this justification for the defence will be lacking. The defamatory comment will be wholly unfocussed. It is a requirement of the defence that it should be based on facts that are true. This requirement is better enforced if the comment has to identify, at least in general terms, the matters on which it is based. The same is true of the requirement that the defendants comment should be honestly founded on facts that are true. More fundamentally, even if it is not practicable to require that those reading criticism should be able to evaluate the criticism, it may be thought desirable that the commentator should be required to identify at least the general nature of the facts that have led him to make the criticism. If he states that a barrister is a disgrace to his profession he should make it clear whether this is because he does not deal honestly with the court, or does not read his papers thoroughly, or refuses to accept legally aided work, or is constantly late for court, or wears dirty collars and bands. Such considerations are, I believe, what Mr Caldecott had in mind when submitting that a defendants comments must have identified the subject matter of his criticism if he is to be able to advance a defence of fair comment. If so, it is a submission that I would endorse. I do not consider that Lord Nicholls was correct to require that the comment must identify the matters on which it is based with sufficient particularity to enable the reader to judge for himself whether it was well founded. The comment must, however, identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did. A fair balance must be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making the criticism. Conclusion For the reasons that I have given I would endorse Lord Nicholls summary of the elements of fair comment that I have set out at para 3 above, save that I would re write the fourth proposition: Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. Change of emphasis and the case for reform Should this court apply the law as it now is, or should it adopt the invitation to develop or reform the law? The right of fair comment has been said to be one of the fundamental rights of free speech and writing per Scott LJ in Lyon v The Daily Telegraph Ltd [1943] 1 KB 746, 753. Lord Denning MR echoed that comment in Slim v Daily Telegraph Ltd [1968] 2 QB 157, adding that the right must not be whittled down by legal refinements. He described the right of fair comment in terms which emphasised the importance of the subjective appreciation of the writer. The concept was a simple one. The writer had to be expressing his honest opinion on a matter of public interest. He had to get his facts right. The area of inquiry was relatively limited. What were the facts on which the writer had made his comment? Were they matters of public interest? Were they accurate? The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations; no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendos into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. (p 170) In recent cases the area of inquiry in relation to the defence of fair comment has been expanded. The scope of public interest has been greatly widened. If Cheng [2001] EMLR 777 is accepted as correctly setting out the test of malice, the scope of malice has been significantly narrowed. The fact that the defendant may have been motivated by spite or ill will is no longer material. The only issue is whether he believed that his comment was justified. In practice this issue is seldom likely to be explored, for the burden is on the claimant and how can he set about proving that the defendant did not believe what he said? The subjective nature of the defence of fair comment has diminished. The issue is no longer the subjective one did the defendant honestly believe that the facts on which he commented justified his comment? Instead the focus has been on the objective question: could an obstinate and prejudiced person have honestly based the comment made by the defendant on the facts on which the defendant commented? Mr Price and Mr Caldecott suggest that it should be expanded to embrace facts which were not known to the defendant, or (according to Mr Price) even in existence when he made his comment. The horrific pleadings and interlocutory warfare in Lowe [2007] QB 580, referred to in para 70 above exemplify the confusion that can now develop where a defence of justification is run in harness with a defence of fair comment. Where, as is usually the case, an action is brought in relation to a statement that mixes fact and comment I question how often any value is added to the defendants case by the addition of a plea of fair comment. The reforms suggested by Mr Price and Mr Caldecott would radically alter the nature of the defence of fair comment. No longer would it be a personal defence based on the defendants honest opinion on facts identified by him. The defendants state of mind would be wholly irrelevant under Mr Prices scheme and almost wholly irrelevant under Mr Caldecotts. Instead fair comment would depend upon an objective test, applied in a similar way to the defence of justification. Did facts exist that might have led a prejudiced and obstinate commentator to express the derogatory opinion expressed by the defendant? I am not persuaded that reforms of this nature would do anything to simplify defamation actions. The scope of the defence of fair comment would be widened, but at the price of continued complexity of process. In any event the proposed reforms go beyond changes that could properly be made by this court in the orderly development of the common law. There is a case for reform. Would it not be more simple and satisfactory if, in place of the objective test, the onus was on the defendant to show that he subjectively believed that his comment was justified by the facts on which he based it? The Faulks Committee Report on Defamation 1975 (Cmnd 5909) recommended the retention of the objective test, but the New Zealand Defamation Act 1992 has placed the burden on the defendant of proving honest opinion (section 10). There may be a case for widening the scope of the defence of fair comment by removing the requirement that it must be on a matter of public interest. Careful consideration needs to be given to Mr Caldecotts first proposition that the defence of fair comment should extend to inferences of fact. Jurisprudence both in this jurisdiction and at Strasbourg see Nilsen and Johnsen v Norway (1999) 30 EHRR 878, para 50 has held that allegations of motive, which is inherently incapable of verification, can constitute comment. Some decisions have gone further and treated allegations of verifiable fact as comment, see for instance the Privy Council in Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109. It is questionable whether this is satisfactory. Prejudiced commentators can draw honest inferences of fact, such as that a man charged with fraud is guilty of fraud. Should the defence of fair comment apply to such inferences? Allegations of fact can be far more damaging, even if plainly based on inference, than comments on true facts. Eady J has twice held that the defence of fair comment cannot apply where the defamatory sting is a matter of verifiable fact Hamilton v Clifford [2004] EWHC 1542 (QB) and British Chiropractic Association v Singh [2009] EWHC 1101 (subsequently reversed by the Court of Appeal). The repetition rule raises problems in relation to fair comment. It has been stated that fair comment can be based on a statement protected by Reynolds privilege see Eady J in Galloway v Telegraph Group Ltd [2005] EMLR 115, paras 174 176, but the commentator may well not be in a position to assess whether the statement in question is so protected. Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre empt issues from going before the jury. These are difficult questions. Some may have to be resolved judicially, but the whole area merits consideration by the Law Commission, or an expert committee. There is only one reform that I would seek to make by this judgment it is one that has already received judicial approval see Lord Nicholls in Reynolds [2001] 2 AC 127, 165. The defence of fair comment should be renamed honest comment. The application of the law to the facts of this case The defendants primary defence is justification of their comments that the claimants were unprofessional, that they demonstrated a contemptuous and cavalier approach to their contractual obligations and that they would not necessarily adhere to the terms of their booking arrangements see para 20 above. They rely in support of this defence on the Landmarc breach, which they contend was attributable to a subsequent better offer, on the Bibis breach, on the first claimants email of 27 March 2007 and on the claimants approach to the Coombes booking. If this defence fails the defendants seek to show that their comments were fair comment, albeit unjustified. Had Lord Nicholls fourth proposition in Cheng [2001] EMLR 777, para 19 been valid it would have been necessary to consider whether the defendants posting contained sufficient detail to enable the readers to form their own views of whether the defendants comments were justified. For the reasons that I have explained I do not consider that this is something that the defendants have to establish. The defendants seek to rely upon three matters to support their plea of fair comment: i) The Landmarc breach of contract; ii) The Bibis breach of contract; iii) The first claimants email of 27 March 2007. Mr Price submitted that the Landmarc breach of contract was referred to in the defendants posting inasmuch as this stated that the claimants have not been able to abide by the terms of their contract and following a breach of contract. Pill LJ [2010] ICR 642, para 46 held that these statements could not be read as referring to the Landmarc breach in 2005. I agree. They referred to the Bibis breach and not to the Landmarc breach. The Landmarc breach was not referred to in the defendants posting, nor did it form part of a generic allegation of misconduct. Alternatively Mr Price sought to persuade the House to extend the common law so as to permit a defendant to rely in support of the defence of fair comment on matters that were not referred to, even in general terms, by the comment. I have declined that invitation. It follows that the defendants cannot rely upon the Landmarc breach to support their defence of fair comment. This leaves them with the Bibis breach and the first claimants email as potential support for their comment. Pill LJ held, at para 38, that the defendants could not rely on the first claimants email because this had been misquoted by the defendants in their posting. I do not agree. That email had, arguably, evidenced a contemptuous and cavalier approach to the claimants contractual obligations to the defendants. The email as quoted, arguably, evidenced a contemptuous and cavalier approach to contracts in general. So far as concerns the basis of the defendants comments about the claimants attitude to their contractual obligations, a jury might take the view that there was no significant difference between the email as sent and the email as quoted. The jury should be directed that if they thought that the email as quoted differed significantly from the email as sent they should disregard it but that otherwise they can have regard to it when considering the defence of fair comment. Pill LJ held, at para 42, that the defendants could not rely on the Bibis breach. He said that there was no reference to it in the words complained of. That is not correct. The statement that the claimants had not been able to abide by the terms of their contract and the reference to following a breach of contract were references to the Bibis breach. As I understand it, however, the reason why Pill LJ held that this could not be relied on was that the posting did not identify the contract that had been broken, still less the term allegedly breached, so that the reader was not in a position to evaluate whether the breach justified the comment. For the reasons that I have given I do not consider that this was necessary. The posting sufficiently identified the breach as part of the subject matter of the comment, albeit that the breach was not particularised. It follows that the defendants are entitled to rely upon the Bibis breach to support their defence of fair comment. For these reasons I have reached the conclusion that this appeal should be allowed and the defence of fair comment reinstated. LORD RODGER I have had the advantage of reading the judgments prepared by Lord Phillips and Lord Walker in draft. I agree with them and, for the reasons they give, I too would allow the appeal. LORD WALKER I agree with the judgment of Lord Phillips. I add some brief comments of my own. Lord Phillips shows how the defence of fair comment (now to be called honest comment) originated in a narrow form in a society very different from todays. It was a society in which writers, artists and musicians were supposed to place their works, like wares displayed at market, before a relatively small educated and socially elevated class, and it was in the context of published criticism of their works that the defence developed. It has expanded enormously as the law has extended its view of what is of public interest and the nature of the comment that the defence may cover. Kemsley v Foot [1952] AC 345 was an important milestone. In some ways it was, as Lord Phillips observes (para 91) an absurd libel action, but sometimes it is the atypical case that brings about developments in the common law. In the half century or more since Kemsley v Foot society and its concerns have continued to change. The creation of a common base of information shared by those who watch television and use the internet has had an effect which can hardly be overstated. Millions now talk, and thousands comment in electronically transmitted words, about recent events of which they have learned from television or the internet. Many of the events and the comments on them are no doubt trivial and ephemeral, but from time to time (as the present appeal shows) libel law has to engage with them. The test for identifying the factual basis of honest comment must be flexible enough to allow for this type of case, in which a passing reference to the previous nights celebrity show would be regarded by most of the public, and may sometimes have to be regarded by the law, as a sufficient factual basis. As Lord Phillips points out in para 76, the Grand Chamber at Strasbourg has recently approved the general proposition that even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it. The defence of honest comment requires the commentator to identify, at least in general terms, the nature of that factual basis. LORD BROWN I have read the judgment of Lord Phillips and for the reasons he gives I too would allow this appeal. I agree also with Lord Walkers brief comments. SIR JOHN DYSON SCJ I would allow this appeal for the reasons given by Lord Phillips. |
The appellant in this case was sentenced to an extended sentence of ten years imprisonment, comprising a custodial term of seven years and an extension period of three years. He was released on licence after serving two thirds of the custodial term, but was recalled to custody after committing a further offence. He then remained in prison until the sentence had been served in full. In these proceedings, he complains that he was not provided with appropriate rehabilitation courses following his recall to prison, contrary to article 5 of the European Convention on Human Rights and Fundamental Freedoms (the Convention), as given effect in our domestic law by the Human Rights Act 1998. The principal issue arising in the appeal is whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences. The appeal also provides an opportunity to consider the approach adopted by this court in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344 in the light of the more recent case law of the European Court of Human Rights. Article 5 The essential aim of article 5 is to confer protection against arbitrary or unjustified deprivation of liberty. Article 5(1) provides a list of permissible grounds for deprivation of liberty, each of which is qualified by the requirement that the detention is lawful and in accordance with a procedure prescribed by law. In the present case, it is article 5(1)(a) which is relevant: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: the lawful detention of a person after conviction (a) by a competent court . It has long been accepted by the European court that article 5(1) requires a relationship between the detention regime and the purpose of the deprivation of liberty. As the court stated in Ashingdane v United Kingdom (1985) 7 EHRR 528, para 44: More generally, it follows from the very aim of article 5(1) that no detention that is arbitrary can ever be regarded as lawful. The court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. For example, article 5(1)(d) permits the detention of a minor by lawful order for the purpose of educational supervision. This is understood as implying that the nature of the detention supports the objective of educational supervision. The placement of minors in penal institutions without educational facilities cannot therefore be justified under that provision, except as an interim measure: see, for example, Bouamar v Belgium (1988) 11 EHRR 1. Similarly, article 5(1)(e) permits the lawful detention of persons of unsound mind. The detention of a person as a mental health patient will, however, only be lawful for the purposes of article 5(1)(e) if effected in a hospital, clinic or other appropriate institution: see, for example, Ashingdane v United Kingdom and Brand v Netherlands (2004) 17 BHRC 398. It is to be noted that in the Brand case, in which a violation of article 5(1) was found, the court made a modest award as just satisfaction for the feelings of frustration, uncertainty and anxiety which the applicant must have suffered while detained in a remand centre pending his admission to a custodial clinic. The award was not made on the basis that the applicant should not have been deprived of his liberty. In other words, the court did not treat its finding that the applicants detention in the remand centre had been unlawful as meaning that he had a right under the Convention to immediate release from detention. The requirement that there must be a relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention was affirmed by the Grand Chamber in Saadi v United Kingdom (2008) 47 EHRR 17. The case concerned article 5(1)(f), which permits the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. The Grand Chamber observed that, where the lawfulness of detention was in issue, compliance with national law was necessary but not sufficient: article 5(1) laid down in addition the requirement that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It was, it said, a fundamental principle that no detention which was arbitrary could be compatible with article 5(1) (para 67). Key principles had been established on a case by case basis as to what types of conduct on the part of national authorities might constitute arbitrariness for the purposes of article 5(1). One such principle, which the court derived from authorities including Bouamar, was that there must be a relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In that regard, the Grand Chamber stated: 69. One general principle established in the case law is that detention will be arbitrary where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub paragraph of article 5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. 70. The notion of arbitrariness in the contexts of sub paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The duration of the detention is a relevant factor in striking such a balance. 71. The court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under article 5(1)(a), where, in the absence of bad faith or one of the other grounds set out in para 69 above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the court under article 5(1). (emphasis added) In that passage, the last sentence of para 69 made it clear that the principle, that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention, was one which applied to all the sub paragraphs of article 5(1). Paras 70 and 71 explained that there was a difference between article 5(1)(a) and sub paragraphs (b), (d) and (e) in relation to the application of the principle of proportionality, but the first sentence of para 71 confirmed that the general principles set out in para 69 applied to article 5(1)(a). That sentence also made it clear that the existence of a causal connection between the detention and a lawful conviction was not in itself sufficient to ensure compliance with article 5(1)(a). James v United Kingdom In James v United Kingdom (2013) 56 EHRR 12, the court applied the general principle established in Saadi, that article 5(1) requires the conditions of detention to be consistent with the purpose of the detention, to detention sought to be justified under article 5(1)(a). It derived from that principle the conclusion that, after the punishment part or tariff element of an indeterminate sentence for public protection (IPP) has been served and the prisoner remains in detention for reasons of public protection, a real opportunity for rehabilitation should be provided. The case came before the European court after first being considered by the House of Lords: R (Walker) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553. It concerned IPP prisoners who had been unable to access the courses recommended by the Parole Board. The argument before the House of Lords did not focus on the need for a correlation between the purpose of detention and the conditions of detention. Instead, the argument, and the speeches of Their Lordships, referred to a different strand of the European courts jurisprudence, concerned with the requirement under article 5(1)(a) for detention to be after conviction, which the court had interpreted as meaning that there must be a causal connection between the conviction and the detention. Unsurprisingly, Their Lordships held that such a connection existed in the cases before them, notwithstanding the unavailability of the courses. That being so, it was concluded that there had been no violation of article 5(1)(a). When the case was considered by the European court, it summarised the principles established in its earlier case law under article 5(1)(a) concerning the need for there to be a conviction and for the detention to be after the conviction. It then turned to the stipulation that the detention must be lawful, which meant, first, that the detention must be in compliance with national law, and secondly, that it should be in keeping with the purpose of protecting the individual from arbitrariness (para 191). The court then set out some key principles relating to the types of conduct which might constitute arbitrariness for the purposes of article 5(1), which could be extracted from the courts case law. The third of those was the following (para 194): Thirdly, for a deprivation of liberty not to be arbitrary there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Saadi, para 69). Thus, as noted above, detention for educational supervision pursuant to article 5(1)(d) must take place in a setting and with the resources to meet the necessary educational objectives (see Bouamar, para 50). Where article 5(1)(e) applies, the detention of a person for reasons relating to his mental health should be effected in a hospital, clinic or other appropriate institution (see Aerts v Belgium (1998) 29 EHRR 50, para 46; and Brand, para 62). In the context of article 5(1)(a), a concern may arise in the case of persons who, having served the punishment element of their sentences, are in detention solely because of the risk they pose to the public, if there are no special measures, instruments or institutions in place other than those available to ordinary long term prisoners aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences (see M v Germany (2009) 51 EHRR 41, para 128; and Grosskopf v Germany (2010) 53 EHRR 7, para 51). The court immediately made it clear (para 194) that the principle that the conditions of detention must reflect its purpose had to be applied realistically and flexibly: However, in assessing whether the place and conditions of detention are appropriate, it would be unrealistic, and too rigid an approach, to expect the authorities to ensure that relevant treatment or facilities be available immediately: for reasons linked to the efficient management of public funds, a certain friction between available and required treatment and facilities is inevitable and must be regarded as acceptable. Accordingly, a reasonable balance must be struck between the competing interests involved. Turning to the facts of the applicants cases, the court agreed with the House of Lords that the need for a causal connection between the convictions and the detention was satisfied (para 199). But there remained the question whether the detention violated article 5(1)(a) by reason of the absence of a genuine correlation between the aim of the detention and the detention itself (para 204). In that regard, the court accepted that one of the purposes of the applicants detention was rehabilitation (para 209). It followed that reasonable opportunities to participate in rehabilitation courses should be made available: As the court has indicated above, in circumstances where a government seeks to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders. In the applicants cases, this meant that they were required to be provided with reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour and the risks they posed . While article 5(1) does not impose any absolute requirement for prisoners to have immediate access to all courses they may require, any restrictions or delays encountered as a result of resource considerations must be reasonable in all the circumstances of the case (para 218) The applicants had had little if any access to offending behaviour programmes for substantial periods after their tariffs had expired. Instead, for around two and a half years, they were simply left in local prisons where there were few, if any, offending behaviour programmes (para 220). The inadequate resources which brought about this situation appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures (para 220). In those circumstances, following the expiry of the applicants tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of article 5(1) of the Convention (para 221). The detention became lawful again, within the meaning of article 5(1), once access to relevant courses was provided (para 244). Two of the applicants also complained of a breach of article 13 of the Convention, which guarantees the right to an effective remedy, on the ground that even if they had succeeded in the domestic courts in their challenge to their detention, they would not have been able to secure their release, because of the relevant statutory provisions. The court examined that complaint under article 5(4), on the basis that it provided a lex specialis in relation to the more general requirements of article 13. Article 5(4) provides: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The court observed that lawfulness in article 5(4) had the same meaning as in article 5(1), so that the arrested or detained person was entitled to a review of the lawfulness of his detention in the light not only of domestic law but also of the Convention. The court held that the requirements of article 5(4) were met, notwithstanding that the applicants release could only be ordered by the Parole Board if it concluded that they were no longer dangerous. It reached that conclusion on the basis that the Secretary of States failure to provide access to relevant courses, which rendered their detention unlawful during the periods in which such access was unavailable, could be challenged by proceedings for judicial review. Such proceedings had in fact resulted in the applicants being given access to the relevant courses and assessments. Their release could be ordered by the Parole Board, in accordance with the relevant statutory provisions, if it was satisfied that the individual was no longer dangerous. Thus the combination of the Parole Board and judicial review proceedings could have resulted in an order for their release (paras 231 232). This reasoning is consistent with the courts finding that the detention was unlawful, due to the failure to provide courses, only until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses (para 221). A judicial remedy was available to ensure that such steps were taken, and thus to bring an end to the unlawful detention. The implication of the reasoning is that the unlawfulness of detention, where it arises from a failure to provide a real opportunity for rehabilitation, does not entitle the prisoner to release, where it can be otherwise addressed. The same approach can be seen in the courts treatment of the award of just satisfaction. The finding of a violation of article 5(1) was not treated as implying that the applicants were entitled under the Convention to immediate release: The basis for the finding of a violation of article 5(1) was that the failure to give timeous access to the relevant courses rendered the applicants detention after the expiry of their tariffs arbitrary. It therefore cannot be assumed that, if the violations in the present cases had not occurred, the applicants would not have been deprived of their liberty. (para 244) The award of just satisfaction was therefore not in respect of a deprivation of liberty, but in respect of the feelings of distress and frustration which continued detention without access to necessary courses must have provoked. The conclusion reached by the court in James in the context of article 5(1)(a) was thus based upon the application of a principle which was established in the case law of the court and had previously been applied in cases falling under article 5(1)(d), (e) and (f): namely, that the conditions of detention must reflect the purpose of the detention, if the detention was to be lawful within the meaning of article 5(1). James decided that it followed that measures aimed at reducing the risk which prisoners present to the public should be in place in circumstances where a government seeks to rely solely on the risk posed by offenders to the public in order to justify their continued detention (para 218, cited at para 12 above). The Grand Chamber rejected the Governments request that James be referred to that chamber. Although the decision went beyond any previous Grand Chamber judgment, the general principle on which it was based had been recognised in Saadi. It was presumably on that basis that it was not considered to raise a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or [a] serious issue of general importance (Rule 73 of the Rules of Court). Subsequent Strasbourg case law The principle established in James was subsequently applied by the European court in a series of cases involving prisoners serving IPP sentences. In each of these cases, as in James itself, the courts decision was based on a careful individual analysis of each applicants prison history. Repeated reference was made to the statement in James that the court must have regard to the detention as a whole (para 201). It was repeatedly stated that, in considering whether a delay in access to required prison courses resulted in a violation of article 5(1), the applicants general progression through the prison system must be assessed in light of the particular circumstances of the case. Examples include Hall v United Kingdom (Application No 24712/12) given 12 November 2013, where there was a post tariff delay of over a year in providing a particular course, but where the applicant had nevertheless been provided with a reasonable opportunity to rehabilitate himself by courses throughout his detention; Dillon v United Kingdom (Application No 32621/11) given 4 November 2014, where a nine month delay between the expiry of the tariff and assessment for a particular course was considered to be not unreasonable having regard to the access to courses which the applicant had previously enjoyed, the continued efforts to ensure his further progress through the prison system, and his overall progression throughout the period of his detention; and Thomas v United Kingdom (Application No 55863/11) given 4 November 2014, where a six month delay in commencing a course was not considered unreasonable having regard both to resource considerations and to the progress that the applicant had already made. A further example, decided after R (Kaiyam) v Secretary of State for Justice, is Alexander v United Kingdom (Application No 54119/10) given 30 June 2015, where there was a post tariff delay of around 14 months in being assessed for a recommended course, and a further delay of about 18 months in obtaining a place, but where prompt steps had nevertheless been taken to begin the applicants progression through the prison system, and he had been given access to a wide range of rehabilitative courses which enabled him to present evidence of risk reduction. The principles which the European court has itself derived from these cases, and others, are discussed at para 33 below. There does not appear to be any case since James in which a complaint under article 5(1) arising from lack of access to courses has succeeded. R (Kaiyam) v Secretary of State for Justice The judgment of the European court in James was considered by this court in R (Kaiyam) v Secretary of State for Justice. The claimants were a life prisoner, named Haney, and three IPP prisoners, named Kaiyam, Massey and Robinson. They argued that the Secretary of States delay in providing them with rehabilitative courses had breached their rights under article 5(1). In a joint judgment with which the other members of the court agreed, Lord Mance and Lord Hughes accepted the European courts conclusion in James that there was an obligation to provide life and IPP prisoners with a real opportunity for rehabilitation. They therefore departed from the decision of the House of Lords in Walker. They declined, however, to accept that the obligation was imposed by article 5(1), as the European court had decided. They were concerned that the European courts reasoning might imply that IPP and life prisoners detained without access to rehabilitation courses were entitled under the Convention to immediate release, and that the statutory regime preventing their release except where recommended by the Parole Board might therefore have to be declared incompatible with Convention rights (para 34). In that regard, they stated: On the reasoning of the European court in James v United Kingdom 56 EHRR 12, failure after the tariff period properly to progress a life or IPP prisoner towards release makes detention during the period of such failure arbitrary and therefore unlawful. If that reasoning be adopted, then such detention is in breach of the express language of article 5(1)(a), and the prisoner should (in the eyes of the European court) be entitled to an immediate order for speedy release under article 5(4). (para 23; emphasis in original) Lord Mance and Lord Hughes responded to that concern by concluding that James went beyond the reasoning in Saadi and did not form part of a clear and constant line of decisions (the case of Ostermnchner v Germany (Application No 36035/04) given 22 March 2012, para 74, which was the closest predecessor, was not cited in Kaiyam, but might have been distinguished in any event). On that basis, following such authorities as Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2010] UKSC 45; [2011] 2 AC 104, para 48, they considered that domestic courts need not adopt the analysis in James. Instead, they treated the duty to facilitate the progress of prisoners subject to life and IPP sentences towards release as being implied as an ancillary duty in the overall scheme of article 5 as a whole. They considered that the ancillary duty existed throughout the prisoners detention (para 48), rather than being confined to the post tariff period, as the European court had held in James, in accordance with the logic of its reasoning. As explained above, however, far from holding that the prisoner was entitled under article 5(4) to an immediate order for speedy release, the European court held in James that article 5(4) was satisfied by (1) the availability of judicial review to challenge the failure to provide the relevant courses, and (2) the ability of the Parole Board to order release under the statutory provisions once satisfied that the individual was no longer dangerous. The logic of the European courts approach was that an obligation to bring an end to unlawful detention can be met by bringing an end to the factor which renders the detention unlawful. No reference was however made to that part of the James judgment in Kaiyam. As explained at para 15 above, the European courts treatment in James of the claims for just satisfaction also confirmed that unlawfulness under article 5(1) arising from a failure to provide courses did not entail an obligation under the Convention to secure the applicants immediate release. Lord Mances and Lord Hughess concern was exacerbated by a passage in the James judgment in which the European court, when considering whether there had been a violation of article 5(1), referred to an argument advanced on behalf of the Government: The court acknowledges that the IPP sentence was intended to keep in detention those perceived to be dangerous until they could show that they were no longer dangerous. The Government has suggested that, in these circumstances, a finding of a violation of article 5(1) as a result of the lack of access to appropriate treatment courses would allow the release of dangerous offenders who had not yet addressed their risk factors. The court accepts that where an indeterminate sentence has been imposed on an individual who was considered by the sentencing court to pose a significant risk to the public at large, it would be regrettable if his release were ordered before that risk could be reduced to a safe level. However, this does not appear to be the case here. (para 217) It is not clear from the James judgment what exactly the Governments argument was, to which para 217 was directed, but given the European courts conclusion that the violation of article 5(1) did not entitle the prisoners to immediate release, it presumably understood the argument to concern the position under domestic law. Applying the courts reasoning as to the position under article 5(4) of the Convention, however, there cannot in ordinary circumstances be a right to immediate release under domestic law. As the court explained, where detention is in violation of article 5(1) by reason of a failure to provide a real opportunity for rehabilitation, an appropriate remedy is provided by an order requiring such an opportunity to be provided, with monetary compensation for the absence of the opportunity in appropriate cases. As the court has also made clear, however, the threshold for establishing a violation of article 5(1) on this basis is a high one: see paras 11 and 21 above, and para 34 below. It is essential to bear in mind the realism and flexibility of the European courts approach. As Lord Mance and Lord Hughes noted, failings in the prison system which arise due to a lack of resources and facilities cannot always be redressed at the drop of a hat, whatever order a court may make. As explained in para 21 above, however, the court said in terms in James that it would be unrealistic, and too rigid an approach, to expect the authorities to ensure that relevant treatment or facilities were made available immediately. Its decision under article 5(4) confirmed that approach: the court focused upon the prompt transfer of the applicants to prisons where the necessary courses were available, rather than on the time which subsequently passed before places on the courses were provided (which, in the case of the applicant Lee, was significant). The high threshold for establishing a violation of article 5 on this basis was also emphasised by Lord Mance and Lord Hughes. As they observed at para 60, article 5 does not create an obligation to maximise the coursework or other provision made to the prisoner, nor does it entitle the court to substitute, with hindsight, its own view of the quality of the management of a prisoner and to characterise as arbitrary detention any case which it concludes might have been better managed. It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been. On the facts of the claimants cases, Lord Mance and Lord Hughes considered that the ancillary duty (which, as explained above, they considered to apply throughout the prisoners detention) had been breached in the cases of two of the claimants. In the case of Mr Haney, the life prisoner, there had been a delay of about a year, prior to the expiry of his tariff, in transferring him to an open prison after the Secretary of State had issued a letter indicating that that was appropriate. The court posed the question, was Haney afforded a reasonable opportunity to reform himself and . to demonstrate that he no longer presented an unacceptable risk to the public, and stated that the answer to this question is . given by the letter to him from the Secretary of State (paras 48 49). On the view that by this letter the Secretary of State identified what a reasonable opportunity was for Haney to demonstrate that he was no longer a danger . and adjudged that he should have that opportunity there and then (para 49), there was held to have been a violation of the ancillary obligation, prior to the expiry of the tariff. In the case of Mr Massey, one of the IPP prisoners, a timetable for his progress had been provided by the Secretary of State in a letter, but had not been adhered to. In the view of the court, the letter effectively defined what was regarded as a reasonable opportunity for Massey to build on the partial progress which he had made and to demonstrate (if he could) that he was safe to release (para 69). Given the failure to adhere to the timetable, there was a failure to provide him with the opportunity to try to demonstrate that he was safe for release which the Secretary of State regarded as reasonable (ibid), and therefore a breach of the ancillary obligation. The court was divided in the case of a third claimant, Mr Robinson, the majority concluding that there had been no violation. Kaiyam v United Kingdom The three IPP prisoners subsequently presented applications to the European court, complaining of violations of article 5(1). Their complaints were all rejected as manifestly unfounded: (2016) 62 EHRR SE13 (there is an unfortunate misprint in the report of the decision at para 84: Mr Masseys application was not held to be admissible, but inadmissible). The European court thus found that the complaint made by Mr Massey of a violation of article 5, which this court had upheld, was manifestly unfounded. The same conclusion was reached in relation to Mr Robinsons complaint. It is clear from the European courts reasoning that Mr Haneys complaint relating to a pre tariff delay, which this court had upheld, would also have been rejected. As the European court explained, it had been held in James that a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection. It follows, the court stated, that, strictly speaking, article 5(1)(a) does not require a real opportunity for rehabilitation during the tariff period itself, since this represents the punishment part of the sentence (para 67). The court provided a valuable summary of its reasoning in James and in the subsequent case law: 69. In examining whether part of an applicants detention post tariff was unjustified for the purposes of article 5(1)(a) of the Convention, regard must be had to the detention as a whole (see James at para 201). Thus, where, as in the present applications, the applicant claims that delay in his access to prison courses constituted a violation of article 5(1)(a), the applicants general progression through the prison system is to be assessed in light of the particular circumstances of the case (see Hall v United Kingdom at para 32; Black v United Kingdom (Application No 23543/11) 1 July 2014 at para 54; Thomas v United Kingdom at para 49; and Taylor v United Kingdom (Application No 2963/12) 3 March 2015 at para 39). Such assessment should include consideration of whether, and to what extent, the applicant was provided with an opportunity to progress even before the expiry of his tariff (see, for an example of the courts approach, James at paras 211, 213 215 and 219 220). 70. It is clear from the courts case law in this area that cases in which it is prepared to find that a period of post tariff detention has failed to comply with the requirements of article 5(1)(a) on account of a delay in access to rehabilitative courses will be rare. In particular, it is not for this court to second guess the decisions of the qualified national authorities as regards the appropriate sentence plan (see Dillon v United Kingdom at para 50; and Alexander v United Kingdom at para 47). Neither is it the courts role to impose a particular timetable on the authorities. Any delays encountered in the provision of specific courses must be assessed in the context of the gravity of the offence and the amount of offending behaviour work therefore required, and against the backdrop of the range of rehabilitative courses already accessed by the applicant (see Alexander at para 46). In finding a violation in the case of James, the court drew attention to the fact that substantial periods of time passed in respect of each applicant before they even began to make any progress in their sentences (at para 220). They had therefore not been afforded reasonable opportunities to undertake courses aimed at helping them address their offending behaviour. The European court declined to adopt this courts analysis of an ancillary duty and adhered to the reasoning in James. It made clear the high threshold imposed by its test of arbitrariness and hence unlawfulness, and explained why it attached less significance to the Secretary of States letter to Mr Massey than this court had done: 71. In finding a breach of that ancillary duty in Mr Masseys case, the Supreme Court referred solely to the failure to provide him with the opportunity which the Secretary of State had regarded as reasonable in his letter of October 2010 to try to demonstrate that he was safe for release. The nature and extent of the delay in affording Mr Massey access to the ESOTP was in and of itself sufficient to give rise to a violation of the ancillary duty. 72. It is not the role of this court to determine in the abstract whether the UK has properly implemented the judgment in James within its domestic legal order. This is primarily a matter for the Committee of Ministers in the exercise of its jurisdiction under article 46(2) of the Convention. This courts role is confined to determining whether delays in the provision of rehabilitative courses to the present applicants were such as to introduce a degree of disproportionality leading to arbitrariness, as understood by James, and thus rendering the relevant periods of detention unlawful within the meaning of article 5(1)(a) of the Convention. In making this assessment, this court cannot examine specific periods of delay in a vacuum: it must view any period of delay in the light of the detention as a whole and the specific factors identified in its case law. The fact that a delay occurred, even where that delay was at odds with what the Secretary of State had indicated as a reasonable opportunity to try and demonstrate safety for release, is not sufficient to meet the threshold required for the establishment of arbitrariness in breach of article 5(1)(a) of the Convention under James. In this sense, the test applied by this court to whether a violation of article 5(1)(a) has been made out in cases concerning delayed access to rehabilitative courses might be said to be more stringent than the approach applied by the Supreme Court to whether a breach of the ancillary duty which it read into article 5 to facilitate the progress of IPP prisoners towards release by appropriate courses and facilities has been demonstrated. (footnotes omitted) In its consideration of the facts of the applicants cases, the court found that, in the cases of Mr Kaiyam and Mr Robinson, prompt steps were taken to begin their progression through the prison system well before the expiry of their tariffs. A real opportunity for rehabilitation was provided to them, through the provision of reasonable opportunities to undertake courses aimed at helping them to address their offending behaviour. There was therefore no appearance of a violation of article 5(1). In the case of Mr Massey, he had to wait 18 months post tariff to begin a course, and was not provided with access to any other courses during that time. There was no doubt that the delay was significant, given the practical importance of completion of the course for his ability to satisfy the Parole Board that he was safe to be released. The question, however, was whether, in the light of his detention as a whole, the delay was of such a degree as to render that period of his detention arbitrary and thus unlawful. That period of inactivity had therefore to be put in context. In the space of five years detention, Mr Massey had completed four courses aimed at tackling the reasons for his offending. He had made significant progress in his sentence and had been afforded multiple opportunities to present to the Parole Board evidence of his work in reducing his risk. Against that backdrop, the delay in access to the course could not be said to have deprived Mr Massey of a real opportunity for rehabilitation through the provision of reasonable opportunities to undertake courses aimed at helping him to address his offending behaviour. There was therefore no appearance of a violation of article 5(1). Murray v Netherlands Finally, in this survey of the evolution of the Strasbourg case law, it is necessary to note the judgment of the Grand Chamber in Murray v The Netherlands (2016) 64 EHRR 3. The case concerned a mentally disordered prisoner serving a life sentence, who had been detained for 19 years in an ordinary prison without access to medical treatment. His complaint was brought under article 3 of the Convention, which prohibits inhuman or degrading treatment. In the course of its judgment, the Grand Chamber cited the judgment in James: 102. The court observes that the principle of rehabilitation, that is, the reintegration into society of a convicted person, is reflected in international norms (see paras 70 76 above) and has not only been recognised but has over time also gained increasing importance in the courts case law under various provisions of the Convention (see, apart from Vinter v United Kingdom [GC] (2016) 63 EHRR 1, for instance Mastromatteo v Italy [GC], Reports of Decisions and Judgments 2002 VIII, para 72; Dickson v the United Kingdom [GC], (2008) 46 EHRR 41, para 28; James, Wells and Lee v United Kingdom, para 209; and Khoroshenko v Russia [GC] (Application No 41418/04) given 30 June 2015, paras 121 and 144 145). In a slightly different context the court has, moreover, held that, in circumstances where a Government seek to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders (James, Wells and Lee, para 218). 103. Notwithstanding the fact that the Convention does not guarantee, as such, a right to rehabilitation, the courts case law thus presupposes that convicted persons, including life prisoners, should be allowed to rehabilitate themselves. Indeed, the court has held that . a whole life prisoner is entitled to know . what he or she must do to be considered for release and under what conditions (Vinter, cited above, para 122). It has also held, with reference to Vinter, that national authorities must give life prisoners a real opportunity to rehabilitate themselves (see Harakchiev and Tolumov (Application Nos 15018/11 and 61199/12) given 8 July 2014, para 264). It follows from this that a life prisoner must be realistically enabled, to the extent possible within the constraints of the prison context, to make such progress towards rehabilitation that it offers him or her the hope of one day being eligible for parole or conditional release. This could be achieved, for example, by setting up and periodically reviewing an individualised programme that will encourage the sentenced prisoner to develop himself or herself to be able to lead a responsible and crime free life. Para 218 of the James judgment, which the Grand Chamber cited at para 102, was quoted at para 12 above. In it, the court derived the obligation to encourage rehabilitation from article 5(1). The Grand Chamber referred again to the cases cited at para 102 of its Murray judgment in Hutchinson v United Kingdom (Application No 57592/08) given 17 January 2017, para 43. Should this court align its approach with that of the European court? It is apparent from this survey of the Strasbourg case law that the approach adopted by the European court in James has been applied by the court in a substantial number of subsequent cases, and has been cited by the Grand Chamber with apparent approval. The question arises whether this court should now follow its reasoning, and depart from the position which it adopted in Kaiyam, on the basis that it is no longer possible to deny that the analysis in James forms part of a clear and constant line of decisions. The question would be of limited importance if the issue was merely one of taxonomy: whether the relevant obligation arises under article 5(1) or is immanent in article 5 considered as a whole. But the issue goes beyond that: it also affects the substance of the obligation. In the first place, as explained earlier, in Kaiyam this court treated the ancillary obligation which it found to be implicit in article 5 as one which applied, in addition to obligations arising under the common law, throughout the prisoners detention (para 24 above). Indeed, Mr Haneys application, which succeeded, was brought almost a year before his tariff expired. The European court, on the other hand, regards the issue of lawfulness as arising only after the tariff or punishment part of an IPP sentence has expired, although earlier measures to encourage the prisoners rehabilitation will form part of the relevant circumstances (paras 32 33 above). In that regard, the European courts approach reflects the logic of locating the obligation in article 5(1)(a): it is only after the tariff has expired that any question can arise whether the continued detention is arbitrary, and therefore not lawful within the meaning of article 5(1)(a). Secondly, in Kaiyam this court treated the ancillary obligation as being to afford the prisoner a reasonable opportunity to rehabilitate himself and to demonstrate that he is no longer a risk to the public. The relevant standard was one of reasonableness, not arbitrariness. The court concluded that that standard had not been met in two of the cases before it. More recently, the Court of Appeal has expressed the view that the apparent theoretical difference between this standard and the common law standard of Wednesbury unreasonableness is unlikely to lead to different outcomes in many, if any, cases: R (Weddle) v Secretary of State for Justice [2016] EWCA Civ 38, para 50 (a case decided before the prisoners tariff had expired). The expression reasonable opportunities was also used by the European court in James, but in a context where the legal issue was whether the detention was arbitrary and therefore unlawful within the meaning of article 5(1) (paras 10 and 13 above). As the outcome of the applications to the European court in Kaiyam v United Kingdom makes clear, and as that court itself noted (para 34 above), this is a more stringent standard. The stringency of the standard applied is thus derived from the language of article 5(1)(a). Thirdly, in Kaiyam this court treated the Secretary of States own assessment of what was reasonable, in the cases of Mr Haney and Mr Massey, as conclusive of the question whether the ancillary obligation had been fulfilled (para 34 above). As the European court made clear in its own judgment in Kaiyam, its approach is more stringent: the fact that a delay occurred, even where that delay was at odds with what the Secretary of State had indicated as a reasonable opportunity to try and demonstrate safety for release, is not sufficient to meet the threshold required for the establishment of arbitrariness in breach of article 5(1)(a) (see para 34 above). In all these respects, this courts reluctance to accept that the relevant obligation derives from article 5(1)(a) has resulted in the imposition on the prison authorities of a duty which is significantly different from, and more demanding than, the duty imposed by the Convention. That is a notable departure from the usual situation in which domestic and Strasbourg jurisprudence march hand in hand. What, then, of this courts fundamental reason for declining to follow the reasoning of the European court in James: that, if the obligation were located in article 5(1), its violation might entitle the prisoner under the Convention to immediate release? In considering that concern, it has to be borne in mind in the first place that, as later Strasbourg cases have made clear, the threshold for finding a violation of the obligation imposed by article 5(1)(a) is higher than this court considered it to be in Kaiyam. More fundamentally, as explained in paras 14 16 and 25 above, the European court held in James that the requirement under article 5(4), that a persons release should be ordered if his detention was not lawful, was satisfied by the availability of remedies (1) to bring an end to the aspect of the detention which rendered it unlawful within the meaning of article 5(1)(a), namely the failure to provide an opportunity for the prisoner to rehabilitate himself, and (2) to enable the prisoner to secure his release if the Parole Board was satisfied that he was no longer dangerous. No reference was made to this aspect of the judgment in James by this court in Kaiyam. The European courts treatment of the claims for just satisfaction in James also confirmed that unlawfulness under article 5(1) arising from a failure to provide courses did not entail an obligation under the Convention to secure the applicants immediate release. In this unsatisfactory situation, it is necessary for this court to confront squarely the difficulties arising from its reasoning in Kaiyam. The appropriate course is for this court now to adopt the same approach to the interpretation of article 5(1)(a) as has been followed by the European court since the case of James, and cease to treat the obligation in question as an ancillary obligation implicit in article 5 as a whole. Emphasis should however be placed on the high threshold which has to be surmounted in order to establish a violation of the obligation. As the European court stated in Kaiyam at para 70, cases in which a violation is found will be rare (see para 33 above). That is consistent with the statement in R (Sturnham) v Parole Board (No 1) [2013] UKSC 23; [2013] 2 AC 254, para 13, that a violation of article 5(1) of the Convention . would require exceptional circumstances warranting the conclusion that the prisoners continued detention had become arbitrary. The guidance given by the European court, for example at paras 69 70 of Kaiyam, as well as that given in the present judgment, should be borne in mind. Extended sentences All the cases so far discussed in which this court, or the European court, has found there to be an obligation to provide an opportunity for rehabilitation have concerned life or IPP sentences. They can be contrasted with cases concerned with ordinary determinate sentences of imprisonment, in which both the European court and this court have treated the sentence as in itself rendering the detention lawful for the duration of the sentence period: see, for example, R (Whiston) v Secretary of State for Justice [2014] UKSC 39; [2015] AC 176, and the cases cited there. The question which arises in the present appeal is whether, and if so how, the obligation to provide an opportunity for rehabilitation applies to a prisoner sentenced to an extended sentence. The power to impose an extended sentence was introduced by the Crime and Disorder Act 1998 (the 1998 Act). Section 58 conferred the power to impose an extended sentence on courts in England and Wales (corresponding provisions are currently contained in sections 226A and 226B of the Criminal Justice Act 2003, as inserted by section 124 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012). In relation to Scotland, section 86(1) of the 1998 Act inserted section 210A of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). That provision forms part of a body of law which is highly complex and has been subject to frequent change. I shall confine myself to the provisions which are directly relevant to this appeal, as in force at the material time. So far as relevant, section 210A provides: (a) (1) Where a person is convicted on indictment of a sexual or violent offence, the court may, if it intends, in relation to (i) sentence of imprisonment; or (ii) a violent offence, to pass such a sentence for a term of four years or more; and a sexual offence, to pass a determinate (b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender, pass an extended sentence on the offender. (2) An extended sentence is a sentence of imprisonment which is the aggregate of (a) the term of imprisonment (the custodial term) which the court would have passed on the offender otherwise than by virtue of this section; and a further period (the extension period) for (b) which the offender is to be subject to a licence and which is, subject to the provisions of this section, of such length as the court considers necessary for the purpose mentioned in subsection (1)(b) above. (3) The extension period shall not exceed . ten years. (5) The term of an extended sentence passed for a statutory offence shall not exceed the maximum term of imprisonment provided for in the statute in respect of that offence. It follows from section 210A that an extended sentence comprises, in the first place, a custodial term, which is the term of imprisonment which the court would have imposed if section 210A did not exist, and in addition an extension period for which the offender is to be on licence beyond the period during which he would have been on licence if section 210A did not exist. Both periods are fixed by the court. They cannot total more than the maximum sentence available, and the extension period cannot exceed ten years. In fixing the custodial term, as in fixing an ordinary sentence of imprisonment, the court will take account of all matters relevant to sentencing and have regard to all the accepted objectives of a custodial sentence, including punishment, deterrence, public protection and rehabilitation. The reason for imposing an extended sentence is that the period for which the offender would have been subject to a licence under early release provisions, if he had received an ordinary sentence of imprisonment equal in length to the custodial term, is considered by the court to be insufficient for the protection of the public. The circumstances must also be such as do not require or justify the imposition of a sentence of life imprisonment or an order for lifelong restriction. Release on licence is intended to ensure that the process of transition from custody to freedom is supervised, so as to maximise the chances of the ex prisoners successful reintegration into the community and minimise the chances of his relapse into criminal activity. The licence is accordingly subject to conditions designed to assist in achieving those objectives, which normally place the ex prisoner under supervision and require him to comply with the instructions of his supervising officer. The licence can be revoked, and the ex prisoner recalled to custody, in the event that he breaches the conditions of his licence. The statutory provisions governing early release, set out in Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act), apply in relation to extended sentences as if any reference to a sentence or term of imprisonment was a reference to the custodial term of an extended sentence: section 26A(2), inserted by section 87 of the Crime and Disorder Act 1998. Those provisions have also been the subject of frequent amendment. For present purposes, it is necessary only to consider the provisions which are relevant to this appeal, as in force at the relevant time. Under those provisions, a prisoner, such as the appellant, whose custodial term is of four years or more is entitled under section 1(2) to be released on licence after serving two thirds of the custodial term (a different regime applies to prisoners who were sentenced after 1 February 2016, under section 1(2A) of the 1993 Act, inserted by section 1(2)(b) of the Prisoners (Control of Release) (Scotland) Act 2015). He is also eligible for release on licence, on the recommendation of the Parole Board for Scotland (the Board), after serving one half of the custodial term: section 1(3). When he is released on licence, the licence remains in force until the end of the extension period, unless revoked under section 17: section 26A(3). The court which fixes the custodial term of an extended sentence is, of course, aware of the statutory provisions governing early release. But those provisions do not influence the length of the custodial term. The court does not, for example, impose a custodial term of six years because it judges four years to be the appropriate period in custody. The provisions governing early release are, however, relevant to the imposition of an extended sentence. As explained earlier, in terms of section 210A of the 1995 Act it is only where the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender that an extended sentence can be imposed. The court therefore has to consider the period for which the offender would be on licence under early release provisions, and therefore subject to supervision with the possibility of being recalled to custody, if an ordinary sentence of imprisonment were imposed, and assess whether that period would be adequate to protect the public from serious harm. If not, the court can ensure that the offender is on licence for a further period, fixed as the extension period. Under section 17(1) of the 1993 Act, substituted by section 36(4) of the Criminal Justice (Scotland) Act 2003, the Scottish Ministers are empowered to revoke a licence and recall the prisoner to prison if recommended to do so by the Board, or if it is in their opinion expedient in the public interest and it is not practicable to await the recommendation of the Board. On the revocation of the licence, the prisoner is liable to be detained in pursuance of his sentence: section 17(5). Under section 17(3), also substituted by section 36(4) of the 2003 Act, the Scottish Ministers must refer the case of a person whose licence is revoked to the Board. Under section 3A(4), on a reference under section 17(3) the Board must, if it is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined (but not otherwise), direct that he should be released. If such a direction is given, the Scottish Ministers must release the prisoner on licence: section 3A(5). Section 3A(2) provides for the review by the Board of the cases of prisoners serving extended sentences whose licences have been revoked, at not less than annual intervals. Section 3A(4) and (5), inserted by section 88 of the Crime and Disorder Act 1998, apply to such a review. Under section 16 of the 1993 Act, read with section 26A(11), where a prisoner serving an extended sentence is released on licence and then commits another offence punishable by imprisonment prior to the expiry of the sentence, the court which imposed the extended sentence may order him to be returned to prison for the whole or any part of a period equal in length to the period between the date when the new offence was committed and the date when the extended sentence would have expired. The period ordered to be served is taken to be a sentence of imprisonment for the purposes of the 1993 Act (section 16(5)), and is therefore subject to the early release provisions. Article 5(1) and extended sentences As was emphasised by counsel for the Board, the Scottish Ministers, and the Advocate General for Scotland, the previous cases in which the European Court and this court have applied the principle established in James have all concerned life or IPP sentences. That does not, however, imply that the principle is necessarily confined to sentences of that kind. When the question arises whether the principle applies to a different type of sentence, it is necessary to consider whether the differences are such as to lead to a different result. In that regard, counsel emphasised that an extended sentence is determinate, in the sense that the court fixes the length of the extension period. That was argued to be a critical difference. Counsel for the appellant, on the other hand, emphasised that the court does not impose any period of imprisonment to be served once the custodial term has passed: the duration of any detention during the extension period depends, as in life and IPP cases, on decisions made by the executive and the Board. The Advocate General also laid emphasis on the fact that section 210A(2) of the 1995 Act refers to the aggregate of the custodial term and the extension period as a sentence of imprisonment. As Lord Hope of Craighead remarked, however, in R (Giles) v Parole Board [2003] UKHL 42; [2004] 1 AC 1, para 37, the approach which the European court adopts is to look beyond the appearances and the language used and concentrate on the realities of the situation. Attention therefore needs to be focused on the practical effect of such a sentence. Prisoners who are detained during the custodial term, or during a period ordered to be served under section 16 of the 1993 Act (as explained in para 55 above), are during that period in an analogous position to prisoners serving determinate sentences. They are serving a period of imprisonment of a term of years which the court has stipulated as appropriate for the offence committed. If they are released on licence and then recalled during that period, they continue to serve the period of imprisonment imposed by the court. It follows, according to the Strasbourg jurisprudence relating to determinate sentences, and the majority view in Whiston, that the order of the court imposing that period of imprisonment is sufficient to render their detention during the custodial term lawful for the purposes of article 5(1)(a), and the judicial supervision required by article 5(4) is incorporated in the original sentence. Prisoners who are detained during the extension period, other than by virtue of an order made under section 16 or another sentence, are in a different position in three closely related respects. First, no court has ordered that the prisoner should be detained during that period. Rather, the court has ordered that he should be subject to compulsory supervision in the community during that period. The court has therefore taken the view that, prima facie, the risk to the public can be satisfactorily managed in the community by means of that supervision (otherwise another type of sentence would have been imposed). But in the event that the supervision arrangements break down or fail to achieve their objective, the order has the consequence, under the relevant statutory provisions, that the person is subject to detention if (1) his licence is revoked by the Scottish Ministers and (2) the Board is not satisfied that it is no longer necessary for the protection of the public from serious harm that he should be confined. It follows that if the licence is revoked, the prisoner is not being recalled to serve a period of imprisonment imposed by the court. Whether he is detained, and the duration of any such detention, are determined by the Scottish Ministers and the Board. The fact that the court has set a limit to the extension period does not alter that analysis (see, for example, Van Droogenbroeck v Belgium (1982) 4 EHRR 443, and the discussion of that case in R (Giles) v Parole Board, para 37). Secondly, the purpose of detention during the extension period is materially different from that of a determinate sentence. In terms of section 210A(2)(b) of the 1995 Act, the extension period is of such length as the court considers necessary for the purpose mentioned in subsection (1)(b), namely protecting the public from serious harm from the offender: see para 48 above. The punitive aspect of the sentence has already been dealt with by the custodial term, which is the term of imprisonment . which the court would have passed on the offender otherwise than by virtue of this section: section 210A(2)(a). Where a prisoner serving an extended sentence is detained during the extension period, other than by virtue of an order made under section 16 or another sentence, his continued detention is therefore justified solely by the need to protect the public from serious harm. In terms of section 3A(4) of the 1993 Act, he will be released, following his recall by the Scottish Ministers, only if the Board is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined. Thirdly, the fact that the prisoners detention during the extension period has not been ordered by a court, but depends on recall by the Scottish Ministers, means that it must be supervised by a judicial body. That consequence also flows from the fact that the lawfulness of detention during the extension period, for the purposes of article 5(1)(a) of the Convention, depends on whether or not the prisoner ceases to present a risk to the public of serious harm. That is not a matter which was determined by the original sentence of the court. It depends on factors which are susceptible to change with the passage of time, namely mental instability and dangerousness: Mansell v United Kingdom (Application No 32072/96) given 2 July 1997 and Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, para 70. Judicial supervision of detention during the extension period is therefore necessary under article 5(4) of the Convention: see the principles set out in R (Giles) v Parole Board, paras 40 41, which were applied to extended sentences in R (Sim) v Parole Board [2003] EWCA Civ 1845; [2004] QB 1288. The requirement of judicial supervision is met by the provision made by sections 3A(2) and 17(3) of the 1993 Act for reviews by the Board (explained in para 54 above). Since that system of periodical reviews is predicated on the possibility that prisoners may be reformed, the provision of a real opportunity for rehabilitation forms a necessary element of detention during that period. Having regard to these circumstances the indefinite (albeit not unlimited) duration of detention during the extension period, its preventive purpose, and the possibility of change in response to opportunities for rehabilitation the reasoning which led the European court to decide in James, in the context of IPP sentences, that article 5(1)(a) imposed an obligation to provide the prisoner with a real opportunity for rehabilitation is equally applicable. As was explained earlier, the reasoning in James was based on the need for the conditions of detention to be related to the purpose of the detention, in order to avoid arbitrariness and hence unlawfulness within the meaning of article 5(1)(a). The critical feature of IPP sentences, after the prisoners had served the punishment element of their sentences, was that they were in detention solely because of the risk they pose to the public (para 194, cited at para 10 above). It followed that there must be measures in place aimed at reducing the danger they present and at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences (ibid). That reasoning applies equally to prisoners detained during the extension period of an extended sentence, other than by virtue of a section 16 order or a concurrent sentence. The same rationale is apparent in the courts statement in James that in circumstances where a government seeks to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders (para 218, cited at para 12 above). That statement was repeated by the Grand Chamber in Murray v The Netherlands (para 102, cited at para 37 above). The situation of a prisoner who is detained during the extension period of an extended sentence is an example of such circumstances. under article 5(1)(a). The facts of the present case On 5 January 2006 the appellant was convicted at the High Court at Edinburgh of culpable homicide, after fatally stabbing another youth in the heart with a flick knife. He received an extended sentence of ten years imprisonment, of which the custodial term was seven years and the extension period was three years. The sentence was backdated to 3 August 2005. The appellant was initially held at HMYOI Polmont, a unit for young offenders. He undertook rehabilitative course work provided there. During 2006 he completed the Anger Management programme. During 2007 he completed the Constructs course (a programme designed for persistent offenders, with a focus on addressing poor problem solving skills). He was assessed as unsuitable for the Violence Prevention programme. In September 2008 he was transferred to HMP Friarton, a national top end facility for long term prisoners (national top end being the half way point between closed and open conditions). In December 2008 It is necessary next to consider the present case in the light of the obligation he was considered by the Board for release at the halfway point in his custodial term. It decided against his release. It noted that he had incurred numerous misconduct reports, including for fighting and assaults. The risk of his reoffending was assessed as medium, following his completion of the programmes, but the risk of his potential for causing serious harm should he reoffend remained high. In January 2009 the appellant was returned to closed conditions at HMYOI Polmont following a number of positive drugs tests. During 2009 he completed an Alcohol Awareness course and a First Steps Drug Awareness course. In October 2009 he was transferred to HMP Edinburgh, as he was then over 21. On 1 April 2010 he was released on licence, having served two thirds of his custodial term. On 18 August 2010 the appellant stole a car while under the influence of alcohol. His plea of guilty to a charge of the theft, and of not guilty to several other charges, was accepted on 26 August 2010. On 7 September 2010 he appeared in the High Court pursuant to section 16 of the 1993 Act (explained in para 55 above). In the event, no order was made. On 28 September 2010 the Board decided that he should be recalled to custody. His licence was then revoked by the Scottish Ministers, and he returned to custody at HMP Edinburgh on 30 September 2010. On 21 October 2010 he was sentenced at the Sheriff Court to 40 days imprisonment in respect of the new offence, to run concurrently with his extended sentence. His case was also referred to the Board in accordance with section 17(3) of the 1993 Act (explained in para 54 above). During November 2010 the appellant was involved in a serious assault on another prisoner (he was subsequently found guilty of the assault). He refused to attend a case management conference held in anticipation of the hearing before the Board. He was also not engaging with an organisation which provided drugs and alcohol courses. The case conference regarded it as highly concerning that he had incurred numerous misconduct reports prior to his release on licence, despite having completed the Constructs course and the Anger Management programme. The Board reviewed his case on 8 December 2010 and decided that it was necessary for the protection of the public from serious harm that he should continue to be confined. In the Boards view, he remained a high risk of reoffending and of causing harm to others, and the risk he posed could not be managed in the community. The Board advised that he should be assessed for his suitability to repeat the Constructs course and to undertake the Violence Prevention programme. The appellant was listed for assessment for the Constructs course and the Violence Prevention programme, which were available at the prison where he was then located. In June 2011, prior to the assessment being carried out, he was transferred to HMP Addiewell, where the Violence Prevention programme was not available, following a fight with another prisoner. During August and September 2011 he undertook an Alcohol Awareness course. During November 2011 he completed the Goals course (concerned with pro social behaviour). On 6 December 2011 the Board again reviewed his case and decided not to direct his release. It noted that since his recall he had been the subject of several misconduct reports, including three assaults. He had also been the subject of a number of intelligence entries relating to violence, which he denied. He had failed to demonstrate that he could comply with the prison routine. He was not currently engaging with the organisation which offered drug and alcohol programmes, despite the role of excessive drinking in his offending history. He continued to be assessed as presenting a high risk of reoffending and of causing harm. He required to progress to the open estate to allow him to demonstrate his ability to adhere to licence conditions and gradually reintegrate into the community. Transfer to open conditions was however dependent on re classification as a low risk prisoner. In January 2012 the appellant was found guilty of another assault. In February 2012 he underwent the Generic Programme Assessment, the purpose of which was to assess which courses would be appropriate for him. Following that assessment, the Programme Case Management Board decided in May 2012 that he should repeat the Constructs course and then undertake the CARE programme (Controlling Anger and Regulating Emotion). On 4 August 2012 his custodial term ended, and the extension period began. It is said on his behalf that he was informed about that time that there were 60 prisoners at HMP Addiewell awaiting placement on the Constructs course and the CARE programme, and that the prison had the capacity to run two such courses every nine weeks, each course taking ten prisoners at a time. Places were allocated in accordance with a waiting list prepared in accordance with a national policy which prioritised prisoners according to the earliest date when they might be eligible for release. Given his position on the waiting list, he was expected to begin the Constructs course in November 2012. In the event, the course due to begin in November was postponed as a result of changes in the intervention team who provided courses at the prison. On 6 December 2012 the Board again reviewed his case, and decided that he should remain in custody and progress in terms of his management plan, which envisaged his progression towards a transfer to open conditions following the completion of course work and a sustained period of good behaviour. It noted that little progress had been made, partly because he had been unable to undertake the programme work planned for him, but also because he had incurred five misconduct reports during 2012, including one for assault, which would have been taken into account in considering his suitability to progress. The responsibility for that lay with him. The Board encouraged him to engage with the management plan for his sentence and to demonstrate and maintain good behaviour, without adverse reports, for a sustained period so that he could offer evidence to the Board that his risk was manageable in the community. In January 2013 the appellant commenced the Constructs course, having been transferred to HMP Perth so as to enable him to do so earlier than would have been possible at HMP Addiewell. He completed it during April 2013. In May 2013 he commenced the CARE programme. He completed it during September 2013. He then underwent assessment for progression to open conditions. He was assessed as suitable, and a place was found at HMP Castle Huntly. Supported accommodation was secured in Edinburgh where he could spend periods of home leave, and thus provide evidence that the risk he presented was manageable in the community. On 9 December 2013 the Board again reviewed his case. It welcomed the progress which had been made, but decided not to direct his immediate release. It was noted that he had incurred a further two misconduct reports during 2013. The risks which he presented were still assessed as being at a high level, and were likely to remain so until he had been tested in the community. A period at HMP Castle Huntly would provide him with an opportunity to put into practice what he had learned, and provide a staged approach to his return to living in the community. The Board suggested that he should apply for a further review in six months time. On 10 December 2013 the appellant was transferred to open conditions at HMP Castle Huntly. He began to take home leaves. In February 2014 he was returned to closed conditions at HMP Addiewell, after illicit substances were found in a locker to which he had a key. In August 2014 he was returned to open conditions at HMP Castle Huntly. Three days later he was returned to closed conditions at HMP Addiewell, after he was found to be under the influence of an illicit substance. He declined to engage with the addictions team there. Later that month he appeared in court on two historical charges of sexual abuse of children and one of rape. A case conference held in September 2014 concluded that he did not need to repeat any courses, but needed to apply what he had already learned. On 26 September 2014 the Board again reviewed his case, and decided not to direct his release. It noted that, notwithstanding his completion of all required programme work, he had not acquired the skills which he had been taught. The risk of his reoffending and causing serious harm remained too high to be managed in the community. The appellant was released from prison on 4 August 2015, on the expiry of the extension period. Discussion There can be no doubt, in the light of this history, that the appellant was provided with a real opportunity for rehabilitation. From the outset of the custodial term of his sentence, he was provided with rehabilitative courses during 2006 and 2007 which enabled him to progress to a top end facility in 2008. He nevertheless continued to be involved in violent behaviour and to abuse drugs, leading to his return to closed conditions in 2009. He was then provided with courses designed to assist him in avoiding drug and alcohol misuse, prior to his release on licence in 2010. Around four months later, however, he reoffended while under the influence of alcohol, and in consequence was recalled to custody. Following his return to custody, he continued to be involved in violent behaviour, leading to the Boards advice in December 2010 that he should be assessed for his suitability to repeat the Constructs course he had previously undertaken in 2007, and the Violence Prevention programme. In the event, however, he was transferred to another prison, following further violent conduct, before that assessment had been carried out. Although the Violence Prevention programme was not available there, it is not apparent from the documents before the court why an assessment of his suitability to repeat the Constructs course was not carried out. The appellant has not sought to adduce any evidence in relation to this matter, for example from those who were involved in the management of his sentence during that period. In the circumstances, the court cannot speculate as to whether there was or was not a good reason for his not being assessed at this time for the Constructs course. It is however clear that the appellant was not simply left in limbo: there continued to be an annual case conference to consider his management plan (including the provision of appropriate work and education), and an annual review by the Board, and he was provided with two other courses during 2011, namely the Alcohol Awareness course and the Goals course. There is no reason to doubt that those courses were appropriate for him. Any delay in assessment for the Constructs course during this period is in any event only a small part of the overall picture. Once the appellant was assessed in May 2012 as suitable to repeat the Constructs course, to be followed by the CARE programme, he was provided with places on those courses without unreasonable delay. The period between May 2012 and January 2013, when the Constructs course began, was longer than would be ideal, but the prison authorities cannot be criticised for allocating the available places in accordance with a consistent scheme of prioritisation. The reasonableness of the decision to adopt that particular scheme is not challenged in these proceedings. It was unfortunate that staff changes resulted in the postponement of the course, but an effort was then made to avoid further delay by arranging a transfer to a prison where the course was available sooner. The overall delay was not of an order which might render the appellants detention after the expiry of his custodial term arbitrary. As was said by Lord Mance and Lord Hughes in Kaiyam at para 60, article 5 does not entitle the court to characterise as arbitrary detention any case which it concludes might have been better managed: It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances, taking into account, among all those circumstances, his history and prognosis, the risks he presents, the competing needs of other prisoners, the resources available and the use which has been made of such rehabilitative opportunity as there has been. After completing the CARE course in September 2013, the appellant was then transferred to open conditions without any greater delay than was necessitated by the need to make the necessary arrangements. The problems which then ensued, between his transfer to open conditions in December 2013 and the final review of his case in September 2014, were entirely his own responsibility. He failed to apply what he had been taught, and instead continued to misuse illicit substances. There is no question in this case of the appellants being left in limbo without sentencing planning and without any attempt to provide him with an opportunity to rehabilitate himself. This case bears no resemblance to that of James. On the contrary, there were courses provided and completed, regular planning meetings, efforts made to find appropriate rehabilitative work, and transfers to less restrictive conditions. The problem which resulted in the appellants serving the whole of his sentence was not the failure of the prison authorities to provide appropriate courses, but his own misconduct. There is simply no question of his detention during the extension period, or at any other point during his sentence, having been arbitrary. Conclusion For these reasons, I reach the same conclusion as the Lord Ordinary and the judges of the Inner House, although their reasoning was understandably different in some respects, reflecting the development of this area of the law during the course of these proceedings. I would therefore dismiss the appeal. |
On 22 September 2015, Bernadette Hilton was convicted at Belfast Magistrates court on her plea of guilty of three offences contrary to section 105A of the Social Security Administration (Northern Ireland) Act 1992. One of the offences related to her failure to notify the Social Security Agency of a change in her circumstance which would have affected her entitlement to claim Income Support. The other two offences involved the making of false statements in order to obtain Income Support. Following her conviction, Ms Hilton was committed to the Crown Court and that court was asked to make a confiscation order under section 156 of the Proceeds of Crime Act 2002. This application was heard by His Honour Judge Miller QC on 20 October 2016. It had been calculated that Ms Hilton had wrongly obtained a total sum of 16,517.59 as a result of her crimes. The judge assessed the benefit that she had gained to be that sum. The only property held by Ms Hilton at the time of the hearing before Judge Miller was a house which was owned jointly with a former partner. She contended that the value of her half share in the property, after deduction of an outstanding mortgage was 10,263.50. The judge accepted that contention. He assessed the available amount as that sum and made a confiscation order in respect of it. Ms Hilton was ordered to pay that amount within three months. In default of its payment, it was directed that she serve six months imprisonment. Ms Hilton appealed. Although not included in her original grounds of appeal, before the Court of Appeal she argued that Judge Miller had failed to comply with the requirements of section 160A(2) of the 2002 Act because neither the co owner nor the mortgagee had been given the opportunity to make representations about the making of the confiscation order. It transpired that neither Ms Hiltons former partner nor the building society which was the mortgagee was aware of the criminal proceedings or the application for a confiscation order. The proceedings in the Court of Appeal Deeny J in an extempore judgment gave the decision of the court (Gillen LJ, Deeny J and Keegan J) on 12 May 2017: [2017] NICA 73. The principal issue which concerned the court (and which is the only matter involved in the appeal before us) was in relation to the requirements of section 160A(2) of the 2002 Act and whether the judges order contravened those requirements. Two other matters were argued before the Court of Appeal, namely, whether a reduction in the amount to be recovered should have been made in order to reflect the costs of the sale of the property and whether article 8 of the European Convention of Human Rights (ECHR) should have been taken into account at the time of the making of the confiscation order, as opposed to the making of an order for its enforcement. It is not necessary to say anything on either issue. The Court of Appeal decided that section 160A(2) required that, at the time of making a confiscation order, the Crown Court must give to anyone who is thought to hold or who, it is considered, may hold an interest in the property an opportunity to make representations on whether a confiscation order should be made and, if so, in what amount. Deeny J observed that the subsection had not been drawn to the attention of Judge Miller but, in any event, the failure to give Ms Hiltons estranged partner and the building society the chance to make representations was fatal to the decision of the judge (para 7 of the Court of Appeal judgment). The Director of Public Prosecutions applied for permission to appeal to this court and for a certificate that a point of law of general public importance arose on the appeal. On 6 March 2018, the Court of Appeal refused permission to appeal but certified the following points of law of general public importance: 1. Where property is held by the defendant and another person, in what circumstances is the court making a confiscation order required by section 160A of the Proceeds of Crime Act 2002, in determining the available amount, to give that other person reasonable opportunity to make representations to it at the time the order is made? If section 160A does so require, does a failure to give 2. that other such an opportunity render the confiscation order invalid? The 2002 Act There are or, at least, there can be two stages to confiscation proceedings: the first is the making of the confiscation order itself and the second the order securing its enforcement. The first stage is provided for in sections 156 to 163B. That stage is triggered in the manner described in section 156. The obligation to make an order arises once the conditions in subsections (2) and (3) are satisfied. These are fairly routine. The order must be made if a defendant has been convicted of an offence before the Crown Court or is committed to that court with a view to a confiscation order being made subsection (2); and if the prosecutor asks for such an order to be made or the court believes it appropriate to make it subsection (3). The relative ease with which these conditions can be satisfied suggests that it was envisaged that the making of a confiscation order (as opposed to its enforcement) should be straightforward, indeed quasi automatic. If satisfied that the order should be made, the court is directed how to proceed by section 156(4) and (5), the relevant parts of which, so far as concerns the present case, are these: (4) The court must proceed as follows (c) if it decides that [the defendant] does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4) (c) that the defendant has benefited from the conduct referred to it must (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. [A footnote to sub paragraph (b) was inserted on 1 June 2015 by the Serious Crime Act 2015 (the 2015 Act) (c 9), section 88(3)(b), Schedule 4 paragraph 46; regulation 3(2)(b). It is to the following effect: Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.] Section 157 deals with the calculation of the recoverable amount. The starting point is that the recoverable amount is an amount equal to the defendants benefit from the conduct concerned subsection (1). But if the defendant shows that the available amount is less than the benefit obtained, the recoverable amount is duly adjusted subsection (2). The available amount is defined in section 159 of the Act. For present purposes it is sufficient to refer to subsection (1)(a) of section 159 which stipulates that the recoverable amount is the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority. It was by dint of the operation of section 157(2) in tandem with section 159(1)(a) that the recoverable amount in Ms Hiltons case was found to be the sum which, it was considered, could be obtained from the sale of the property which she jointly owned. It is to be noted that section 159(1)(a) specifies that the recoverable amount is the total of the values of all the free property then held by the defendant minus the amount payable for debts which have priority. The emphasis is on property which the defendant holds. Section 227(3), which makes provision for determining a propertys value, again makes clear that it is the market value of the defendants interest in the property, rather than the overall value of the property which dictates the amount to be specified in the confiscation order. Having made those preliminary observations, one must turn then to the section which is pivotal to this appeal section 160A. (It was also inserted on 1 June 2015 by the 2015 Act (c 9), sections 24, 88(3)(a), The Serious Crime (2015 Act) (Commencement) Regulations (Northern Ireland) 2015 (SR 2015/190), regulation 3(1)(a)). Section 160A(1) provides: Where it appears to a court making a confiscation order that (a) there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and (b) hold, an interest in the property, a person other than the defendant holds, or may the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendants interest in the property. Clearly, in this case, the judge formed a view as to the extent of Ms Hiltons interest in the jointly owned property. The critical question is whether he determined the extent of that interest under section 160A, so as to preclude any further representations by persons other than Ms Hilton who held or may hold an interest in the property. Ms Hiltons complaint is that he did and further that he failed to advert to subsection (2) of section 160A which provides: The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it. The significance of a determination under section 160A which precludes representations from third parties is clear from subsection (3) which provides: (3) A determination under this section is conclusive in relation to any question as to the extent of the defendants interest in the property that arises in connection with (a) the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or (b) of any such realisation or transfer. any action or proceedings taken for the purposes A determination of the extent of the interest of the person subject to the confiscation order on the basis that no further representations may be made by third parties thus becomes immutable, unless there is an appeal to the Court of Appeal section 181(4), (5) and (6). The question whether a confiscation order has been made on foot of such a determination is therefore critical. But it is also critical that that question be addressed with the two stage process involved in the making of the order and securing its enforcement firmly in mind. Before turning to that, however, it should be recalled that making a determination as to the extent of a persons interest which precludes later representations by third parties (as opposed to forming a preliminary view about that interest) is conditional on the courts considering it appropriate to do so. Since section 160A(2) requires that the court should give to anyone who may be a person holding an interest in the property a reasonable opportunity to make representations to it, by definition, it could not be appropriate to make a determination affecting such a persons interest without giving him or her that opportunity. Unless the Crown Court judge is confident that the third partys interest will not be affected, he or she should not make a determination under section 160A(1) which effectively extinguishes the opportunity for third parties to make later representations. The judge is not prohibited, however, from forming a view as to the extent of the interest of the person subject to the confiscation order for the purpose of computing what is, in effect, a statutory debt see R v Ahmed (Mumtaz) [2005] 1 WLR 122, discussed below at para 19. This is particularly so because of the provisions relating to the quite distinct exercise involved in the realisation of the order or payment of the sum due and it is to those provisions that I now turn. Section 198 makes provision for the circumstances where a confiscation order has been made but has not been satisfied. It is in these terms: (1) This section applies if (a) (b) (c) a confiscation order is made, it is not satisfied, and it is not subject to appeal. (2) On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property. It is to be noted that the exercise of the power under this section is dependent on a confiscation order having been made. This reflects the two stage approach: the first the making of the confiscation order and the second the realisation or enforcement of that order. As the appellant submits, if the interests of third parties are not considered and disposed of at the confiscation stage, they must be dealt with at the enforcement stage. This is the effect of various provisions in section 199. The first relevant provision in section 199 is subsection (2). It provides that the court may confer on a receiver (appointed under subsection (1)) a number of powers in relation to the realisable property. These include the power to manage or otherwise deal with the property (subsection 2(b)) and the power to realise the property, in such manner as the court may specify (subsection 2(c)). Subsection (6) makes provision for the courts power to order a person holding an interest in realisable property to make a payment to a receiver in respect of a beneficial interest held by the defendant and, on the payment being made, order the transfer, grant or extinguishment of any interest in the property. proviso in section 199(8), however. It provides: Importantly, recourse to subsections (2) and (6) is subject to an important (8) The court must not confer the power mentioned in subsection (2)(b) (a) or (c) in respect of property, or (b) (6) in respect of property, exercise the power conferred on it by subsection unless it gives persons holding interests in the property a reasonable opportunity to make representations to it. This is important because the section was retained in the legislation, despite the introduction of section 160A. It can be safely assumed, therefore, that Parliament intended that the two stage process of (i) the making of the confiscation order, and (ii) its enforcement or realisation at a later point should be preserved. Indeed, there can be no doubt about this because a new subsection 8B was introduced by the 2015 Act (c 9), sections 27, 88(3)(a) (SR 2015/190), regulation 3(1)(a). It provides: Representations that a person is entitled to make by virtue of subsection (8) do not include representations that are inconsistent with a determination made under section 160A, unless (a) the person was not given a reasonable opportunity to make representations when the determination was made and has not appealed against the determination, or (b) it appears to the court that there would be a serious risk of injustice to the person if the court was bound by the determination; and the determination does not bind the court if paragraph (a) or (b) applies. This provision proceeds on the premise that section 160A and section 199 continue, in relevant circumstances, to co exist. Third party representations are forbidden, subject to the qualifications in sub paras (a) and (b), if a determination under section 160A has been made. If such a determination has not been made, however, there is no inhibition to the making of third party representations. Put simply, section 160A does not purport to occupy the field. The opportunity to make representations at the enforcement stage continues to apply either because a determination under section 160A has not been made or because the conditions in section 199(8B) are met. The fundamental point is that, at the enforcement stage, third party rights may continue to be considered either because the Crown Court did not make a section 160A determination, or because it did so without affording a person with an interest in property the opportunity to make representations when the determination was made. Discussion The distinct two stage process in (i) the making a confiscation order; and (ii) the enforcement of that order, was an inevitable feature of proceeds of crime applications before the introduction of section 160A to the 2002 Act by the 2015 Act. In R v Ahmed (Mumtaz) and R v Qureshi (Ghulam) [2005] 1 WLR 122, after dealing with the question of whether the defendants had benefited from their criminal activities, Latham LJ turned to the nature of the exercise involved in the making of a confiscation order. At paras 11 and 12, he said: 11. The court is merely concerned with the arithmetic exercise of computing what is, in effect, a statutory debt. That process does not involve any assessment, in our judgment, of the way in which that debt may ultimately be paid, any more than the assessment of any other debt. 12. Different considerations, will, however arise if the debt is not met and the prosecution determine to take enforcement action, for example by obtaining an order for a receiver. As the House of Lords explained in In re Norris [2001] 1 WLR 1388 this is the stage of the procedure in which a third partys rights can not only be taken into account but resolved. A third partys rights were not considered at the confiscation order stage. This was and still may be a computation exercise to decide how much the defendant has benefited from his or her criminal activity and to assess what assets they have that might be recoverable. Whether those assets were in fact realisable was left to the enforcement stage. The crucial question to be determined in the present appeal is whether, and in what circumstances, that division of functions can still occur where there are third party interests at stake. The circumstance that the confiscation stage did not involve any consideration of how the debt might be realised was reinforced by the fact that, as Latham LJ put it, it was akin to a statutory debt and it was owed in personam. The significance of this is explained in Millington and Sutherland Williams on The Proceeds of Crime, 5th ed (2018), chapter 16, para 16.53: A confiscation order is an in personam order against the convicted defendant and not an in rem order against specific items of property. The consequence of this, prior to 1 June 2015, was that third parties who held an interest in realisable property did not have a right to be heard at the confiscation hearing in the Crown Court or to have counsel make representations to the court on their behalf. If the defendant wished the third party to be called as a witness on his behalf for the purpose of establishing the extent of his interest in realisable property, he could of course do so. Following the introduction of section 10A of POCA [in Northern Ireland section 160A] the position has been modified. The extent of the modification is contained in section 160A(2) which stipulates that the Crown Court must give to anyone who is thought to hold or who, it is considered, may hold an interest in the property an opportunity to make representations on whether a confiscation order should be made and, if so, in what amount see para 6 above. What has not been modified, in my opinion, in cases where third party interests have been identified, is the opportunity available to the Crown Court, to make a confiscation order other than under section 160A. In such circumstances, the confiscation stage of proceedings remains separate from the enforcement stage. In the present case, the Court of Appeals judgment is premised on the proposition that on every occasion that third party interests arise, the court must proceed under section 160A. The consequence of that approach would be that there would be an inevitable collapse of the traditional two stages into one hearing with all the panoply of investigation of the merits of the rights of third parties, such as a former partner and the building society in the present appeal. This would inevitably introduce a cumbersome procedure to the making of the confiscation order. Conventionally, as in the present instance, those with some interest in the property which might become available at the realisation stage, such as former partners and mortgagees, are not made parties to the application for a confiscation order. If, in every case where third party interests were potentially at stake, a full section 160A investigation had to be undertaken at the stage of making the confiscation order, the case would have to be adjourned; those with possible interests would have to be put on notice; and the making of a confiscation order would have to be postponed. I am satisfied that this was not intended. The making of a confiscation order would no longer be straightforward, much less quasi automatic (see para 8 above) if section 160A had to be applied in all its rigour in every case where third party interests arose. The enactment of the section was designed to streamline the system, not to complicate it. In my view, its purpose was to combine the confiscation and enforcement stages in simple cases where there could be no sensible debate about how the confiscation order should be enforced. This conclusion is supported by consideration of academic commentary and case law which predates the introduction of section 160A. In Blackstones Guide to The Proceeds of Crime Act 2002, 5th ed (2015), the authors note at para 2.197 that traditional advice for third parties wishing to protect property in their possession was to await enforcement proceedings. Of course, during the determination hearing itself, the defendant himself might call the third party as a witness in order to prove an interest which reduced the amount of the defendants available property. However, there has never been any procedure allowing for third parties to make their own freestanding representations at that stage. Dicta in In re Norris [2001] UKHL 34; [2001] 1 WLR 1388 underscore the distinction between the confiscation order and the order for its enforcement. The House of Lords emphasised the in personam nature of a confiscation order: The order which it makes is an order which is directed against the defendant only, and it is simply an order for the payment of a sum of money. The question of realisation, if the exercise of powers by a receiver is needed in order to make good the order which the defendant is required to satisfy, is reserved for the High Court (para 5). It was further emphasised that the structure of the 2002 Act reflected the engrained distinction between the courts criminal jurisdiction and their civil jurisdiction, and the division of responsibility and function between the Crown Court exercising the criminal jurisdiction and the High Court exercising the civil jurisdiction. The criminal jurisdiction is concerned alone with what order to make under sections 1 to 4 of the Act. The procedure of the criminal court is solely concerned with the parties before it, the prosecution and the defendant (para 23). There is now, of course, a procedure allowing third parties to make representations at the confiscation stage of proceedings but only where the Crown Court is minded to make a determination under section 160A. Indeed, this is the combined effect of sections 160A(2) and (3) and section 199(8)(b) see paras 12 14 and 17 above. It is evident, therefore, that it was open to Judge Miller to make a confiscation order other than under section 160A. Having read the transcript of the hearing of the application for a confiscation order and the order which the judge made, it is clear to me that no determination under that section was made. It was not mentioned during the submissions that were made to the judge nor in the order of the court. The hearing of the application for a confiscation order was principally concerned with the relevance of the costs of the sale of the property to the calculation of the realisable amount. The possible significance of third party interests was not referred to by any party. It seems likely that the judge was completely unaware of these. Section 160A has no bearing on this case, therefore, unless the judge was bound to make an order under its provisions. For the reasons that I have given, he was not. Having considered the transcript of the hearing before him, I am satisfied that he did not. Conclusion I consider that the answer to the first question certified, namely, Where property is held by the defendant and another person, in what circumstances is the court making a confiscation order required by section 160A of the Proceeds of Crime Act 2002, in determining the available amount, to give that other person reasonable opportunity to make representations to it at the time the order is made? should be that this question does not arise on the present appeal because a determination under section 160A was not made. The same answer must be given to the second certified question. The appeal is therefore allowed and the learned County Court judges order is restored. It will be open to the third parties to make representations at the enforcement stage of the proceedings. Likewise, at that stage, it will be open to Ms Hilton to canvass the matters adverted to in para 5 above. |
Some time after 17.00 hrs on 20 April 2005, Melanie Rabone hanged herself from a tree in Lyme Park, Cheshire. She was 24 years of age and was the loved daughter of Mr and Mrs Rabone. At the time, she was on two days home leave from Stepping Hill Hospital, Stockport where she was undergoing treatment for a depressive disorder as an informal patient (ie one who was not detained under the Mental Health Act 1983 (the MHA)). She had been admitted to the hospital as an emergency following a suicide attempt. She was assessed by the hospital as a high risk of a further suicide attempt. Mr and Mrs Rabone have always maintained that the hospital authorities should not have allowed her home leave and that they were responsible for their daughters tragic death. They started proceedings against the Pennine Care NHS Trust (the trust) alleging negligence and breach of the right to life protected by article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The trust eventually admitted negligence, but they have never admitted liability for breach of article 2. A number of issues were raised in the proceedings all of which are live in this appeal. The claim failed because the judge (Simon J) held that the operational duty implicit in article 2 did not apply in this case: there was no duty on the hospital authorities under article 2 to take reasonable steps to guard Melanie against the risk of suicide: [2010] EWHC 1827. He also held that, if there was such a duty, there had been no breach of it by the trust on the facts of this case. The Court of Appeal (Rix, Stanley Burnton and Jackson LJJ) dismissed Mr and Mrs Rabones appeal. The only substantive judgment was given by Jackson LJ (now reported at [2011] QB 1019). They agreed that there was no operational duty, but held that if there had been such a duty, the trust would have been in breach of it. This appeal raises a number of issues, but before I come to them, I need to set out the relevant facts. The facts Melanie Rabone was born in 1981. During 2000, she was diagnosed as suffering from depression and received medical treatment. There was some improvement in the next few years, although she had intermittent episodes of anxiety. On 4 March 2005, she tried to commit suicide by tying a pillow case round her neck. She was admitted to Stepping Hill Hospital following an emergency referral by her General Practitioner. On 7 March 2005, she was diagnosed by Dr Meagher, a consultant psychiatrist, as suffering from a severe episode of a recurrent depressive disorder. On 18 March, she was assessed as having made a sufficient recovery to be discharged. She went on holiday for a week with her family to Egypt. On 31 March, she cut both of her wrists with broken glass. Dr Meagher advised that she should be readmitted to the hospital. No beds were available on Warren Ward, which is part of Stepping Hill Hospitals Mental Health Services Unit. On 6 April, she was seen by Dr Cook, a senior house officer, as an outpatient. She was noted as having occasional thoughts of suicide and frequent thoughts of deliberate self harm. On 11 April, she tied lamp flex round her neck. She was assessed by Dr Cook who noted: Impression: severe depressive episode. ? Psychosis, High risk DSH [deliberate self harm] and suicide. Melanie agreed to an informal admission to the hospital. Dr Cook noted that, if she attempted or demanded to leave, she should be assessed for detention under the MHA. She was prescribed a course of drugs and thereafter kept under 15 minute observation. A full mental state examination was carried out on admission by Nick Tatnall, one of the ward nurses. He assessed Melanie as a moderate to high suicide risk. On 13 April, Mr Rabone expressed his grave concern to Nurse Tatnall about Melanies condition and urged that she should not be allowed home on leave or discharged too soon. There were further conversations during the week in which Melanies parents told the hospital staff that they were concerned about her impulsiveness and the risk of self harm. At 13.00 hrs on 18 April, Mr Rabone spoke to the ward to state his concern that Melanie was not improving and that she had expressed fleeting suicidal thoughts since her admission and had asked her parents to get her out of the hospital. On 19 April, Dr Meagher returned from leave. He was told that Melanie was requesting home leave. On his late afternoon ward round, he met Melanie and Mrs Rabone. He agreed to allow her to have home leave for two days and nights. Mrs Rabone said that she was concerned about Melanie coming home for the weekend, but Melanie was keen to do so. She left the ward at 19.40 hrs. She spent most of the following day with her mother. In the late afternoon, she said she was going to see a friend. Some time after 17.00 hrs, she hanged herself from a tree in Lyme Park. On 31 August 2005, Mr Rabone wrote to the trust criticising the decision to grant home leave on 19 April. On 13 September, the trust informed Mr Rabone that a thorough internal investigation was to be carried out, but that this would take some time. They said that his complaint would be put on hold until the completion of the investigation. On 15 September, they duly established a Serious Untoward Incident (SUI) investigation. On 29 September, the Coroner for the Greater Manchester South District conducted an inquest and retuned a verdict of suicide. In the summer of 2006, Mr Rabone contacted the trust on more than one occasion, expressing his concern about delays in the investigation. Its report was not sent to Mr and Mrs Rabone until 16 March 2007. The proceedings A claim form was issued on 11 August 2006. Mr Rabone claimed damages against the trust in negligence on behalf of Melanies estate under the Law Reform (Miscellaneous Provisions) Act 1934 (the 1934 Act); and he and Mrs Rabone claimed damages on their own behalf for breach of article 2 of the Convention. Although the pleaded claim for breach of article 2 was for an alleged contravention of both the positive obligation to protect life and the investigative obligation under article 2, in the event the court has only been concerned with the former. By its defence, the trust denied all allegations of breach. It also alleged that the human rights claim was time barred under section 7(5) of the Human Rights Act 1998 (the HRA), since it had been issued more than one year after Melanies death. By their reply, Mr and Mrs Rabone asked the court to extend the time limit by four months in the exercise of its discretion under section 7(5)(b) of the HRA. The 1934 Act claim was settled in May 2008 for 7,500 plus costs. It will be necessary to examine the implications of this settlement (and the admissions that were made by the trust in May 2009) for the article 2 claim later in this judgment. Article 2 in outline Before I come to the issues that arise on this appeal, I need to set the scene by making a few introductory comments about article 2 of the Convention which provides: Everyones right to life shall be protected by law. These few words have been interpreted by the European Court of Human Rights (the ECtHR) as imposing three distinct duties on the state: (i) a negative duty to refrain from taking life save in the exceptional circumstances described in article 2(2); (ii) a positive duty to conduct a proper and open investigation into deaths for which the state might be responsible; and (iii) a positive duty to protect life in certain circumstances. This latter positive duty contains two distinct elements. The first is a general duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life: see Oneryildiz v Turkey (2004) 41 EHRR 20 (para 89) applying, mutatis mutandis, what the court said in Osman v United Kingdom (2000) 29 EHRR 245 (para 115). The second is what has been called the operational duty which was also articulated by the court in Osman. This was a case about the alleged failure of the police to protect the Osman family who had been subjected to threats and harassment from a third party, culminating in the murder of Mr Osman and the wounding of his son. The court said that in well defined circumstances the state should take appropriate steps to safeguard the lives of those within its jurisdiction including a positive obligation to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another (para 115). At para 116, the court went on to say that the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. In a case such as Osman, therefore, there will be a breach of the positive obligation where: the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Since the date of its decision in Osman, the court has identified other circumstances in which the operational duty may exist as I shall explain. There seems, however, to be no decision of the court which has considered whether the article 2 operational duty may exist to protect an informal (as opposed to a detained) psychiatric patient from the risk of suicide. That is the first question that arises in the present case. As I have said, the judge and the Court of Appeal held that no operational duty arose on the facts of the present case. The issues The six issues that arise in this appeal are: (i) whether the operational obligation under article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA; if the answer to (i) is yes, (ii) whether there was a real and immediate risk to the life of Melanie on 19 April 2005 of which the trust knew or ought to have known and which they failed to take reasonable steps to avoid; if the answer to (ii) is yes, (iii) whether Mr and Mrs Rabone were victims within the meaning of article 34 of the Convention; if the answer to (iii) is yes, (iv) whether they lost their victim status, because the trust made adequate redress and sufficiently acknowledged its breach of duty; if the answer to (iv) is no, (v) whether their claims are time barred by section 7(5) of the HRA; and if the answer to (v) is no, (vi) whether the Court of Appeal erred in holding that they would have awarded 5000 each to Mr and Mrs Rabone if their claims had been established. The first issue: can an operational duty under article 2 be owed to a hospital patient who is mentally ill, but is not detained under the MHA? As the ECtHR said at para 115 of Osman, the operational duty exists in certain well defined circumstances. The court has held that there is a duty on the state to take reasonable steps to protect prisoners from being harmed by others including fellow prisoners (Edwards v United Kingdom (2002) 36 EHRR 487) and from suicide (Keenan v United Kingdom (2001) 33 EHRR 913). The same duty exists to protect others who are detained by the state, such as immigrants who are kept in administrative detention Slimani v France (2006) 43 EHRR 49) and psychiatric patients who are detained in a public hospital (Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681). The operational duty is also owed to military conscripts. Specifically, there is a duty to protect a conscript against the risk of suicide (Kilinc v Turkey (Application No 40145/98)). I have already referred to the circumstances in Osman itself, where the deceased and his family were vulnerable to attack by a third party. It would seem that the ECtHR considered that these might in principle have been sufficient to give rise to the operational duty, but the claim failed on the particular facts. More recently, the court has expanded the circumstances in which the duty is owed so as to include what may generally be described as dangers for which in some way the state is responsible. Thus in Oneryildiz, the applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicants house killing his close relatives. The Grand Chamber held at para 101 that the Turkish authorities knew or ought to have known that the tip constituted a real and immediate risk to the lives of persons living close to it. They consequently: had a positive obligation under article 2 of the Convention to take such preventive operational measures as were necessary and sufficient to protect those individuals, especially as they themselves had set up the site and authorised its operation, which gave rise to the risk in question. Another example of a case in this broad category is Mammadov v Azerbaijan (Application No 4762/05) (2009) where the applicants wife set fire to herself during an attempt by police offices to evict the applicant and his family from accommodation that they were occupying. The court made it clear at para 113 that it was necessary to determine whether this specific situation triggered the states operational duty that is whether at some point during the course of the operation the state agents became aware or ought to have become aware that there was a risk of suicide. At para 115, the court continued: in a situation where an individual threatens to take his or her own life in plain view of state agents and, moreover where this threat is an emotional reaction directly induced by the state agents actions or demands, the latter should treat this threat with the utmost seriousness as constituting an imminent risk to that individuals life, regardless of how unexpected that threat might have been. In Watts v United Kingdom (2010) 51 EHRR 66, the applicant complained that her transfer from her existing care home to another care home would reduce her life expectancy. The court held at para 88 that a badly managed transfer of elderly residents of a care home could well have a negative impact on their life expectancy as a result of the general frailty and resistance to change of older people. It followed that article 2 was applicable. The operational duty was, therefore, capable of being owed in such circumstances, but for various reasons, the claim failed on the facts. These are all examples of cases where the operational duty has been held to exist. They are to be contrasted with cases involving hospital deaths resulting from what in Savage ([2009] AC 681, para 45) Lord Rodger described as casual acts of negligence. The leading Strasbourg case in this category is Powell v United Kingdom (2000) 30 EHRR CD 362. An article 2 complaint was made by parents in respect of the death of their son as a result of negligent treatment of him in hospital. Their case was that there had been a breach of the Osman operational duty. In holding that the claim was inadmissible, the court said at p 364; The court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of article 2. However, where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention to protect life. Thus to use the language of Lord Rodger in Savage, if the hospital authorities have performed their obligation to adopt appropriate general measures for the protection of the lives of patients in hospitals (for example, by ensuring that competent staff are recruited, high professional standards are maintained and suitable systems of work are put in place), casual acts of negligence by members of staff will not give rise to a breach of article 2. The question that lies at the heart of the first issue in the present case is whether the admitted casual negligence of the trust in its treatment of Melanie is to be assimilated to the Powell line of cases or whether the fact that she was a psychiatric patient (though not detained) means that this case should be assimilated to the class of cases where an operational duty arises. The judge and the Court of Appeal decided that it belongs to the Powell line of cases. Jackson LJ said: 63. On the law as it stands, I do not believe that health trusts have the article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a real and immediate risk of death. In my view, it is not possible to separate such patients into categories and to say that the operational obligation is owed to some categories of voluntary patients, but not others. A patient undergoing major heart surgery may be at just as great a risk of death as a schizophrenic patient with suicidal ideation. 64. It is important for court users (patients, NHS trusts, legal advisers and others) that legal obligations and liabilities should be clearly defined and understood. I do not believe that it either is or should be the law that voluntary patients fall into different categories, some of whom (or some of whose families) can claim under article 2 but others of whom cannot. The remedy for clinical negligence, even where real and immediate risk of death has been disregarded, is an action in negligence. It is, therefore, necessary to attempt to discover the essential features of the cases where Strasbourg has so far recognised the existence of an operational duty. It is clear that the existence of a real and immediate risk to life is a necessary but not sufficient condition for the existence of the duty. This is because, as the Court of Appeal said, a patient undergoing major surgery may be facing a real and immediate risk of death and yet Powell shows that there is no article 2 operational duty to take reasonable steps to avoid the death of such a patient. No decision of the ECtHR has been cited to us where the court clearly articulates the criteria by which it decides whether an article 2 operational duty exists in any particular circumstances. It is therefore necessary to see whether the cases give some clue as to why the operational duty has been found to exist in some circumstances and not in others. There are certain indicia which point the way. As Miss Richards and Mr Bowen submit, the operational duty will be held to exist where there has been an assumption of responsibility by the state for the individuals welfare and safety (including by the exercise of control). The paradigm example of assumption of responsibility is where the state has detained an individual, whether in prison, in a psychiatric hospital, in an immigration detention centre or otherwise. The operational obligations apply to all detainees, but are particularly stringent in relation to those who are especially vulnerable by reason of their physical or mental condition: see, for example, Keenan (prisoner suffering from a mental disorder) and Tarariyeva v Russia (2009) 48 EHRR 609 (person detained in a prison hospital suffering from a serious physical illness). The significance of the assumption of responsibility was summarised by Lord Rodger in Mitchell v Glasgow City Council [2009] AC 874, para 66: The obligation of the United Kingdom under article 2 goes wider, however, In particular, where a state has assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, or conscripting him into the armed forces, the state assumes responsibility for that individuals safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care. When finding that the article 2 operational duty has been breached, the ECtHR has repeatedly emphasised the vulnerability of the victim as a relevant consideration. In circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, such as where a local authority fails to exercise its powers to protect a child who to its knowledge is at risk of abuse as in Z v United Kingdom Application No 29392/95 (10 May 2001). It is not relevant for the present purposes that this was a complaint of breach of article 3 rather than article 2. A further factor is the nature of the risk. Is it an ordinary risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an exceptional risk? Thus in Stoyanovi v Bulgaria (Application No 42980/04) 9 November 2010, the ECtHR rejected an application made by the family of a soldier who died during a parachute exercise. At paras 59 to 61, the court drew a distinction between risks which a soldier must expect as an incident of his ordinary military duties and dangerous situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man made or natural hazards. An operational obligation would only arise in the latter situation. All of these factors may be relevant in determining whether the operational duty exists in any given circumstances. But they do not necessarily provide a sure guide as to whether an operational duty will be found by the ECtHR to exist in circumstances which have not yet been considered by the court. Perhaps that should not be altogether surprising. After all, the common law of negligence develops incrementally and it is not always possible to predict whether the court will hold that a duty of care is owed in a situation which has not been previously considered. Strasbourg proceeds on a case by case basis. The jurisprudence of the operational duty is young. Its boundaries are still being explored by the ECtHR as new circumstances are presented to it for consideration. But it seems to me that the court has been tending to expand the categories of circumstances in which the operational duty will be found to exist. I must now come to the central question, which is whether the lower courts were right to hold that Powell compels the conclusion that the trust owed no operational duty in the present case. The following is a summary of the submissions of Miss Carss Frisk QC. Powell and similar cases, such as Calvelli v Italy (Application No 32967/96), 17 January 2002 and Vo v France (2005) 40 EHRR 12, demonstrate the existence of a general rule that no operational duty is owed by the state in the field of medical treatment in public hospitals; but there is an exception to this general rule in the case of psychiatric patients, although only if they are detained in hospital. The existence of this exception is shown by the decision in Savage. It is true that (i) patients who are in hospital suffering from physical illnesses are often in a vulnerable state, (ii) the hospital authorities will have assumed responsibility for them and (iii) such patients may face a real and immediate risk to their lives. But the Strasbourg jurisprudence shows that these factors are not sufficient to give rise to an article 2 operational duty on the part of the state. As for psychiatric patients, there is a crucial difference between those who are informal patients voluntarily in hospital and those who are detained by the authority of the state. A psychiatric patient who is voluntarily in hospital, like a patient with a physical illness, is free to refuse treatment and leave. I accept, of course, that there are differences between detained and voluntary psychiatric patients; and there are similarities between voluntary patients who are suffering from mental illness and those who are suffering from physical illness. But the differences between the two categories of psychiatric patient should not be exaggerated. There are also important differences between informal psychiatric patients who are at real and immediate risk of suicide and patients in an ordinary healthcare setting who are at real and immediate risk of death, for example, because they are undergoing life saving surgery. As regards the differences between an informal psychiatric patient and one who is detained under the MHA, these are in many ways more apparent than real. It is true that the paradigm of a detained patient is one who is locked up in a secure hospital environment. But a detained patient may be in an open hospital with freedom to come and go. By contrast, an informal patient may be treated in a secure environment in circumstances where she is suicidal, receiving medication for her mental disorder which may compromise her ability to make an informed choice to remain in hospital and she would, in any event, be detained if she tried to leave. Informal in patients can be detained temporarily under the holding powers given by section 5 of the MHA to allow an application to be made for detention under section 2 or 3 of the MHA. The statutory powers of detention are the means by which the hospital is able to protect the psychiatric patient from the specific risk of suicide. The patients position is analogous to that of the child at risk of abuse in Z v United Kingdom, where at paras 73 74 the court placed emphasis on the availability of the statutory power to take the child into care and the statutory duty to protect children. No such powers exist, or are necessary, in the case of the capable patient in the ordinary healthcare setting. Although informal patients are not detained and are therefore, in principle free to leave hospital at any time, their consent to remaining in hospital may only be as a result of a fear that they will be detained. In Principles of Mental Health Law and Policy (2010 OUP) ed Gostin and others, the authors have written in relation to admission at para 11.03: Since the pioneering paper by Gilboy and Schmidt in 1979, it has been recognised that a significant proportion of [informal] admissions are not voluntary in any meaningful sense: something in the range of half of the people admitted voluntarily feel coerced into the admission; it is just that the coercion is situational, rather than using legal mechanisms. As regards the voluntary psychiatric patient who is at risk of suicide and the patient suffering from a life threatening physical illness who is in an ordinary hospital setting, the nature of the risk to which these two categories of patient are exposed is very different. In the case of the suicide of a psychiatric patient, the likelihood is that, given the patients mental disorder, her capacity to make a rational decision to end her life will be to some degree impaired. She needs to be protected from the risk of death by those means. The present case is a tragic illustration of this. Melanie was admitted to hospital because she was suffering from a mental disorder and had attempted to commit suicide. The very reason why she was admitted was because there was a risk that she would commit suicide from which she needed to be protected. On the other hand, the patient who undergoes surgery will have accepted the risk of death on the basis of informed consent. She may choose to avoid the risk by deciding not to go ahead with the medical treatment. In the Savage case, [2009] AC 681, it was submitted on behalf of the defendant NHS Trust that, in the light of the principle stated in Powell v United Kingdom 30 EHRR CD 362, no operational duty was owed under article 2 to take steps to protect a detained mental patient from a real and immediate risk of suicide. This submission was rejected by the House of Lords. At para 59, Lord Rodger said: The circumstances in Powells case were quite different from circumstances where a patient presents a real and immediate risk of suicide. Therefore, the decision of the European court, which I respectfully consider was correct, provides no guidance on the problem before the House. And later he said: 65. Neither Powells case. nor Dodovs case 47 EHRR 932 provides any basis whatever for the proposition that, as a matter of principle, medical staff in a mental hospital can never be subject to an operational duty under article 2 to take steps to prevent a (detained) patient from committing suicideeven if they know or ought to know that there is a real and immediate risk of her doing so. The obvious response to that proposition is: Why ever not?. As I have said, the ECtHR has not considered whether an operational duty exists to protect against the risk of suicide by informal psychiatric patients. But the Strasbourg jurisprudence shows that there is such a duty to protect persons from a real and immediate risk of suicide at least where they are under the control of the state. By contrast, the ECtHR has stated that in the generality of cases involving medical negligence, there is no operational duty under article 2. So on which side of the line does an informal psychiatric patient such as Melanie fall? I am in no doubt that the trust owed the operational duty to her to take reasonable steps to protect her from the real and immediate risk of suicide. Whether there was a real and immediate risk of suicide on 19 April 2005 (and if so whether there was a breach of duty) is the second issue that arises on this appeal. But if there was a real and immediate risk of suicide at that time of which the trust was aware or ought to have been aware, then in my view the trust was under a duty to take reasonable steps to protect Melanie from it. She had been admitted to hospital because she was a real suicide risk. By reason of her mental state, she was extremely vulnerable. The trust assumed responsibility for her. She was under its control. Although she was not a detained patient, it is clear that, if she had insisted on leaving the hospital, the authorities could and should have exercised their powers under the MHA to prevent her from doing so. In fact, however, the judge found that, if the trust had refused to allow her to leave, she would not have insisted on leaving. This demonstrates the control that the trust was exercising over Melanie. In reality, the difference between her position and that of a hypothetical detained psychiatric patient, who (apart from the fact of being detained) was in circumstances similar to those of Melanie, would have been one of form, not substance. Her position was far closer to that of such a hypothetical patient than to that of a patient undergoing treatment in a public hospital for a physical illness. These factors, taken together, lead me to conclude that the ECtHR would hold that the operational duty existed in this case. The second issue: was there a real and immediate risk to the life of Melanie on 19 April 2005 of which the trust knew or ought to have known and which they failed to take reasonable steps to avoid? In the light of their conclusions on the first issue, both the judge and the Court of Appeal understandably dealt with all the remaining issues more briefly than they might otherwise have done. In relation to the second issue, Simon J accepted the evidence of Dr Caplan (the trusts expert psychiatrist) that the risk of suicide was approximately 5% on 19 April (after Melanie left the hospital), increasing to 10% on 20 April and 20% on 21 April. The judge said that the risk was low to moderate (but nevertheless, significant). He concluded that there was a real, but not an immediate risk. In assessing what steps it was reasonable to take to avoid the risk and taking account of the need to respect Melanies personal autonomy, he would not have held that there had been a breach of article 2. The Court of Appeal agreed that the risk was real, but they also considered that it was immediate. On the question of breach, they said that there was a simple and obvious way of preventing the risk from eventuating, namely by refusing Melanies request for home leave. If that request had been refused, the judge found that she would not have insisted on going home contrary to medical advice. In these circumstances, the Court of Appeal held that, if there was an operational duty, the trust failed to comply with it. The trust has appealed against all aspects of the Court of Appeals decision in relation to this issue. They say that the risk was neither real nor immediate and in any event there was no breach of the operational duty. Miss Carss Frisk emphasises the fact that, as has often been said, the threshold for the operational duty (real and immediate risk to life) is high: see, for example, per Lord Rodger in the Savage case [2009] AC 681, para 41 and para 66, where he said that given the high threshold, a breach of the duty will be harder to establish then mere negligence. See also per Baroness Hale at para 99. I accept that it is more difficult to establish a breach of the operational duty than mere negligence. This is not least because, in order to prove negligence, it is sufficient to show that the risk of damage was reasonably foreseeable; it is not necessary to show that the risk was real and immediate. But to say that the test is a high one or more stringent than the test for negligence does not shed light on the meaning of real and immediate or on the question whether there was a real and immediate risk on the facts of any particular case. It seems to me that the courts below were clearly right to say that the risk of Melanies suicide was real in this case. On the evidence of Dr Caplan, it was a substantial or significant risk and not a remote or fanciful one. Dr Caplan and Dr Britto (the claimants expert psychiatrist) agreed that all ordinarily competent and responsible psychiatrists would have regarded Melanie as being in need of protection against the risk of suicide. The risk was real enough for them to be of that opinion. I do not accept Miss Carss Frisks submission that there had to be a likelihood or fairly high degree of risk. I have seen no support for this test in the Strasbourg jurisprudence. As for whether the risk was immediate, Miss Carss Frisk submits that the Court of Appeal failed to take into account the fact that an immediate risk must be imminent. She derives the word imminent from what Lord Hope said in Van Colle v Chief Constable of the Hertfordshire Police [2009] AC 225, para 66. In the case of In re Officer L [2007] 1 WLR 2135, para 20, Lord Carswell stated that an apt summary of the meaning of an immediate risk is one that is present and continuing. In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like immediate. But I think that the phrase present and continuing captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future. I think that this approach is supported by some of the Strasbourg jurisprudence. In Opuz v Turkey (2010) 50 EHRR 695, para 134, the court concluded that there was a continuing threat to the health and safety of the victims (emphasis added) and, therefore, that there was an immediate risk. In Renolde v France (2009) 48 EHRR 969, the deceased had attempted suicide 18 days before his death and thereafter continued to show signs of worrying behaviour, but made no further attempts at self harm. The court said at para 89: Although his condition and the immediacy of the risk of a fresh suicide attempt varied, the court considers that that risk was real and that [the deceased] required careful monitoring in case of any sudden deterioration. The risk of death was sufficiently immediate for the article 2 claim to succeed. It was not necessary for the risk to be apparent just before death. In my view, the Court of Appeal were right to say that the risk of suicide in the present case was immediate when Melanie was allowed home on 19 April 2005. There was a real risk that she would take her life during the two day period of home leave. That risk existed when she left the hospital and it continued (and increased) during the two day period. That was sufficient to make the risk present and continuing and, therefore, immediate. The judge gave no reasons for reaching the opposite conclusion. Finally, there is the question of breach of the duty. There is no doubt that the trust was or ought to have been aware of the risk. Did they take all steps reasonably necessary to avoid the risk? Miss Carss Frisk submits that Dr Meagher had a margin of discretion which was wider than the law of negligence allows so that the trusts admission of negligence should not automatically lead to a finding of breach of the article 2 duty. Bearing in mind the low levels of risk found by the judge, she submits that it was within Dr Meaghers margin of discretion to consider that it was appropriate for Melanie to go home on 19 April 2005. I cannot accept this submission. The standard demanded for the performance of the operational duty is one of reasonableness. This brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available: per Lord Carswell in In re Officer L ([2007] 1 WLR 2135, para 21). In this case, it also required a consideration of respect for the personal autonomy of Melanie. But it was common ground that the decision to allow Melanie two days home leave was one that no reasonable psychiatric practitioner would have made. In these circumstances, it seems to me that recourse to the margin of appreciation is misplaced. The trust failed to do all that could reasonably have been expected to prevent the real and immediate risk of Melanies suicide. The Court of Appeal were right so to hold. The third issue: were Mr and Mrs Rabone victims within the meaning of article 34 of the Convention? Section 7(1) of the HRA provides that a claim that a public authority has acted in a way which is incompatible with a Convention right may be brought before the courts only if the person bringing the complaint is (or would be) a victim of the unlawful act. Section 7(7) provides that a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the ECtHR in respect of that act. Miss Carss Frisk submits that Mr and Mrs Rabone would not be treated as victims within the meaning of article 34. She relies on the reasoning of Lord Scott in the Savage case [2009] AC 681, para 5. Lord Scott said that he could well understand how a member of a deceaseds family may be regarded as a victim for the purposes of the article 2 investigative obligation. But he could not understand how a close family member could claim to be a victim for the purpose of the article 2 substantive obligations. He said that it was not any part of the function of article 2(1) to add to the class of persons who under ordinary domestic law can seek financial compensation for a death an undefined, and perhaps undefinable, class composed of persons close to the deceased who have suffered distress and anguish on account of the death. Both the judge and the Court of Appeal rejected the trusts submissions. In my view, they were right to do so. The ECtHR has repeatedly stated that family members of the deceased can bring claims in their own right both in relation to the investigative obligation and the substantive obligations. Examples of such cases are Yasa v Turkey (1999) 28 EHRR 408, para 64; Edwards v United Kingdom at para 106; Renolde v France (2009) 48 EHRR 969, para 69; and Kats v Ukraine (2010) 51 EHRR 1066, para 94. Miss Carss Frisk realistically accepts that the Strasbourg jurisprudence is clear on this. She points out that the question of victim status was not argued in any of these cases, so that the weight to be accorded to them is diminished. But there is no basis for believing that the ECtHR would depart from this consistent line of authority if the contrary were argued. In any event, the contrary was argued in Yasa v Turkey (1998) 28 EHRR 408 where the court held that a nephew was a victim. It follows that the observations of Lord Scott in Savage (with which no other member of the House expressed agreement) are not correct. They seem to have been made without the benefit of a consideration of the Strasbourg jurisprudence on the point. The fourth issue: did Mr and Mrs Rabone lose their victim status as a result of the settlement of their negligence claim? It is common ground that a person ceases to be a victim within the meaning of article 34 of the Convention if two conditions are satisfied. These are that the domestic public authority has (i) provided adequate redress and (ii) acknowledged, either expressly or in substance, the breach of the Convention. There is ample ECtHR jurisprudence to support both propositions. It is sufficient to refer to the early case of Eckle v Germany (1982) 5 EHRR 1, para 66 and the recent case of R.R v Poland (Application No 27617/04), 26 May 2011 at para 97. Both conditions must be satisfied. On behalf of the trust, it is submitted that Mr and Mrs Rabone lost their victim status because both conditions were satisfied in the present case. But before I address this submission, I should consider whether the settlement of itself has deprived Mr and Mrs Rabone of victim status. As I have said, Mr Rabone accepted 7,500 (2,499 for funeral expenses and the balance as general damages for Melanies pain and suffering during the two months period before she died) in settlement of the 1934 Act negligence claim. The effect of the settlement Miss Carss Frisk submits that Mr and Mrs Rabone lost their victim status by reason of the settlement. She says that, in the context of a complaint of medical negligence leading to death, a claimant loses the status of a victim for the purposes of pursuing a claim for breach of article 2 if he or she settles the negligence claim. As I understand it, this is regardless of whether the settlement sum is lower than awards made by the ECtHR in similar cases. Counsel relies on a number of authorities in support of this submission, in particular Powell (see para 19 above) and Rowley v United Kingdom (Application No 31914/03), February 2005. In Powell, the parents of a 10 year old boy who died as a result of misdiagnosis by doctors brought claims including for negligence pursuant to the 1934 Act (on behalf of the boys estate) and pursuant to the Fatal Accidents Act 1976 on behalf of themselves. The Health Authority admitted negligence and paid a sum in settlement. The parents persisted with other claims relating to the falsification of medical records after their sons death. These claims were unsuccessful and the parents complained to Strasbourg. It is important to note that the parents complaint before the ECtHR was that there had been a breach of the procedural obligation under article 2 to conduct an effective investigation into their sons death. The court said at p365: Of greater significance for the court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the courts opinion, the applicants by their decision closed another crucially important avenue for shedding light on the extent of the doctors responsibility for their sons death. Having regard to the above considerations the court finds that it is not open to the applicants to complain under article 2 of the Convention that there was no effective investigation into their sons death. In its opinion, where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death (emphasis added). The focus of the courts reasoning seems to have been on the effect of the settlement on the parents ability to complain about the adequacy of the investigation, rather than on their ability to pursue any other claim for compensation for breach of article 2. Despite the existence of the words that I have emphasised, it is not clear what claim for compensation (if any) the parents wished to pursue. The court emphasised that, by their decision to settle their negligence claim, the parents closed another and crucially important avenue for shedding light on the extent of the doctors responsibility for their sons death. In other words, by settling their claim the parents lost the right to have an effective investigation by a civil court and they could not seek to pursue that right under the Convention. It is true that in the words that I have emphasised the court also said that settlement prevented the applicants from being able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person. But there is no amplification of this statement. Since this was not the focus of the issues in the case or the discussion in the judgment, I do not think that it provides a clear basis for holding that the settlement of a claim for compensation for negligence arising from a death of itself prevents an individual from pursuing a claim for compensation for breach of article 2. In Rowley, the applicants son had drowned in the bath at a residential care home. The applicant threatened to issue proceedings against the City Council, but accepted a settlement offer of compensation of 1,750 and a formal apology. The complaint to the ECtHR included an allegation that there had been a violation of article 2. The complaint was declared inadmissible. The court noted that the applicant settled her civil claims for damages against the Council on the basis of damages and a formal apology. But the judgment does not state whether the settlement sum of 1,750 was only in respect of one claim for compensation arising from the death and, if it was, what effect this would have on the ability of the applicant to make a different claim for compensation for breach of article 2. In short, I do not consider that the decisions in Powell and Rowley clearly show that the ECtHR takes the view that acceptance of compensation in settlement of a domestic law cause of action arising from a death necessarily means that an individual can no longer be regarded as a victim for the purposes of an article 2 claim arising from the same death. There is, however, a line of cases in which the court has held that, by accepting compensation in settlement of a domestic remedy for the consequences of a death, an applicant has renounced all claims for the consequences of the death including claims for breach of article 2. Where this occurs, the applicant ceases to be a victim and cannot complain of a breach of article 2. Thus in Caraher v United Kingdom (2000) 29 EHRR CD 119, the applicant accepted a sum in settlement of all claims on her own behalf and on behalf of the estate and dependants of the deceased. It was said by the court that where a relative accepts a sum of compensation in settlement of civil claims and renounces further use of local remedies therefore, he or she will generally no longer be able to claim to be a victim in respect of those matters. It is material that the settlement was of all claims on behalf of the applicant herself, the estate and the dependants. A further example of the same reasoning is Hay v United Kingdom (Application No 41894/98), 17 October 2000. In that case, the ECtHR declared inadmissible a complaint under article 2 in respect of the shooting dead by the police of the applicants brother, where civil proceedings against the police had been settled. It made no difference that it was a term of the settlement that it was made without prejudice to the right of those representing the estate of the deceased to pursue a petition before the ECtHR. I do not find it easy to extract from the Strasbourg jurisprudence a clear statement of the effect of the settlement of a domestic law claim on the ability of an individual to pursue a corresponding Convention claim. The court does not, however, seem to adopt a strict approach to the interpretation of a settlement. It does not say that a right of action is preserved unless it has clearly been compromised or renounced. That is demonstrated by the decision in Hay. Rather, the court seems to adopt a broad approach to determining the true meaning and effect of a settlement. As they said in Caraher, if relatives settle their domestic law claims arising from a death, they will generally cease to be victims in relation to a corresponding Convention claim. The phrase corresponding Convention claim is mine. By this I mean that, if (i) the domestic law claim that is settled was made by the same person as seeks to make an article 2 claim and (ii) the head of loss embraced by the settlement broadly covers the same ground as the loss which is the subject of the article 2 claim, then I would expect the ECtHR to say that, by settling the former, the claimant is to be taken to have renounced any claim to the latter. To return to the facts of the present case, I do not accept that by settling the 1934 Act negligence claim on behalf of Melanies estate, Mr Rabone renounced an article 2 claim on behalf of himself and Mrs Rabone for damages for non pecuniary loss for their bereavement. No such claim had been made in the negligence proceedings because such a claim was not available in English law. That is because section 1A of the Fatal Accidents Act 1976 provides that a claim by parents for damages for bereavement for the loss of a child (currently fixed by section 1A(3) at 11,800) shall only be for the benefit of the parents of a minor and Melanie was more than 18 years of age at the date of her death. In these circumstances, the settlement of the 1934 Act claim did not amount to an implied renunciation of any article 2 claim. In the absence of an express renunciation, the settlement of itself had no legal effect on the status of Mr and Mrs Rabone as victims for the purpose of their article 2 claim. It remains to be considered whether (as the Court of Appeal held) the sum of 7,500 was nevertheless adequate redress. Adequate redress As I have said, the redress that the trust has made as a result of Melanies death has been limited to payment of compensation to Mr Rabone in respect of his claim on behalf of the estate. Nothing has been paid to Mr or Mrs Rabone to compensate them for their bereavement. No decision of the ECtHR has been cited to us which supports the surprising proposition that the compensation that has been paid in respect of the estates losses would be considered by the court to be adequate redress in respect of the personal losses of Mr and Mrs Rabone. Miss Richards relies on Bubbins v United Kingdom (2005) 41 EHRR 458 as indicating that the ECtHR would not accept this proposition. The applicants brother was shot dead by an armed police officer during a police operation. The court held that there had been a breach of article 13, but not of article 2. In relation to the claim under article 13, the court noted at para 172 that the applicant had no right to claim compensation for non pecuniary damage suffered by her. The most that she could claim was funeral expenses on behalf of the estate under the 1934 Act. It is true that this case was concerned with article 13 (the adequacy of domestic remedies) and not with the separate question of victim status. But it is difficult to believe that the ECtHR would hold that an applicant had received adequate redress through proceedings that would not be regarded as an adequate remedy under article 13. The importance of compensation for the non pecuniary damage flowing from a breach of article 2 was emphasised in Bubbins at para 171: compensation for non pecuniary damage flowing from the breach [of article 2] should, in principle, be available as part of the range of redress. The court concluded that the applicant had no prospect of obtaining compensation for non pecuniary damage suffered by her if she established a breach of article 2. Accordingly, there had been a breach of article 13. Although Bubbins is not precisely in point, it provides a strong indication of the view that the ECtHR would take on the question whether the settlement sum of 7,500 would be adequate redress for the article 2 claim in the present case. In my opinion, it would hold that there has been no adequate redress for the simple reason that there has been no compensation at all for the non pecuniary damage suffered by Mr and Mrs Rabone as a result of the breach of article 2. It might be said that it is appropriate to look at the matter more broadly and ask whether the sum of 7,500 was adequate redress for the claims on behalf of the estate and on behalf of Mr and Mrs Rabone themselves, when these claims are aggregated. In Gafgen v Germany (2011) 52 EHRR 1, para 116, the court said that the question whether redress is appropriate and sufficient is dependent on all the circumstances of the case, having regard in particular, to the nature of the Convention violation at stake. It might be argued that, if an award to the estate of a deceased person is generous and an award to the familys victims is low, the court would say that there has been adequate redress in all the circumstances of the case. I accept that the court might adopt this position in some circumstances. But I am sure that it would not do so in the present case. First, Mrs Rabone has been awarded no compensation at all. Neither has Mr Rabone except as personal representative. If Melanie died intestate, Mr and Mrs Rabone would take in equal shares ahead of Melanies sisters Amanda and Emma. Secondly, although the sum awarded to the estate was reasonable, it was by no means unduly generous; and (as we shall see) the Court of Appeal assessed the damages for breach of article 2 at 10,000, a sum significantly higher than the settlement figure. It is true that the correctness of that assessment is under challenge in this appeal (the sixth issue). But for reasons that I give later, there is no justification for interfering with the Court of Appeals assessment. In these circumstances, I do not see how it can reasonably be said that the settlement figure was adequate redress for the article 2 claim of Mr and Mrs Rabone. For these reasons, I would hold that the trust did not make adequate redress and therefore that Mr and Mrs Rabone did not lose their victim status by accepting the settlement figure. Acknowledgement In view of my conclusion on the issue of the adequacy of redress, it is not necessary for me to consider the further question of whether Mr and Mrs Rabone lost their victim status because the trust acknowledged expressly or in substance their breach of the article 2 operational duty. But since the matter was fully argued and it raises a point of some importance, I shall deal with it. It is common ground that there was no express acknowledgement of a breach of article 2 in this case. But it is submitted on behalf of the trust that there was such an acknowledgement in substance. It is necessary to set out a little of the relevant history. As I have said, the claims were (i) by Mr Rabone alone for negligence on behalf of Melanies estate under the 1934 Act and (ii) by Mr and Mrs Rabone on their own behalf for breach of article 2. In May 2008, the negligence claim was settled by a consent order which provided for payment of 7,500 in respect of the estates claim. There was no admission of liability in relation to either claim. The consent order explicitly recorded that Mr and Mrs Rabone were continuing with their claim under the HRA. The trust continued to deny negligence until 6 May 2009, when their solicitors wrote a letter headed letter of admission. They wrote that the trust admitted that the common law duty of care owed to Melanie was breached when she was allowed home on 19 April 2005. They went on to state expressly that they continued to deny the article 2 claims. On the following day, the trusts chief executive wrote as follows: I have seen a copy of the report provided by my Trusts independent psychiatric expert, Dr Caplan, concerning the standard of care provided to your daughter Melanie during her admission to our Trusts unit in Stepping Hill Hospital in April 2005. The Trust accepts Dr Caplans view that the decision to allow Melanie to have two days leave on 19 April fell below the standard of care which we owed to her at that time. Having learned of Dr Caplans view and in addition to the condolences I expressed to you in September 2005, I wanted to write personally to you on behalf of the Trust to say how deeply sorry I am for the error we made on 19 April 2005. I realise what deep grief Melanies death has caused to you and I know that this apology will not undo what has happened, but I wanted you to know how sorry we are for the error we have made. Miss Richards submits that nothing less than a clear and unequivocal acknowledgement of a violation of article 2 would have sufficed. She points out that the importance of the requirement that there be an acknowledgment of the breach of the Convention has been repeatedly emphasised by the ECtHR: see, for example, Jensen v Denmark (Application No 48470/99), Ludi v Switzerland (1993) 15 EHRR 173, para 34 and Gafgen v Germany 52 EHRR 1, para 120. She says that the trust have not acknowledged the consequences of their error and have not accepted responsibility for Melanies death. It follows that there has been no acknowledgement of its breach of article 2 and, without such an acknowledgement, Mr and Mrs Rabone would remain victims entitled to bring their claim. In my view, the trust have clearly accepted that their error was the cause of Melanies death. The chief executives letter of 7 May (in particular its last paragraph) contained a clear admission that the negligence for which the chief executive was apologising had caused Melanies death. But the question remains whether that admission was a sufficient acknowledgment of the breach of article 2 to result in the loss of victim status. The Strasbourg authorities shed some light on this question. In Nikolova and Velichkova v Bulgaria (2009) 48 EHRR 915, the applicants were relatives of the deceased police officer who had died as a result of an attack on him by two fellow officers. The two officers were convicted of causing the death by intentional grievous bodily harm and the applicants were awarded compensation in the criminal proceedings. The applicants were also awarded compensation in civil proceedings that they brought against the police authority. They then made a complaint to the ECtHR that there had been a breach of article 2. The court upheld the complaint. The applicants had not lost their victim status since the domestic authorities had failed to provide adequate redress. But the court also held at para 51 that the judgments convicting the police officers and awarding compensation to the applicants amounted to an acknowledgement in substance that the death of Mr Nikolov had been in breach of article 2 of the Convention (emphasis added). The importance of the words that I have emphasised is that they show that, despite the differences that there may be between the elements of a violation of the substantive article 2 obligation and the elements of criminal and/or civil liability in domestic law, an admission or a finding of criminal or civil liability will often be sufficient to amount to an acknowledgement in substance of a breach of article 2. In Rowley (see para 54 above), the court said: In the present case there have been numerous findings that the applicants son was subject to inadequate care while under the responsibility of the council. The internal complaints procedure by the Independent Investigator found defects in procedures as did the councils Senior Safety Officer. Furthermore, the council pleaded guilty to an offence under the Health and Safety at Work Act 1974 for failure so far as reasonably practicable to ensure Malcolms safety and was fined a substantial amount. The court would also note that the applicant settled her civil claims for damages against the council on the basis of damages and a formal apology to the effect that their failure in standards in care and safety had resulted in the death of her son. . Having regard to the considerations above and the fact that the applicant settled her claims in civil proceedings accepting compensation and an apology, the court finds that she may no longer, in these circumstances, claim to be a victim of a violation of the Convention. None of the domestic institutions in Rowley had dealt expressly with article 2 or made findings on whether there had been a real or immediate risk to the life of the applicants deceased son. And yet the court held that the findings that were made and the apology and payment of compensation for negligently causing the death amounted to a sufficient acknowledgment in substance of the breach of article 2. In both Nikolova and Rowley, the article 2 claim was declared to be inadmissible. These cases show that an authority may in substance acknowledge a breach of article 2 without making an explicit admission of the elements of the breach of the article 2 duty (ie that there was a real and immediate risk etc). To insist on that would be tantamount to insisting on an express acknowledgement of the breach. In the present case, the trust admitted that they had negligently caused Melanies death and they paid compensation to reflect that admission. There is a considerable degree of overlap between the claim in negligence and the article 2 claim. The essential features of the case against the trust were that: (i) Melanie was a vulnerable patient in the care of the trust at the material time; (ii) she was known to be a suicide risk; (iii) the trust acted negligently in failing to take reasonable steps to protect her; and (iv) their negligence caused her death. In substance these features formed the basis of the claim in negligence and the claim for breach of the article 2 operational duty. Had it been necessary to decide the point, I would have held that the trust in substance acknowledged their breach of the article 2 duty. The fifth issue: limitation Section 7(5) of the HRA provides that proceedings under section 7(1)(a) (a claim that a public authority has acted in a way which is incompatible with a Convention right) must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances. Melanie died on 20 April 2005. Proceedings were issued on 11 August 2006, almost four months after the expiry of the one year limitation period. The question that arises, therefore, is whether it was equitable to extend the one year period by almost four months having regard to all the circumstances. The relevant principles are not in dispute. The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However, I agree with what the Court of Appeal said in Dunn v Parole Board [2009] 1 WLR 728, paras 31, 43 and 48 that the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980. The judge expressed his final conclusion on the limitation issue at para 131: However, in my judgment, the decisive factor is that, at this stage of the trial process, I am in a position to conclude that there is no merit in the claims to which this issue is relevant. In addition, the contents of the SUI Report, the formal acknowledgement of its negligence by the Trust and its letter of apology are very substantial matters to weigh in the balance when considering whether it would be right to extend time. For these reasons, he refused to extend time. The Court of Appeal agreed that the fact that the claim was doomed to failure was the decisive factor. They said that, if the claim were otherwise well founded, they would have been inclined to extend time. In the light of my conclusions on the earlier issues in the case, I would reject the premise on which the judge and the Court of Appeal exercised the section 7(5)(b) discretion. It follows that I must exercise the discretion afresh. The extension of time that is sought is less than four months. There is no suggestion that the evidence has become less cogent as a result of the delay in issuing the proceedings or that the trust have been prejudiced in any other way by the delay. Mr and Mrs Rabone made a formal complaint within five months of Melanies death. They were advised that their complaint would be put on hold until an internal investigation had been completed. Their evidence to the judge was that they believed that the trust would produce a reasonably prompt report providing a proper explanation about the decision to allow Melanie to have home leave: see per Simon J at para 129. They said that their waiting for the report was a material factor in their decision not to issue proceedings. As the judge found, if the investigation which began in September 2005 had produced a reasonably prompt report, they might have issued proceedings sooner. The investigation report was not in fact sent to them until 16 March 2007. A number of points are made on behalf of the trust. First, a claim could have been brought at the time of the formal letter of complaint on 31 August 2005. Secondly, Mr and Mrs Rabone accepted that, in the year following the death, they were aware in general terms of the HRA and the possibility of bringing a legal claim. Even then, they did not seek legal advice, but only proceeded with a claim after a discussion with a friend in June or July 2006. Thirdly, they could not have been waiting for the trusts final investigation report, because, in the event, they issued proceedings before a copy of it was sent to them. I accept that Mr and Mrs Rabone could have issued proceedings within the one year period. But in my view they acted reasonably in not issuing proceedings, rather than waiting for the report (as they were encouraged by the trust to do). The strength of this point is not undermined by the fact that, in the end, they felt that the delay in publishing the report to them was so great that they could wait no longer and decided to issue proceedings before seeing it. In summary, the points which strongly militate in favour of granting the extension of time are that the required extension is short; the trust have suffered no prejudice by the delay in the issue of the proceedings; Mr and Mrs Rabone acted reasonably in holding off proceedings in the hope that the report might obviate the need for them; and (most important of all) they have a good claim for breach of article 2. I would, therefore, grant the necessary extension of time. The sixth issue: quantum of damages In the light of the judges decision on the main issues, the question of remedy did not arise. Nevertheless, he dealt with it briefly. He noted that the real purpose of Mr and Mrs Rabone was not to claim damages, but rather to achieve a public recognition of the serious errors that led to Melanies death. He said that a proper award of damages would have been a modest sum which recognised the breaches of their Convention rights. He would have assessed the sum at 1,500 each for Mr and Mrs Rabone. At para 112, Jackson LJ said: If the issue were to arise, I would incline to the view that the judges award of 3,000 (1,500 for each claimant) was too low. Looking at the sums awarded by the Strasbourg court in other cases, I would have proposed an award of 10,000 (5,000 for each claimant). In my view, that is a more appropriate nominal sum. It also reflects what would have been the claimants entitlement under the Fatal Accidents Act, if Melanie would have been under 18. The power to award damages for breach of a Convention right derives from section 8(3) of the HRA. No award of damages should be made unless, taking account of all the circumstances of the case, including any other relief or remedy granted, the court is satisfied that the award is necessary to afford just satisfaction: see Lester, Pannick and Herberg: Human Rights Law and Practice 3rd ed (2007), para 2.8.3. In R (Greenfield)v Secretary of State for the Home Department [2005] 1 WLR 673, para 9, Lord Bingham approved the observations of the Court of Appeal in Anufrijeva v Southwark London Borough Council [2004] QB 1124 at paras 52 53 that the remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations. [w]here an infringement of an individuals human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. It is also important to keep in mind section 8(4) of the HRA which provides that, in determining whether to award damages or the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. As Lord Bingham said in Greenfield (para 19), our courts should therefore look to Strasbourg for precedents on the levels of compensation. With those considerations in mind, Miss Carss Frisk submits that the Court of Appeal should not have interfered with the judges assessment: the decision to award 1,500 to each claimant was not an error of law or principle. There are many Strasbourg cases in which the court has awarded the victims of a breach of article 2 compensation for non pecuniary loss. No decision has been cited to us which purports to be a guideline case in which the range of compensation is specified and the relevant considerations are articulated. It is, therefore, necessary for our courts to do their best in the light of such guidance as can be gleaned from the Strasbourg decisions on the facts of individual cases. In Savage (No 2) [2010] EWHC 865 (QB), Mackay J considered a substantial number of decisions of the ECtHR in which compensation has been awarded for non pecuniary loss to victims of a breach of the substantive article 2 obligation. At para 97, he said that the range of awards for such loss was between 5,000 and 60,000. This summary of the effect of the cases had not been disputed before us. What they show is that the sums awarded are fairly modest, but nevertheless within a considerable range. This is not surprising, because Strasbourg does not award a fixed conventional figure for this head of loss. One would expect the court to have regard to the closeness of the family link between the victim and the deceased, the nature of the breach and the seriousness of the non pecuniary damage that the victim has suffered. Factors which will tend to place the amount of the award towards the upper end of the range are the existence of a particularly close family tie between the victim and the deceased; the fact that the breach is especially egregious; and the fact that the circumstances of the death and the authoritys response to it have been particularly distressing to the victims. Conversely, factors which will tend to place the award towards the lower end of the range are the weakness of the family ties, the fact that the breach is towards the lower end of the scale of gravity and the fact that the circumstances of the death have not caused the utmost distress to the victims. There is a passing reference to some of these considerations in Kallis v Turkey (2009) ECHR 1662 (27 October 2009), where the court awarded 35,000 to each of the applicants (parents of the deceased), saying that an award should be made under that head bearing in mind the family ties between the applicants and the victim of the killing and the seriousness of the damage sustained, which cannot be compensated for solely by a finding of a violation. I am in no doubt that the award of 1,500 each to Mr and Mrs Rabone was too low. It may be that the judge was strongly influenced by the fact that their main purpose in bringing these proceedings was not to obtain an award of damages. That is true, but the fact is that they did make a claim for damages and it is necessary to make a proper assessment in the light of such assistance as can be derived from the Strasbourg cases. I would emphasise the following points. First, the family ties between Mr and Mrs Rabone and Melanie were very strong. They were a close family. They had been on holiday to Egypt with Melanie for a week in March 2005. They had shown the utmost concern for her mental health and had done all they could to support her. Secondly, they had expressed their anxiety to the hospital authorities about the dangers of allowing Melanie to come home on leave for the weekend of 19 to 21 April 2005 and urged them not to allow it. Thirdly, the fact that the very risk which they feared and warned the authorities against eventuated must have made the death all the more distressing for them. This was a bad case of breach of the article 2 operational duty. In my view, it merited an award well above the lower end of the range of awards. There is real force in Miss Richards submission that 5,000 each was too low, but there is no appeal by Mr and Mrs Rabone against the decision on the Court of Appeal on this issue. I would reject the trusts argument that the Court of Appeal should not have interfered with the judges awards. Overall conclusion For all these reasons, I would allow this appeal and award Mr and Mrs Rabone 5,000 each. LORD WALKER I agree that this appeal should be allowed for the reasons set out in the judgment of Lord Dyson. I also agree with the further observations in the judgments of Lady Hale, Lord Brown and Lord Mance. LADY HALE A hospital trust, in breach of its duty of care towards its patient, allowed a young woman, who was suffering from a severe depressive episode with psychotic symptoms and had been admitted a week earlier after a serious suicide attempt, to go home on leave for two days. The only support plan was the care of her parents who were not in favour of her being allowed home. The following day she hanged herself from a tree in a well known local beauty spot, at last succeeding in the suicide which she had previously attempted and seriously threatened even more often. The hospital trust has admitted liability to her and paid a sum in compensation to her estate. So why, some might ask, are we here? We are here because the ordinary law of tort does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child. In this day and age we all expect our children to outlive us. Losing a child prematurely is agony. No one who reads the hospitals notes of the series of telephone calls made by this patients father to the hospital on the night in question can be in any doubt of that; or that the agony may be made worse by knowing that the loss both could and should have been prevented. It is not surprising, therefore, that parents are among the recognised victims when the right to life of their child, protected under article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is violated. It is also not surprising that, as Lord Dyson has shown, they are victims, not only of the states failure properly to investigate the death, but also of the failure effectively to protect their childs life. There is no warrant, in the jurisprudence or in humanity, for the distinction between the two duties drawn by Lord Scott in Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681, para 5. Article 2 begins Everyones right to life shall be protected by law. As Lord Dyson has explained, it is now clear that this simple sentence imposes three distinct obligations upon the state. The first, which does not arise here, is a negative obligation, not itself to take life except in the limited cases provided for in article 2(2). The second, which also does not arise here, is a positive obligation to conduct a proper investigation into any death for which the State might bear some degree of responsibility. And the third, with which this case is concerned, is a positive obligation to protect life. As a general rule, that positive obligation is fulfilled by having in place laws and a legal system which deter threats to life from any quarter and punishes the perpetrators or compensates the victims if deterrence fails. In the health care context, this also entails having effective administrative and regulatory systems in place, designed to protect patients from professional incompetence resulting in death. But it is not suggested that English law and the English legal system are defective in this respect. However, in certain circumstances, the states positive obligation to protect life goes further than that. It entails an obligation to take positive steps to prevent a real and immediate risk to the life of a particular individual from materialising. In Savage, the House of Lords held that this obligation arose in the case of a psychiatric patient detained in hospital under the Mental Health Act 1983. In reaching that conclusion, the House of Lords was not following any exact Strasbourg precedent. There was then, and still is, no Strasbourg decision cited to us which concerns a psychiatric hospital patient, whether informal or detained, as opposed to a mentally ill prisoner or detainee. There is a line of Strasbourg cases, beginning with Powell v United Kingdom (2000) 30 EHRR CD 362, 364 holding that: . where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention to protect life. (emphasis supplied) But it would be wrong to see the House of Lords in Savage as carving out an exception to a general rule that the State is not responsible for the deaths of hospital patients. The House was trying to deduce the principles applicable to when this so called operational duty might arise from such Strasbourg jurisprudence as there is and to decide, in the light of those principles, whether it did so in that case. This is no easy task. People suffering from mental disorders have the same human rights as everyone else and are entitled to enjoy those rights without discrimination on account of their mental status. So we must start from the proposition that they are entitled to the same freedom and autonomy as everyone else, unless there is some justification within the scheme of the Convention for interfering in this. The Convention recognises that it may be justifiable to interfere in their private and family lives, and even to deprive them of liberty in certain circumstances. If they have already been deprived of their liberty for other reasons, the Convention recognises that there may be a special duty to protect them from the risk of self harm: see, in particular, Renolde v France (2009) 48 EHRR 969. Because of the difficult and delicate issues raised, therefore, I would like to work them through for myself, although I have reached the same conclusions for essentially the same reasons as Lord Dyson has done. Strasbourg has recognised the possibility of the operational duty arising in several cases since it was first articulated (but not violated) in Osman v United Kingdom (2000) 29 EHRR 245, paras 115 116. Its tendency is to state the principle in very broad terms, without defining precisely the circumstances in which it will apply. A recent example is Watts v United Kingdom (2010) 51 EHRR 66: 82. The court observes at the outset that article 2 imposes both negative and positive obligations on the State. The negative obligation prohibits the intentional and unlawful taking of life by agents of the state. The positive obligation . requires that they take appropriate steps to safeguard the lives of those within their jurisdiction (see LCB v United Kingdom (1999) 27 EHRR 212, para 36; and Edwards v United Kingdom (2002) 35 EHRR 19, para 54). This implies, in appropriate circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk. Although the court originally explained that this positive obligation arose when there was a risk to life from the criminal acts of another individual (see Osman v United Kingdom (2000) 29 EHRR 245 at para 115), it has since made it clear the positive obligations under article 2 are engaged in the context of any activity, whether public or not, in which the right to life may be at stake (see neryildiz v Turkey (2005) 41 EHRR 20, para 71). 83. For the court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The court reiterates that the scope of any positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, including in respect of the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. (emphasis supplied.) Such broad statements of principle are hard to interpret and even harder to apply. It is tempting for a common lawyer to treat them as if they were Lord Atkins statement of the neighbour principle in Donoghue v Stevenson [1932] AC 562, p 580: the duty arises in the circumstances explained in para 82 of Watts and is breached in the circumstances explained in para 83. But is the court in fact laying down a broad principle that, in the context of any public or private activity in which the right to life may be at stake, the State has a duty, if the authorities know or ought to know of a real and immediate risk to the life of a particular individual, to take such measures as might reasonably be expected of them to avoid that risk? This is certainly how the decision in Mrs Watts case reads. Mrs Watts was complaining that the local authoritys decision to close the care home in which she had lived for five years violated this duty because it put her life at risk. The court accepted that the badly managed transfer of elderly residents could have a negative impact on their life expectancy and thus that article 2 was engaged (para 88). However, what the authorities had to do about it would depend upon the extent of the risk, on which in that case the evidence was equivocal. Bearing in mind the choices which had to be made by the authorities in providing residential care for the elderly and the careful steps which had been taken to minimise any risk to this applicants life, the authorities had met their positive obligations in that case (para 92). On the other hand, is the reference to in appropriate circumstances (in Watts, para 82, among others) designed to set limits to the situations in which the operational duty can even arise? After all, in Mrs Watts case, the activity which gave rise to the risk to life moving the elderly residents out of their home was one in which the authorities were themselves engaged. In that respect, it is like the case of neryildiz v Turkey, cited by the court for the broader proposition, where the authorities were responsible for the municipal rubbish tip which endangered the lives of local residents. Another example where the duty not only arose but was violated is Branko Tomai and Others v Croatia, Application No 46598/06, 15 January 2009. Shortly after his release from prison a man shot dead his former co habitant, their child and himself. The risk to life was well known to the authorities when they released him from prison, but he had received no adequate psychiatric treatment while inside and there was no power to detain him for treatment after his sentence expired. They had not, therefore, done all that could reasonably be expected to guard against the risk. In the context of state activities constituting a risk to life, therefore, the court may have reached the point where the operational duty is engaged, but the circumstances will be carefully scrutinised to see what, reasonably, the authorities could be expected to do about it, bearing in mind the gravity of the risk and the problems they face in responding to it. We are not here concerned with that broader question, but with the more precise question of when the state has a duty to protect an individual from taking his own life. It does seem fairly clear that there is no general obligation on the State to prevent a person committing suicide, even if the authorities know or ought to know of a real and immediate risk that she will do so. I say this because, in the case of Mammadov v Azerbaijan, Application No 4762/05, 17 December 2009, decided only a few months before Watts, the court twice stated, at paras 99 and 100, that the duty to protect a person from self harm arose only in particular circumstances, citing Keenan v United Kingdom (2001) 33 EHRR 913, Renolde vs France (2009) 48 EHRR 969, and Tanribilir vs Turkey, Application No 21422/93, 16 November 2000. This is understandable. Autonomous individuals have a right to take their own lives if that is what they truly want. If a person announces her intention of travelling to Switzerland to be assisted to commit suicide there, this is not, by itself, sufficient to impose an obligation under article 2 to take steps to prevent her. What those particular circumstances are is harder to determine. All the Strasbourg cases so far have concerned prisoners (as in the three cases cited above) or conscript soldiers (as in Kilin v Turkey, Application No 40145/98, 7 June 2005; and more plainly Ataman v Turkey, Application No 46252/99, 27 April 2006). There clearly is a general obligation to take certain routine steps to try to prevent prisoners and other detainees from committing suicide, because the very fact of incarceration heightens the risk of self harm. The question then arises of whether more individualised steps are required. This will depend upon whether the authorities should have foreseen a real and immediate risk and what more they could be expected to do. Thus in Tanrilbir v Turkey, there was no violation when a young man with no apparent mental disorder calmly and silently committed suicide by hanging himself from a rope made from his unstitched shirt sleeves; he was accused of helping the Kurdish separatist organisation, the PKK, and there was a view that he might have decided to hang himself rather than reveal their secrets; but it could not reasonably have been foreseen that he would do so. In Keenan v United Kingdom, although the prisoner was known to be mentally ill and from time to time to pose a risk to his own life, his condition varied, he was regularly monitored by the doctors, and there was nothing to suggest an immediate risk of suicide on the day in question, so it was not apparent that the authorities had omitted to take any steps which ought reasonably to have been taken to prevent it. But in Renolde v France, the prisoner was known to be suffering from a psychotic disorder with delusions capable of causing him to commit acts of self harm, he had made previous attempts, but he was not transferred into psychiatric care; he was simply handed his anti psychotic medication twice a week without any monitoring of whether he was taking it; so the authorities had not done all that could reasonably be expected of them. Throughout these cases, the special vulnerability of people suffering from mental disorders, especially psychosis, is stressed. It was not, therefore, a large step in Savage for the House of Lords to conclude that a mentally ill person detained in hospital for psychiatric treatment was owed the same duty as a mentally ill prisoner. But might the obligation stretch further than this? It seems clear from cases such as Mammadov that it can do so. In Mammadov, the applicants wife poured petrol over herself and set herself alight while the police were trying to evict her and her family from the building in which they had taken up residence without permission. Although the court found that there was no violation of the substantive obligation, the matter was discussed in terms of whether the police should have realised what she was going to do and stopped her (see para 115). The court found itself unable to conclude whether they could or should have done more (para 118) and drew a contrast with the case of death in custody, where the burden would be on the State to provide a satisfactory and plausible explanation (para 119). But there is no suggestion that the operational obligation to prevent suicide is limited to prisoners and detainees. This too is not surprising. The court has more than once found a violation of the prohibition of inhuman and degrading treatment in article 3 when the authorities have failed to use their powers to take action to protect children from the risk of serious abuse or ill treatment about which the authorities knew or ought to have known. Thus in E v United Kingdom (2003) 36 EHRR 519, the court stated the general principles thus: 88. The obligation on High Contracting Parties under article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill treatment administered by private individuals (A v United Kingdom (1999) 27 EHRR 611, para 22). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill treatment of which the authorities had or ought to have had knowledge (mutates mutandis, Osman v United Kingdom (2000) 29 EHRR 245, para 116). Thus a failure, over four and a half years, to protect children from serious neglect and abuse of which the local authority were aware disclosed a breach of article 3 of the Convention in the case of Z v United Kingdom (2002) 34 EHRR 3. In that case, the court was satisfied that the social services in Scotland should have been aware of the risk of sexual abuse to these children from a particular individual yet they failed to take any steps to discover the extent of the problem and protect the children from further abuse. Thus, proper and effective management of their responsibilities might, judged reasonably, have been expected to avoid, or at least, minimise the risk of the damage suffered (para 100). Accordingly there was a breach of article 3. The cross reference to Osman indicates that the operational duties under both article 2 and article 3 are similar if not identical. The State does have a positive obligation to protect children and vulnerable adults from the real and immediate risk of serious abuse or threats to their lives of which the authorities are or ought to be aware and which it is within their power to prevent. Whether they are in breach of this obligation will depend upon the nature and degree of the risk and what, in the light of the many relevant considerations, the authorities might reasonably have been expected to do to prevent it. This is not only a question of not expecting too much of hard pressed authorities with many other demands upon their resources. It is also a question of proportionality and respecting the rights of others, including the rights of those who require to be protected. The court acknowledged in Keenan that restraints would inevitably be placed upon the preventive measures available in the context of police activity by the guarantees in article 5 and 8 and also that the prison authorities, similarly must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned (para 91). In the light of all this, there can be little doubt that the operational duty under article 2 is engaged in the case of a patient such as Miss Rabone. She was admitted to hospital precisely because of the risk that she would take her own life. The purpose of the admission was both to prevent that happening and to bring about an improvement in her mental health such that she no longer posed a risk to herself. The experts were agreed that for patients such as Miss Rabone, one of the most risky periods for further suicide attempts is within a week or so of beginning to recover. Her mental disorder meant that she might well lack the capacity to make an autonomous decision to take her own life. Although she was an informal patient, the hospital could at any time have prevented her leaving. Section 5(4) of the Mental Health Act 1983 empowers a suitably qualified nurse to authorise the detention of an informal patient who is receiving treatment for mental disorder for up to six hours if the nurse believes that the patient is suffering from mental disorder to such a degree that it is necessary for her health or safety for her to be immediately restrained from leaving the hospital and it is not practicable to secure the immediate attendance of a doctor or approved clinician who can act under section 5(2). Section 5(2) empowers a doctor or approved clinician to authorise detention for up to 72 hours if it appears appropriate that an application be made to detain her under the 1983 Act. The experts were agreed that it would have been appropriate to detain her under the 1983 Act if she had intended to leave the hospital without medical approval. The judge in fact found that she would not have done so. The analogy with a patient detained under the Mental Health Act is much closer than the analogy with a patient admitted for treatment of a physical illness or injury. A patient receiving treatment in hospital for a physical illness or injury is in a quite different position. She has made an informed and autonomous choice to be in hospital and to receive the treatment in question. There is no power to detain her should she decide to leave. Any risk to her life stems from her physical condition. Any failure to prevent her death is likely to stem from what in Savage Lord Rodger called casual acts of medical negligence rather than from a deliberate decision. If there is a deliberate decision to take a risk, she should have given her informed consent to it. By contrast, if in fact she is known to be at risk of harm from the criminal acts of a third party (a risk which ironically it appears may recently have arisen at this very hospital) the operational duty under article 2 would indeed be engaged in her case too. However, it does not follow that because the operational duty was engaged in this case, it has necessarily been broken. There is first the question of whether the risk was sufficiently real and immediate to require consideration of what might be done to prevent it. I agree, for the reasons given by Lord Dyson, that it was. Although the doctors gave different assessments of the degree of risk, they were agreed that it was real and ever present, or in the words of Weatherup J approved in In re Officer L, [2007] 1 WLR 2135 objectively verified and present and continuing. There is next the question whether the hospital should have done more to prevent it. There is a difficult balance to be struck between the right of the individual patient to freedom and self determination and her right to be prevented from taking her own life. She wanted to go home and her doctor thought that it would be good for her to begin to take responsibility for herself. He was obviously wrong about that, but was he so wrong that the hospital is to be held in breach of her human rights for failing to protect her? It may not always be enough simply to say that the experts were agreed that the decision to give her home leave was one which no reasonable psychiatrist would have taken. But in this case it also appears that there was no proper assessment of the risks before she was given leave and no proper planning for her care during the leave. This is unlike the situation of Mark Keenan, where the question was what further preventive measures, over and above the normal precautions already being taken within the prison, should have been taken at the time. There is every indication that had she remained in hospital she would not have succeeded in killing herself. The question was whether she should have been allowed to go home for a whole weekend. Having regard to the nature and degree of the risk to her life, and the comparative ease of protecting her from it, I agree that her right to life was violated. I also agree that her parents have not ceased to be victims of this violation simply because the hospital has paid compensation to her estate. They are victims in their own right and remain so whether or not she died intestate so that, as it happens, her estate would be shared between them. I also agree that it would obviously be equitable to extend their time for bringing this action. The delay was short and readily explicable by the delay in the hospitals own inquiry. No prejudice has been suffered. The discretion is open ended but I agree with Lord Dyson that the factors set out in section 33(3) of the Limitation Act 1980 may be relevant. A claim such as this, as I said in A v Essex County Council [2010] UKSC 33, [2011] 1 AC 280, para 116, is more in the nature of a claim in tort than for judicial review. It is also important that fundamental human rights be vindicated, and never more so than when the most fundamental right of all, the right to life, is at stake. That is what Mr and Mrs Rabone have sought to do and that is what they have achieved. They are entitled to the modest compensation assessed by the Court of Appeal. For all those reasons, therefore, I agree that this appeal should be allowed. LORD BROWN I agree with the leading judgment of Lord Dyson in this appeal and also with the additional observations made by Lady Hale and Lord Mance. I too, therefore, would allow the appeal and make an award of 5,000 in favour of each appellant. It may be said that in finding in the present case a violation of the article 2 duty on a state in certain circumstances to take preventative operational measures, this court is going rather further than the evolving jurisprudence of the European Court of Human Rights has yet clearly established to be required. No Strasbourg decision has yet equated the position of voluntary patients with that of detained patients with regard to this article 2 duty. Even assuming that to be so, however, I would not regard our decision here as offending against the familiar principle first adumbrated by Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323 (at para 20) and frequently since repeated as, for example, in R(Al Skeini) v Secretary of State for Defence [2008] AC 153, by Lady Hale (at para 90) and myself (at para 106). Nobody has ever suggested that, merely because a particular question which arises under the Convention has not yet been specifically resolved by the Strasbourg jurisprudence, domestic courts cannot determine it in other words that it is necessary to await an authoritative decision of the ECtHR more or less directly in point before finding a Convention violation. That would be absurd. Rather what the Ullah principle importantly establishes is that the domestic court should not feel driven on Convention grounds unwillingly to decide a case against a public authority (which could not then seek a corrective judgment in Strasbourg) unless the existing Strasbourg case law clearly compels this. Indeed, the more reluctant the domestic court may be to recognise in the circumstances a violation of the Convention, the readier it should be to reject the complaint unless there exists (as, of course, there existed in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 and in R (GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230 but did not exist in R v Horncastle [2010] 2 AC 373) an authoritative judgment of the Grand Chamber plainly decisive of the point at issue. If, however, the domestic court is content (perhaps even ready and willing) to decide a Convention challenge against a public authority and believes such a conclusion to flow naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then in my judgment it should take that further step. And that, indeed, is to my mind precisely the position in this very case. Just as, I may add, it was the position in R(Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, In re G (Adoption: Unmarried Couple) [2009] AC 173 and EM (Lebanon) v Secretary of State for the Home Department [2009] AC 1198. The other, less often considered, limb of the Ullah principle is that the court may in certain circumstances if it wishes decide a case against a public authority by developing the common law to provide for rights more generous than those conferred by the Convention; but that it should not grant such rights by purporting to extend the reach of the Convention beyond that recognised by, or reasonably envisaged within, existing Strasbourg jurisprudence. As Lord Bingham observed in the Ullah case at para 20 and as again later noted by Lady Hale in the Al Skeini case at para 90 it is for Strasbourg alone definitively to interpret the Convention and determine what rights are guaranteed by it and the meaning of the Convention should be uniform throughout the states party to it. Suppose, for example, that the domestic court was inclined to give a Convention right an altogether greater reach than Strasbourg showed any likelihood of giving it, but that, so interpreted, the right would plainly conflict with domestic legislation. Is it seriously to be suggested that, pursuant to section 4 of the 1998 Act, the court could and should make a declaration of incompatibility? Or indeed, suppose there to be clear Grand Chamber authority directly in point, is it to be said that the domestic court, because section 2 of the 1998 Act requires it merely to take into account such an authority, should, if it regrets the Strasbourg judgment, itself decide the point differently? I cannot suppose that Parliament so intended or, indeed that such an approach would lead to satisfactory results. In saying that the courts must take into account any judgment of the ECtHR, Parliament left it open to the courts to decide how far they should be influenced by a Strasbourg judgment in any particular circumstances. I do not believe the Ullah principle, as I have here sought to illustrate its application, in any way offends section 2. On the contrary, it operates to my mind to promote each of two frequently expressed aims: engaging in a dialogue with Strasbourg and bringing rights home. LORD MANCE I agree with the judgment prepared by Lord Dyson. One can only have the greatest sympathy for the agony of parents who suffer the immeasurable tragedy of loss of a child by suicide, made even more acute by the knowledge that this was facilitated by avoidable negligence. However, I have not found the resulting legal issues entirely easy either to identify or to resolve. As Lord Dyson explains (para 12), the European Court of Human Rights has under article 2 of the Convention developed various obligations on states. One is the general substantive obligation to establish a framework of laws, precautions and means of enforcement which will, to the greatest extent reasonably practicable, protect life: R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 2, per Lord Bingham. This includes a general duty to have an appropriate regulatory, investigatory and judicial system: R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1, para 211. Another is a specific operational duty to take appropriate steps, by way of preventative operational measures in defined circumstances to safeguard lives within the states jurisdiction. This latter duty carries with it a specific Convention duty to provide for or ensure an effective public investigation by an independent official body of deaths or near deaths involved in breach of the specific operational duty. An extending series of cases exemplifies the specific operational duty. It starts with Osman v United Kingdom (2000) 29 EHRR 245 and continues with cases which Lord Dyson discusses at paras 15 to 18 above, and which I considered in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1, para 210. Although the European Court of Justice described the incidence of this duty as well defined in Osman, the subsequent case law suggests that this was over optimistic. Lady Hale has in paras 96 to 104 cogently identified the uncertainty which exists about both the extent of the duty and its existence in the particular context of suicide. But it is at least clear in that context that various factors, such as control, assumption of responsibility and the nature (as well as the reality or immediacy) of the risk, may lead to the duty arising. Taking those factors into account in the present case, I agree with Lord Dyson that, for reasons he gives in para 34, the operational duty existed in relation to Melanie. It was a duty to protect her from any real or immediate risk that she would commit suicide, of which state authorities knew or ought to have known. In that context (although the contrary was submitted to us) simple negligence in failing to identify or to guard appropriately against such a risk appears sufficient to establish breach of the duty. A line has been sought to be drawn between this series of cases and cases of casual acts of negligence by medical authorities in relation to persons submitting themselves voluntarily to medical care. Such persons are entitled to the benefit of the general substantive duty referred to in paragraph 113 above, but the state does not answer directly for ordinary acts of negligence by public health authorities, however clear it was that the particular medical emergency, procedure or treatment in the context of which the negligence occurred involved a real or immediate risk to the patients life. It follows that, in the event of a breach of the operational duty, the range of persons entitled as victims to bring claims against the state, and the nature and scale of compensation or just satisfaction which they may receive, will depend upon legal principles established by the European Court of Human Rights. In contrast, in the event of ordinary negligence by a public health authority, the range of victim and the nature and scale of compensation are defined by the domestic law of tort. In this way, the European Court of Human Rights has, under the operational duty, began to develop its own Convention rules of, in effect, tortious responsibility, when in other areas it is left to national systems (as part of their general systematic duty to establish a framework of laws, precautions and means of enforcement which will, to the greatest extent reasonably practicable, protect life) to develop an appropriate law of tort in the light of particular legal traditions and needs. The court might have left it to national systems in all areas to address any real or immediate risk to life which is or ought to be within their knowledge. It could have left it to national systems, in the event of any failure by state authorities to address such a risk, to recognise a range of victims and to provide compensation consistent with their ordinary law of tort. The court could still have reviewed the appropriateness of the protection and of the recourse available under national tort law. But that is not how the Convention has been interpreted. Hence, the difficult line to be drawn between direct Convention rights and national tort law in cases such as the present. In the event of a breach of the operational duty, we have to apply Convention jurisprudence on the question who counts as a victim. This requires us to address some particularly difficult Convention jurisprudence on the impact of settlement of a domestic claim on victim status. It requires us also to address numerous Strasbourg cases giving only limited guidance on the factors governing and the range of compensation appropriate under Convention. Lord Dyson has dealt with these issues in his paragraphs 49 to 72 and 80 to 88. In the last analysis, what he has done in each context is to identify and apply underlying principles which best make sense of the rights which have become part of domestic law under the Human Rights Act 1998. That is in my view an appropriate course. We are required to take account of the case law of the European Court of Human Rights no less but no more. That requirement makes it inescapable that we examine the courts case law. In doing so, common law habits are difficult to shake off. But it is perhaps worth remembering expressly that individual section decisions of the court are not, and may not respond well to the same close linguistic analysis that a common lawyer would give to, binding precedents. The apparently irreconcilable section decisions on the issue of loss of victim status, put before us in this case, make clear that any attempt at such an analysis can be a somewhat fruitless task. In the result, Lord Dysons examination of the Strasbourg case law persuades me that the only coherent principle regarding loss of victim status is that found in R.R v Poland (Application No 27617/04). That means that there must be both a recognition in substance of a failure to comply with the operational duty and adequate redress for all the heads of claim recognised under the Convention by the European Court of Human Rights. I agree that Mr and Mrs Rabone did not in this case lose their victim status by Mr Rabones acceptance of a settlement figure which was on behalf of Melanies estate alone, and which did not cover their bereavement. I agree that the time limit for proceedings should be extended. Finally, I agree with the Court of Appeal that the judge undervalued the claims when he said that any award of compensation should have been in the sum of 1,500 each claimant, and the sum of 5,000 each claimant would be appropriate. I would accordingly allow the appeal and award Mr and Mrs Rabone 5,000 each. |
an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976? The 1976 Act was repealed by section 211(2) of, and Schedule 27 to, the Equality Act 2010 and with effect from 1 October 2010 the provision in section 4(2)(c) has been subsumed in section 39(2)(c) of the 2010 Act. INTRODUCTION The appellant, Miss Hounga, appears to have a current age of about 21. She is of Nigerian nationality and now resides in England. In January 2007, when she was aged about 14, she came from Nigeria to the UK under arrangements made by the family of the respondent, Mrs Allen, who is of joint Nigerian and British nationality and who resides in England with her children. Pursuant to these arrangements, in which Miss Hounga knowingly participated, her entry was achieved by her presentation to UK immigration authorities of a false identity and their grant to her of a visitors visa for six months. For the following 18 months Miss Hounga lived in the home of Mrs Allen and of her husband who, albeit formally a respondent to it, plays no part in this appeal. Although Miss Hounga had no right to work in the UK, and after July 2007 no right to remain in the UK, Mrs Allen employed her to look after her children in the home. In July 2008 Mrs Allen evicted Miss Hounga from the home and thereby dismissed her from the employment. This appeal proceeds on the basis that, by dismissing her, Mrs Allen discriminated against Miss Hounga in that on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others. In due course Miss Hounga issued a variety of claims and complaints against Mrs Allen in the Employment Tribunal (the tribunal). The one claim or complaint which the tribunal upheld was her complaint of unlawful discrimination but only that part of it which related to her dismissal. In this regard it ordered Mrs Allen to pay compensation to her for the resultant injury to her feelings in the sum of 6,187. The Employment Appeal Tribunal (the appeal tribunal) dismissed Mrs Allens cross appeal against the order. But the Court of Appeal upheld a further cross appeal brought by Mrs Allen against it and set it aside: [2012] EWCA Civ 609, [2012] IRLR 685. By a judgment given by Rimer LJ, with which Longmore LJ and Sir Scott Baker agreed, the court held that the illegality of the contract of employment formed a material part of Miss Houngas complaint and that to uphold it would be to condone the illegality. It is against the Court of Appeals order, dated 15 May 2012, that Miss Hounga brings her appeal. A small claim generates an important point. Miss Hounga and Mrs Allen both gave oral evidence to the tribunal, which concluded that both of them, but particularly Mrs Allen, had lied to it. The unreliability of the evidence must have made the tribunals task of resolving factual issues difficult. Furthermore the tribunals rejection of part of Miss Houngas complaint on jurisdictional grounds, explained in para 18(c) below, may have led it to consider that it had no need to make certain findings. But whether these factors entirely explain the tribunals widespread failure to find facts is unclear. The absence of findings has hampered the inquiry at all three appellate levels. Miss Houngas evidence was that, when she travelled to the UK in January 2007, she had been aged only 14. She said that an affidavit which she had sworn in Lagos just prior to her journey, in which she asserted that she had been born in July 1986 and so was then aged 20, was untrue. Mrs Allen contended before the tribunal that the assertion in Miss Houngas affidavit was true or, at any rate, that she had been an adult by the date of her entry into the UK. Expert evidence supported Miss Houngas contention that in January 2007 she had been aged only 14. A consultant paediatrician with expertise in assessing age reported in January 2009 that at the date of his report she was aged about 16 and was certainly no more than 18. In June 2009 a local authority conducted a Merton compliant age assessment and concluded similarly that, at the date of its assessment, Miss Hounga was aged 16. The tribunal said only that it was impossible to make a definite finding in relation to Miss Houngas age. It referred to the report and to the assessment but, while it did not make an express finding about her age even in approximate terms, it gave no reason for disagreeing with them. It also accepted Miss Houngas assertion that in the affidavit sworn in Lagos she had falsified her date of birth. In these circumstances, unsatisfactory though they are, it is reasonable to proceed and to conclude that the tribunal proceeded on the basis that, at the time of her entry into the UK, Miss Hounga had been aged about 14. A psychological report on Miss Hounga, dated July 2009, was presented to the tribunal on her behalf but in its reasons the tribunal did not refer to it. The psychologist reported that Miss Houngas cognitive functioning might well be in the extremely low range and indicated a learning disability; that she had long term emotional difficulties; and that she functioned at a developmental age much lower than her chronological age which, again, the writer took to be 16 as at the date of the report. The tribunal did acknowledge that Miss Hounga was illiterate and had not received an education in Nigeria but it added that she spoke English well. Understandably the tribunal did not resolve an issue whether, as Miss Hounga claimed, her parents were dead. It did find, however, that in due course Miss Hounga had joined the well to do family of Mrs Allens brother in Lagos; that for two years she had lived there as a home help; that in due course Mrs Allens mother, who lived in England but was visiting Lagos, and Mrs Allens brother had jointly put a proposal to Miss Hounga, which she had willingly accepted, that she should go to live in England with Mrs Allen, where she would again work as a home help but would also go to school; and that, by telephone, Mrs Allen had offered to pay her 50 per month additional to the provision of bed and board. The tribunal found that it was the prospect of education in England which particularly attracted Miss Hounga. The tribunal found that Mrs Allens brother in Lagos had thereupon masterminded a plan, in which Mrs Allen and her mother had been complicit, to secure Miss Houngas entry into the UK. It was pursuant to the plan that Miss Hounga had sworn the affidavit, drafted in terms directed by Mrs Allens brother, in which she had asserted not only that she had been born in July 1986 (and that her birth certificate had been lost) but also that her surname was that of Mrs Allens mother. The affidavit had led to the issue to Miss Hounga of a Nigerian passport in that name. Mrs Allens family had then caused Miss Hounga to be driven to the British High Commission in Lagos, where she had produced a document by which Mrs Allens mother, pretending to be Miss Houngas grandmother, had purported to invite her to come to stay with her in England. The High Commission had thereupon given her entry clearance. Mrs Allens brother had then purchased a ticket for her travel to England. On arrival at Heathrow on 28 January 2007 Miss Hounga had confirmed to an immigration officer that the purpose of her visit was to stay with her grandmother. Miss Houngas passport had thereupon been indorsed with a visitors visa, valid for six months. The tribunal found that Miss Hounga (a) knew the difference between right and wrong; (b) knew that the assertions in her affidavit about her name and date of (c) knew that she had secured the right to enter the UK on false pretences; birth had been false; (d) knew that it was illegal for her to remain in the UK beyond 28 July (e) knew that it was illegal for her to take employment in the UK. 2007; and Mrs Allen met Miss Hounga at Heathrow and took her to her home in Hanworth, Middlesex. For the next 18 months Miss Hounga acted, according to the tribunal, as a sort of au pair. She helped to care for the three small children of Mrs Allen and her husband, who at that time was also living in the home. She also did housework. She was not entirely confined to the house. She went with the family by car to the supermarket but stayed inside the car while Mrs Allen did the shopping. Occasionally she went with the family to the local park; and once they all went to Thorpe Park. She knew the whereabouts of the key to the front door and was allowed to open it to callers. Mrs Allen bought earrings and clothes for her. But Miss Hounga was never enrolled in a school and, although she was provided with bed and board, she was never paid 50 per month or any wages at all. It was Miss Houngas case before the tribunal that, prior to her departure from the home on 17 July 2008, Mrs Allen had regularly treated her with violence and threats and had thereby harassed her. Miss Hounga gave a detailed account, albeit unsupported by dates, of various acts of violence allegedly perpetrated upon her by Mrs Allen and of ugly threats allegedly made by her. Mrs Allen denied all these allegations. In the event the tribunal made only two findings in this regard, namely first that Mrs Allen had inflicted serious physical abuse on Miss Hounga and second that she had caused her extreme concern by telling her that, were she to leave the house and be found by the police, she would be sent to prison because her presence in the UK was illegal. But the tribunal did accept in full Miss Houngas account of the incident which led to her departure on 17 July 2008, as follows: (a) on that evening Mrs Allen was angry to discover that the children had not eaten the supper which she had directed Miss Hounga to prepare for them; (b) Mrs Allen smacked and hit Miss Hounga; (c) after Miss Hounga had put the children to bed, Mrs Allen attacked and beat her, threw her out of the house and poured water over her; (d) on his return from work, Mrs Allens husband let Miss Hounga back into the house but he later changed his mind and said that Mrs Allen could do whatever she liked to Miss Hounga; (e) thereupon Mrs Allen opened the front door, told Miss Hounga to leave the house and to die and pushed her outside again; (f) that night Miss Hounga slept in the garden in her wet clothes; (g) at 7:00 am she tried to get back into the house but no one would open the door; and (h) she then made her way to a supermarket car park, where she was found and taken to the social services department of the local authority. PROCEEDINGS In December 2008 Miss Houngas claim was filed in the tribunal on her behalf. It did not, at first, recite Mrs Allens address: for, although she had lived there for 18 months, Miss Hounga had remained unaware of it. It was only later that her lawyers discovered it. Miss Houngas claim had various components. They fell into two groups, which, in the interests only of convenience, I will describe as the contract claims and the discrimination complaints. The former included claims for unfair dismissal, breach of contract, unpaid wages and holiday pay. The latter were brought under the Race Relations Act 1976 (the Act) and comprised complaints of racial discrimination both in the form of harassment prior to Miss Houngas dismissal contrary to section 3A of the Act and in relation to the dismissal itself contrary to section 4(2)(c) of the Act. Mrs Allen filed an initial response to the claims and complaints in which she alleged that, other than perhaps meeting Miss Hounga in Hanworth, she had had no dealings with her in any way and had never employed her. At a case management discussion Mrs Allen changed her account only to the extent of accepting that Miss Hounga had visited her house on a number of occasions. It was only later that Mrs Allen accepted that Miss Hounga had lived in her house for an extended period. (a) The tribunal upheld Miss Houngas assertion that there had been a contract of employment between her and Mrs Allen. In the appellate proceedings Mrs Allen did not challenge this determination. (b) The tribunal dismissed Miss Houngas contract claims on the basis that, as she knew, it was illegal for her to have entered into the contract of employment and that the defence of illegality operated so as to defeat such of her claims as were based on it. Miss Hounga unsuccessfully appealed to the appeal tribunal against the dismissal of her contract claims but did not appeal further in that regard. (c) The tribunal dismissed Miss Houngas complaint of pre dismissal harassment on the ground that she had not complied with the grievance procedure made applicable to such a complaint by Schedule 4 to the Employment Act 2002 and that she was therefore precluded from presenting it by section 32(2) of that Act. The appeal tribunal dismissed Miss Houngas appeal in this regard. The Court of Appeal, however, upheld her further appeal in this regard. It held that the tribunal and the appeal tribunal had failed to consider her assertion that the circumstances were as specified in regulation 11(3)(c) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752) and that therefore, by regulation 11(1), the grievance procedure did not apply. The court ruled, however, that it would be futile to remit the point for determination by the tribunal because the complaint of discrimination in relation to pre dismissal harassment would in any event face defeat on the ground on which the court was rejecting the complaint of discrimination in relation to the dismissal itself. (d) The tribunal upheld Miss Houngas complaint of discrimination in relation to the dismissal itself. It was agreed that on any view the grievance procedure did not apply to this complaint. The tribunal found that Mrs Allen had dismissed Miss Hounga from her employment because of her vulnerability consequent upon her immigration status, i.e. upon the absence of any right for her either to remain in the UK or to have taken the employment in the first place. It made the order for compensation which the Court of Appeal subsequently set aside. NEW POINTS A month prior to the hearing in this court Mrs Allen, by her solicitors, indicated that she proposed at its inception to apply for permission under para 6.3.3 of UKSC Practice Direction 6 to raise two points which had not been raised on her behalf at any earlier stage of the proceedings. The court received argument on the application accordingly. The first point was based on section 4(3) of the 1976 Act, which has not been replicated in the 2010 Act. The effect of the subsection was that, in the case of employment for the purposes of a private household, it was not unlawful for the employer to discriminate against the employee by dismissing her (or him) on ground of nationality (as opposed to grounds of race or ethnic or national origins). Miss Hounga conceded that, had it been invoked before the tribunal, the subsection would have defeated her complaint of discrimination in relation to dismissal on ground of nationality and that such had indeed been the ground on which in the event the tribunal had upheld it. She contended, however, that, had it then been invoked, she would, as foreshadowed by the general terms of her claim form, have presented the grounds of discrimination as being those of race or ethnic or national origins. Mrs Allen, for her part, conceded that, in the light of its terms, the subsection could not operate so as to defeat the complaints of pre dismissal harassment which, were this court to uphold Miss Houngas appeal against the Court of Appeals application of the illegality defence, would fall to be remitted to the tribunal. The second point was that, in asking itself pursuant to section 1(1)(a) of the 1976 Act whether on ground of nationality Mrs Allen had treated Miss Hounga less favourably than she would treat other persons, the tribunal had fallen into error in its construction of the hypothetical other persons. Without objection on behalf of Mrs Allen, the tribunal had compared her treatment of Miss Hounga with her hypothetical treatment of a British subject, i.e. a person entitled to remain and work here. That such was the correct comparison had not been challenged on behalf of Mrs Allen whether in the appeal tribunal or in the Court of Appeal. Nevertheless her second new point was that such was an incorrect comparison. She wished to argue that many foreign nationals had rights to remain and work in the UK; that therefore it did not follow from a persons foreign nationality that she (or he) had no such right; that therefore an employer who discriminated against an employee of foreign nationality on grounds that she had no right to remain or work in the UK did not discriminate against her on ground of nationality; put another way, that it was incorrect to construct a comparator who had such rights; and that the correct comparator was a person who had a foreign nationality other than Nigerian but who was remaining in the UK illegally and had no right to work. Following receipt of the argument this court announced that it refused to grant permission to Mrs Allen to introduce either of the new points. The basis of its refusal was only that the points were raised too late. The result of the refusal is that, in the event that the court were to uphold Miss Houngas challenge to the Court of Appeals application of the illegality defence to her complaint in relation to dismissal, the tribunals award would be restored and not amenable to further challenge. In that event, her complaint in relation to pre dismissal harassment on grounds of race or ethnic or national origins would be remitted to the tribunal to determine whether the ground identified by the Court of Appeal for possible disapplication of the grievance procedure existed and, if so, whether the complaint was established. THE DEFENCE OF ILLEGALITY It will thus be seen that, of the various claims and complaints made by Miss Hounga against Mrs Allen in the tribunal, the only one to reach this court is the complaint of discrimination in relation to her dismissal. This particular complaint may well be said not to capture the gravamen of Miss Houngas case against Mrs Allen. Irrespective of whether all of it can form the subject of a civil claim, the case which, on the tribunals exiguous findings, Miss Hounga makes against Mrs Allen relates centrally to her participation in the plan to secure her entry into the UK on a false basis; to Mrs Allens failure to pay her the promised wages and, in particular, to secure for her the promised education (although the tribunal made no finding that Mrs Allen had never intended to secure it for her); and to her acts of serious violence towards Miss Hounga over 18 months, coupled with threats of imprisonment which were entirely convincing to Miss Hounga and which in effect disabled her from taking any steps to rescue herself from her situation in Mrs Allens home. In the event it was Mrs Allens eviction of her which precipitated her rescue. Cruel though the manner of its execution was, the dismissal was, in a real sense, a blessing for Miss Hounga. But, while the facts upon which the present appeal is founded may not represent Miss Houngas essential case against Mrs Allen, the clean legal issue remains: was the Court of Appeal correct to hold that the illegality defence defeated the complaint of discrimination? The application of the defence of illegality to a claim founded on contract often has its own complexities. But, in that it was unlawful (and indeed a criminal offence under section 24(1)(b)(ii) of the Immigration Act 1971) for Miss Hounga to enter into the contract of employment with Mrs Allen, the defence of illegality in principle precluded her from enforcing it. In this regard a claim for unfair dismissal might arguably require analysis different from a claim for wrongful dismissal. But a claimant for unfair dismissal is nevertheless seeking to enforce her contract, including often to secure her reinstatement under it. In Enfield Technical Services Ltd v Payne [2008] EWCA 393, [2008] ICR 1423, the Court of Appeal, while rejecting its applicability to the two cases before it, clearly proceeded on the basis that a defence of illegality could defeat a claim for unfair dismissal. This present appeal proceeds without challenge to the conclusion of the tribunal, upheld by the appeal tribunal, that the defence indeed precluded Miss Houngas claim for unfair dismissal. Equally there is no challenge to the dismissal on that same basis of her claim for unpaid wages although the considerations of public policy to which I will refer from para 46 onwards might conceivably have yielded a different conclusion. Unlawful discrimination is, however, a statutory tort: in relation to discrimination in the field of employment, see sections 56(1)(b) and 57(1) of the 1976 Act, now sections 124(6) and 119(2)(a) of the 2010 Act. The application of the defence of illegality to claims in tort is highly problematic. In National Coal Board v England [1954] AC 403 an employee sued his employer for breach of statutory duty in respect of injuries suffered in an explosion. It had occurred while the employee was implementing an unlawful arrangement between him and a colleague that he, rather than the colleague, should join a cable to a detonator. The House of Lords accepted that he had been contributorily negligent but rejected the defence of illegality. Lord Asquith of Bishopstone said at pp 428 429: The defendants relied on the maxim ex turpi causa non oritur actio as absolving them of liability. The vast majority of cases in which the maxim has been applied have been cases where, there being an illegal agreement between A and B, either seeks to sue the other for its enforcement or for damages for its breach. That, of course, is not this case. Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault (Boulter v Clark (1747) Bull N.P. 16). If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them, B picks As pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort The theft is totally unconnected with the burglary. But, although it has since become established that the defence will sometimes defeat an action in tort, the circumstances in which it will do so have never been fully settled. In Saunders v Edwards [1987] 1 WLR 1116 the purchasers of a flat sued the vendor for damages for the tort of deceit in having fraudulently represented to them that the premises included a roof terrace. By arrangement between the parties, the price of the flat had been improperly reduced below its value, and the price of chattels also included in the sale had been correspondingly inflated above their value, in order to enable the purchasers to pay less stamp duty. The Court of Appeal held that the vendor could not rely on the defence of illegality. Kerr LJ, with whom Bingham LJ agreed, held at p 1127 that the purchasers dishonest apportionment of the price was wholly unconnected with their cause of action and that their moral culpability in that regard was greatly outweighed by that of the vendor in making the fraudulent representation. Nicholls LJ, with whom Bingham LJ also agreed, held at p 1132 that the question (which he answered negatively) was whether to uphold the claim would be an affront to the public conscience in appearing indirectly to encourage the unlawful conduct of which the purchasers had been guilty. For six years the public conscience test was applied to defences of illegality to claims both in tort and in contract: see for example Howard v Shirlstar Container Transport Ltd [1990] 1 WLR 1292. But in Tinsley v Milligan [1994] 1 AC 340 all members of the House of Lords, including the two dissenting judges, agreed that the public conscience was, as Lord Browne Wilkinson observed at p 369, too imponderable a factor. The majority of the House considered that, once that test was stripped out of the law, a reliance test was laid bare, namely that, in the words of Lord Browne Wilkinson at p 376, a claimant is entitled to recover if he is not forced to plead or rely on the illegality, even if it emerges that the title on which he relied was acquired in the course of carrying through an illegal transaction. Before the House was, indeed, a claim to property, namely by Ms Milligan to a joint and equal equitable interest in a home which she had agreed to be vested in the sole name of Ms Tinsley, her cohabitant, only in order that she, Ms Milligan, could represent herself to be Ms Tinsleys lodger and claim state benefits accordingly. In the wake of the Tinsley case the reliance test has inevitably taken hold; and it has been applied to claims in tort. In Stone & Rolls Ltd v Moore Stephens [2008] EWCA Civ 644, [2009] UKHL 39, [2009] AC 1391, a company sued its auditors for negligence in failing to detect fraudulent transactions into which its former controlling director had caused it to enter. It was held both in the Court of Appeal and, by a majority, in the House of Lords that the conduct of the director was to be attributed to the company; and that the defence of illegality defeated it. In his judgment in the Court of Appeal, with which Keene and Mummery LJJ agreed, Rimer LJ referred at para 16 to the reliance test and described its effect in stark terms as follows: The relevant question it identifies is whether, to advance the claim, it is necessary for the claimant to plead or rely on the illegality. If it is, the Tinsley case decided that the axe falls indiscriminately and the claim is barred, however good it might otherwise be. There is no discretion to permit it to succeed. In the House of Lords, Lord Phillips of Worth Matravers concluded at para 86 that the illegal conduct formed the basis of the companys claim, in other words that the company was forced to rely on it. He had, however, observed at para 25: I do not believe that it is right to proceed on the basis that the reliance test can automatically be applied as a rule of thumb. It is necessary to give consideration to the policy underlying ex turpi causa in order to decide whether this defence is bound to defeat [the companys] claim. I will explain in paras 42 and following why I consider that Lord Phillips was correct to soften the effect of the reliance test by the need to consider the underlying policy. The test continues to carry maximum precedential authority but has attracted criticism. It is said that it can work arbitrarily: it was only the presumption of a resulting trust which saved Ms Milligan from having to plead the agreement to defraud and, had Ms Tinsley instead been, for example, her daughter, a presumption of advancement might well have operated and, if so, Ms Milligan would have had to plead the agreement. It is also said that the concept of a need to rely on an unlawful act is often easier to state than to apply. These concerns were summarised in the report of the Law Commission entitled The Illegality Defence, presented to Parliament on 16 March 2010, Law Com No 320, at paras 2.13 15, to which was annexed a draft Bill which, in relation to claims to equitable interests, would have replaced the reliance test. Meanwhile, however, another test, overlapping with the reliance test but not coterminous with it, had been developed in relation to tort and in particular was to be applied to complaints of unlawful discrimination: the inextricable link test. In Cross v Kirkby CA [2000] EWCA Civ 426, The Times 5 April 2000, the claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant Youre fucking dead and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant grappled with him. He wrested the bat from him and hit him on the head, causing his skull to fracture. The Court of Appeal held that the claimants claim for assault and battery failed both because the defendant was acting in self defence and because it was defeated by the illegality defence. Beldam LJ, with whom Otton LJ agreed, said at para 76: In my view the [defence] applies when the claimants claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct. Judge LJ said at para 103 that the defence arose if the facts behind the claimants claim were inextricably linked with his criminal conduct and that this factor went well beyond questions of causation in the general sense. He added at para 125 that, if the defendants behaviour was truly disproportionate overall, it might be powerful evidence that the claimants criminal conduct was not sufficiently linked to the injuries so as to attract the defence. Three months later, in Hall v Woolston Hall Leisure Ltd [2001] ICR 99, the inextricable link test was applied to a complaint of unlawful sex discrimination. The employer dismissed the employee because of her pregnancy and thus discriminated against her on ground of sex. Her wages were 250 net per week but, to her knowledge, were misrepresented on her pay slips as 250 gross per week so that the employer might account to the Inland Revenue for less sums than were due. Rejecting the employers defence of illegality, the Court of Appeal allowed her appeal against a refusal to include in her award compensation for loss of earnings. Peter Gibson LJ held at para 46 that there was no inextricable link between the employees complaint and the employers illegal underpayments to the Revenue. After citing the decision in the Cross case, Mance LJ said: 79. While the underlying test therefore remains one of public policy, the test evolved in this court for its application in a tortious context thus requires an inextricable link between the facts giving rise to the claim and the illegality, before any question arises of the court refusing relief on the grounds of illegality. In practice, as is evident, it requires quite extreme circumstances before the test will exclude a tort claim. [Emphasis supplied] At para 80(D) he also concluded that there was no such inextricable link. In Rhys Harper v Relaxion Group plc [2003] UKHL 33, [2003] ICR 867, the House of Lords determined a different point, namely that an employer might discriminate against an employee in breach of the discrimination statutes even by acts occurring after termination of the employment. But Lord Rodger of Earlsferry quoted with approval from the judgments of Peter Gibson and Mance LJJ in the Hall case and if, as one might assume, he thereby impliedly indorsed the inextricable link test, he clearly thought that it would seldom, if ever, lead to the defeat of a complaint of discrimination. For he said at p 930: where a contract of employment is tainted by illegality, an employee may none the less complain that her employer discriminated against her on the ground of her sex by dismissing her, since both the Equal Treatment Directive and the 1975 [Sex Discrimination] Act are designed to provide effective relief in respect of discriminatory conduct rather than relief which reflects any contractual entitlement which may or may not exist. In Vakante v Governing Body of Addey and Stanhope School (No 2) [2004] EWCA Civ 1065, [2005] ICR 231, the Court of Appeal upheld a defence of illegality to a teachers complaint against a school of unlawful discrimination by dismissal on racial grounds. The teacher was an asylum seeker who was not entitled to work in the UK without a work permit, which he never obtained. He had represented to the school that he did not need a permit and it was unaware that its employment of him was unlawful. Mummery LJ, with whose judgment Lord Slynn of Hadley and Brooke LJ agreed, analysed the inextricable link test as follows: 9. Although Halls case uses some of the familiar language of legal and factual causation (connection, link), the test does not restrict the tribunal to a causation question. Matters of fact and degree have to be considered: the circumstances surrounding the applicants claim and the illegal conduct, the nature and seriousness of the illegal conduct, the extent of the applicants involvement in it and the character of the applicants claim are all matters relevant to determining whether the claim is so inextricably bound up with the applicants illegal conduct that, by permitting the applicant to recover compensation, the tribunal might appear to condone the illegality. Mummery LJ went on to hold at para 34 that the teachers employment was unlawful from top to bottom and from beginning to end and at para 36 that his complaint was so inextricably linked with the illegality of his employment that, were it to have upheld it, the tribunal would have appeared to condone the illegality. In their case comment Race discrimination and the doctrine of illegality (2013) 129 LQR 12 Bogg and Novitz suggest that a series of errors entered the law in the Vakante case. They are right to say that, in para 9 of Mummery LJs judgment above, there was a loosening of the inextricable link test and an entry into it of factors which, logically, might not have been entitled to entry. But whether the loosened test led the Court of Appeal to make the wrong decision is much less clear. In Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 AC 1339, the House of Lords, while not disapproving the inextricable link test, expressed reservations about it. The claimant was injured in the Ladbroke Grove rail disaster and in consequence suffered post traumatic stress disorder. This led him to commit manslaughter, for which he was ordered to be detained in hospital. He sued two railway companies for negligence, which they admitted. The House held however that the defence of illegality barred such part of his claim as sought general damages arising out of his detention and damages for the loss of earnings which followed it. It held that the defence precluded compensation for losses arising from the sentence passed upon him for a criminal act for which he had had responsibility, albeit diminished. So, as Lord Rodger pointed out at para 63, the case was different from the National Coal Board case and the Cross case, in which the claimant had been engaged in an unlawful activity at the time when the defendant committed the alleged tort. Nevertheless reference was made to the inextricable link test. Lord Hoffmann said at para 54: It might be better to avoid metaphors like inextricably linked or integral part and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant?. Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? In the same vein Lord Rodger observed at para 74 that opinions were likely to differ about whether the alleged tort was inextricably linked with the claimants criminal conduct. I agree but am not convinced that the alternative inquiry suggested by Lord Hoffmann is any more likely to secure consistency of decision making. Every formulation of a requirement to identify the active or effective cause of an event or an act to which it is inextricably linked has a potential for inconsistent application driven by subjective considerations. In his article entitled Ex Turpi Causa when Latin avoids liability in the Edinburgh Law Review, 18 (2014) 175, Lord Mance made a related point at p 184: Your painter negligently leaves your front door open, and a thief enters. Of course, in your action for negligence against the painter, the painter is responsible for causing the loss of your goods. Equally, however, in your action for theft of the goods against the thief, if he is caught, he is the cause. Causation, like much else in the law, depends on context. The subjectivity inherent in the requisite value judgement is well demonstrated by the facts of the present case. Three judges in the Court of Appeal were of the view, articulated in the judgment of Rimer LJ, that Miss Houngas complaint was inextricably linked to her own unlawful conduct obviously so. They considered that the only difference between the complaints of Miss Hounga and of Mr Vakante was that, whereas his employers were unaware of the illegality, Mrs Allen and Miss Hounga were equal participants in entry into the illegal contract of employment. Whichever party bore the greater responsibility for making of the illegal contract, said Rimer LJ, [Miss Hounga] was a willing participant in it. He made a further point: Ms Houngas dismissal discrimination case was dependent upon the special vulnerability to which she was subject by reason of her illegal employment contract: she was relying on the facts that she was an illegal immigrant, had no right to be employed here, effectively had no rights here at all and so could be treated less well because of her inferior situation. But were Mrs Allen and Miss Hounga equal participants in entry into the illegal contract? Was there any doubt about the identity of the party who bore greater responsibility for it? And, despite the superficial attraction in logic of Rimer LJs further point, should Mrs Allens cruel misuse of Miss Houngas perceived vulnerability arising out of the illegality, by making threats about the consequences of her exposure to the authorities, be a further justification for the defeat of her complaint? As I will explain in para 49, such threats are an indicator that Miss Hounga was the victim of forced labour but in the hands of the Court of Appeal they become a ground for denial of her complaint. If, indeed, the test applicable to Mrs Allens defence of illegality is that of the inextricable link, I, for one, albeit conscious of the inherent subjectivity in my so saying, would hold the link to be absent. Entry into the illegal contract on 28 January 2007 and its continued operation until 17 July 2008 provided, so I consider, no more than the context in which Mrs Allen then perpetrated the acts of physical, verbal and emotional abuse by which, among other things, she dismissed Miss Hounga from her employment. But the bigger question is whether the inextricable link test is applicable to Mrs Allens defence. PUBLIC POLICY The defence of illegality rests upon the foundation of public policy. The principle of public policy is this said Lord Mansfield by way of preface to his classic exposition of the defence in Holman v Johnson (1775) 1 Cowp. 341, p 343, 98 Eng Rep 1120, p 1121. Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification: Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask What is the aspect of public policy which founds the defence? and, second, to ask But is there another aspect of public policy to which application of the defence would run counter? An answer to the first question is provided in the decision of the Canadian Supreme Court in Hall v Hebert [1993] 2 SCR 159. After they had been drinking heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car careered down the slope and Mr Hall was seriously injured. The Supreme Court held that the illegality of his driving did not bar his claim against Mr Hebert but that he was contributorily negligent as to 50%. At the outset of her judgment on behalf of the majority, McLachlin J, at p 169, announced her conclusion about the basis of the power to bar recovery in tort on the ground of illegality, which later she substantiated in convincing terms by reference to authority. Her conclusion was as follows: The basis of this power, as I see it, lies in [the] duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue. This concern is in issue where a damage[s] award in a civil suit would, in effect, allow a person to profit from illegal or wrongful conduct, or would permit an evasion or rebate of a penalty prescribed by the criminal law. The idea common to these instances is that the law refuses to give by its right hand what it takes away by its left hand. Concern to preserve the integrity of the legal system is a helpful rationale of the aspect of policy which founds the defence even if the instance given by McLachlin J of where that concern is in issue may best be taken as an example of it rather than as the only conceivable instance of it. I therefore pose and answer the following questions: (a) Did the tribunals award of compensation to Miss Hounga allow her to profit from her wrongful conduct in entering into the contract? No, it was an award of compensation for injury to feelings consequent upon her dismissal, in particular the abusive nature of it. (b) Did the award permit evasion of a penalty prescribed by the criminal law? No, Miss Hounga has not been prosecuted for her entry into the contract and, even had a penalty been thus imposed upon her, it would not represent evasion of it. (c) Did the award compromise the integrity of the legal system by appearing to encourage those in the situation of Miss Hounga to enter into illegal contracts of employment? No, the idea is fanciful. (d) Conversely, would application of the defence of illegality so as to defeat the award compromise the integrity of the legal system by appearing to encourage those in the situation of Mrs Allen to enter into illegal contracts of employment? Yes, possibly: it might engender a belief that they could even discriminate against such employees with impunity. So the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Houngas complaint scarcely exist. But what about the second question posed in para 42? It requires the court to consider whether Mrs Allen was guilty of trafficking in bringing Miss Hounga from Nigeria to the UK and into the home in Hanworth. The accepted international definition of trafficking is contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Palermo Protocol) signed in 2000 and ratified by the UK on 9 February 2006. Article 3 provides: (a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability for the purpose of exploitation. Exploitation shall include, at a minimum, sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in subparagraph (a) of this article. So did Mrs Allen, together with other members of her family, recruit and/or transport and/or receive Miss Hounga, being then a child, for the purpose of exploitation, namely forced labour or servitude? In her claim form Miss Hounga alleged that the UK Human Trafficking Centre had accepted her as a victim of human trafficking. Before the tribunal she filed a report on herself made by Ms Skrivankova, Trafficking Programme Coordinator, Anti Slavery International, which intervenes in this appeal. The report must be handled with care because Ms Skrivankova did not interview Miss Hounga and relied on written material, in particular her witness statement, which included disputed allegations in relation to which the tribunal made no findings. At all events Ms Skrivankova reported that all the elements in the definition of trafficking in the Palermo Protocol were present in Miss Houngas case. She suggested that it was a classic case of the trafficking of a vulnerable child, lacking family support, by people known to her, who abused her natural trust in them with promises which were not kept and who subjected her to forced labour. In this latter regard Ms Skrivankova referred to a list of six indicators of forced labour published by the International Labour Organisation (the ILO), which takes the view that, if at least two of the indicators are present, forced labour exists. The tribunal made no finding whether Miss Hounga was the victim of trafficking. No doubt it considered that it had no need to do so. It is only at this third level of appeal that the issue crops up again; and this courts duty to be fair to Mrs Allen demands that it should approach the issue with the utmost caution. Nevertheless, although the court should remember, for example, that Miss Hounga was not actually locked into the home, it is hard to resist the conclusion that Mrs Allen was guilty of trafficking within the meaning of the definition in the Palermo Protocol. Thus, of the ILOs six indicators of forced labour, there might be argument about the existence of the second (restriction of movement) but, on the tribunals findings, there certainly existed the first (physical harm or threats of it), the fourth (withholding of wages) and the sixth (threat of denunciation to the authorities where the worker has an irregular immigration status). Judicious hesitation leads me to conclude that, if Miss Houngas case was not one of trafficking on the part of Mrs Allen and her family, it was so close to it that the distinction will not matter for the purpose of what follows. The Council of Europe Convention on Action against Trafficking in Human Beings CETS No 197 (the Convention) was done in Warsaw on 16 May 2005 and, following ratification, the UK became obliged to adhere to it, as a matter of international law, on 1 April 2009. Among the purposes of the Convention, set out in article 1, are the prevention of trafficking, the protection of the human rights of victims and the design of a comprehensive framework for their protection and assistance. By article 4, the Convention imports the definition of trafficking set out in the Palermo Protocol. Article 15 provides: 3. Each party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. It is too technical an approach to an international instrument to contend that paragraph 3 relates to compensation only for the trafficking and not for related acts of discrimination. In my view it would be a breach of the UKs international obligations under the Convention for its law to cause Miss Houngas complaint to be defeated by the defence of illegality. As Lord Hoffmann said in R v Lyons [2002] UKHL 44, [2003] 1 AC 976, at para 27, Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. Article 4 of the European Convention on Human Rights provides: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. In Rantsev v Cyprus and Russia (2010) 51 EHRR 1 a Russian woman, aged 20, had gone to work as an artiste in a cabaret in Cyprus. Three weeks later she was found dead in a street. The European Court of Human Rights (the ECtHR) upheld her fathers complaint that Cyprus was in breach of article 4 in that its regime for the issue of visas for cabaret artistes had failed to afford effective protection to her against trafficking and that its police had failed properly to investigate events during those weeks which suggested that she was the victim of it. For present purposes the importance of the courts judgment lies in the following: 282. There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes slavery, servitude or forced and compulsory labour. Instead, the Court concludes that trafficking itself, within the meaning of article 3(a) of the Palermo Protocol and article 4(a) of the Anti Trafficking Convention, falls within the scope of article 4 of the Convention. In Siliadin v France (2005) 43 EHRR 287 the ECtHR ruled that a 15 year old girl, brought from Togo to France and made to work for a family without pay for 15 hours a day, had been held in servitude and required to perform forced labour and that France had violated article 4 by having failed to introduce criminal legislation which would afford effective protection to her. In CN v United Kingdom (2012) 56 EHRR 869 the court made an analogous ruling against the UK. After the events in that case, Parliament had provided, by section 71 of the Coroners and Justice Act 2009 which extends to England, Wales and Northern Ireland, that it is a specific criminal offence to hold a person in slavery or servitude or to require her (or him) to perform forced labour. No doubt mindful of their obligations under article 4, the UK authorities are striving in various ways to combat trafficking and to protect its victims. I refer, for example, to the Draft Modern Slavery Bill, Cm 8770, presented to Parliament in December 2013 and in particular to the amendments to it proposed by the government in its paper, Cm 8889, presented in June 2014 by way of response to the report of a parliamentary committee on the draft Bill. I note, for example, that one such amendment would provide a statutory defence to a victim of trafficking who, as a result, has been compelled to commit a crime. Although Miss Hounga is not in that category, the decision of the Court of Appeal to uphold Mrs Allens defence of illegality to her complaint runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims. The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront; and Miss Houngas appeal should be allowed. LORD HUGHES (with whom Lord Carnwath agrees) I agree that Miss Houngas appeal should be allowed in relation to her claim for the statutory tort of discrimination, committed in the course of dismissal. I also agree that it follows that her claim in relation to alleged pre dismissal harassment on grounds of race or ethnic origin (again a claim in relation to the statutory tort) should be remitted to the tribunal to determine whether the ground identified by the Court of Appeal for possible disapplication of the grievance procedure existed and, if so, whether the complaint was established. I am, however, unable to go quite so far in the basis for this conclusion as Lord Wilson feels able to do. As Lord Wilsons penetrating analysis clearly shows, a generalised statement of the conceptual basis for the doctrine under which illegality may bar a civil claim has always proved elusive. The same search for it produced a similar conclusion through no less than three concentrated Law Commission documents, Consultation Papers 154 (1999) and 160 (2001) and its report on the limited case of illegality as it affects claims to beneficial interests under trusts The Illegality Defence, Law Com 320 (March 2010). A case in which, as I understand it, all the members of this court are agreed on the outcome of the appeal is not a suitable vehicle to essay a general synthesis such as has been so difficult to formulate. I attempt no more than a bare summary of such aspects of the question as affect the present case, which is a claim in tort. Miss Houngas contractual claims have rightly not been pursued either in the Court of Appeal or in this court. The various analyses offered in past cases are largely, as it seems to me, different ways of expressing two connected aspects of the basis for the law of illegality. The first is that the law must act consistently; it cannot give with one hand what it takes away with another, nor condone when facing right what it condemns when facing left. The second is that before this principle operates to bar a civil claim, and particularly one in tort, there must be a sufficiently close connection between the illegality and the claim made. Neither proposition is suggested as a comprehensive test. En route to the answer in an individual case, the court is likely to need to consider also the gravity of the illegality of which the claimant is guilty and her knowledge or intention in relation to it. It will no doubt also consider the purpose of the law which has been infringed and the extent to which to allow a civil claim nevertheless to proceed will be inconsistent with that purpose. Other factors may arise in individual cases. It is via considerations such as these that the general public policy is to be served. Public policy very obviously underlies the rules upon illegality as it affects civil claims, but I do not think that the cases establish a separate trumping test of public policy. Whilst Lord Mansfields early statement of the law in Holman v Johnson (1775) 1 Cowp 341, 98 Eng Rep 1120 cannot be treated as a comprehensive test for the application of the law of illegality, it is important to remember one central feature of it, which remains true. When a court is considering whether illegality bars a civil claim, it is essentially focussing on the position of the claimant vis vis the court from which she seeks relief. It is not primarily focusing on the relative merits of the claimant and the defendant. It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimants claim to relief. Lord Mansfields classical expression of this principle was as follows: The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. This is, as it seems to me, consistent with elementary justice. If the bank robbers (or terrorists) are using explosives in their crime, and A is injured by a premature explosion attributable to the carelessness of B, it does not seem to me to be controversial to deny A a civil claim against B. That will not be because he voluntarily accepted the risk of Bs negligence; on the contrary he no doubt relied on B to do his job well. It will be because there is such a close connection between the illegality and the civil claim that the court could not consistently condemn the first and give relief upon the second. For the same reason, claims by one criminal against another in relation to bad driving in escape from the crime will fail. Conversely, when the illegality is not sufficiently closely connected to the claim, and can properly be regarded as collateral, or as doing no more than providing the context for the relationship which gives rise to the claim, the bar of illegality will not fall. An example is Saunders v Edwards [1987] 1 WLR 1116, where a claim in fraud relating to the sale of real property was not defeated by a collateral agreement between the parties to deflate the price in order to avoid stamp duty. Bingham LJ stated the principle thus, at p 1134: Where issues of illegality are raised, the courts have. to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct. [O]n the whole the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiffs action in truth arises directly ex turpi causa, he is likely to fail. [w]here the plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed. Once again, it can be seen that the proportionality to which Bingham LJ was directing his attention was such as lay between the claimants offence and the claim, not as between the claimants turpitude and that of the defendant. However, although the relative turpitude of claimant and defendant is not the test, the extent of the claimants turpitude may be relevant to determining whether there is a sufficiently close connection between the illegal act and the claim. An example is Vakante v Governing Body of Addey and Stanhope School (No 2) [2004] EWCA Civ 1065; [2005] ICR 231, in which the claimant had obtained his employment not only in breach of immigration law but also by criminal deception which caused the employers to take him on, and to risk themselves committing an offence, quite innocently; there his illegal acts were held to be so central to his claims for statutory discrimination, both in employment and in dismissal, as to bar them. For the reasons given by Lord Wilson, I agree that the claim of statutory tort in the present case was set in the context of the claimants unlawful immigration, but that there was not a sufficiently close connection between the illegality and the tort to bar her claim. Contrast her claim to recover for breach of contract of employment (or, by statutory extension, for unfair dismissal), when such claims depend on a lawfully enforceable contract of employment but her whole employment was forbidden and illegal. Human Trafficking? Human trafficking is a very serious crime, recognised both internationally and nationally. Those who practise it can expect, and receive in England and Wales, severe penalties. The position of those who have been transported is, however, more complex. First, the line between (on the one hand) trafficking properly so called and (on the other) the often rapacious demands for money made by agents of persons who are only too keen to be transported to a western country may sometimes be difficult to discern in a particular case. The latter situation is generally referred to as smuggling, to distinguish it from trafficking. Second, assuming that the case is indeed one of trafficking, properly so called, the question arises how offences committed by the trafficked person ought to be treated. The UK is bound by a series of international instruments, all of which adopt the same definition of trafficking, which originates in the Protocol to the UN Convention against Transnational Organised Crime, 2000 (the Palermo Protocol), ratified by the UK on 9 February 2006. The accepted definition is, as set out by Lord Wilson: For the purposes of this Protocol: (a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in subparagraph (a) of this article. The same definition appears in subsequent international instruments, the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197) (the Council of Europe Convention), ratified by the UK on 17 December 2008 and the directly effective EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (the EU Directive), which came into effect on 6 April 2013, after the events with which this case is concerned. The first two instruments are not part of English law, but it is of course a general principle of that law that ambiguous questions of construction are to be resolved in favour of compliance with the UKs international obligations where reasonably possible, and such obligations may similarly inform the application of open questions of common law. It follows that under these instruments transportation amounts to trafficking if, in the case of an adult it is (a) accomplished by threat, force, deception or the other forms of coercion referred to and (b) only if it is undertaken with a view to exploitation, in the sense defined. In the case of a child, (b) suffices. Assuming for the moment that Miss Hounga was a child at the time, which seems overwhelmingly likely, it remains necessary that the transportation was undertaken with a view to her exploitation. Her subsequent exploitation (again assuming despite the absence of findings that it is correctly so described) is no doubt evidence of a prior intent on the part of Mrs Allen, but it is not conclusive, and the tribunal has made no finding one way or the other. However that may be, if this was trafficking, the position of offence(s) committed by Miss Hounga remains to be considered. None of the international instruments, nor any rule of English criminal law, provides any automatic defence to a trafficked person who commits a criminal offence: see R v L(C) [2013] EWCA Crim 991; [2013] 1 All ER 113 per Lord Judge CJ at paras 13 and 17, and R v M(L) [2010] EWCA Crim 2327; [2011] 1 Cr App R 135 at paras 13 and 14. The mechanism of the instruments is different. The second and third of them (although not the first) stipulate that signatory States must have a system which allows for the discretionary non punishment of those who have committed offences which they were compelled by their trafficking to commit. This is particularly necessary in the several European countries where it is a general principle of the criminal law that prosecution must follow the commission of any offence (see for example section 152(2) of the German Code of Criminal Code of Procedure and article 112 of the Italian constitution) but it applies also in England and Wales where the Crown always has an ex post facto discretion to decide against prosecution if it is not judged to be in the public interest. Thus article 26 of the Council of Europe Convention provides: "Each party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so." Article 8 of the EU Directive is to the same effect: "Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to [trafficking]." Thus, the internationally recognised rule is clear, as is English criminal law. The trafficked victim, assuming that is what she is, is not relieved of criminal liability for an offence which she has committed. If, however, she was compelled to commit it as a direct consequence of being trafficked, careful consideration ought to be given to whether it is in the public interest to prosecute her. In the present case, there is no finding that Miss Hounga was compelled to commit the immigration offences which she committed; the tribunal understandably found that she was well aware of what she was doing and voluntarily did it in the hope of advantage. Young as she clearly was, she was no doubt under the influence of Mrs Allen and that would constitute very real mitigation if punishment were in question. But what her trafficking, if that is what it was, does not do is to take away the illegality of what she knowingly did. Article 6(6) of the Palermo Protocol provides: Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered. It is not possible to interpret this international obligation as requiring English law to permit Miss Hounga to recover damages for the statutory tort of discrimination. That statutory tort is not in any sense co extensive with trafficking or for that matter with exploitation. For the same reasons, it would not be possible to interpret this article as requiring English law to depart from its general principles of illegality so as to enable a person such as Miss Hounga to recover wages under an unlawful contract of employment. Moreover, the EU Directive, now in force, is more specific and explains what article 6(6) appears to have in mind: Article 17 Compensation to victims Member States shall ensure that victims of trafficking in human beings have access to existing schemes of compensation to victims of violent crimes of intent. For the sake of completeness, it should be noted that there are currently Government proposals to reinforce the English statutory law on trafficking: see the Draft Modern Slavery Bill (Cm 8770) and proposed adjustments to it following consideration by the joint parliamentary committee (Cm 8889). They are mostly directed to making more severe the controls of, and penalties upon, traffickers, but there are some which affect the position of victims. These are at present proposals only and there can be no certainty that they will be enacted in the form currently suggested. But even if they are, they would not alter the position set out above in any manner which would alter the conclusions set out above in relation to Miss Hounga. The proposals include: a. to provide a trafficked person with a statutory defence to a criminal offence but only where he or she has been compelled to commit the offence; this would be a change to English law, but there is in this case no sufficient evidence, still less a finding, that Miss Hounga was compelled to commit her immigration offences; b. to provide for amendments to the Proceeds of Crime Act 2002 so as to enable victims of trafficking to be compensated out of the confiscatable assets of traffickers; there is already a power to order compensation, which may be payable out of confiscatable assets, but even if this alters the position significantly it will be directed at compensation for trafficking and for the reasons set out above would not impact on the application of the ordinary principles of illegality as a bar to civil claims. Conclusion For these reasons my conclusion is that Miss Hounga succeeds in her appeal, on the particular facts of this case, on the ground that there is insufficiently close connection between her immigration offences and her claims for the statutory tort of discrimination, for the former merely provided the setting or context in which that tort was committed, and to allow her to recover for that tort would not amount to the court condoning what it otherwise condemns. But it is not possible to read across from the law of human trafficking to provide a separate or additional reason for this outcome. Even if one assumes in Miss Houngas favour that her treatment by Mrs Allen in England amounted to slavery or forced labour, and even if one assumes, without any findings of fact, that Mrs Allen brought her to England with the purpose of so treating her, she does not appear to have been compelled to commit the immigration offences which she certainly did commit. |
Three of the appeals involve linked issues as to the treatment of qualifying children and their parents, under the statutory regime contained in Part 5A of the Nationality, Immigration and Asylum Act 2002. The fourth (AP (Sri Lanka)) raises a related issue under the Rules. Part 5A, headed Article 8 of the ECHR: Public Interest Considerations, was introduced by amendment with effect from 28 July 2014 (section 19 of the Immigration Act 2014). By section 117A it is to apply where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under article 8, and would so be unlawful under section 6 of the Human Rights Act 1998. For these purposes, the public interest question is defined as the question whether such an interference is justified under article 8(2). Section 117A(2) provides: (2) In considering the public interest question, the court or tribunal must (in particular) have regard in all cases, to the considerations listed in section (a) 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. Section 117B, applicable in all cases, lists a series of such considerations. They include in summary, the public interest in the maintenance of effective immigration controls (subsection (1)); the public interest in those seeking to enter being able to speak English (subsection (2)), and be financially independent (subsection (3)); the little weight to be accorded to private life or relationships established when a person was in the country unlawfully (subsection (4)), or when immigration status was precarious (subsection (5)); and (directly relevant in this case) (6) In the case of a person who is not liable to deportation, the public interest does not require the persons removal where the person has a genuine and subsisting parental (a) relationship with a qualifying child, and (b) leave the United Kingdom. it would not be reasonable to expect the child to A qualifying child is defined for this purpose as a person under the age of 18 who is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more (section 117D(1)). The exclusion of persons liable to deportation covers non British citizens whose deportation is deemed conducive to the public good and foreign criminals as defined by the UK Borders Act 2007 (see Immigration Act 1971 section 3(5); UK Borders Act 2007 section 32(1) (4)). Section 117C sets out additional considerations in cases involving foreign criminals. For this purpose a foreign criminal is defined by section 117D(2) as a person, who not a British citizen, and who has been convicted of an offence in the United Kingdom, if it attracted a sentence of at least 12 months, or the offence caused serious harm or he is a persistent offender. To show the more intricate structure of this section, it needs to be set out in full: (1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (C) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires Cs deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where (a) C has been lawfully resident in the United Kingdom for most of Cs life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to Cs integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of Cs deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted. It is unnecessary to refer in detail to the Changes to the Immigration Rules made at the same time (paragraphs 398 399), since it is not argued that any differences are material to the issues before us. It is to be noted however that the question whether the effect of Cs deportation would be unduly harsh (section 117C(5)) is broken down into two parts in paragraph 399, so that it applies where: it would be unduly harsh for the child to live in the (a) country to which the person is to be deported; and (b) UK without the person who is to be deported. it would be unduly harsh for the child to remain in the The Appellants case, in short, is that in determining whether it is reasonable to expect a child to leave the UK with a parent (under section 117B(6)), or whether the effect of deportation of the parent on the child would be unduly harsh (under section 117C(5)) the tribunal is concerned only with the position of the child, not with the immigration history and conduct of the parents, or any wider public interest factors in favour of removal. By contrast the Secretary of State argues that both provisions require a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with removal or deportation of the parent. Paragraph 276ADE(1)(iv) The fourth appeal (AP (Sri Lanka)) raises related issues under paragraph 276ADE(1)(iv). That paragraph of the Rules comes under the heading Requirements to be met by an applicant for leave to remain on the grounds of private life. It reads: The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application the applicant: . (iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK. It will be seen immediately that the substance of this provision, in particular the seven year criterion and the reasonableness tests, appears identical to that of section 117B(6), taken with the definition of qualifying child. However, in this context the so called seven year concession for children has a much longer history. It was reviewed by the Upper Tribunal (McCloskey J, President, sitting with UT Judge Bruce) in PD (Sri Lanka) v Secretary of State for the Home Department [2016] UKUT 108 (IAC), [2016] Imm AR 797, paras 8ff. He traced its ancestry back to Deportation Policy 5/96 (DP5/96), as revised in February 1999. For present purposes it may be noted that the policy in its original form did not incorporate a reasonableness test, but did include in a list of relevant factors any history of criminal behaviour by the parents. Unfortunately, as the Court of Appeal graphically explained in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906, [2009] Imm AR 155, paras 22ff, the application of the policy in practice was plagued by confusion caused by differing or uncertain Ministerial and Departmental statements over the ensuing years. It was eventually withdrawn in December 2008. The accompanying Ministerial statement indicated that it would be replaced by consideration under the Immigration Rules and article 8, which would ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA (Hansard (HC Debates), 9 December 2008, Written Ministerial Statements, cols 49 50WS) . Returning to the Presidents account in PD, the new paragraph 276ADE(1)(iv) was first introduced with effect from 9 July 2012, but without a specific reference to reasonableness. The President (para 12) referred to the accompanying Ministerial Statement of Intent including the following: The key test for a non British citizen child remaining on a permanent basis is the length of residence in the UK of the child which the Immigration Rules will set as at least the last seven years, subject to countervailing factors. The changes are designed to bring consistency and transparency to decision making. (Statement of Intent: Family Migration (June 2012), para 56) Paragraph (iv) was amended (with effect from 13 December 2012) to its present form, including the reasonableness test, apparently without further Ministerial explanation of the change. The President also cited (para 16) relevant guidance contained in an Immigration Directorate Instruction (IDI) of the Home Office entitled Family Life (as a partner or parent) and Private Life: Ten Year Routes, published in August 2015, extracts of which were appended to the judgment (Appendix 2). They included a section headed Would it be unreasonable to expect a non British citizen child to leave the UK?, under which were set out a number of relevant considerations, such as risk to the childs health, family ties in the UK and the likelihood of integration into life in another country and: b. Whether the child would be leaving the UK with their parent(s) It is generally the case that it is in a childs best interests to remain with their parent(s). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right to remain in the UK. There was no reference in the list to the criminality or immigration record of the parents as a relevant factor. The most recent version of the IDI (22 February 2018), no doubt taking account of Court of Appeal decisions to which I shall refer below, includes an additional paragraph, which more closely reflects the Secretary of States submissions in the present case: The consideration of the childs best interests must not be affected by the conduct or immigration history of the parent(s) or primary carer, but these will be relevant to the assessment of the public interest, including in maintaining effective immigration control; whether this outweighs the childs best interests; and whether, in the round, it is reasonable to expect the child to leave the UK. (Family Migration: Appendix FM Section 1.0b. Family Life (as a Partner or Parent) and Private Life: Ten Year Routes, p 76) Interpretation General approach This group of sections needs to be looked at in the context of the history of attempts by the Government, with the support of Parliament, to clarify the application of article 8 in immigration cases. In Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 this court had to consider rule changes introduced with similar objectives in July 2012. The background to those changes was explained by Lord Reed (paras 19 21), their avowed purpose being to promote consistency, predictability and transparency in decision making, and to reflect the Governments and Parliaments view of how, as a matter of public policy, the balance should be struck (para 21). In a case heard shortly afterwards, R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, paras 8 10, Lord Reed referred to the previous law as established in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, where it was held that non compliance with the Rules, not themselves reflecting the assessment of proportionality under article 8, was the point at which to begin, not end consideration of article 8. The new Rules, as he said by reference to government policy statements, were designed to change the position comprehensively by reflecting an assessment of all the factors relevant to the application of article 8 (para 10). Part 5A of the 2002 Act takes that process a stage further by expressing the intended balance of relevant factors in direct statutory form. It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges. Rather than attempt a detailed analysis of all these impressive but conflicting judgments, I hope I will be forgiven for attempting a simpler and more direct approach. I start with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the best interests of children, including the principle that a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent (see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, para 10 per Lord Hodge). The specific provisions It is natural to begin with the first in time, that is paragraph 276ADE(1)(iv). This paragraph is directed solely to the position of the child. Unlike its predecessor DP5/96 it contains no requirement to consider the criminality or misconduct of a parent as a balancing factor. It is impossible in my view to read it as importing such a requirement by implication. As has been seen, section 117B(6) incorporated the substance of the rule without material change, but this time in the context of the right of the parent to remain. I would infer that it was intended to have the same effect. The question again is what is reasonable for the child. As Elias LJ said in MA (Pakistan) Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, [2016] 1 WLR 5093, para 36, there is nothing in the subsection to import a reference to the conduct of the parent. Section 117B sets out a number of factors relating to those seeking leave to enter or remain, but criminality is not one of them. Subsection 117B(6) is on its face free standing, the only qualification being that the person relying on it is not liable to deportation. The list of relevant factors set out in the IDI guidance (para 10 above) seems to me wholly appropriate and sound in law, in the context of section 117B(6) as of paragraph 276ADE(1)(iv). On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245: 22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, Why would the child be expected to leave the United Kingdom? In a case such as this there can only be one answer: because the parents have no right to remain in the UK. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made He noted (para 21) that Lewison LJ had made a similar point in considering the best interests of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, para 58: 58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin? To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree. There is nothing in the section to suggest that reasonableness is to be considered otherwise than in the real world in which the children find themselves. Turning to section 117C the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect. Instead, the remainder of the section enacts specific rules for two categories of foreign criminals, defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions. For those sentenced to less than four years, the public interest requires deportation unless exception 1 or 2 applies. For those sentenced to four years or more, deportation is required unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. The difficult question is whether the specific rules allow any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories. The general rule stated in subsection (2) might lead one to expect some such provision, but it could equally be read as no more than a preamble to the more specific rules. Exception 1 seems to leave no room for further balancing. It is precisely defined by reference to three factual issues: lawful residence in the UK for most of Cs life, social and cultural integration into the UK, and very significant obstacles to integration into the country of proposed deportation. None of these turns on the seriousness of the offence; but, for a sentence of less than four years, they are enough, if they are met, to remove the public interest in deportation. For sentences of four years or more, however, it is not enough to fall within the exception, unless there are in addition very compelling circumstances. Given that exception 1 is self contained, it would be surprising to find exception 2 structured in a different way. On its face it raises a factual issue seen from the point of view of the partner or child: would the effect of Cs deportation be unduly harsh? Although the language is perhaps less precise than that of exception 1, there is nothing to suggest that the word unduly is intended as a reference back to the issue of relative seriousness introduced by subsection (2). Like exception 1, and like the test of reasonableness under section 117B, exception 2 appears self contained. On the other hand the expression unduly harsh seems clearly intended to introduce a higher hurdle than that of reasonableness under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word unduly implies an element of comparison. It assumes that there is a due level of harshness, that is a level which may be acceptable or justifiable in the relevant context. Unduly implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parents offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 64) can it be equated with a requirement to show very compelling reasons. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more. KO and the cases on section 117C(5) I will start by looking in detail at KO because it was the decision of the Upper Tribunal in that case which highlighted the area of disagreement lying at the heart of the main issues in these appeals. There is said to be a difference as to the extent to which account is to be taken of the relative severity of the relevant offences. As will be seen, when it comes to the actual determinations of the cases, the differences seem more apparent than real. KO the facts KO entered the UK unlawfully in 1986 and has no leave to enter or remain. He has a wife, a step daughter, and four children with his wife. The four children were born between 28 August 2005 and 9 August 2013 and are British citizens. The step daughter who has indefinite leave to remain was born on 23 December 1997 and is now an adult. KO is a foreign criminal as defined in section 117D(2) of the 2002 Act, having been convicted in August 2011 of conspiracy to defraud and sentenced to imprisonment for 20 months. On 8 April 2014, the Secretary of State decided to deport him. A determination of the First tier Tribunal allowing his appeal was set aside by the Upper Tribunal, while preserving certain findings of fact, and directions made for a resumed hearing. In a decision dated 25 September 2015, UT Judge Southern took the view that in applying the unduly harsh test it was necessary to take account of the criminality of the parent. In that respect he differed from the view recently taken by the Upper Tribunal in MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435 16 June 2015 (UT Judge Grubb and Deputy UT Judge Phillips) (MAB). He determined that it would not be unduly harsh for the children to remain in the UK with their mother if KO were deported, but indicated that he would have reached a different view if required to focus solely on the position of the children. On 20 April 2016 the decision in KO was upheld by the Court of Appeal: MM (Uganda) v Secretary of State for the Home Department [2016] EWCA 617, [2016] Imm AR 954 (Laws, Vos, Hamblen LJJ). The earlier cases Authoritative guidance as to the meaning of unduly harsh in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), [2015] INLR 563, para 46, a decision given on 15 April 2015. They referred to the evaluative assessment required of the tribunal: By way of self direction, we are mindful that unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. Harsh in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb unduly raises an already elevated standard still higher. On the facts of that particular case, the Upper Tribunal held that the test was satisfied: Approached in this way, we have no hesitation in concluding that it would be unduly harsh for either of the two seven year old British citizen children concerned to be abruptly uprooted from their United Kingdom life setting and lifestyle and exiled to this struggling, impoverished and plague stricken west African state. No reasonable or right thinking person would consider this anything less that cruel. This view was based simply on the wording of the subsection, and did not apparently depend on any view of the relative severity of the particular offence. I do not understand the conclusion on the facts of that case to be controversial. The Secretary of States submission that section 117C(5) required the tribunal to balance, not merely the general interest in deportation of foreign criminals, but the relative severity of the particular offences, seems to have been first considered in detail by the Upper Tribunal in MAB noted above, although in the end the point was not determinative. The appellant had been sentenced to three years imprisonment for a number of sexual offences involving children and was to be deported to USA. The First tier Tribunal allowed his appeal, holding that it would be unduly harsh for his three children to have to live in the USA or to remain in the UK without him. This decision was reversed by the Upper Tribunal, which held following MK that it could not be established that the effect on the children was excessive, inordinate or severe, and that the only proper finding was that the effect on them was not unduly harsh (para 80). Again this view was reached without any consideration of the relative severity of the particular offences. However, the tribunal in MAB had earlier recorded a submission of Mr Richards, the Home Office Presenting Officer: Mr Richards submitted that even though deportation might have very harsh consequences, whether it was unduly harsh could only be determined by looking at the magnitude of the public interest furthered by the individuals deportation. He submitted that the more serious the crime the greater must be the consequences for them to be properly characterised unduly harsh. (para 50) At this time it seems to have been accepted by the Department that the issue of reasonableness under section 117B focussed only on the position of the child, but it was submitted that section 117C (and the equivalent paragraph 399) represented a change of approach. This submission was rejected: Mr Richards accepted the issue of whether it would be reasonable for a child to live in the deportees country or remain in the UK without the deportee did not involve an assessment of the public interest. We had also never understood it to require that. We do not consider that the replacement of reasonableness with unduly harsh had changed the approach to the Rules. Now, as then, the focus is on the impact upon the individual child (or partner) (para 72) The tribunal found some support for that approach in the use of the same expression, unduly harsh, in the context of asylum claims, where the possibility of internal relocation is in play, and where there is no balancing exercise but rather an evaluative exercise as to whether an individual cannot be expected to move and live within their own country because of the impact upon him or her. (para 73) Given that the decision in MAB was a fully reasoned judgment of a two judge Upper Tribunal, it is not clear why the Secretary of States representative felt it appropriate to argue for a different approach in KO, heard only three months later. (I will return to this point at the end of the judgment.) Nor is it clear from the report what if any submission was made about the relationship of sections 117B and 117C. However in KO Upper Tribunal Judge Southern disagreed with the approach of the tribunal in MAB. He thought that they had given insufficient weight to the need to give effect to different levels of criminality under section 117C(2). As he explained: One response to this difficulty might be thought to be as follows. As the rules themselves distinguish between levels of criminality by providing a different framework for those who have been sentenced to more than four years imprisonment, is that sufficient to accommodate the requirements of section 117C(2)? However, an example illustrates how that is not an adequate response. Imagine two persons, A and B, who are foreign criminals facing deportation. A has been sentenced to 12 months imprisonment for, say, making a fraudulent motor insurance claim. B has been sentenced 47 months imprisonment for a serious offence of possession [of] class A drugs with intent to supply, a category of offence that the Secretary of State considers to be particularly serious in the context of immigration control. If the approach advocated in MAB were correct there would be no basis upon which to distinguish between those two foreign criminals, despite the demand of section 117C(2) (para 15) The same emphasis on section 117C(2) was at the heart of the key passage of the judgment of Laws LJ in MM (Uganda) in holding that MAB was wrongly decided: 23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest in the removal of foreign criminals, is expressly vouched by Parliament in section 117C(1). Section 117C(2) then provides (I repeat the provision for convenience): The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. 24. This steers the tribunals and the court towards a proportionate assessment of the criminals deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the unduly harsh provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term unduly is mistaken for excessive which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminals immigration and criminal history. He found no assistance in parallels with the use of the same term in the refugee law, since the asylum context of internal relocation issues was far removed from that of the present rules (para 25). He concluded that MAB was wrongly decided and that the expression unduly harsh in section 117C(5) and in the rules, requires regard to be had to all the circumstances including the criminal's immigration and criminal history (para 26). Laws LJs approach has the advantage of giving full weight to the emphasis on relative seriousness in section 117C(2). However, on closer examination of the language of the two exceptions, and of the relationship of the section with section 117B, as discussed above, I respectfully take a different view. Once one accepts, as the Department did at that stage (rightly in my view), that the issue of reasonableness under section 117B(6) is focussed on the position of the child, it would be odd to find a different approach in section 117C(5) at least without a much clearer indication of what is intended than one finds in section 117C(2). It is also difficult to reconcile the approach of Judge Southern or Laws LJ with the purpose of reducing the scope for judicial evaluation (see para 15 above). The examples given by Judge Southern illustrate the point. On his view, the tribunal is asked to decide whether consequences which are deemed unduly harsh for the son of an insurance fraudster may be acceptably harsh for the son of a drug dealer. Quite apart from the difficulty of reaching a rational judicial conclusion on such a question, it seems to me in direct conflict with the Zoumbas principle that the child should not be held responsible for the conduct of the parent. The decision in KO However, when one comes to the actual decision of Judge Southern in KO, it is not clear that his approach was materially different from that of the President in MK or indeed the tribunal in MAB. He adopted with one qualification the guidance in MAB as to the meaning of unduly harsh test: The consequences for an individual will be harsh if they are severe or bleak and they will be unduly so if they are inordinately or excessively harsh taking into account all of the circumstances of the individual Although I would add, of course, that all of the circumstances includes the criminal history of the person facing deportation. (para 26) Applying that test he said: 43. There is undoubtedly a close relationship between this father and his children, as one would expect in any family living together as does this one. The preserved finding of fact is that, although it would not be unduly harsh for the four younger children to move to Nigeria, the reality of the situation is that they will remain here and, as the family relationships cannot be maintained by modern means of communication, there will be a complete fracture of these family relationships. The claimant is not authorised to work and so has been unable to provide financial support for his family but his role within the household has meant that his wife has been able to work, which she would find hard or impossible if she had to care on a daily basis for the children without her husband's assistance. Thus it is said that if the claimant is removed, the main household income will be lost and the children would be subject to economic disadvantage. But, again, that is not an experience that can, in my judgment, be categorised as severe or bleak or excessively harsh as, like any other person lawfully settled in the United Kingdom, the claimant's wife and family will have access to welfare benefits should they be needed. 44. Nor do I have any difficulty in accepting the submission that the children, who have enjoyed a close and loving relationship with their father, will find his absence distressing and difficult to accept. But it is hard to see how that would be any different from any disruption of a genuine and subsisting parental relationship arising from deportation. As was observed by Sedley LJ in AD Lee v Secretary of State for the Home Department [2011] EWCA Civ 248: Judge Southern went on to consider how he would have decided the case applying his understanding of the approach in MAB. He described the difference as stark: The tragic consequence is that this family, short lived as it has been, would be broken up for ever, because of the appellants bad behaviour. That is what deportation does. This family relationship was not, of course, short lived but the point is the same. Nothing out of the ordinary has been identified to demonstrate that in the case of this particular family, when balanced against the powerful public interest considerations in play, although the children will find separation from their father to be harsh, it will not be, in all of the circumstances, unduly harsh for them each to remain in the United Kingdom after their father is removed to Nigeria. (paras 43 44, emphasis added) It will be recalled that the MAB approach has been summarised as follows: The phrase unduly harsh in paragraph 399 of the Rules (and section 117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned. In this appeal if there is to be no balancing exercise requiring the public interest to be weighed and if the focus is solely upon an evaluation of the consequences and impact upon the claimants children, it is clear that the application of paragraph 399(a) can deliver only one answer, that being that it would be unduly harsh for the claimant's children to remain in the United Kingdom without their father, given that there is a close parental relationship which cannot be continued should their father be deported. (para 45) Miss Giovanetti for the Secretary of State takes issue with that alternative reasoning, which she criticises as applying too low a standard. I agree. The alternative seems to me to treat unduly harsh as meaning no more than undesirable. Contrary to the stated intention it does not in fact give effect to the much stronger emphasis of the words unduly harsh as approved and applied in both MK and MAB. Conversely, I find the main reasoning difficult to fault. It is notable that, in that passage, contrary to the thrust of the earlier discussion, no account is taken of the seriousness of the particular offences, or of the particular criminal history of the father. On its face that approach seems no different from that which I have accepted as correct in the earlier discussion. It is also consistent with that in the end adopted by the Upper Tribunal on the facts of MAB and by contrast with its response to the much more severe situation considered in MK. For these reasons I would dismiss the appeal in KO. The other cases Against that background I can deal more shortly with the other cases. IT is also a foreign criminal by reason of his conviction on four counts of supplying class A drugs, for which he was sentenced to imprisonment for 42 months. A deportation order was made against him on 29 October 2009, an appeal against that decision was dismissed and IT was deported to Jamaica on 21 July 2010, where he continues to reside. He has a wife (the sponsor) and child (R, born 30 September 2002) in the UK, who are both British nationals. IT applied to revoke his deportation order on 23 September 2013. That application was refused on 9 May 2014. In a decision given on 5 September 2014, the First tier Tribunal allowed ITs appeal, holding that the consequences were unduly harsh for the child R. It acknowledged the seriousness of the appellants offences, and that the more serious the offence the greater the public interest in deportation (para 33). However it noted that R had special educational needs and medical problems associated with microcephaly, and that he was about to start secondary school and was on the brink of puberty. The consequences were not unduly harsh for the sponsor, who could relocate to Jamaica. In Rs case however the threshold was crossed. It found that the parental relationship between IT and R was subsisting and genuine, adding: It is claimed that [R] cannot join the appellant in Jamaica because [R] has a flying phobia. There is no objective evidence of that. Following Sanade (British Children Zambrano Dereci) [2012] UKUT 48 (IAC); [2012] Imm AR 597, however, we find that [R] is a British citizen and it is not possible to expect him to relocate outside the European Union (para 30) The tribunal concluded: 33. [R] has reached an important stage in his life where his particular needs are likely to increase. The Sponsor cannot reasonably be expected to cope alone. 34. The consequences of deportation for the appellant are harsh: he is separated from his wife and child and step children but we find that that is the foreseeable consequence of his serious criminal behaviour. All other things being equal, those consequences could be mitigated by the Sponsor and [R] joining the appellant in Jamaica and living with him there, alternatively by visits and regular contact by telephone and other means. It is clear from the decision of the Upper Tribunal in Sanade however that as the Sponsor and [R] are British citizens and therefore citizens of the European Union, it is not possible to require them to relocate outside the European Union. Moreover, although the Sponsor has visited the appellant three times in the last four years [R] has not done so because of a phobia of flying. As a result [R] has not seen his father for over four years and has no prospect of doing so for the remainder of his childhood while the deportation order remains in effect. Given [R]s condition and special educational needs, we find that the consequences of not revoking the deportation order are unduly harsh and we allow the appeal. On 12 January 2015 the Upper Tribunal dismissed the Secretary of States appeal. It confirmed the relevance of the decision in Sanade (para 18). It accepted that the tribunal had found no evidence to support the alleged phobia of flying but saw this as one aspect of the determination, which did not have any material effect on the overall outcome (para 22). The Court of Appeal [2017] 1 WLR 240 took a different view, in a judgment given by Arden LJ. Although this was a case about revocation of a previous deportation, rather than deportation as such, she noted that it was effectively common ground that section 117C applied so that the deportation order could only be revoked if its retention is determined to be unduly harsh; the dispute was as to the weight to be given in that determination to the public interest in deporting foreign criminals who have committed serious offences (para 2). By that time MM (Uganda) had been decided. Following the approach in that case, she said: the public interest must be brought into account. Therefore, the court must know what that public interest is in any particular circumstance in order to give appropriate weight to it (para 51). She added: 54. Moreover, it is clear from section 117C(2) that the nature of the offending is also to be taken into account. The tribunal will have access to the circumstances of the offence and to the length of the sentence and so on. 55. Subsection (1) and (2) of section 117C together make manifest the strength of the public interest. In order to displace that public interest, the harshness brought about by the continuation of the deportation order must be undue, ie it must be sufficient to outweigh that strong public interest. Inevitably, therefore, there will have to be very compelling reasons She found little evidence that the tribunal had given appropriate weight to the public interest, for example by considering alternative ways in which Rs care needs could be met, or whether his phobia about flying ruled out other forms of contact, for example in some other part of Europe which he could access by car or train. She concluded: 62. I conclude that the FTT did not demonstrate that they had given appropriate weight to the public interest. If the FTT indeed considered that the circumstances were very compelling, it was for them to demonstrate this in the reasons they gave . 64. The balancing exercise in this case has to be performed again. The FTT did not seek to analyse whether there were very compelling reasons why the deportation order should be revoked Mr Drabble for IT submits that the courts reasoning is open to the same criticisms as the decision in MM (Uganda) on which it relied. In any event he criticises the courts introduction of a compelling reasons test which is not found in the relevant sub section. I agree that for that reason at least the Court of Appeals reasoning cannot stand. The FTT could not be criticised for not applying a test which was not in the relevant provision. For the reasons I have given, I also think it was wrong to proceed on the basis that section 117C(2) required the nature of the offending to be taken into account. It is to be noted that the decisions of both tribunals were made before the guidance given in MK and later cases as to the high hurdle set by the unduly harsh test. It may be that with the benefit of that guidance they would have assessed the facts in a different way. However, I do not consider that the decisions can be challenged for that reason alone. If the tribunals applied the correct test, and, if that may have resulted in an arguably generous conclusion, it does not mean that it was erroneous in law (see R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10; [2017] 1 WLR 771, para 107). The Court of Appeals suggestion that they should have considered alternatives ways of meeting, perhaps in Europe, does not seem to have been part of the Departments case before the tribunal. However, Miss Giovanetti submits that the tribunal erred in proceeding on the basis that R, as a British citizen, could not be expected to relocate outside the UK. In so far as a concession to that effect was made in Sanade (British children Zambrano Dereci) [2012] UKUT 48, [2012] Imm AR 597, it was in error, as had since been confirmed by the Court of Appeal (Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 255, para 64). I agree that on this point the First tier Tribunal erred in law (although there appears to be some uncertainty about the Departments current practice on this issue). There is also a significant inconsistency in the tribunals reasoning in the other part of its concluding paragraph. Having earlier accepted that the alleged phobia of flying was unsupported by evidence, it went on to treat it as one of the reasons for allowing the appeal. I cannot agree with the Upper Tribunal that this point was immaterial. For these reasons I would dismiss the appeal and confirm the order of the Court of Appeal for remittal to the Upper Tribunal. NS and AR both entered the UK as students, on 19 February 2004 and 4 February 2003 respectively. NSs wife and elder child entered as dependants of NS in December 2004. NS has a second child, born in the UK in 2008. ARs wife and child entered as his dependants in February 2004. In October 2008, NS and AR made separate applications for leave to remain as Tier 1 (post study worker) migrants. In early 2009 the Secretary of State refused these applications on the basis that both NS and AR were involved in a scam by which they (and numerous others) falsely claimed to have successfully completed postgraduate courses at an institution called Cambridge College of Learning (CCL). NS and AR both appealed against the Secretary of States decisions. After some procedural delays, their appeals were ultimately joined, and came before UT Judge Perkins. In a determination issued on 5 November 2014, he dismissed the appeals, finding that NS and AR had deliberately submitted false documents to support applications to extend their stays, and by so doing were acquiescing in a cynical plot to undermine the Rules by issuing meaningless certificates (para 179). He acknowledged however that the difficulty is the children (para 182). It is unnecessary to set out in full the extended passage in which he carefully considered their position against the principles set out in section 117B. He started by referring to section 117B(6), of which he said: I remind myself that this is a NOT a deportation case and so the public interest does not require the persons removal where (a) the person has a genuine and subsisting parental relationship with a qualifying child (as is clearly the case here) and (b) it would not be reasonable to expect the child to leave the United Kingdom (see section 117B(6)). (para 183) He also referred to section 117B(5) requiring that little weight should be given to a private life established by a person at a time when the persons immigration status is precarious: I am satisfied that their status became precarious [at latest] when their applications for further leave were refused in 2009 so much of the private life relied upon attracts little weight. (para 186) He referred in detail to the evidence of the childrens experience of this country and their likelihood of being able to adapt to Sri Lanka. He thought that the parents would do well for the children in Sri Lanka just as they have in the United Kingdom, but added: He concluded: Nevertheless the children will lose much. They have no knowledge of life outside the United Kingdom and have done well in the United Kingdom. If they remained they could be expected [to] take full advantage of the education system and removing them will unsettle them. I have no difficulty in concluding that the best interests of the children require that they remain in the United Kingdom with their parents where they are settled. That, from their point of view, would be an ideal result. (paras 193 194) I do remind myself that one of the children, particularly, has been in the United Kingdom for more than ten years and that this represents the greater part of a young life by someone who can be expected to be establishing a private and family life outside the home. I remind myself, too, that none of the children here have any experience of life outside the United Kingdom and they are happy and settled and doing well. The fact is their parents have no right to remain unless removal would contravene their human rights. I remind myself of my findings concerning the need to maintain immigration control by removing the first, second and third appellants. Given their behaviour I would consider it outrageous for them to be permitted to remain in the United Kingdom. They must go and in all the circumstances I find that the other appellants must go with them. (paras 198 199) Mr Knafler supports the other appellants in their challenge to the reasoning of MM (Uganda). He says that it is even clearer in the context of section 117B that parental misconduct is to be disregarded. I accept that UTJ Perkins final conclusion is arguably open to the interpretation that the outrageousness of the parents conduct was somehow relevant to the conclusion under section 117B(6). However, read in its full context I do not think he erred in that respect. He had correctly directed himself as to the wording of the subsection. The parents conduct was relevant in that it meant that they had to leave the country. As I have explained (para I would dismiss this appeal. 18 above), it was in that context that it had to be considered whether it was reasonable for the children to leave with them. Their best interests would have been for the whole family to remain here. But in a context where the parents had to leave, the natural expectation would be that the children would go with them, and there was nothing in the evidence reviewed by the judge to suggest that that would be other than reasonable. Pereira (AP) AP is now 19 years of age. He first came to the UK on 6 August 2006, with his parents, and as the dependant of his father (Mr P) who had been granted leave to enter as a student, and obtained further grants of leave, up until 15 August 2012. On 15 August 2012, Mr P applied for a Tier 1 (Entrepreneur) visa. His leave, and that of his family including AP, were extended whilst that application was determined and the refusal unsuccessfully appealed. On 5 November 2013, AP applied for leave to remain in reliance upon paragraph 276ADE(1)(iv) of the Rules, since he had by that time been living continuously in the UK for seven years. The Secretary of State refused this application on 18 March 2014. APs appeal against this decision initially succeeded before the First tier Tribunal, but on 19 June 2015 the Upper Tribunal set aside this determination and, re determined and then dismissed APs appeal. It held that it was reasonable for AP to accompany his parents to their country of origin at what was a natural break in his education, and that the decision was proportionate. APs appeal was one of the cases before the Court of Appeal in MA (Pakistan) [2016] 1 WLR 5093. The Court of Appeal allowed his appeal on the basis, not of an error under the rule, but that the tribunal judge had erred in his approach to proportionality by failing to identify APs best interests or recognise them as a primary consideration (para 116 per Elias LJ). It ordered that the case should be remitted to the Upper Tribunal for a fresh determination. Mr Gill argues that, applying the correct approach to paragraph 276ADE(1)(iv), APs appeal should have succeeded under that rule also. The Secretary of State points out that, since AP is now aged 19 and has spent more than half of his life living continuously in the UK, he is in principle qualified for leave to remain under paragraph 276ADE(1)(v) of the Rules. It seems to me unnecessary to say more about this case, which is to be remitted in any event to the tribunal. The issues before the tribunal were not limited by the order. If it is not disposed of by agreement as suggested by the Secretary of State, it will fall to be considered in accordance with the law as stated in this judgment including the correct approach to para 276ADE(1)(iv). I would therefore simply dismiss the appeal, and confirm the order of the Court of Appeal remitting the case to the tribunal. Concluding remarks I end with a brief comment on procedure. It has taken almost four years for these cases to reach the Supreme Court. In the meantime there have been significant differences of approach and conflicting decisions at each level. The view of the Department itself, at least of the effect of section 117B(6), seems to have changed over time. I have noted the continuing debate before the Upper Tribunal and the Court of Appeal. Unfortunately these differences are far from surprising given the unhappy drafting of the statutory provisions. But it was clearly desirable that a definitive interpretation could be settled as quickly as possible. At the Upper Tribunal level Judge Southern was not strictly bound by the previous decision in MAB, although judicial comity would normally lead to it being treated as persuasive unless there were clear reasons for taking a different view. There is provision under the relevant Practice Directions for starred decisions to be treated as authoritative (Para 12.1 of the Practice Directions for the Immigration and Asylum Chamber of the First tier Tribunal and the Upper Tribunal); and see Nationality, Immigration, and Asylum Act 2002, section 107(3)) (as inserted by para 22 of Sch 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and as substituted by para 28 of Sch 1 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (SI 2010/21)) . It may be that the uncertainty at that level could have been resolved at an early stage by selecting a suitable case for such treatment. This of course would not resolve the problem of disagreements at Court of Appeal level. However, I note that there is now provision in suitable cases for leapfrog of appeals from the Upper Tribunal to the Supreme Court. This was introduced by section 64 of the Criminal Justice and Courts Act 2015, by way of insertion of new section 14A and B into the Tribunal, Courts and Enforcement Act 2007. The procedure requires a certificate from the Upper Tribunal, one ground being that a point of law is involved of general public importance relating wholly or mainly to the construction of a statutory provision, which has been fully argued and considered in the Upper Tribunal (section 14A(4)(a)). It is then for the Supreme Court to decide whether it is expedient to grant permission (section 14B(3)). Clearly it is a procedure which should be used with care, since it will normally be more satisfactory for these issues to be resolved at Court of Appeal level, and in any event for the Supreme Court to have the benefit of its views. However, these appeals raised a relatively narrow point of construction of a new set of provisions intended to clarify a contentious area of law applicable to many cases before the Secretary of State and the tribunals. I say no more than that its use could properly be considered in future cases raising comparable issues, and calling for speedy resolution in the public interest. |
The Police and Criminal Evidence Act 1984 (PACE) consolidated various police powers to obtain evidence for the purposes of a criminal investigation. Generally, a magistrate has power under section 8 to issue a search warrant on an ex parte application by a constable if satisfied, among other things, that there are reasonable grounds for believing that an indictable offence has been committed and that there is material on the relevant premises which is likely to be of substantial value to the investigation. However, that general power does not apply in relation to material which is defined in the Act as excluded material (section 11) or special procedure material (section 14). Excluded material includes journalistic material which a person holds in confidence. Special procedure material includes journalistic material other than excluded material. Journalistic material means material acquired or created for the purposes of journalism, provided that it in the possession of a person who acquired or created it for the purposes of journalism (section 13). There is a special procedure for a constable to apply for access to excluded or special procedure material under section 9 and schedule 1. The application has to be made to a circuit judge and paragraph 7 requires it to be made inter partes. The issue in this appeal is whether on the hearing of such an application the court may have regard to evidence adduced by the applicant which has not been disclosed to the respondent. The Administrative Court held that it was impermissible but certified the question as one of general public importance. In reaching its conclusion the court relied on the statutory wording and on the decision of this court in Al Rawi v The Security Service [2011] UKSC 34, [2012] 1 AC 531. The Metropolitan Police Commissioner [the Commissioner] appeals against the decision. Background On 2 March 2011 police arrested two officers serving in the armed forces, AB and CD, on suspicion of offences under section 1(1) or 1(3) of the Official Secrets Act 1989. The investigation concerned the suspected leaking of top secret information from meetings of the Cabinet security committee known as COBRA (short for Cabinet Office Briefing Room A) by the two officers to B Sky Bs security editor, Mr Sam Kiley. In July 2012 (about the same time as permission was given for the present appeal) the investigation was closed and the officers were told that no proceedings would be brought against them. The appeal is therefore now academic as far as they are concerned, but it is pursued by the Commissioner because of the wider importance of the point of law which it raises. Under section 1(1) of the Official Secrets Act 1989 it is an offence for a person who is or has been a member of the security and intelligence services, or who has been notified that he is subject to the provisions of the subsection, to make an unauthorised disclosure of intelligence which is in his possession by reason of his position. Under section 1(3) it is an offence for a present or former Crown servant to make an unauthorised and damaging disclosure of intelligence in his possession by reason of his position, but not within section 1(1). In brief, a disclosure is defined as damaging if it causes damage to the work of any part of the security and intelligence services, or is of information, a document or other article, or within a class of information, document or other article, whose unauthorised disclosure would be likely to have that effect. Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security, first in print journalism (becoming the chief foreign correspondent for the London Evening Standard) and more recently in broadcast journalism. In 2008 he was an embedded journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time. Through his work Mr Kiley has established contacts with many senior military personnel. On the day after AB and CD were arrested, the police informed B Sky B that a criminal investigation had begun and asked for disclosure of various documents including copies of all emails between Mr Kiley and the two officers since October 2010. After inconclusive discussions between the two organisations, on 14 April 2011 the police served an application for a production order under schedule 1, paragraph 4, supported by a statement signed by Detective Sergeant Holt. The statement asserted that technical work on the two officers computers and mobile phones showed that information had been sent by them to Mr Kiley after Cobra meetings which had then appeared almost immediately on the B Sky B ticker; that in interviews after their arrest the officers had admitted passing information to Mr Kiley; and that if the unauthorised information had become known to hostile forces it was likely to have endangered the lives of military personnel. The statutory scheme in more detail Section 9 of PACE removes any pre existing power to authorise a search of premises for excluded or special procedure material, but provides instead for a constable to be able to obtain access to such material for the purposes of a criminal investigation by making an application under schedule 1. Under paragraph 4 of the schedule, if the judge is satisfied that one or other of two sets of access conditions is fulfilled, he may make a production order, that is an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall a. produce it to a constable for him to take away; or b. give a constable access to it, not later than the end of the period of 7 days from the date of the order or the end of such longer period as the order may specify. The two sets of access conditions are specified in paras 2 and 3. The application was made under both although the first set does not apply to excluded material. The requirements of the first set include that there are reasonable grounds for believing: that an indictable offence has been committed; that there is special procedure material on the premises specified in the application or on premises occupied or controlled by a person specified in the application; that the material is likely to be of substantial value to the investigation in connection with which the application is made; and that the material is likely to be relevant evidence. The judge must also be satisfied that a production order is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained and to the circumstances under which the person in possession of the material holds it. The requirements of the second set of access conditions are that: there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application, or on premises occupied or controlled by a person specified in the application. ; but for section 9(2) a search of such premises could have been authorised by the issue of a warrant to a constable under an enactment other than the schedule; and the issue of such a warrant would have been appropriate. Paragraph 15 provides that if a person fails to comply with an order under paragraph 4, a circuit judge may deal with him as if he had committed a contempt of the Crown Court. The court has a power to issue a search warrant in limited circumstances. These are specified in paragraphs 12 and 14. They include a situation where a circuit judge is satisfied that either set of access conditions is fulfilled but also that service of notice of an application for a production order may seriously prejudice the investigation. The production order The application was heard on 26 April and 3 May 2011 by His Honour Judge Paget QC at the Central Criminal Court. The judge had been provided with the parties skeleton arguments, the statement of D Sgt Holt and a statement by the managing editor of Sky News, Mr Thomas Cole. The Commissioners skeleton argument indicated that he wished to put further evidence from D Sgt Holt before the judge in the absence of B Sky Bs representatives. B Sky B objected to that course and resisted the application for a production order on various grounds. It submitted that nearly all the information sought by the police was excluded material and therefore the second set of access conditions had to be satisfied. It also disputed that either set was fulfilled. It pointed out that there was no evidence that the officers were persons within section 1(1) of the Official Secrets Act. As to section 1(3), it denied that there was any risk of Mr Kiley or B Sky B publishing or disclosing any information which might damage armed forces operations or national security; Mr Kiley had a long journalistic career and there had never been any suggestion of him acting in a way which threatened to damage national security. B Sky B also contended that the making of a production order would be seriously damaging to B Sky B and Mr Kiley reputationally and personally. The judge allowed the Commissioners application to hear part of D Sgt Holts evidence ex parte and he made a production order. In his judgment he said: I heard evidence from Detective Sergeant Patrick Holt, an officer of the Metropolitan Police Counter Terrorism Command. I heard his evidence in two parts. I heard him first inter partes, when he swore that the open or disclosed information which he produced was true to the best of his knowledge and belief. I then heard him ex parte, when he produced his secret or undisclosed information and swore that that too was true to the best of his knowledge and belief. It is unnecessary to say more about the secret information, save to record that it amplifies in greater detail the information set out in the open information disclosed to B Sky B. He added that the evidence which he heard ex parte did not detract from or assist the arguments put forward by B Sky B. The Administrative Court (Moore Bick LJ and Bean J) quashed the order. It held that the procedure adopted at the hearing was unlawful, applying the reasoning in Al Rawi. It rejected the Commissioners argument that Al Rawi was distinguishable because the present case was concerned only with a procedural application for an order in aid of a police investigation. They were independent proceedings by which the Commissioner was seeking to obtain access to private property of a sensitive kind. The fundamental principle applied that B Sky B should have access to the evidence on which the case against it was based and thus an opportunity to comment on it and, if appropriate, to challenge it. On that ground the court held the order should not be allowed to stand. The question on this appeal is whether it was right. That was enough to determine the outcome, but there was also a second reason for the Administrative Courts decision. The court did not consider that the limited evidence given in the open proceedings showed any basis for suspecting that any disclosures made to Mr Kiley had caused or might cause damage to the security or intelligence services. Although reference had been made in general terms to military operations, no attempt had been made to identify or provide details of any disclosure of information which had been or was likely to be damaging. Since the judge appeared to be of the view that the secret evidence did not make any material difference, it followed that there was insufficient basis for the order. I mention the last point, although no point of law turns on it, because Mr James Lewis, QC (who represented the Commissioner on the hearing of the original application) has told this court that the evidence given in secret did materially strengthen the case for making the order because it went to the nature of the information disclosed by the officers which the police considered to be potentially damaging. There is no suggestion of anybody acting in bad faith, but this does illustrate the difficulty of being sure what led to the making of the order when some of the evidence was kept from one of the parties and the open judgment naturally did not identify what that evidence was. Further, if the secret evidence materially strengthened the case in a way which B Sky B was unable to envisage and therefore address, because it did not know the nature of the evidence, the resulting prejudice to B Sky B speaks for itself. Discussion In Al Rawi the Supreme Court by a majority affirmed the general principle that in a civil trial, just as in a criminal trial (R v Davis [2008] AC 1128) the use of a closed material procedure was so alien to the right of a party to know the case advanced by the opposing party and to have a fair opportunity to respond to it as to be permissible only by Act of Parliament. Lord Dyson, who gave the leading judgment, recognised at paragraphs 63 to 65, that there were certain classes of case where a departure from the general rule might be justified for special reasons in the interests of justice. He instanced welfare proceedings whose object of determining what is best for the child or person under a disability may be jeopardised by unqualified disclosure to the litigants of all information provided to the court. Lord Dyson also referred to cases where the whole object is to protect confidentiality, for example intellectual property proceedings, where special measures are sometimes needed in order to prevent the proceedings from being self destructive, for example by limiting the persons who may see confidential information. In the present case B Sky B offered undertakings to restrict those who would see the Commissioners evidence to a nominated member of its management who could give instructions to B Sky Bs lawyers and to the lawyers, and that the material would be used only for the purposes of the proceedings, but this proposal was not acceptable to the police. The proceedings in this case were not a trial in the ordinary sense but a special form of statutory procedure. Bingham LJ set out the proper approach to the scheme in R v Lewes Crown Court ex parte Hill (1991) 93 Cr App R 60, 65 66: The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a public interest in protecting the personal and property rights of citizens against infringement and invasion. There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so. The 1984 Act seeks to effect a carefully judged balance between these interests and that is why it is a detailed and complex Act. If the scheme intended by Parliament is to be implemented, it is important that the provisions laid down in the Act should be fully and fairly enforced. It would be quite wrong to approach the Act with any preconception as to how these provisions should be operated save in so far as such preconception is derived from the legislation itself. It is, in my judgment, clear that the courts must try to avoid any interpretation which would distort the parliamentary scheme and so upset the intended balance. Citing R v Leicester Crown Court ex parte DPP [1987] 1 WLR 1371, Bingham LJ referred (at page 67) to a section 9 application as a lis between the party applying and the party against whom the application was made. Mr Lewis argued that the reasoning in Al Rawi should not be applied to a section 9 application. Unlike an ordinary trial, no accusation or case was being made against B Sky B and the court was not being called on to make any determination of its legal rights. It was simply an evidence gathering exercise for the purposes of a criminal investigation. There was no need as a matter of fairness for B Sky B to know full details of the evidence which caused the police to suspect the officers of having committed criminal offences. Ignorance of the full evidence did not prevent B Sky B from saying what it wished about the nature of any relationship between itself and the officers or about the potential harmful effects of a production order. Furthermore, compulsion to disclose full details of the police evidence in an Official Secrets Act investigation could itself involve the risk of damage to national security and for that reason the Administrative Courts decision had hampered police investigation in other cases. That is one viewpoint, but there is another as Bingham LJ said in the Lewes case. Mr Gavin Millar QC emphasised that an application for compulsory access to journalistic material held in confidence involves a significant interference with the journalists legal rights. It is therefore not correct to say that such an application does not involve any determination of rights. It is a possibly unusual feature of the present case that the police knew the journalists source and the officers had admitted giving information to him, but a section 9 application may well involve an attempt to compel the disclosure of sources, which is always a sensitive and difficult area because of the potential impact on the ability of responsible journalists to gather and analyse information on matters of public interest. In answer to the argument that there was no need as a matter of fairness to know the full extent of the evidence to support the polices suspicion that an offence had been committed by a person, B Sky B says that it was entitled to a fair opportunity to challenge the Commissioners assertion that the access conditions were met. In particular, if a suggestion was being made in D Sgt Holts secret evidence (which had not been made in his open evidence) that there was a risk of future damage to the armed forces or national security, through the publication of further information which Mr Kiley had received but not yet published, B Sky B submits that it should have been given notice and an opportunity to rebut it. Mr Lewis relied on a decision of the Administrative Court in R (Malik) v Manchester Crown Court [2008] 4 All ER 403. Dyson LJ gave the judgment of the court which approved in certain circumstances the appointment of a special advocate on an application for a production order under the Terrorism Act 2000. However, as Lord Dyson himself later pointed out in Al Rawi at paragraph 56, there was no argument in Malik about whether the court had power to order a closed material procedure in the absence of an enactment authorising it to do so. As a general proposition, I would agree with the Commissioners argument that the court should not apply the Al Rawi principle to an application made by a party to litigation (or prospective litigation) to use the procedural powers of the court to obtain evidence for the purposes of the litigation from somebody who is not a party or intended party to the litigation. This is because such an application will not ordinarily involve the court deciding any question of substantive legal rights as between the applicant and the respondent. Rather it is an ancillary procedure designed to facilitate the attempt of one or other party to see that relevant evidence is made available to the court in determining the substantive dispute. Applications of this kind, such as an application for a witness summons in civil or criminal proceedings, are typically made ex parte. However, the present situation is different. Compulsory disclosure of journalistic material is a highly sensitive and potentially difficult area. It is likely to involve questions of the journalists substantive rights. Parliament has recognised this by establishing the special, indeed unique procedure under section 9 and schedule 1 for resolving such questions. Ultimately the issue in this appeal is a short one. It turns on the meaning and effect of paragraph 7 of schedule 1. Parliament recognised the tension between the conflicting public interests in requiring that an application for a production order shall be made inter partes. The government had originally proposed that a production order might be made ex parte, but that proposal met opposition and was dropped. When an application for a production order is made, there is a lis between the person making the application and the person against whom it is made, which may later arise between the police and the suspected person through a criminal charge. Equal treatment of the parties requires that each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it. That is inherent in the concept of an inter partes hearing. I agree with the Administrative Courts decision that it was not permissible for the judge to adopt the course described in paragraph 19 above and I would dismiss the appeal. For the avoidance of doubt, this ruling does not prevent a court from hearing a public interest immunity (PII) application ex parte, but that is a different matter. On a PII application the question is whether the evidence should be admitted at all. If, however, evidence is to be admitted in support of a production order application under the special procedure created by section 9 and schedule 1, the requirement that the hearing should be inter partes is inconsistent with that evidence being given ex parte. As a footnote, I would add that the court has no way of assessing reliably the extent to which this decision may impede the use of the section 9 procedure, nor of balancing the corresponding ill effect on responsible journalism of a decision the other way. Those are matters for Parliament. However, we were told that the majority of applications under section 9 are made against banks, that most of the remainder are made against accountants or solicitors, and that they are seldom contested. This is unsurprising. A bank or professional adviser will need an order to be made in order to justify revealing the information but is unlikely to have any interest in opposing it. The position of journalists is obviously different, but applications under section 9 against journalists appear to be rare. We have no figures, nor do we know in how many cases the police have refrained from making an application in view of the decision of the Administrative Court. However, even if we had detailed information, it should not affect the interpretation of the statutory scheme. |
Two appeals have been brought to this court from the judgment of the Divisional Court of the High Court in Northern Ireland in In re McGuinnesss Application [2019] NIQB 10. The judgment was given in relation to judicial review proceedings relating to the treatment of Mr Michael Stone, who was convicted of serious offences, is currently in prison, and who maintains that his case should be referred by the Department of Justice for Northern Ireland (the Department) to the Parole Commissioners for Northern Ireland for consideration whether he should be released on licence. The respondent, Mrs McGuinness, the sister of one of the victims of Mr Stones crimes, brought these proceedings against the Department to challenge the lawfulness of its decision to refer Mr Stones case to the Commissioners and was successful in the Divisional Court. The Department appeals and, by a second appeal, so does Mr Stone, who was joined as an interested party in the proceedings. The Attorney General for Northern Ireland has intervened in the appeals in order to raise an issue regarding the jurisdiction of this court to entertain the appeals. That issue concerns the interpretation of section 41(1) of the Judicature (Northern Ireland) Act 1978 (section 41(1) and the 1978 Act, respectively). By virtue of section 41(1), subject to certain conditions, there may be an appeal to the Supreme Court from any decision of the High Court in a criminal cause or matter. The Attorney General submits that the decision of the Divisional Court which is under appeal is not a decision in a criminal cause or matter, on the proper interpretation of that phrase. The Attorney General says that, contrary to what the parties have assumed to be the position, the proper avenue of appeal from the Divisional Court in these judicial review proceedings is to the Court of Appeal in Northern Ireland, not to the Supreme Court. Factual background On 16 March 1988 Mr Stone attacked a group of mourners at Milltown Cemetery, Belfast, killing several of them. One of them was the brother of Mrs McGuinness. On 3 March 1989 Mr Stone was sentenced to life imprisonment and certain concurrent terms of imprisonment, having been convicted of six counts of murder, five counts of attempted murder, three counts of conspiracy to murder and 21 further counts relating to the possession of explosive substances, the possession of firearms and ammunition, causing an explosion and wounding with intent. The trial judge recommended a tariff of 30 years imprisonment. The Belfast Agreement of 1998 between the United Kingdom and Irish governments included provision for the introduction of an early release scheme for certain prisoners convicted of crimes related to sectarian violence in the Troubles. The Northern Ireland (Sentences) Act 1998 (the 1998 Act) gave effect to that part of the Belfast Agreement. Mr Stone made an application under the 1998 Act to the Sentence Review Commissioners (the SRC), seeking early release pursuant to that Act. On 17 February 1999, the SRC made a formal determination acceding to Mr Stones application for a declaration of eligibility for early release. The SRC specified that such eligibility would take effect on 22 July 2000. On 24 July 2000 Mr Stone was released on licence pursuant to the 1998 Act. On 24 November 2006, Mr Stone committed further serious offences, on this occasion at Parliament Buildings, Stormont. He was arrested the same day and was remanded in custody the following day. On 25 November 2006 the Secretary of State for Northern Ireland suspended Mr Stones licence under the 1998 Act. The SRC became seised of his case again. On 6 September 2007 the SRC informed Mr Stone that they were minded to revoke his licence. On 14 November 2008 Mr Stone was convicted of two counts of attempted murder, together with seven further counts, mainly in relation to firearms and explosives offences, in respect of the incident at Stormont. On 8 December 2008 Mr Stone received two determinate sentences each of 16 years imprisonment in respect of his convictions for attempted murder and other determinate sentences of between one and ten years imprisonment, all to run concurrently. Mr Stones subsequent appeals against conviction were dismissed in January 2011. On 6 September 2011 the SRC revoked the licence granted to Mr Stone under the 1998 Act, pursuant to which he had spent the period from 24 July 2000 to 24 November 2006 on release. The Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) (the 2001 Order) introduced a new regime according to which a life prisoners tariff period before he could be considered for release on licence should be determined by a judge, and not by the Secretary of State. On 29 July 2013, pursuant to the 2001 Order, the Lord Chief Justice of Northern Ireland determined that the tariff in respect of the sentence of life imprisonment imposed on Mr Stone in relation to the incident at Milltown Cemetery in 1988 should be 30 years imprisonment. By letter dated 20 September 2017 the Northern Ireland Prison Service, an agency of the Department of Justice for Northern Ireland, referred Mr Stones case to the Parole Commissioners and notified them that his tariff expiry date would be 21 March 2018. This was on the footing that the period during which Mr Stone had been on release from prison on licence (the contested period) should count towards the 30 year tariff period. On the basis of the same assumption, the Parole Commissioners conducted a three year pre tariff review of Mr Stones case on 20 March 2015. In the event, pursuant to the notice given by the Department, the Parole Commissioners made a formal determination dated 16 April 2018 that he should not be released upon expiry of his tariff. Mr Stone has a right under the 2001 Order to seek a further hearing before the Parole Commissioners, to seek his release on licence. The next hearing was scheduled to take place on 15 January 2019. In the meantime, on 22 November 2018 Mrs McGuinness issued these judicial review proceedings to challenge the Prison Services notification of a tariff expiry date of 21 March 2018. On her submission, the Prison Service erred in law in bringing into account the contested period of release on licence in calculating Mr Stones tariff expiry date. Leaving the contested period out of the calculation, his tariff expiry date would be on or about 22 July 2024. Mrs McGuinness and the Department of Justice made written submissions to the effect that the judicial review was a criminal cause or matter, so that it should be heard by a Divisional Court of the High Court with any appeal being to the Supreme Court, according to section 41(1). As the court explained in its judgment, it was decided that a Divisional Court should hear the case, notwithstanding that the court harboured reservations about whether the case really was a criminal cause or matter; but in view of the need for expedition in a case concerning the liberty of the subject it was decided on a pragmatic basis to treat it as such (para 2). The logic of this was that if it turned out that this is not a criminal cause or matter, any appeal could proceed in the usual way to the Court of Appeal. By contrast if the case proceeded as a normal judicial review without a Divisional Court and it then transpired that it was properly to be classified as a criminal cause or matter, there would be no right of appeal to the Court of Appeal and the opportunity to appeal to the Supreme Court would have been lost as well. The court proceeded in this way because of uncertainty which it thought arose from the jurisprudence on what it described as this troubled subject of the meaning of criminal cause or matter in the statute, including the decisions in In re JR27 [2010] NIQB 12 (JR27) and R (Belhaj) v Director of Public Prosecutions (No 1) [2018] UKSC 33; [2019] AC 593 (Belhaj). Mrs McGuinnesss application for judicial review was heard by the Divisional Court on an expedited basis on 10 January 2019. Its judgment, upholding Mrs McGuinnesss challenge, was delivered on 15 January 2019. On the basis that the Divisional Court was prepared to proceed on the basis that the judicial review was a criminal cause or matter within the meaning of section 41(1), as all the parties were willing to accept, it certified a question of law of general public importance for the purposes of section 41(2) of the 1978 Act. Pursuant to section 41(2), the Supreme Court granted permission to appeal to the Department of Justice and to Mr Stone. However, having learned of this, the Attorney General issued an application to intervene to dispute the assumption that Mrs McGuinnesss application for judicial review constituted a criminal cause or matter within the meaning of section 41(1) and to challenge the jurisdiction of this court to hear the appeals. According to the Attorney General, Mrs McGuinnesss application for judicial review constitutes a civil cause or matter in relation to which an appeal lies from the High Court to the Court of Appeal. The Supreme Court granted permission to the Attorney General to intervene in the appeals and at the hearing of the appeals it also heard full argument on the jurisdiction point raised by him. The 1978 Act regime Section 35 makes provision regarding the jurisdiction of the Court of Appeal to hear appeals from the High Court. It provides in relevant part as follows: (1) Subject as otherwise provided in this or any other statutory provision, the Court of Appeal shall have jurisdiction to hear and determine in accordance with rules of court appeals from any judgment or order of the High Court or a judge thereof. (2) No appeal to the Court of Appeal shall lie except as provided by the following provisions of (a) this Part from any judgment of the High Court in any criminal cause or matter; Section 39 made provision for appeals to the Court of Appeal in respect of convictions before and sentences imposed by the Crown Court (see now Part I of the Criminal Appeal (Northern Ireland) Act 1980, the 1980 Act). Section 40 made provision for appeals to the House of Lords from the Court of Appeal in respect of such matters (see now Part II of the 1980 Act, as amended by the Constitutional Reform Act 2005 to take account of the transfer of jurisdiction from the House of Lords to the Supreme Court). Section 41 (as amended) provides in relevant part as follows: 41. Appeals to Supreme Court in other criminal matters (1) Subject to the provisions of this section, an appeal shall lie to the Supreme Court, at the instance of the defendant or the prosecutor, from any decision of the High Court in a (a) criminal cause or matter; (b) from any decision of the Court of Appeal in a criminal cause or matter upon a case stated by a county court or a magistrates court. (2) No appeal shall lie under this section except with the leave of the court below or of the Supreme Court; and, subject to section 45(3), such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the Supreme Court, as the case may be, that the point is one which ought to be considered by the Supreme Court. (6) any reference to the defendant shall be In this section, (a) construed (i) in relation to proceedings for an offence, and in relation to an application for an order of mandamus, prohibition or certiorari in connection with such proceedings, as a reference to the person who was or would have been the defendant in those proceedings; (ii) in relation to any proceedings or order for or in respect of contempt of court, as a reference to the person against whom the proceedings were brought or the order was made; (iii) in relation to a criminal application for habeas corpus, as a reference to the person by or in respect of whom that application was made, and any reference to the prosecutor shall be construed accordingly; (b) application for habeas corpus means an application for a writ of habeas corpus ad subjiciendum and references to a criminal application or civil application shall be construed accordingly as the application does or does not constitute a criminal cause or matter; (c) the Supreme Court under this section; leave to appeal means leave to appeal to Section 42 (as amended) provides in relevant part as follows: 42. Appeals to Supreme Court in civil cases (1) Subject to the provisions of this section and to any restriction imposed by any statutory provision which has effect by virtue of subsection (6), an appeal shall lie to the Supreme Court from any order or judgment of the Court of Appeal in any civil cause or matter. (2) No appeal shall lie under this section except with the leave of the Court of Appeal or the Supreme Court. Section 120 is the interpretation provision. Subsection (1) provides in relevant part as follows: (1) In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say: action means a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include a criminal proceeding by or in the name of the Crown; cause includes any action, suit or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by or in the name of the Crown; defendant includes any person served with any writ of summons or process or served with notice of, or entitled to attend, any proceedings; matter includes every proceeding in court not in a cause; party includes every person served with notice of or attending any proceeding, although not named on the record; plaintiff includes every person asking any relief (otherwise than by way of counter claim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise; The use of the phrase a criminal cause or matter The phrase has been used in two different statutory contexts. It was first used in 1873 in the context of a provision governing rights of appeal, and it has been used in later statutes in that context, including now in the 1978 Act in Northern Ireland and equivalent legislation in England and Wales. It has also been used in a different context in section 6 of the Justice and Security Act 2013 (the JSA 2013), in a provision concerned with determining the availability of a special closed procedure for dealing with secret intelligence material relevant to determination of judicial review and other proceedings. Belhaj was concerned with the meaning and effect of the phrase in this latter context. Caution is required in working out the extent to which the judgments in Belhaj provide guidance regarding the meaning of the phrase in the context of rights of appeal. The principle of consistent interpretation of statutory words and phrases across statutes, as referred to in Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 (Barras) at p 411, only applies where the language and context of the statutory provisions being compared is the same. In Belhaj, all the justices accepted that, for the purposes of the Barras principle, the statutory context of section 6 of the JSA 2013 is different from the statutory context of section 41(1) and its equivalent in England and Wales. In order to understand the contexts in which the phrase a criminal cause or matter has been used, it is relevant to trace briefly the historical background. In the 19th century, English law allowed very little scope for appeals in criminal cases: see Holdsworth, A History of English Law, vol I, p 217. Instead, in 1848 the Court for Crown Cases Reserved was created as a court constituted by a panel of judges to which a judge in a trial on indictment could refer questions of law for authoritative ruling. Where it emerged that a conviction was unsafe, recourse had to be made to the exercise of the prerogative of mercy. However, in addition, the Court of Queens Bench was a superior court which had jurisdiction to control the exercise of jurisdiction by magistrates and other inferior courts in criminal cases, as well as in civil matters, by means of the issue of the prerogative writs and by declaratory and other relief in what are in modern times categorised as judicial review proceedings. By section 4 of the Supreme Court of Judicature Act 1873 (the 1873 Act) the Supreme Court was constituted in two divisions: one of which, under the name of Her Majestys High Court of Justice shall have and exercise original jurisdiction, with such appellate jurisdiction from inferior courts as is hereinafter mentioned, and the other of which, under the name of Her Majestys Court of Appeal shall have and exercise appellate jurisdiction, with such original jurisdiction as hereinafter mentioned By section 16 of the 1873 Act, the High Court was designated a superior court of record and the original jurisdiction of a range of specified courts, including the Court of Queens Bench, was transferred to it. By section 19, the Court of Appeal was given jurisdiction to hear appeals from the High Court, save as set out later in the Act. By section 47, the judges of the High Court were given jurisdiction to hear Crown cases reserved, as follows: The jurisdiction and authorities in relation to questions of law arising in criminal trials which are now vested in the justices of either Bench and the Barons of the Exchequer by the Act of the session of the 11th and 12th years of the reign of Her present Majesty, Chapter 78, intituled An Act for the further amendment of the administration of the Criminal Law, or any Act amending the same [that is, the Court for Crown Cases Reserved], shall and may be exercised after the commencement of this Act by the judges of the High Court of Justice, or five of them at the least, of whom the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, or one of such chiefs at least, shall be part. The determination of any such question by the judges of the said High Court in manner aforesaid shall be final and without appeal; and no appeal shall lie from any judgment of the said High Court in any criminal cause or matter, save for some error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the said judges (Emphasis added) Section 71 of the 1873 Act provided that: the practice and procedure in all criminal causes and matters whatsoever in the High Court of Justice and in the Court of Appeal respectively, including the practice and procedure with respect to Crown Cases Reserved, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act. Section 100 of the 1873 Act provided definitions of relevant terms equivalent to those in section 120 of the 1978 Act. The 1873 Act included provision (section 20) to abolish the appellate jurisdiction of the House of Lords, but that was never brought into effect. Its implementation was postponed until 1875 by section 2 of the Supreme Court of Judicature (Commencement) Act 1874 and then until 1876 by section 2 of the Supreme Court of Judicature Act 1875 (the 1875 Act), before being repealed by section 24 of the Appellate Jurisdiction Act 1876. Section 71 of the 1873 Act was replaced by section 19 of the 1875 Act, which made similar provision. It was established early on that the last clause of section 47 of the 1873 Act was intended simply to freeze the pre existing position in relation to appeals in criminal cases, both as regards the High Court sitting in place of the Court for Crown Cases Reserved (from which there had been no appeal) and in relation to the other aspects of jurisdiction in criminal cases which were transferred to it; the general intention of the section being not to take away any right of appeal which already existed, but, on the other hand, not to give any new right of appeal in such cases (as Lord Coleridge CJ explained in R (Hargraves) v Steel (1876) 2 QBD 37, p 40; see also pp 41 42 per Mellish LJ and p 42 per Brett JA; and this view was confirmed in R v Fletcher (1876) 2 QBD 43, pp 44 45 per Mellish LJ and pp 46 47 per Brett JA). In the Steel case, an order for costs against a prosecutor in a criminal case made by a master in the Crown Office of the High Court, on the basis of a statutory provision which stipulated that costs should follow the event, was held to be part of the procedure in a criminal matter (p 41 per Lord Coleridge CJ). Therefore, according to section 47 no appeal lay to the Court of Appeal, just as there had been no appeal from such an order when made before the 1873 Act (p 42). In the Fletcher case, the issue was whether the Court of Appeal had jurisdiction in an appeal from the decision of the High Court (Queens Bench Division) by which it had dismissed a claim for a writ of certiorari (now called a quashing order) to quash a summary conviction of the appellant by local magistrates for the offence of trespass in pursuit of game. The High Court had thus affirmed the conviction. The Court of Appeal held that the last clause of section 47 had the effect that it had no jurisdiction to entertain the appeal, because this was a proceeding in a criminal matter. As Brett JA said, the High Courts ruling was in effect a judgment or decision on the question whether a man shall be fined or imprisoned or not (p 47). Mellish LJ was careful to explain that the limitation on the jurisdiction of the Court of Appeal set out in the last clause of section 47 did not extend to all matters on the Crown side of the Queens Bench Division (ie matters relating to habeas corpus and the issue of the prerogative writs), as [T]here are cases on the Crown side which are really civil cases (pp 44 45). In their reasoning regarding Parliaments intention in relation to the last clause of section 47, Mellish LJ and Amphlett JA both emphasised that Parliament could not have intended to have created a regime in which there could be an appeal in a petty criminal matter not just to the Court of Appeal, but onwards to the House of Lords (p 45 and p 47, respectively). The judges accordingly recognised that a material aspect of the context relevant for interpreting the phrase any criminal cause or matter in relation to a provision governing routes of appeal was the effect which any particular interpretation might have on the distribution of business within the appellate courts. The proceedings before the High Court constituted in substance an appeal against the conviction by the magistrates, so what was in issue was whether there should be a second appeal to the Court of Appeal and the possibility of a third appeal to the House of Lords. The Supreme Court of Judicature Act (Ireland) 1877 followed the scheme of the 1873 and 1875 Acts. Section 50 followed the drafting of section 47 of the 1873 Act. In Ex p Woodhall (1888) 20 QBD 832 a magistrate committed the appellant to prison under section 10 of the Extradition Act 1870 with a view to her extradition to the USA to face trial there. The appellant applied to a Divisional Court of the Queens Bench Division of the High Court for a writ of habeas corpus on the ground of a procedural error by the magistrate, who had refused to postpone the hearing of the case to allow time for the appellant to adduce more evidence. The High Court refused the application and the appellant sought to appeal to the Court of Appeal. That court held that by virtue of section 47 of the 1873 Act it had no jurisdiction to entertain the appeal, as it was a criminal cause or matter. Lord Esher MR (as Brett JA had become) said that the case which helps one most to the true construction of that phrase was Fletcher, following Steel (p 835). He said that the decided cases showed that this phrase in section 47 should receive the widest possible interpretation. The intention was that no appeal should lie in any criminal matter in the widest sense of the term, [the Court of Appeal] being constituted for the hearing of appeals in civil causes and matters. (p 835) In context, what he meant by this was that the phrase should be given a wide interpretation in order to secure the object of the 1873 Act as identified in the earlier cases, which he confirmed, by quoting from the judgment of Mellish LJ in Fletcher referring to his judgment in Steel, was to leave the procedure in criminal cases substantially unaltered (p 836). Lord Esher MR recapitulated the position in this way: I think that the clause of section 47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject matter of which is criminal, at whatever stage of the proceedings the question arises (p 836). The decision of the High Court in refusing habeas corpus was a decision by way of judicial determination of a question raised in or with regard to the proceedings before the magistrate, and the subject matter of those proceedings was criminal in nature; so the Court of Appeal had no jurisdiction. Lindley LJ and Bowen LJ agreed, though expressing themselves in different language. Lindley LJ, like Lord Esher MR, said that the true construction of the phrase was that given by Mellish LJ in Steel (pp 837 838) and likewise held that the proceedings in the High Court were a criminal cause or matter, since the object of the extradition was for the appellant to be sent for trial in the USA (p 837). Bowen LJ emphasised that the questions upon which the application for a writ of habeas corpus depended, which in view of the double criminality rule in extradition cases included whether or not there was evidence sufficient according to English law to justify the appellant being committed for trial, were criminal in nature (p 838). Lord Esher MR and Lindley LJ indicated that there were other habeas corpus proceedings which were civil in nature in which an appeal would lie. In 1908 the Court of Criminal Appeal was created pursuant to the Criminal Appeal Act 1907 (the 1907 Act) to hear appeals from superior courts exercising criminal jurisdiction outside the Crown side of what was then the Kings Bench Division. The Court of Criminal Appeal was not part of the Supreme Court of Judicature and the jurisdiction of the Court of Appeal to deal with all civil matters was unaffected. The jurisdiction for Crown Cases Reserved was transferred from the High Court to the Court of Criminal Appeal. The experience of the Court of Criminal Appeal in reviewing criminal cases and finding a significant number of errors in criminal trials quickly dispelled any scepticism about the value of having a regular and accessible appellate jurisdiction in this area: Holdsworth, A History of English Law, vol I, pp 217 218; Glover Alexander, The Administration of Justice in Criminal Matters (in England and Wales) (1915), pp 128 129; Cornish et al, Law and Society in England 1750 1950, 2nd ed (2019), pp 601 602. Section 1(6) of the 1907 Act provided that a decision of the Court of Criminal Appeal should be final, save that there could be an appeal to the House of Lords if a party obtained the certificate of the Attorney General that the decision raised a point of law of exceptional public importance and that it was desirable in the public interest for there to be a further appeal. Again, Parliaments concern to ensure a coherent and principled distribution of business between appellate courts is evident. The effect of the final clause of section 47 of the 1873 Act was preserved in section 31(1)(a) of the Supreme Court of Judicature (Consolidation) Act 1925 (the 1925 Act), which stated: No appeal shall lie (a) except as provided by the Criminal Appeal Act 1907 or this Act, from any judgment of the High Court in any criminal cause or matter. The general jurisdiction of the High Court was continued: section 18. Section 27 continued the general jurisdiction of the Court of Appeal to hear and determine appeals from the High Court, [s]ubject as otherwise provided in this Act. Section 225 re enacted equivalent definitions of relevant terms as in section 100 of the 1873 Act. By the time of the leading decision of the House of Lords in relation to this provision in Amand v Home Secretary [1943] AC 147 (Amand), a considerable body of case law had developed. This was reviewed in Amand. That case concerned a soldier in the Netherlands army in Great Britain during World War II who was arrested as being absent without leave and taken before a magistrate with a view to being handed over to the Netherlands military authorities pursuant to the Allied Forces Act 1940 for punishment according to military law. He applied to the High Court for a writ of habeas corpus, which was refused. The Court of Appeal held that the judgment of the High Court was in a criminal cause or matter, with the result that by virtue of section 31(1)(a) of the 1925 Act it had no jurisdiction to hear the appeal. The House of Lords upheld that ruling. As the headnote accurately summarises the decision, the distinction between cases in which the Court of Appeal has jurisdiction to entertain an appeal from a refusal to grant a writ of habeas corpus and those in which it does not turns on the nature and character of the proceeding in which the writ is sought: If the matter is one, the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal and there can be no appeal to the Court of Appeal. The appellate committee emphasised that the wide application of section 31(1)(a), following R v Fletcher and Ex p Woodhall, was required to avoid an unduly narrow focus on the nature of the particular proceedings before the High Court (which could in some respects be regarded as civil) and instead to require a focus on the nature of the underlying proceedings in relation to which the High Court was asked to intervene. As Lord Wright said, looked at in this way, the situation in Amand was closely similar to a case in which the High Court was invited to intervene in extradition proceedings, as in Ex p Woodhall (p 162: It only differs from an extradition case in that the foreign authority which has power to try and punish, exercises that power in England, in virtue of the special provisions of the Allied Forces Act ). At pp 159 160 Lord Wright explained: The words cause or matter are, in my opinion, apt to include any form of proceeding. The word matter does not refer to the subject matter of the proceeding, but to the proceeding itself. It is introduced to exclude any limited definition of the word cause. In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order, and to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That was the matter of substantive law. At p 162 Lord Wright referred to the speech of Viscount Cave in In re Clifford and OSullivan [1921] 2 AC 570, 580 (a case in which the underlying proceeding was held not to be criminal in nature): Viscount Cave said there must be two conditions fulfilled to satisfy the word criminal. There must be the consideration of some criminal offence charged under criminal law, and the charge must be preferred or about to be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence. What I think Viscount Cave was particularly emphasizing was the latter condition. In his opinion, the military officers who purported to try the men and pass sentence, were in no possible sense a court martial or a court of any kind. The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a criminal cause or matter. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter, as is shown by Ex p Woodhall and Rex v Brixton Prison (Governor of), Ex p Savarkar [1910] 2 KB 1056. Viscount Simon LC (with whom Lord Atkin and Lord Thankerton agreed) likewise emphasised the similarity with extradition proceedings, in which no appeal would lie to the Court of Appeal. He went on (p 156): It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal. This is the true effect of the two conditions formulated by Viscount Cave in In re Clifford and OSullivan. Lord Porters speech was to similar effect. An appeal from the High Court would not lie in a case in which the magistrate in the proceedings under review there purported to be exercising criminal not civil jurisdiction, and the decision of the High Court was given in that matter (p 164), and: The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge: see Ex p Pulbrook [1892] 1 QB 86, and Rex v Brixton Prison (Governor of), Ex p Savarkar. If these principles be sound, and I believe they are, the only remaining question is whether the appellant, when he was brought before the magistrate, was put in peril of trial and punishment upon a criminal charge. Amand remains the leading decision at the highest level regarding the meaning of the phrase criminal cause or matter in the context regarding rights of appeal. Three points may be made about it. First, the wide interpretation of the phrase is required to direct attention to the nature of the underlying proceedings in which the High Court is asked to intervene, rather than focusing on the abstract categorisation of the proceeding in the High Court itself. Secondly, as Lord Wright put it, the word matter does not refer to the subject matter of the proceeding, but to the proceeding itself. It is not sufficient for the underlying proceeding to relate to a subject matter which might be described as criminal in a broad sense; the proceeding itself has to be criminal in nature. Thirdly, in order for the proceeding (in respect of which an application is made to the High Court to intervene) to be a criminal matter the two conditions identified by Viscount Cave must be satisfied, so that it can be said that the applicant is put in jeopardy of criminal punishment by the proceeding; and such jeopardy has to be the direct outcome of the proceeding (p 156 per Viscount Simon LC). Although the House of Lords in Amand was not giving an exhaustive definition of the phrase, it identified the paradigm type of case which is covered by it. Any extension beyond that type of case would require to be clearly justified. Section 1(1)(a) of the Administration of Justice Act 1960 (the 1960 Act) created a right of appeal to the House of Lords at the instance of the defendant or the prosecutor, (a) from any decision of a Divisional Court of the Queens Bench Division in a criminal cause or matter; (b) from any decision of the Court of Criminal Appeal on an appeal to that court. Section 1(2) provided: No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by the House of Lords. Section 18 of and the Second Schedule to the 1960 Act made parallel provision in respect of appeals in relation to Northern Ireland. Again, as with section 1(6) of the 1907 Act, Parliaments concern that the time of the House of Lords, as the highest court within the legal system, should not be unduly taken up with routine appeals in criminal matters (however meritorious such appeals might be with reference to the particular facts) is clear. Accordingly, the scope for an appeal from the High Court in a criminal cause or matter (in an application for certiorari or other public law relief and in those cases where an appeal in a criminal case lay to the High Court) was far more restricted than in a civil matter. The reference in section 1(1) of the 1960 Act to the application being made at the instance of the defendant or the prosecutor in relation to a decision within sub paragraph (a) shows Parliaments understanding, in line with the decision in Amand, that for a proceeding to qualify as a criminal cause or matter a person had to be placed in jeopardy of criminal trial and punishment as the direct outcome of that proceeding, such that it was possible to identify the defendant and the prosecutor in respect of it. The same point applies in relation to section 41(1) of the 1978 Act. The 1960 Act also made new provision in relation to appeals in habeas corpus proceedings (section 15 and, for Northern Ireland, section 18(3)) and in cases of contempt of court. Section 17(1) provided: In this Act any reference to the defendant shall be construed (a) in relation to proceedings for an offence, and in relation to an application for an order of mandamus, prohibition or certiorari in connection with such proceedings, as a reference to the person who was or would have been the defendant in those proceedings; (b) in relation to any proceedings or order for or in respect of contempt of court, as a reference to the person against whom the proceedings were brought or the order was made; (c) in relation to a criminal application for habeas corpus, as a reference to the person by or in respect of whom the application was made, and any reference to the prosecutor shall be construed accordingly. This provision reinforces the inference that Parliament intended the phrase criminal cause or matter to refer to proceedings in which an individual, the defendant, is directly in jeopardy pursuant to a process potentially leading to his punishment under the criminal law in this jurisdiction or abroad. The Court of Criminal Appeal continued to have jurisdiction to hear appeals in criminal cases other than from the High Court. It seems that this distribution of routes of appeal was chosen because the High Court was a court of co ordinate jurisdiction with the Court of Criminal Appeal. Both were constituted of High Court judges (or in the case of the Divisional Court, often a Lord Justice of Appeal and High Court judges). The Court of Criminal Appeal regularly sat as a court of three High Court judges. The Criminal Appeal Act 1966 abolished the Court of Criminal Appeal and transferred its jurisdiction to the Court of Appeal. Thereafter, the Court of Appeal operated as a court with a civil division and a criminal division. The 1978 Act for Northern Ireland, which is in issue in this appeal, replicated with relevant adjustments the basic appeal structure which existed in England and Wales and re enacted for Northern Ireland equivalent provisions governing appeals from the High Court to the Court of Appeal and to the House of Lords. What is now called the Senior Courts Act 1981 (the 1981 Act) preserved this distribution of appellate jurisdictions for England and Wales. The general jurisdiction of the Court of Appeal for appeals from the High Court is preserved by sections 15 and 16, but subject to other provision in the 1981 Act or other specified legislation. Section 19 preserves the general jurisdiction of the High Court as before. Section 18(1)(a) provides: No appeal shall lie to the Court of Appeal (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter. Section 151 of the 1981 Act enacted similar definitions to those used in the 1873 Act and the 1978 Act. By section 31, the 1981 Act also modernised the procedure for seeking relief pursuant to the prerogative writs by introducing the application for judicial review, which is now the relevant procedure to be used in proceedings in respect of control of public bodies according to rules of public law. A somewhat tangled jurisprudence regarding the meaning of the relevant phrase in the context of the creation of rights of appeal continued to develop after the 1960 Act and the 1981 Act. It was reviewed in detail by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] EWCA Civ 1188; [2011] 1 WLR 3253 (Guardian News). In that case, Lord Neuberger of Abbotsbury MR said that any sort of final coherence in relation to the scope and effect of section 18(1)(a) [of the 1981 Act] can only be provided by the Supreme Court (para 43). The Justice and Security Act 2013 and Belhaj By contrast with the statutory provisions referred to above, section 6 of the JSA 2013 is not concerned with routes of appeal. Rather, it makes provision for a court seised of relevant civil proceedings to make a declaration that they are proceedings in which a closed material application may be made to the court. Section 6(11) states that relevant civil proceedings means any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court, (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court. The closed material procedure allows for the presentation to the court in those proceedings of sensitive material the disclosure of which would be damaging to the interests of national security, with the material being withheld from the opposing party but subjected to review by the court in private session with the benefit of submissions from a special advocate to represent the interests of that party in the closed session. When use of the closed material procedure is authorised under this provision, the effect is that there is a limited departure, where justified, from usual standards of openness of justice and equality of arms. In Belhaj, the claimants brought judicial review proceedings against the Director of Public Prosecutions (DPP) to challenge his decision not to bring prosecutions in respect of alleged criminal offences said to have been committed by an officer of the Secret Intelligence Service in respect of unlawful rendition of the claimants from Thailand to Libya, made on the grounds that there was insufficient evidence for there to be any realistic prospect of conviction. The Secretary of State for Foreign and Commonwealth Affairs applied for a declaration under section 6 of the JSA 2013 to allow the use of the closed material procedure. The claimants contended that the judicial review proceedings constituted a criminal cause or matter for the purposes of section 6, so that the court had no power to authorise the use of that procedure. The Divisional Court of the High Court (Irwin LJ, and Popplewell J who agreed with his judgment) rejected that contention, holding that the proceedings were civil in nature: [2017] EWHC 3056 (Admin); [2019] AC 593. Irwin LJ distinguished the position as regards the use of the phrase in the different context of setting out routes of appeal. The appeal to this court was allowed by a majority of three to two. However, all the justices agreed that the context of the JSA 2013 and the context of the statutory provisions regarding routes of appeal were very different, with the result that the Barras principle was not applicable so as to require the transposition of the case law on the meaning of the phrase criminal cause or matter in the latter context into the former: see para 19 (Lord Sumption, with whom Baroness Hale of Richmond and Lord Mance agreed, although Lord Mance also gave a concurring judgment) and paras 44 51 (Lord Lloyd Jones, with whom Lord Wilson agreed). Instead, all the justices considered the ordinary meaning of the phrase, as read in the light of the mischief or rationale for the introduction of the closed material procedure in the JSA 2013 as set out in the preceding Justice and Security Green Paper (October 2011) (Cm 8194) (albeit they came to opposing conclusions on that basis): paras 20 24 (Lord Sumption), paras 26 37 (Lord Mance) and paras 52 57 (Lord Lloyd Jones). Lord Sumption noted that the DPP and the Secretary of State accepted that an application for judicial review of the prosecutorial decision at issue in Belhaj was a proceeding in a criminal cause or matter for the purpose of any right of appeal: para 18. He said that his view about the natural meaning of the words was in line with the view of Lord Esher MR in Ex p Woodhall and Lord Wright in Amand: para 20. Lord Sumption observed that counsel for the Secretary of State had accepted that judicial review of an extradition order would be a proceeding in a criminal cause or matter and continued: On that footing it seems to me to be impossible to contend that this judicial review was anything else. The reality of the appellants application is that it is an attempt to require the Director of Public Prosecutions to prosecute [the officer]. That is just as much a criminal matter as the original decision of the Director not to prosecute him. In what follows I discuss (1) the statutory scheme; (2) the position of the Lord Lloyd Jones agreed that in the context of the provisions regarding routes of appeal, judicial review both of decisions to prosecute and of decisions not to prosecute would qualify as decisions in a criminal cause or matter, so that an appeal would lie to the House of Lords or, now, the Supreme Court: para 47(5). Discussion present case in the statutory scheme; and (3) recent authority. (1) The statutory scheme It is unsatisfactory that there should be uncertainty regarding the meaning of the important procedural provisions in section 41(1) of the 1978 Act (for Northern Ireland) and section 18(1) of the 1981 Act (for England and Wales: section 18(1)). The phrase a criminal cause or matter as employed in those provisions defines a legal category of cases before the High Court for which there is only a highly circumscribed possibility of appeal to the Supreme Court, involving specified procedural hurdles; and outside which there is the usual right of appeal to the Court of Appeal, involving different procedural hurdles. Parties in a matter before the High Court need to be able to understand into which category their case falls, so that if they want to appeal they can know what their right of appeal is and how it may be exercised. Parliament intended that these procedural provisions should have a reasonably fixed and readily comprehensible effect. By the time of the enactment of section 41(1) (for Northern Ireland) and section 18(1) (for England and Wales), the original rationale of freezing rights of appeal as they stood in 1873 was long in the past and provides no sound guide to the interpretation of the relevant phrase. There have been substantial changes in the relevant context both in procedural terms and in terms of substantive law. There are considerably wider rights of appeal in criminal cases and the value of appeal rights has come to be recognised as it was not in 1873. The substantive law of judicial review to control the activities of public authorities and inferior courts when exercising administrative discretions in dealing with the public continued to grow throughout the 20th century and is recognised as a major protection for the rights and liberty of citizens. The direct link back to the legal position in 1873 has been broken not once but twice, by the enactment of a consolidation Act in 1925 (which is a factor which reduces the relevance of the fine detail of preceding law: see Farrell v Alexander [1977] AC 59) and by the revision of the law by the 1978 Act and the 1981 Act in light of the 1960 Act regarding appeals in a criminal cause or matter to the House of Lords. The Divisional Court described the jurisprudence on this subject as troubled. It is true that over the years since the first introduction of the phrase in the 1873 Act there has been a fairly steady trickle of cases about it, but in my view the true position should be regarded as settled, albeit that difficulties sometimes arise in marginal cases. In my opinion, for reasons which appear below, the present case is not a marginal case. According to the relevant criteria established in the case law, the present proceedings do not constitute a criminal cause or matter. In the procedural context in which section 41(1) and section 18(1) apply, two basic features of the regime of appeal rights are important. First, the appeal rights in relation to a decision by the High Court in a criminal cause or matter are directed primarily to maintaining the coherence of the legal system, rather than to rectifying errors which are made by courts in individual cases. An appeal is to the Supreme Court and is only possible if a point of law of general public importance has been certified, and even then only if permission is granted. These restrictive conditions reflect the need to ration access to the highest court, which has to deal with appeals across the whole range of cases in the three jurisdictions in the United Kingdom. However, there will be many cases in which an appellant may have a meritorious complaint about a decision made by the High Court which is not corrected because it happens not to raise of point of law of general public importance. Secondly, in contrast, in all other cases appeal rights from the High Court to the Court of Appeal are directed to ensuring that errors at first instance in individual cases can be rectified. Generally, in these cases, an appellant only needs to show that they have an arguable case with a real prospect of success to be able to appeal. They do not need to show in addition that their appeal gives rise to a point of general public importance. Accordingly, an overly expansive interpretation of the phrase a criminal cause or matter in section 41(1) and section 18(1) would have the effect of reducing to an unacceptable degree parties access to justice at appellate level, leaving pockets of unchallengeable, potentially erroneous first instance decisions. The importance of appeal rights to rectify errors in individual cases, including when no point of law of general public importance is in issue, has long been recognised across the legal system in both the civil sphere and the criminal sphere (in the latter case, in particular since the success of the 1907 Act and the prevalence of worrying errors by first instance courts which the implementation of that Act revealed). The former acceptance that there should be an emphasis on finality of disposal in criminal cases which underlay the position prior to 1873 and was to some degree encapsulated in section 47 of the 1873 Act has, since the early 20th century, been greatly eroded. Therefore, in construing the intended meaning and effect of the criminal cause or matter phrase in the context of the operation of the modern statutes which define rights of appeal, namely the 1978 Act and the 1981 Act, it is to be inferred that the intention is that the phrase defines a reasonably tightly drawn category of case focused directly on the process for bringing and determining criminal charges. At the same time, Parliament obviously intended that cases with a direct bearing on that process should be captured by the phrase, without drawing subtle and ultimately unsustainable distinctions depending on the precise nature of the procedure by which a matter concerning the process for bringing and determining criminal charges might be brought before the High Court. This was the point emphasised in the early case law, as reviewed above, as justifying the widest possible interpretation of the phrase (see Ex p Woodhall). That is to say, the phrase was to be given the widest possible interpretation in order to catch those cases with a clear and direct connection to the process for bringing and determining criminal charges, by contrast with the narrow interpretation urged by counsel in those cases which sought rather to focus on the nature of proceedings in the High Court (where a claim for habeas corpus or for the prerogative writs might be classified as a civil claim). Although a claim in the High Court for habeas corpus or for one of the prerogative writs could not itself readily be described as a criminal cause, as defined, the significance of the words or matter is to widen the meaning of the phrase so as to create a category defined, in effect, by reference to the criminal nature of the underlying proceedings in respect of which the decision under review in the High Court was taken (see Amand at pp 159 160 per Lord Wright and Belhaj, paras 17 and 20 per Lord Sumption). Over the years, the courts have settled on an interpretation of the phrase which accommodates both these points. The process for bringing a criminal charge against a person under domestic law begins with a decision to prosecute. It was authoritatively established by the decision of the House of Lords in Provincial Cinematograph Theatres Ltd v Newcastle upon Tyne Profiteering Committee (1921) 90 LJ (KB) 1064, in reliance on Ex p Woodhall, that a resolution by the committee to authorise their clerk to take steps to bring a prosecution for a criminal offence was an inherent part of the process for bringing a criminal charge, so that a decision on judicial review of that resolution in the High Court was a decision in a criminal cause or matter within the meaning of the final clause of section 47 of the 1873 Act and no appeal lay to the Court of Appeal. As Lord Sumner put it at p 1068, It seems to me that the commencement of those proceedings by passing the resolution was itself the commencement of a criminal matter, because in one unbroken proceeding, although no doubt by various steps and processes, the termination of the whole matter was fine or imprisonment. Similarly, steps taken to institute extradition proceedings against a person with a view to the bringing and determination of criminal charges in a foreign jurisdiction are an inherent part of the process of bringing and determining a criminal charge, so it has long been recognised, as established in Ex p Woodhall and affirmed in Amand, that an application in the High Court for habeas corpus or for one of the prerogative writs on judicial review to interrupt that process is a criminal cause or matter. Although the early cases were concerned with judicial review in the High Court of decisions to prosecute (or to allow extradition to proceed), it is now established that judicial review of a decision in an individual case not to bring forward a criminal charge in relation to a particular matter is of the same character and qualifies as a decision by the High Court in a criminal charge or matter within the meaning of section 41(1) and section 18(1), so that again no appeal lies to the Court of Appeal. This was assumed to be the position in R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2001] UKHL 61; [2002] 1 AC 800 (Pretty) (judicial review challenge to the refusal of the DPP to undertake not to prosecute the claimants husband if he assisted her to commit suicide) and R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2008] UKHL 60; [2009] AC 756 (Corner House Research) (judicial review challenge to the decision of the Director not to commence a prosecution against a potential defendant). There is a strong case for the assimilation of such cases concerning decisions not to prosecute a person with cases concerning decisions to prosecute. A prosecution authority might at the same time have to consider whether to bring prosecutions against two defendants in respect of the same matter and based on the same evidence, and decide in the one case to proceed and in the other not to proceed; if judicial review challenges were brought, it would be very contrived to place the two cases in different categories for the purposes of section 41(1) and section 18(1) (see also Belhaj, para 20, per Lord Sumption). The position was put beyond doubt by the judgments in Belhaj, a case concerning judicial review of a decision not to prosecute, which state in terms that this was a proceeding in a criminal cause or matter for the purpose of any right of appeal: paras 18 and 20 (Lord Sumption) and para 47(5) (Lord Lloyd Jones). See also R (Thakrar) v Crown Prosecution Service [2019] EWCA Civ 874; [2019] 1 WLR 5241. Two comments may be made about the limits of the criminal cause or matter phrase regarding the commencement of (or decision not to commence) criminal proceedings. First, the decision has to relate to the question of prosecution of a specific person in relation to a particular criminal offence, as in Pretty and Corner House Research. Those cases may be contrasted with R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2010] 1 AC 345, which concerned a judicial review of the refusal of the DPP to publish details of his policy as to the circumstances in which a prosecution would be brought for the offence of aiding or abetting suicide contrary to section 2(1) of the Suicide Act 1961. This was not directly concerned with a decision whether to prosecute an individual and all counsel and all the courts involved assumed, rightly, that the proceedings were not a criminal cause or matter and hence should proceed by appeal from the High Court to the Court of Appeal and from there to the House of Lords, as they did. See also R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38; [2015] AC 657 (Nicklinson), concerning claims for a declaration of incompatibility of section 2(1) with Convention rights under the Human Rights Act 1998 (the HRA) and regarding the content of the DPPs policy in relation to commencement of prosecutions for offences under that provision, which also proceeded by appeal to the Court of Appeal; and R (Conway) v Secretary of State for Justice (Humanists UK intervening) [2018] EWCA Civ 1431; [2020] QB 1 (Conway) (another claim for a declaration of incompatibility in relation to section 2(1) of the 1961 Act). Secondly, the tort of malicious prosecution is concerned with the malicious preferment of an unreasonable criminal charge against the claimant (see Clerk & Lindsell on Torts, 22nd ed (2018), ch 16). However, proceedings in the High Court concerning the tort are not categorised as proceedings in a criminal cause or matter. This is because the proceedings themselves have no bearing on the determination of a criminal charge against a person. The simple fact that, as a matter of language, without regard to context, one might describe a decision in such a case as a criminal cause or matter is not sufficient to engage section 41(1) or section 18(1). The next stage of the criminal process is the trial of a person on a criminal charge. Where the High Court is invited to exercise its judicial review powers in relation to this, the proceedings in that court are directly related to the trial and qualify as a criminal cause or matter, as the Fletcher case made clear. However, various matters can arise for decision in the course of a criminal trial which are collateral to the criminal process and which have stronger affinities with civil cases regarding compliance by a public authority (including a court) with its general obligations under public law. Judicial review proceedings in the High Court in relation to these matters are not categorised as a criminal cause or matter, so normal rights of appeal to the Court of Appeal apply. This is the type of case discussed in the judgment of Lord Neuberger MR in the Court of Appeal in the Guardian News case. He there discusses in detail many of the authorities bearing on the application of the phrase in relation to review in the High Court of various steps taken or orders made by criminal courts in the course of conducting criminal proceedings. Examples include a decision by a judge in a criminal trial whether to order disclosure to a newspaper of documents relating to that trial (as in Guardian News itself) and a decision in criminal proceedings to make an order estreating a recognisance (R v Southampton Justices, Ex p Green [1976] QB 11). For present purposes, it is not necessary to traverse the same ground. This is not the occasion to try to resolve every uncertainty and to rule upon every marginal case that has arisen. Finally, there is the type of case of which the Steel decision is illustrative, where an order is made (either by the High Court or the court which conducted the trial of a person on a criminal charge) which is directly consequential upon the outcome of the criminal process. In Steel, the order made by the High Court was identified as being part of the criminal process and hence was likewise categorised as a criminal cause or matter. The limit to this principle is illustrated by R v Secretary of State for the Home Department, Ex p Dannenburg [1984] QB 766. In that case, the Court of Appeal held that a decision of the Divisional Court refusing to quash a recommendation for deportation made by justices after the conviction of the defendant for several offences was a decision in a criminal cause or matter (since the recommendation for deportation formed an integral part of the criminal proceedings in which it was made). But it was also held that the Divisional Courts decision on judicial review of the subsequent decision of the Secretary of State to deport pursuant to that recommendation was not a criminal cause or matter, so that the ordinary right of appeal to the Court of Appeal was applicable in relation to that decision. The speeches in Amand, in the passages set out above, explain how to identify what counts as a decision in a criminal cause or matter for the purposes of knowing which appeal rights apply. This involves asking the question in relation to the proceedings which underlie those in the High Court: are they proceedings the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so (p 156 per Viscount Simon LC) and which, if carried to [their] conclusion, might result in the conviction of the person charged and in a sentence of some punishment (p 162 per Lord Wright)? If so, the proceedings in the High Court to challenge such criminal process will be categorised as a criminal cause or matter, taking their character from the nature of those underlying proceedings. This guidance strikes a coherent and principled balance regarding rights of appeal, giving appropriate but not excessively wide content to the phrase a criminal cause or matter in the present statutory context. (2) The position of the present case in the statutory scheme The common issue raised by Mrs McGuinness in her claim in the present case and by the Department of Justice and by Mr Stone in their appeals does not relate to the commencement or conduct of any underlying criminal process involving Mr Stone. He is not currently the subject of any outstanding, undetermined criminal charge against him on which he is to be tried and may be subjected to sentence. The present proceedings are concerned with whether the Department of Justice has correctly understood and implemented a criminal sentence imposed on Mr Stone in the past. The criminal process against him was exhausted before the Department of Justice took the decision which is under challenge in these proceedings. Applying the guidance in Amand, therefore, the High Courts decision was not in a criminal cause or matter. The relevant right of appeal is to the Court of Appeal, not to the Supreme Court. That conclusion gains further support from a number of matters. First, since the 1873 Act the relevant statutes have provided for a general right of appeal from the High Court to the Court of Appeal. The criminal cause or matter category operates as an exception to that general right. It is appropriate that it should be construed in a way which is focused with some precision on an underlying criminal process which is under review in the High Court, so that it does not improperly undermine the general right of appeal which the relevant statutes confer. Secondly, the decision making process of the Department is not at all like a judicial criminal process against a defendant on a charge. Therefore the judicial review proceedings in the High Court here are not equivalent to an appeal in relation to a judicial proceeding, as in cases like Fletcher, Ex p Woodhall and Amand. Accordingly, the aspect of the underlying rationale for section 41(1) and section 18(1) which is to limit the scope for what can in substance be regarded as a second appeal does not apply. The Divisional Courts decision in this case is the first judicial decision in relation to the matter at issue, and it is desirable that it should be capable of being tested on appeal by whichever side is aggrieved at the outcome, according to the usual merits based right of appeal to the Court of Appeal. It is true that in cases involving judicial review of the exercise of prosecutorial discretion (eg the Provincial Cinematograph Theatres Ltd case) or the award of costs (eg Steels case) there is no element of a second appeal, but that is an argument for focusing the interpretation of the criminal cause or matter rubric in relation to them quite tightly, as has happened. Thirdly, application of the guidance in Amand ensures that overall coherence regarding the availability of the right of appeal to the Court of Appeal is maintained in relation to cases which raise similar issues. R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 (Evans (No 2)) was a case in which the governor had to calculate the claimants due date for release on licence in respect of a determinate prison sentence according to a statutory formula. The governor followed guidance in a series of cases to delay the claimants release, but the claimant brought judicial review proceedings to challenge this calculation of the release date and to claim damages for false imprisonment (see the account of the proceedings given by Lord Hope of Craighead at p 30). The Divisional Court held that, on proper construction of the statutory provisions, the claimant should have been released on an earlier date and granted her declaratory relief accordingly, and her claim for damages was adjourned to be decided on a later occasion. In due course that claim was dismissed, and she appealed successfully to the Court of Appeal (and the governors further appeal to the House of Lords was dismissed). Counsel and all the courts involved understood the claim to be civil in nature. It would have made no sense to separate out the claim in respect of calculation of the claimants release date and her claim for damages for false imprisonment, as the latter was predicated on the former and might well have been dealt with at a single hearing. It would have been obviously undesirable, and cannot have been the intention of Parliament, that different appeal rights should apply in relation to different but inherently related aspects of the reasoning leading to the outcome of the proceedings. Similarly, in the present case, if the Department of Justice had initially decided that on proper construction of the statutory provisions the calculation of the date for reference of Mr Stones case to the Parole Commissioners for consideration of whether he should be released on licence was as the Divisional Court determined it to be, Mr Stone could have brought judicial review proceedings to challenge that calculation and in those proceedings he could have sought to claim damages for false imprisonment (if he could show that he would have been released on licence promptly by the Parole Commissioners upon such a reference). Again, application of the guidance in Amand in this case gives a sensible and coherent result, according to which all aspects of such a claim would be regarded as ordinary civil proceedings. There would be no scope for bifurcation of rights of appeal. In R v Board of Visitors of Hull Prison, Ex p St Germain [1979] QB 425, following a riot at a prison the board of visitors heard charges against a number of prisoners for disciplinary offences contrary to the Prison Rules, found them guilty and imposed punishments including loss of remission. The prisoners applied to the Divisional Court for orders of certiorari to quash the decisions of the board, but their applications were refused. They sought to appeal to the Court of Appeal and the board objected to that court hearing the appeals, on the grounds that the proceedings in the Divisional Court concerned a criminal cause or matter. The Court of Appeal applied the guidance in Amand and dismissed that objection, holding instead that it had jurisdiction to hear the appeal. The charges related to disciplinary offences, not offences against the public criminal law, and Amand was distinguished on that basis. None of the judges or counsel involved suggested that the fact that the loss of remission meant that the prisoners release dates would be put back made this a case concerning a criminal cause or matter. That was simply an aspect of the implementation of the sentences of imprisonment which had been imposed on the prisoners long before. For these reasons, I would hold that this court has no jurisdiction to hear the appeals by the Department and Mr Stone. They should challenge the decision of the Divisional Court by way of appeal to the Court of Appeal. (3) Recent authorities Having obtained a hearing date and prepared for the hearing of the appeals to this court, the Department, Mr Stone and Mrs McGuinness were understandably reluctant to accept that the hearing before us should be lost for this jurisdictional reason. They submitted that the decision of the Divisional Court is properly to be categorised as one in a criminal cause or matter within section 41(1). They relied in particular on Belhaj, the decision of the Court of Appeal for England and Wales in R (McAtee) v Secretary of State for Justice [2018] EWCA Civ 2851; [2019] 1 WLR 3766 (McAtee) and the decision of the Divisional Court in Northern Ireland in JR27 [2010] NIQB 12. In my judgment, these authorities cannot be taken to determine the matter. I have already referred to Belhaj. The judgments in that case do not support the argument that the decision of the Divisional Court in this case was in a criminal cause or matter within section 41(1). Although both Lord Sumption (paras 17 and 20) and Lord Lloyd Jones (para 50) refer to Ex p Woodhall and Lord Lloyd Jones (para 50) referred to reasons for giving the relevant phrase a comparatively wide meaning in the context of the 1873 Act and the question of routes of appeal, both judgments are consistent with the analysis set out above. In so far as the reasoning in the case touches in specific detail on the law in relation to rights of appeal, the justices were simply in agreement that judicial review proceedings to challenge a prosecutorial decision were a criminal cause or matter, as previous authority made clear. The present judicial review proceedings are not concerned with such a decision, nor with any other decision falling within the guidance given in Amand. McAtees case was concerned with the implementation of a sentence of imprisonment for public protection (IPP) under section 225 of the Criminal Justice Act 2003. The effect of the Crime (Sentences) Act 1997 was that a prisoner sentenced to an indeterminate term by way of IPP and then released on licence could, after a qualifying period of ten years after release, seek an order from the Parole Board to require the Secretary of State for Justice to order that the licence should cease to have effect (ie that his release should become unconditional). One prisoner subject to IPP (Mr Lee) commenced judicial review proceedings, as a test case, to seek a declaration under the HRA that the relevant statutory provision requiring him to wait for the expiry of ten years before applying to be free from licence conditions was incompatible with his article 8 Convention rights under the HRA. A Divisional Court of the High Court dismissed that claim. Mr Lee applied to the Court of Appeal for permission to appeal and was granted such permission. Mr Lee then dropped out of the proceedings and an application was made for his place to be taken by Mr McAtee to continue the appeal. On consideration of that application, Irwin LJ considered that an issue arose regarding the jurisdiction of the Court of Appeal to entertain the appeal and directed that the issue be argued in open court. In a judgment of the court (Sir Brian Leveson P, Davis and Lewison LJJ), it was held that the appeal was in respect of a criminal cause or matter, so that no appeal lay to the Court of Appeal. I respectfully disagree with that conclusion. In my opinion, the court read too much into the decision of this court in Belhaj and treated it (see paras 33 to 35, 41, 50 and 51) as indicating that a broad meaning is to be given to the phrase criminal cause or matter as it appears in section 18(1), thereby limiting the availability of ordinary rights of appeal to the Court of Appeal to a degree which is not warranted by the section. But all the justices in the Supreme Court in Belhaj held that the Barras principle did not apply, so it was not appropriate for the Court of Appeal to approach the case on the basis that there should be a direct reading across of the meaning of the relevant phrase in the JSA 2013 into the statutes dealing with routes of appeal. The Court of Appeal also seems to have thought that the question whether an appeal was in relation to a criminal cause or matter was a matter of impression from the words used (para 43). However, I do not think that is a satisfactory approach, given the overlap between civil and criminal matters in some cases. Clearer criteria are needed to provide guidance in this procedural context so parties can know where they stand, and to avoid the risk of courts reaching decisions as a matter of impression which are hard to reconcile. In my view, there was no good reason to conclude that section 18(1) was applicable in relation to the claim for a declaration of incompatibility which was in issue in McAtees case, and good reason to think that it was not applicable. The proceedings had nothing to do with the bringing of criminal charges against the appellant. Those charges had been brought and dealt with in criminal proceedings in court a long time previously, including by the sentence the appellant had been given. Claims under the HRA for declarations of incompatibility in respect of statutory provisions are a familiar feature of the legal landscape and are generally treated as civil claims in relation to which an appeal lies to the Court of Appeal in the usual way. Only the High Court (or a court above that) can issue a declaration of incompatibility, not some other court such as one exercising criminal jurisdiction: section 4(5) of the HRA. Further, if a claim is made for such a declaration, notice has to be given to the government so that it has the opportunity to appear and resist the claim (section 5). The debate about whether a declaration of incompatibility should be granted is an exercise in review of the statute book against human rights standards and is distinct from the criminal process itself. These provisions indicate that an application for a declaration of incompatibility in the High Court is not a criminal cause or matter, and the appeal routes which have been followed in the leading cases (albeit on the basis of assumptions made by counsel and the courts) confirm this. In each of Nicklinsons case and Conways case the appeal lay to the Court of Appeal; so also in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 AC 837 (declaration of incompatibility in relation to the Home Secretarys involvement in setting the tariff for a life prisoner in relation to his sentence); R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2018] 3 WLR 1831 (application for declaration of incompatibility regarding the statutory regime governing early release from prison of those serving extended determinate sentences for sexual offences, by way of a leap frog appeal pursuant to section 12 of the Administration of Justice Act 1969, ie on the basis that the usual route of appeal would be to the Court of Appeal); and R (Miranda) v Secretary of State for the Home Department (Liberty intervening) [2016] EWCA Civ 6; [2016] 1 WLR 1505 (declaration of incompatibility in relation to stop and search powers under the terrorism legislation and the article 10 Convention right in the HRA, as regards protection of journalists). The possibility of overlap with criminal proceedings cannot be ruled out. An application for a declaration of incompatibility may emerge from a failed argument, which is available in a criminal court below the High Court, that pursuant to section 3 of the HRA a statutory provision which defines a criminal offence should receive some modified interpretation in light of Convention rights. In such a case, it may be that the association of the application for a declaration of incompatibility in the High Court with the underlying criminal proceedings is so strong that they are to be taken together as a criminal cause or matter in the High Court. Prettys case is another example. The need to avoid bifurcation of the rights of appeal in relation to what, in the particular circumstances, are closely related dimensions of the same proceedings points towards this result. But what is important in such cases is that the usual procedural position in relation to applications for a declaration of incompatibility is strongly outweighed in the particular circumstances by the close association of that claim with underlying proceedings which are clearly criminal in nature. The interpretation of the phrase is necessarily informed by the context in which it falls to be applied. However, the Court of Appeal in McAtees case did make some highly pertinent comments with which I agree and which support the analysis above. In particular, I endorse what they said at para 42: It is, in our view salutary that there should not be an over expansive interpretation of the phrase criminal cause or matter and neither should there be an over expansive approach to addressing the jurisdictional issue. After all, while some cases in the Divisional Court or Administrative Court are at a second level of judicial decision making for example, appeals by way of case stated many are not (the present case is an example). If a case is a criminal cause or matter then the only route of appeal is to the Supreme Court. Not only is that complex and expensive for litigants but also (and importantly) such an appeal is only possible if the court has first certified that a point of law of general public importance arises. That is a high bar to cross; many, indeed most, cases are not likely to be able to cross it. Moreover, for those relatively few cases which do raise an important point of law, the Supreme Court will then be required to deal with them without what one would hope would be considered the benefit of the decision and reasoning of a three judge constitution of the Court of Appeal. See also R (Thakrar) v Crown Prosecution Service at para 41 per Davis LJ. I also agree with observations of the court in McAtees case in para 52 regarding the view reached in relation to the decision of the Divisional Court in Gilbert (Michael) v Secretary of State for the Home Department [2005] EWHC 1991 (Admin). That concerned a judicial review challenge, not to a sentence imposed by a criminal court but to a decision of the prison authorities in calculating the date on which the claimant was to be released and the date on which his licence expired. The case was thus similar to Evans (No 2), referred to above. Permission to appeal to the Court of Appeal was refused by Smith LJ after a brief oral argument, on the basis that the judgment was in a criminal cause or matter within section 18(1). In McAtees case, the Court of Appeal expressed reservations about this conclusion. They were right to do so. In my view, section 18(1) did not apply. As the Court of Appeal observed: it certainly would seem surprising that, for example, a decision on a consequential claim by any person for damages for wrongful detention (on the footing that the release date had been miscalculated) which is a claim of a kind not infrequently ultimately assigned to a Queens Bench master or to the County Court, could only attract an appeal, on certification, to the Supreme Court. The court also referred at para 27 to authority which I consider is directly supportive of the analysis above: it was assumed, without discussion, that the Court of Appeal had jurisdiction to decide an appeal relating to a prisoners asserted rights of notification of the judicial decision on the tariff term for a mandatory life sentence before (as was then the procedure) the Secretary of State set the ultimate tariff term: R v Secretary of State for the Home Department, Ex p Doody [1993] QB 175. Jurisdiction was also assumed in a case concerning the entitlement (or otherwise) to unconditional release on licence in the light of subsequently introduced legislation: R (Stellato) v Secretary of State for the Home Department [2007] 1 WLR 608. The same assumption was made in a case (in which a declaration of incompatibility was claimed) involving the absence of review procedures for indefinite notification requirement under the provisions of the Sexual Offences Act 2003: R (F) (A Child) v Secretary of State for Justice (Lord Advocate intervening) [2011] 1 AC 331. Finally, in R (Minter) v Chief Constable of Hampshire Constabulary [2014] 1 WLR 179 it had been held that an issue as to whether the extended licence period in an extended sentence was to be taken into account for the purpose of assessing the period of the notification requirements under the Sexual Offences Act 2003 was not a criminal cause or matter: see per Laws LJ, at para 2. I do not find the courts attempt later in its judgment to distinguish these cases persuasive. The courts reasoning (in particular at paras 43 to 51) depended on their view that no distinction could be drawn in this context between the imposition of a sentence by the criminal court and the working out of what that sentence means in light of the relevant statutory regime. I do not accept this. The imposition of a sentence by a court at the end of criminal proceedings is an inherent part of a criminal cause or matter for the purposes of section 18(1). But in my view proceedings in relation to decisions by non judicial actors regarding the effect of such a sentence are not; nor are judicial decisions regarding the human rights compatibility of the regime according to which such effect is determined. As to the former category, it is unfortunate that the courts attention was not drawn to a case such as Evans (No 2); and to the other authorities to which I have referred in relation to the latter. Finally, I turn to recent authority from Northern Ireland on the meaning of section 41. The Northern Ireland Divisional Court embarked upon a lengthy examination of the meaning of the relevant phrase in section 41 in JR27. That concerned a judicial review of the refusal of the police to destroy certain data relating to the claimant collected under the Police and Criminal Evidence (Northern Ireland) Order 1989 with a view to a possible prosecution, though in the event charges were not brought. McCloskey J, with whom Weatherup J agreed, reviewed a number of authorities and concluded that the primary test (from Amand) focused on whether the underlying proceedings could place an individual in jeopardy of criminal proceedings or punishment. Although no investigation was underway, an investigation and potential prosecution of the claimant for a criminal offence on some future date was nevertheless a possible and foreseeable outcome. As a result, the impugned measure was to be considered a step in the criminal proceedings that put the claimant in jeopardy (albeit slight) of a criminal charge. Sir Declan Morgan LCJ dissented. In his view the proceedings did not constitute a criminal cause or matter because the possibility of criminal proceedings was too remote to satisfy the need for proximity between the application before the court and the matter putting the individual in jeopardy. As will be clear from what has been said above, I consider that Sir Declan Morgan LCJ was correct about this. The jeopardy principle as adumbrated in Amand is much more tightly focused on court proceedings in relation to a specific criminal charge than the majority thought. Issues regarding the holding and use by public authorities of information relating to an individual are firmly in the sphere of civil public law, and there was no close connection with the bringing of a criminal charge in this case to change that position. The relevant route of appeal was to the Court of Appeal, as in the closely similar case of R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196: see para 49 per Sir Declan Morgan LCJ. As he rightly observed at para 50, The requirement to appeal directly to the Supreme Court now seems anomalous. Similar comments have been made recently by the Court of Appeal in England and Wales: see R (Thakrar) v Crown Prosecution Service at para 41 (Davis LJ) and para 55 (Irwin LJ). Accordingly, there are strong arguments against reading section 18(1) and section 41(1) expansively. I would, however, enter one note of caution about Sir Declan Morgan LCJs judgment. At para 46 he said that cases in which, after the imposition of a sentence by a court in criminal proceedings, there is a challenge concerning the number of days the applicant has to serve in custody as a result of the sentence imposed involve proceedings in a criminal cause or matter (citing In re Montgomerys Application [2008] NIQB 130). I do not agree. There is a clear distinction between proceedings leading up to the imposition by a court of a sentence in relation to a criminal charge, which fall within the relevant phrase according to the guidance in Amand, and proceedings brought to challenge some non judicial body, such as a prison governor or a minister, which has to calculate the date of release in relation to such a sentence in the exercise of their administrative functions under public law, which does not. In my view, procedural clarity regarding rights of appeal requires that this distinction should be respected. In In re McGuinness (No 3) [2019] NIQB 76, the Divisional Court in Northern Ireland (McCloskey J and Keegan J) gave a judgment in which it held that related judicial review proceedings brought by Mrs McGuinness to challenge the exercise of jurisdiction by the SRC in relation to Mr Stone to consider his application for early release did not constitute a criminal cause or matter within section 41(1). As will be clear, I agree with that conclusion. However, the courts reasoning proceeded by reference to the majority judgment in JR27, Belhaj and McAtees case, and I would not endorse it. In my view, the conclusion is correct because the SRCs decision related to the exercise of their administrative functions, arising in the light of a sentence previously imposed and involving the working out of the effects of that sentence in the context of their public law duties under the relevant statutory regime. Conclusion For the reasons given above, I would hold that the present proceedings do not constitute a criminal cause or matter for the purposes of section 41, with the result that this court does not have jurisdiction to entertain these appeals. That being so, and because this court is likely to be assisted by consideration of the Northern Ireland Court of Appeal of the operation of the special prisoner regime in that jurisdiction under the Northern Ireland (Sentences) Act 1998 and pursuant to the Belfast Agreement, should the case come back for consideration by this court, I do not think it is appropriate to say anything about the merits of the appeals. |
The appellant Ms Vida Poshteh arrived in this country in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009. She lives with her son born in 2007. In October 2009 she applied to the respondent council for accommodation as a homeless person. Since then she has been housed in temporary accommodation provided by the council, which has been continued pending this appeal. The appeal arises from her refusal in November 2012 of a final offer of permanent accommodation at 52a Norland Road, London W11. Her grounds in short were that it had features which reminded her of her prison in Iran, and which would exacerbate the post-traumatic stress disorder, anxiety attacks and other conditions from which she suffered. Following a review, these grounds were held insufficient to justify her refusal. The councils decision was upheld on appeal by the County Court (HH Judge Baucher), and by the Court of Appeal (Moore-Bick and McCombe LJJ, Elias LJ dissenting). Permission to appeal to this court was granted on two issues: (1) Whether Ali v Birmingham City Council [2010] 2 AC 39 should be departed from in the light of Ali v United Kingdom (2015) 63 EHRR 20 and if so to what extent; (2) Whether the reviewing officer should have asked himself whether there was a real risk that the appellants mental health would be damaged by moving into the accommodation offered, whether or not her reaction to it was irrational, and if so, whether he did in fact apply the right test. The first issue raises an issue of general importance relating to the application in this context of article 6 of the European Convention on Human Rights. The second is directed to the reasoning of the reviewing officer in the particular case. The law It is unnecessary to rehearse the relevant provisions of the Housing Act 1996 Part VII in any detail. As is well known, the local housing authority is under a duty to secure provision of suitable accommodation for a person who is homeless and in priority need, and has not become homeless intentionally. The critical provisions in this case are section 193(7) and (7F) which deal with circumstances in which the duty ceases: (7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6. (7F) The local housing authority shall not - (a) make a final offer of accommodation under Part 6 for the purposes of subsection (7); unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer. In the present case the issue turned not on the suitability of the accommodation, but on whether it was reasonable for the appellant to accept it. The decision-makers task was described by Ward LJ in Slater v Lewisham London Borough Council [2006] EWCA Civ 394 (in terms which have not been criticised): In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of those individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right- thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation. (para 34) The applicant may request a review of an adverse decision, by a senior officer who was not involved in the original decision (section 202). If the decision is confirmed, reasons must be given (section 203(4)). An appeal lies to the county court on a point of law only (section 204(1)). The proper approach of the court when reviewing such a decision was explained by Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413, paras 46ff. As he said: 47. review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a courts judgment. 50. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions. The facts The background facts are set out in the leading judgment of McCombe LJ in the Court of Appeal. For present purposes it is sufficient to refer to the sequence of events following the offer of the accommodation in Norland Road on 14 November 2012. It was a first floor, two-bedroom flat in a purpose-built block dating from about 1985, owned by the Notting Hill Housing Group (NHHG). The living-room had two windows, one round window three feet in diameter, and the other rectangular three feet by five feet. Ms Poshteh went to see the flat on 16 November 2012, accompanied by a representative from NHHG. Her concerns about the physical features, not mentioned during the visit, were first raised in her letter of 29 November 2012, in which she said: [I] found the property scary given my history of post- traumatic stress. The windows in the sitting room were circle shaped and other windows were too small. The windows appeared to me as cell windows. I found them quite frightening and reminded me of when I was in prison in my country. I suffer from post-traumatic stress disorder, depression, panic and anxiety attacks, insomnia and nightmares due to torture that I experienced whilst back home in Iran. I therefore do not find it suitable to live in as my permanent home She enclosed letters from a therapist, and her GP (a Dr Sharma), which referred to her mental state and past trauma, and the need to avoid accommodation in a high rise building requiring a lift, but said nothing about the shape of the window. Her letter was treated by the council as a request for a review, which, following reference to the councils own medical advisers, led to confirmation of the decision. However, following her appeal to the county court, the council agreed to carry out a further review. A solicitors letter written on her behalf on 30 August 2013 expanded on her experience when viewing the property. This repeated her concerns, but for the first time stated that viewing the flat had sent her into a panic attack. The letter asserted (incorrectly) that the flat was in a high rise block with a lift. The solicitors also provided further letters relating to her medical condition, including a further letter from Dr Sharma, who understood the flat had been rejected - because the windows were very small and round and she felt like she was back in a prison and this made her scared because it reminded her of the torture she was subjected to. She thought that this type of property would be very unsuitable for her as it would continually trigger memories of her time in prison and the torture she suffered and this would not be good for mental state. A clinical therapist (Ms Baroni) wrote: In my opinion the effect of being housed in accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life would inevitably remind her of both the cell she was confined in for six months, and the interrogation rooms she was tortured in on many occasions if she were housed in accommodation which would be frightening and stressful for her she might suffer a serious relapse and not be able to look after her son safely. On 7 October 2013 Ms Poshteh attended an interview with the reviewing officer. According to his note of the interview, her main reason for refusing the property was the round window in the living room which she said was exactly similar to the round windows of her cell in Iran. The note continues: When I questioned the applicant further about the window she admitted that the round window in the living room of the property was not exactly like the window in the prison cell. In fact, the applicant acknowledged that the window in the prison cell was much smaller and did not let in much light at all. She agreed with my description that it was like a porthole window. The applicant also acknowledged that there was a second large rectangular window located in the living room. However, she advised that it still led her to have a panic attack when she viewed the property. She stated that she could not adequately explain how she felt to the officer from NHHG who accompanied her to the viewing After discussion of other features of the flat which do not appear to have caused her serious concern, the note continues: Applicant stated at the interview that the property would have been OK as TA [temporary accommodation] but not as a permanent offer of accommodation in which she would have to live for ever. She confirmed again that this was because of the window which led her to think about her bad past She stated that she could not accept the property because of the round window in the living room. The reviewing officers decision came in a letter dated 17 October 2013, running to ten pages. He outlined the history of the case, including the medical evidence, the solicitors representations and the matters raised at the interview of 7 October, and he described the dimensions and physical features of the accommodation. The critical part begins at para 39 where, having found that the accommodation was objectively suitable, he said: I nevertheless acknowledge that objectively suitable accommodation may be unsuitable for a particular applicant if it causes them to suffer from symptoms of mental illness. Indeed, the main issue in reviewing our homelessness decision is to consider whether this offer of accommodation was reasonable for you to have accepted given your history of imprisonment and ill-treatment in Iran and your subsequent diagnosis of PTSD and associated problems of severe anxiety and depression. He then gave his reasons for answering that question in the affirmative (paras 41-45). He acknowledged that accommodation which is, for example, cramped or contains small or barred windows could exacerbate symptoms of PTSD in someone who has experienced trauma in prison. However, he thought it highly relevant that the medical evidence, while reporting her own concerns, did not purport to state that the property was unsuitable on medical grounds or that it was not reasonable for her to accept it. The clinical therapist had spoken of very small dark rooms without windows at a normal height and looking out onto everyday life as inevitably reminding her of her detention; but the reviewing officer did not think the property met this description. He turned to consider whether the assertions she had made to her physicians about the window size and the arrangement in the living room were consistent with the floor plan and photographs provided by NHHG: Far from being small, the circular window is in fact seven square feet in size and provides sufficient natural light to meet the relevant edition of the building regulations. When we discussed this at interview you acknowledged that the circular window was in fact much larger than the circular window in your prison cell, and that the only similarity lay in the fact that both were circular. Moreover, the circular window was not the only window in the living room, natural light being also provided by a large rectangular bay window (15 square feet in size) with views onto the street. The combination of these two windows far from creating the dark and airless conditions normally associated with a prison cell, maximised natural light in the living room. He continued: 45. Therefore, I cannot accept as objectively reasonable your assertion that the size or design of the window in the living room was reminiscent of a prison cell or that the windows or layout of the living room is such that it recreated the conditions of confinement or incarceration that is likely to have a significant impact on your mental health Having considered other factors, including the physical health of her and her child, he referred also to what he described as a social housing crisis in this borough and a severe shortage of permanent accommodation locally, which he regarded as a highly relevant factor in concluding that the offer was suitable and reasonable for her to have accepted (para 51). The proceedings As already noted, Ms Poshteh appealed unsuccessfully to the County Court. In the Court of Appeal there was a difference of view, McCombe LJ, with whom Moore-Bick LJ agreed, held that the reviewing officer had properly considered the relevant issues and reached a valid decision. Elias LJ held otherwise, focussing principally on the reasoning at the key passage in para 45 of the letter (set out above). As he put it: 50. The premise is that unless the relevant inciting stressor was one which, objectively considered, was reminiscent of a prison cell or recreated the conditions of confinement or incarceration, which this property did not, the panic attacks could effectively be ignored or at least treated as sufficiently trivial as not to be likely to affect her mental health. He thought this approach was flawed: If as a matter of fact the appellant would be likely to suffer panic or anxiety of such a nature and degree as to create a significant risk of damaging her mental health, it matters not whether it is an explicable or rational reaction. It would still be reasonable for the appellant to refuse the property, as in the El- Dinnaoui case. Alternatively, the officer might possibly have reasoned that absent an objectively explicable inciting stressor, any panic or anxiety induced by the premises would be minimal and unlikely to have an effect on the appellants mental health. If so, the analysis is still in my opinion flawed because there was no proper evidence to justify that inference. It is true that the medical evidence was to the effect that small and dark premises, obviously reminiscent of a prison cell, may well trigger the attacks, but that did not discount the possibility that the attacks may occur in other circumstances. In my judgment there was no basis for inferring simply from the nature of the inciting stressor that the attacks could not be significant enough to damage her mental health. (para 51) Moore-Bick LJ summarised what he understood to be the critical difference between the other judgments, and gave his own comment: 62. The point on which my Lords are divided is whether Mr Stack wrongly dismissed as objectively unreasonable Ms Poshtehs assertion that the round window in the living room reminded her of her prison cell and as a result ignored her evidence of experiencing a panic attack when she visited the property. If that were the case, I should agree with Elias LJ that he misdirected himself. Ms Poshtehs reaction to the round window, as evidenced by her panic attack, was an objective fact, even if it was irrational, and was a matter to be taken into account. However, reading para 45 as a whole in the context of the preceding paragraphs, I am not persuaded that Mr Stack did ignore Ms Poshtehs reaction when reaching his conclusion What Mr Stack actually said was that he did not accept as objectively reasonable her assertion that the size or design of the windows in the living room were reminiscent of a prison cell or that the windows or layout of the room recreated the conditions of confinement or incarceration that were likely to have a significant impact on her mental health. The first of those observations cannot in my view be criticised, since the size and design of the windows were not on any objective view reminiscent of a prison cell. Whether the windows or layout of the room recreated conditions of confinement or incarceration that were likely to have a significant impact on Ms Poshtehs mental health, on the other hand, was a matter of judgment which had to be determined by reference not only to the nature of the inciting stressor or her perception of the property but to the evidence as a whole In the case to which Elias LJ referred (El-Dinnaoui v Westminster City Council [2013] EWCA Civ 231; [2013] HLR 23), the appellants wife had a medically-confirmed history of anxiety due to fear of heights. They were offered a flat on the 16th floor. She became distressed on leaving after the inspection and collapsed at the lift, and an ambulance had to be called. The councils decision that this flat was suitable or reasonable for her to occupy was held by the Court of Appeal to be perverse and so unlawful. Issue (1) application of article 6.1 Article 6.1 of the Convention provides: In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law In Ali v Birmingham City Council [2010] 2 AC 39 this court decided that the duties imposed on housing authorities under Part VII of the 1996 Act did not give rise to civil rights or obligations, and that accordingly article 6 had no application. In Ali v United Kingdom (2015) 63 EHRR 20 the European Court of Human Rights (in a chamber presided over by the President Judge Raimondi) held that article 6.1 did apply, but accepted in any event that the procedure applied under the Act conformed to its requirements. The government did not at that stage ask for the issue to be referred to the Grand Chamber. This appeal provides the first opportunity for this court to decide whether the approach of the Strasbourg court should now be followed in this country, and if so with what practical consequences. The Secretary of State, as intervener, has invited us to confirm the decision of this court that article 6 has no application. His concern is as to the effect on decision-making procedures of extending article 6 into both this and other areas of government activity relating to community care and education. The domestic authorities In Ali v Birmingham City Council the courts conclusion that article 6 was not engaged by section 193 turned principally on the nature of the right so granted. In the words of the headnote: a distinction could be drawn between the class of social security and welfare benefits whose substance was defined precisely, and which could therefore amount to an individual right of which the applicant could consider herself the holder, and those benefits which were, in their essence, dependent upon the exercise of judgment by the relevant authority; that cases in the latter category, where the award of services or benefits in kind was dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria were satisfied and how the applicants need ought to be met, did not amount to a civil right within the autonomous meaning which was given to that expression for the purposes of article 6 The right to accommodation under section 193 was held to fall within the latter category, and therefore outside the scope of article 6. This was the unanimous conclusion of the court following detailed consideration of the authorities domestic and European. The case was decided against the background of two domestic cases, in which this or related issues had been discussed at the highest level, but not decided: Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 (in which the House had proceeded on the assumption, without deciding, that article 6 was engaged by section 193); and R (A) v Croydon London Borough Council [2009] 1 WLR 2557 (relating to a local authority decision whether or not to provide accommodation for a child in need under section 20(1) of the Children Act 1989). In the latter case Lady Hale (with whom the other justices agreed), found it unnecessary to reach any firm conclusions on the application of article 6 (para 34), but, after a review of the authorities, commented that she would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind, where every decision about the provision of welfare services has resource implications for the public authority providing the service (para 44). Concurring, but without specific agreement from the rest of the court, Lord Hope felt that it could now be asserted with reasonable confidence that the authoritys duty under section 20(1) did not give rise to a civil right (para 65). In Ali itself, Lord Hope giving the leading speech (agreed by Lady Hale and Lord Brown) noted Lord Hoffmanns observation in Runa Begum (paras 42-44) that it was not in the public interest for funds allocated to social welfare schemes to be unduly consumed in administration and legal disputes, quoting with approval the joint dissenting opinion in Feldbrugge v The Netherlands (1986) 8 EHRR 425, 443, para 15: The judicialisation of dispute procedures, as guaranteed by article 6.1, is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind. Lord Hope observed that the article had now been extended to public law rights, such as social security or other cash under publicly funded schemes, but that no clearly defined stopping point to this process of expansion had been identified. He saw the instant case as an opportunity to introduce a greater degree of certainty into this area of public law (paras 5-6). He noted that in Runa Begum the House had preferred not to decide the question, one reason being the wish not to inhibit the government from developing the arguments in the Strasbourg court should it become necessary to do so (para 31); the balance of advantage now pointed in the direction of taking a decision and so ending the unhealthy uncertainty in the law (para 32). Reviewing the judgments in Runa Begum itself (paras 38-39), he noted with approval comments by Lord Bingham that to hold this to be a civil right would go further then Strasbourg had yet gone; by Lord Hoffmann that the whole scheme of Part VII was shot through with discretions ; by Lord Millett that, given the authority's discretion as to how it will discharge its duties and the fact that ultimately this called for an exercise of judgement, the claim could not be said to be for an individual, economic right flowing from specific rules laid down in a statute. He reviewed the relevant authorities since Runa Begum, including the Croydon case. Of the Strasbourg authorities Lord Hope noted in particular Tsfayo v United Kingdom [2007] BLGR 1; 48 EHRR 18, commenting there had been no dispute that the claim to housing benefit in that case concerned the determination of the applicants civil rights: This was not surprising, as the case fell within the mainstream of cases such as Salesi v Italy 26 EHRR 187 and Mennitto v Italy 34 EHRR 1122 where the issue was one as to the entitlement to an amount of benefit that was not in the discretion of the public authority. The case offers important guidance as to what is needed to satisfy the requirements of article 6.1. But it takes us no further on the question whether a statutory duty to provide benefits in kind as part of a scheme of social welfare falls within the scope of that article. (para 42) He referred to a number of straws in the wind in other cases pointing the other way, and supporting a distinction between - ... the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy 26 EHRR 187 whose substance the domestic law defines precisely and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority. (para 43) He referred for example to Loiseau v France (Application No 46809/99), 18 November 2003 (unreported), para 7 where the court had referred to a private right which can be said, at least on arguable grounds, to be recognised under domestic law and to an individual right of which the applicant may consider himself the holder. He concluded that article 6 was not engaged by decisions taken by the review officer (para 49). Lord Collins referred also to the decision in Schuler-Zgraggen v Switzerland (1993) 16 EHRR 405, relating to a contributory invalidity scheme, in which the Strasbourg court had spoken of the claim as being for an individual, economic right flowing from specific rules laid down in a federal statute (para 65). He distinguished the content of the statutory duty under section 193 which lacks precision and gave no right to any particular accommodation. Such factors together with the essentially public nature of the duty meant that it did not give rise to an individual economic right (para 73). To similar effect, Lord Kerr acknowledged the difficulty of finding a principled basis for the distinction between social security payments and social welfare provision, given that both require the expenditure of public resources, provide a valuable resource to the recipient; and are activated by a need on the part of the beneficiary. He concluded however that - the lack of similarity to (or, rather, the distinction that can be made with) a private insurance scheme, and the dependence on discretionary judgments not only to establish entitlement but also to discharge the states obligation and the way in which the obligation can be met, all combine to make this a different type of case from the Salesi v Italy (1993) 26 EHRR 187 or Mennitto v Italy (2000) 34 EHRR 1122 models. This is not an assertable right as that term was used in Stec v United Kingdom (2005) 41 EHRR SE 295. (para 75) I should note briefly Nzolameso v Westminster City Council [2015] UKSC 22; [2015] PTSR 549, the most recent Supreme Court decision to which we were referred on Part VII of the 1996 Act (taken with the Children Act 2004). That was principally concerned with the circumstances in which the authority could reasonably make a final offer of accommodation in another area (in that case more than an hour away from where she and her family had lived for many years). The councils decision was set aside on the facts of the case. However, the court recognised the pressures facing authorities dealing with such cases, and the range of considerations which needed to be taken into account, including the resources available to them, the availability of accommodation in their own areas, and the similar pressures on adjoining authorities. Finally, of the domestic authorities, mention should be made of R (King) v Secretary of State for Justice [2016] AC 384; [2015] UKSC 54, in which it was held that a disciplinary decision by a prison governor to order segregation did not engage article 6.1. Lord Reed (in a judgment agreed by the other members of the court) referred (para 113) to the Grand Chamber judgment in Boulois v Luxembourg (2012) 55 EHRR 32, concerned with release on licence, in which the court had said that for the civil limb of article 6.1 to be engaged there must be a dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law, adding (para 91): The court may not create by way of interpretation of article 6.1 a substantive right which has no legal basis in the state concerned. The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. This court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law. Later in the judgment Lord Reed noted that the article had also been applied to cases concerning rights in public law regarded as closely resembling rights in private law, such as rights to state benefits. He commented that in Ali v Birmingham City Council - the critical feature of cases in the latter category was identified as being that the benefits in question were the subject of precise definition and could therefore amount to an individual right of which the applicant could consider herself the holder. Those were distinguished from benefits which were, in their essence, dependent on the exercise of judgment by the relevant authority. That is consistent with the approach adopted by the Grand Chamber in Boulois. (para 121) Ali v United Kingdom I turn to the judgment of the Strasbourg court. As part of the history of the case (paras 20-24) it referred to extracts from Lord Hopes judgment in Ali v Birmingham City Council (paras 20-24), but without further discussion of the courts reasoning. Under a section headed Judicial consideration of Part VII of the Housing Act 1996 it referred to only two cases: Adan v Newham London Borough Council [2002] 1 WLR 2120 CA, and Runa Begum in this court. Of the former, the judgment noted that the Court of Appeal had set aside the order of the County Court on jurisdictional grounds, but had gone on in an extended obiter dictum to consider the effect of article 6: In this regard, Hale LJ opined that the right to accommodation under section 193 is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant. (para 32) Of Runa Begum, the judgment referred to the courts conclusion that the review mechanism under Part VII complied with article 6, assuming it applied. On the issue whether article 6 did apply, the only citation was of the comments of Lord Millett (paras 91 and 93), in which he had noted the features which took the case beyond the existing case law, and which made it inappropriate for determination by the ordinary judicial process; but had found it more difficult, at least in principle, to justify withdrawing it from the protection of article 6.1. The court summarised the submissions of the parties, including the submission on the part of the UK government that the applicant had only a general right to be housed, not to any specific property; this was contrasted with the provision of a financial benefit where both the entitlement and the amount were determined by a clear set of conditions (para 49). Under the heading The Courts assessment the judgment began by setting out general principles including the need to start from the interpretation of the relevant provisions by the domestic courts (para 54). On the application of those principles to the facts of the case, it is appropriate to set out the substance of the reasoning in full: 56. In the case of [Runa] Begum the House of Lords accepted that section 193(2) of the 1996 Act imposed a duty on the Council to secure that accommodation was available for occupation by Ms Begum. Thus, a duty was owed which was enforceable by Ms Begum and which related to a matter of acute concern for her. In the present case the Council acknowledged in its letter of 7 November 2006 to the applicant that it owed her the main housing duty to provide accommodation to her and her family The Government also accept that she had a general right to be housed although the applicant could not point to any property to which she had any right. 57. The Court is satisfied that in the present case the applicant had a legally enforceable right by virtue of section 193 of Part VII of the 1996 Act to be provided with accommodation, albeit that this was a right that could cease to exist in certain conditions Moreover, the court proceedings in question clearly concerned a dispute over the continuing existence, if not the content, of that right; the dispute was genuine and serious; and the result of the proceedings was directly decisive for the right in question. It therefore falls to the Court to decide whether or not the right in question was a civil right for the purposes of article 6 para 1 of the Convention. 58. It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of article 6 para 1 of the Convention [the footnote cites eg Tsfayo v United Kingdom 48 EHRR 18 para 40, Feldbrugge v Netherlands 8 EHRR 425, Deumeland v Germany (1986) 8 EHRR 448 and Schuler-Zgraggen v Switzerland 16 EHRR 405]. The Court has even recognised a right to a non- contributory welfare benefit as a civil right [citing eg Salesi v Italy (1993) 26 EHRR 187, para 19, and Tsfayo v United Kingdom, para 40]. However, the present case differs from previous cases concerning welfare assistance, as the assistance to be provided under section 193 of the 1996 Act not only was conditional but could not be precisely defined [comparing eg Tsfayo, in which the dispute concerned a fixed financial amount of housing benefit]. It concerns, as the Government noted, a benefit in kind and the Court must therefore consider whether a statutory entitlement to such a benefit may be a civil right for the purposes of article 6 para 1 59. It is true that accommodation is a benefit in kind and that both the applicants entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Nonetheless, the Court is not persuaded that all or any of these factors necessarily militate against recognition of such an entitlement as a civil right. For example, in Schuler-Zgraggen v Switzerland 16 EHRR 405, in which the applicants entitlement to an invalidity pension depended upon a finding that she was at least 66.66% incapacitated, the Court accepted that article 6 para 1 applied. In any case, the discretion in the present case had clearly defined limits: once the initial qualifying conditions under section 193(1) had been met, pursuant to section 206(1) the Council was required to secure that accommodation was provided by one of three means, namely by providing accommodation itself; by ensuring that the applicant was provided with accommodation by a third party; or by giving the applicant such advice and assistance to ensure that suitable accommodation was available from a third party. In this regard, the Court agrees with Hale LJ in Adan v Newham London Borough Council, in which she opined that the right to accommodation under section 193 is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant. 60. In light of the above, as far as the applicability of article 6 para 1 is concerned, the Court sees no convincing reason to distinguish between the applicants right to be provided with accommodation, as acknowledged by the Council in its letter of 7 November 2006, and the right to housing benefit asserted by the applicant in Tsfayo. Article 6 para 1 therefore applies and, as such, the applicant had a right to a fair hearing before an independent and impartial tribunal. Having decided that article 6 did apply, the court agreed with the domestic courts that the procedure under Part VII was compliant, notwithstanding that the County Court did not have jurisdiction to conduct a full rehearing of the facts (para 83), but taking as a whole the legislative welfare scheme by virtue of which the applicant, as a homeless person, derived her civil right to be provided with accommodation (para 87). Discussion of issue (1) The review of the domestic authorities noted above, from Runa Begum onwards, shows a continuing debate on this issue, against the background of the uncertain Strasbourg jurisprudence. The unanimous judgment of this court in Ali v Birmingham City Council was intended to settle the issue at domestic level, after a full review of all the relevant Strasbourg authorities. Against this background it is necessary to consider whether the reasoning in the recent Chamber decision makes it necessary or appropriate for us to depart from that decision. The Chamber acknowledged (in line with the Grand Chamber decision in Boulois) the weight to be given to the interpretation of the relevant provisions by the domestic courts. It is disappointing therefore that it failed to address in any detail either the reasoning of the Supreme Court, or indeed its concerns over judicialisation of the welfare services, and the implications for local authority resources (see para 23 above). Instead the Chamber concentrated its attention on two admittedly obiter statements, respectively by Hale LJ (as she then was) in the Court of Appeal in Adan, and Lord Millett in Runa Begum. However, its treatment of these two statements is open to the criticism that they were taken out of context, and without regard to their limited significance in the domestic case law. In Adan the application of article 6 had been conceded by counsel. It is not clear that the passage quoted from the judgment of Hale LJ (para 55) was doing more than recording the basis of the concession. It is true that the passage was mentioned with approval by Lord Hoffmann in Runa Begum (paras 66-69). However, her own considered view on the issue is apparent from both her own judgment in the Croydon case, and her agreement with the leading judgment in Ali (in which Adan did not merit a mention). Nor is it clear from the decision that the Chamber fully appreciated the width of the discretion given to the authority, including questions of resource allocation (emphasised by Lady Hale herself in other cases). Lord Milletts comments needed to be read with the following sentence of his speech, which expressed his view that most European states possess limited judicial control of administrative decisions so that, if article 6 did not apply, such decisions might be outside judicial control altogether (para 93). It would have been interesting to know to what extent that perception of the inadequacies of other administrative law systems was shared by the members of the Chamber, with the benefit of their more direct knowledge. In any event, Lord Milletts views on this point were not shared by the rest of the House, and were overtaken by the considered and unanimous view of this court in Ali itself. Questionable also, with respect, is the Chambers reliance on the decision in Schuler-Zgraggen v Switzerland as an example of entitlement subject to discretion. As Lord Collins pointed out in Ali (at para 61), it was treated by the 1993 court as a claim to an individual economic right flowing from specific rules laid down in the statute. The case report shows that the statute in question gave a right to a full invalidity pension where incapacity of at least 66.66% was established (para 35). Once that level of incapacity was established, the financial entitlement followed as a matter of right, not discretion. It is hard to see any fair comparison with the range of factors, including allocation of scare resources, to which authorities are entitled to have regard in fulfilling their obligations under the housing legislation. In fairness to the Chamber, it may be that this was not spelt out in the governments submissions, as fully as it has been in recent domestic cases (see eg para 27 above). Our duty under the Human Rights Act 1998 section 2 is take account of the decision of the court. There appears to be no relevant Grand Chamber decision on the issue, but we would normally follow a clear and constant line of chamber decisions (see Manchester City Council v Pinnock [2011] 2 AC 104, para 48). This might perhaps be said of some of the previous decisions referred to in the judgment, including most recently Tsfayo v United Kingdom (2006) in which the application of article 6 was conceded by the government. However, it is apparent from the Chambers reasoning (see para 58 cited above) that it was consciously going beyond the scope of previous cases. In answer to Lord Hopes concern that there was no clearly defined stopping point to the process of expansion, its answer seems to have been that none was needed. That is a possible view, but one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime. The scope and limits of the concept of a civil right, as applied to entitlements in the field of public welfare, raise important issues as to the interpretation of article 6, on which the views of the Chamber are unlikely to be the last word. In my view, this is a case in which, without disrespect to the Chamber, we should not regard its decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali. It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position. Issue (2) - the correct test and reasons I turn to the second issue which was the subject of decision in the courts below. In this court Mr Westgate QC for Ms Poshteh supports the judgment of Elias LJ. In addition he relies on the public sector equality duty under section 149 of the Equality Act 2010 as underlying the sharp focus which should have been given by the officer to the effects of the applicants disability. For this purpose, he has subjected the decision letter to exhaustive critical analysis. In summary he says that letter fails to explain the link between the objective reasonableness or otherwise of Ms Poshtehs assertion that the round window reminded her of a prison cell, and the rejection of her claim that it would have a significant impact on her mental health. Nor did the letter-writer address adequately the subjective factors underlying her claim. In particular he should have addressed explicitly the panic attack suffered by her when she visited the property. This was a subjective fact, even if (as she was said to have admitted at the interview) the round window was not exactly like the one in her prison cell. In my view, the appeal on this issue well illustrates the relevance of Lord Neubergers warning in Holmes-Moorhouse (para 7 above) against over-zealous linguistic analysis. This is not to diminish the importance of the responsibility given to housing authorities and their officers by the 1996 Act, reinforced in the case of disability by the Equality Act 2010. The length and detail of the decision-letter show that the writer was fully aware of this responsibility. Viewed as a whole, it reads as a conscientious attempt by a hard-pressed housing officer to cover every conceivable issue raised in the case. He was doing so, as he said, against the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving. He clearly understood the potential importance of considering her mental state against the background of her imprisonment in Iran. His description of the central issue (para 39) has not been criticised. It is true that he did not in terms address her claim to have suffered a panic attack. But it is hard to criticise him for giving little weight to an incident which she had not mentioned at the time, either to the NHHG officer who accompanied or in her initial letter, nor apparently to either of her medical advisers. In this respect it was a very different case from El-Dinnaoui, to which Elias LJ referred (para 17 above), where the effect was immediate and obvious, and consistent with previous medical advice. Nor, on the other side, did he hold against her her admission at interview that, whatever her reaction during the visit, the flat would have been acceptable on a temporary basis. In any event, the issue for him was not her immediate reaction on one short visit, but how she would reasonably have been expected to cope with living there in the longer term. On that he was entitled to give weight to the medical evidence submitted by her, and to consider how far it supported her case. Taken in isolation the first sentence of para 45 could have been better expressed. But read in the context of the preceding paragraphs the tenor is reasonably clear. The medical evidence was based on a false premise; the assertions she had apparently made to them about the physical features of the property did not match the facts. This was a point he had fairly put to her at the interview, and she was unable to provide a convincing answer. It might well have been unreasonable to offer her (in the clinical therapists words) accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life. But that was not a reasonable description of this particular property, nor a sufficient ground for her not accepting it. Seen in that light there is no difficulty in understanding his reasoning overall. Nor does it disclose any error of law. Finally I should notice Mr Westgates invitation to the court to address questions related to the standard of review by the court. He developed an elaborate argument by reference to recent authorities supporting a more flexible approach in different contexts, particularly where fundamental rights are a stake (eg Pham v Secretary of State for the Home Department [2015] 1 WLR 1591). This issue was not one on which permission to appeal was given, nor has Mr Westgate offered any convincing reason for extending its scope. I bear in mind also Lord Neubergers comments on the potentially profound constitutional implications of a decision to replace the traditional Wednesbury tests for administrative decisions in general (R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355, para 132). I would agree with Mr Westgate that, since the creation of a statutory right of appeal to the county court, recourse to the highly restrictive approach adopted 30 years ago in the Puhlhofer case (R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484) is no longer necessary or appropriate. However, the principles governing the right of appeal to the county court under the 1996 Act have been authoritatively established by the House of Lords in Runa Begums case and others following it (including Holmes-Moorhouse), and should be taken as settled. Proliferation of authorities Before leaving the case, I feel bound to say something about the volume of authorities presented in the court bundles. UKSC Practice Direction 6 deals with the form and content of such volumes (paras 6.5.2ff). The appellants are responsible for production of authorities in paper form in sufficient numbers for the court, subject in due course to the courts decisions on costs. Paragraph 6.5.5 states: I would accordingly dismiss the appeal on the second issue. The Court has on numerous occasions criticised the over- proliferation of authorities. It should be understood that not every authority that is mentioned in the parties printed cases need be included in the volumes of authorities. They should include only those cases that are likely to be referred to during the oral argument or which are less accessible because they have not been reported in the Law Reports. In this case the court was presented with eight bundles, including more than 90 cases, reproduced in full, together with 20 other items of statutory material, guidance and textbook extracts (extending in total to some 2,700 pages). The intervention of the Secretary of State was accompanied by two additional bundles, extending to more than 1,000 pages, and including 13 further authorities. The most relevant cases were helpfully, and correctly (PD6 para 6.5.2), brought together in the appellants volumes 1 and 2. Of the remainder the vast majority were not referred to in oral argument, and were unlikely on any view to be more than peripheral to the determination of the issues on which permission had been given. I take as an example volume 4 headed Precedent - whether to depart from previous/follow Europe (or not). This volume included no less than seven House of Lords or Supreme Court authorities, totalling almost 350 pages. The volume was not opened during the hearing. The propositions which the cases were apparently intended to support were familiar, uncontentious, and adequately summarised with appropriate citations, in the printed cases. Similarly, the subjects covered by volume 6 (absence of proper reasons and standard of scrutiny) can be taken as sufficiently familiar to the court not to require extensive citation; still less the inclusion in the bundle of the whole of the Wednesbury case [1948] 1 KB 223 (12 pages), Edwards v Bairstow [1956] AC 14 (26 pages) and Kennedy v Charity Commission [2015] AC 455 (107 pages). It is essential that those involved in the preparation of these bundles, whether as counsel or solicitors, take full responsibility for keeping their contents within reasonable bounds and exercise restraint. The warning against proliferation of authorities is intended for the protection not just of the court, but more for the parties on whom the costs will ultimately fall. In many cases (as I assume in this case) they will be borne in one way or another from public sources. Conclusion For these reasons I would dismiss the appeal, and confirm the decision of the reviewing officer. |
The appellant (Onur), a Turkish corporation, appeals against orders made by Patten LJ in the Court of Appeal on 21 January 2016. An understanding of the nature of his orders requires reference to the following summary of the background. (a) On 22 May 2014 Rose J, [2015] 1 BCLC 89, gave judgment against Onur in favour of the respondent (Goldtrail), a UK company in liquidation, in the sum of 3.64m plus interest. (b) On 15 December 2014 Floyd LJ granted permission to Onur to appeal to the Court of Appeal against the order of Rose J on the basis that the appeal had a real prospect of success. (c) On 11 June 2015 Floyd LJ, by way of variation of an earlier order for the imposition of conditions upon the continuation of Onurs appeal, made it conditional, among other things, upon Onurs payment into court (or provision of other security for it) of 3.64m by 9 July 2015. (d) On 29 October 2015, in the absence of any payment into court (or provision of other security), Goldtrail applied for an order dismissing Onurs appeal and on 7 December 2015 Onur cross-applied for an order that the condition for payment into court be discharged on the ground that it could not comply with it and that the effect of dismissing the appeal by reference to it would be to stifle the appeal. (e) At the hearing before Patten LJ on 14 January 2016 of the application and cross-application referred to at (d), Goldtrail, in disputing that the condition for payment was such as to stifle Onurs appeal, relied in particular on the financial relationship between Onur and its wealthy owner, Mr Bagana. As explained by Patten LJ in his reserved judgment dated 21 January 2016, his orders were first to dismiss Onurs cross-application and thereupon to grant Goldtrails application for an order that, by reason of Onurs failure to comply with the condition imposed on 11 June 2015, its appeal should be dismissed. In the above circumstances this court is asked to address the principles by reference to which the Court of Appeal should determine an application by a respondent/claimant that, as a condition of any appeal to it, the appellant/defendant should pay into court (or otherwise secure payment of) part or all of the judgment sum awarded against it in the court below; and in particular to identify the principles by reference to which it should appraise a respondents contention that an appellants financial relationship with a wealthy third party is such as to defeat its complaint that such a condition would stifle its appeal. In the event there has been little dispute between the parties as to the principles which the Court of Appeal should apply. The more lively issue has been whether Patten LJ can be seen to have applied those principles in reaching his conclusions first that Onurs relationship with Mr Bagana was such as to defeat its complaint that the condition for payment would stifle the appeal; second that the condition should therefore remain in being; and third that, in the absence of compliance (or proposed compliance) with it, Onurs appeal should therefore be dismissed. THE SUBSTANTIVE DISPUTE Prior to its liquidation, Goldtrail was a holiday tour company which had been wholly owned by Mr Aydin. Onur is a Turkish airline, largely owned by Mr Bagana. In the proceedings before Rose J Goldtrail, by its liquidator, sued Onur in relation to two agreements and, irrelevantly for present purposes, sued other defendants in relation to other agreements. The claim against Onur arose out of the latters aspiration to cause Goldtrail to buy seats for its tourists on Onurs flights between the UK and Turkey. Such was the context of agreements that Mr Bagana would buy 50% of Mr Aydins shares in Goldtrail for 1m (which he paid) and that Onur would pay 3.64m (which it paid) to another company owned by Mr Aydin for its purported brokerage of an agreement by Goldtrail with Onur to buy a specified number of seats on its flights. Rose J found that, properly analysed, the payment of 3.64m represented consideration for Goldtrails agreement to buy the seats; that, in breach of his fiduciary duty to Goldtrail, Mr Aydin had diverted receipt of Onurs payment away from Goldtrail to his other company; that Onur had dishonestly assisted Mr Aydin in thus defrauding Goldtrail; and that it should pay damages to it in that sum. ONURS APPEAL In January 2015, following the grant on paper of permission to Onur to appeal against the order of Rose J, Goldtrail applied for the imposition of conditions. It was too late for it to apply under Rule 52.3(7)(b) (now Rule 52.6(2)(b)) of the Civil Procedure Rules for the actual permission to be made subject to conditions. It therefore applied under Rule 52.9(1)(c) (now Rule 52.18(1)(c)) for the court to exercise its discretion to impose conditions upon which an appeal may be brought. Paragraph (2) of Rule 52.9 (now Rule 52.18(2)) provided that the court should exercise its powers under para (1) only where there was a compelling reason for doing so. By its application, Goldtrail requested conditions that Onur should pay or secure 600k under interim orders for costs made by Rose J; should provide security for Goldtrails costs of the appeal in the sum of 150k; and in particular should pay into court the sum of 3.64m which Rose J had awarded to it by way of damages. In response Onur entered no substantive challenge to the request for the first two conditions. The dispute related to the requested payment into court of the judgment sum. Goldtrail relied on the agreed fact that in October 2014, after 22 years of flying its aircraft to the UK, Onur had ceased to do so; and Goldtrail submitted that, since Onur was likely to have no other assets even temporarily in England and Wales, there was a compelling reason for the judgment sum to be secured. Onurs response was that its decision to cease flights to the UK had been taken for operational reasons and that there was no evidence that it had taken steps or would take steps to obstruct enforcement of the judgment in the event of the dismissal of its appeal. What at that time Onur did not allege was that the disputed condition would stifle its appeal. By an order on paper dated 7 April 2015 Floyd LJ imposed the disputed condition. Onur exercised its right to cause him to reconsider his decision at the hearing which took place on 11 June 2015. Although in his judgment Floyd LJ expressed a willingness to assume that there was a respectable commercial explanation for the cessation of Onurs flights to the UK, he maintained his earlier conclusion that there was a compelling reason for imposing the condition. Upon Onurs continuation of the appeal, he therefore imposed the condition that it should pay into court (or otherwise secure payment of) 3.64m by 9 July 2015. On 14 July 2015, by then in breach of the condition, Onur applied for variation of it so as to permit it to make the payment into court by seven monthly instalments. On 27 July 2015 Floyd LJ on paper refused the application but shortly before 21 October 2015, when pursuant to Onurs request he was due to reconsider it at a hearing, Onur changed its stance. Its new contention was that the condition for payment of the judgment sum into court was a breach of its rights under the European Convention on Human Rights and was unlawful and that therefore the payment would not be made. So Floyd LJ dismissed the application for variation and directed that Goldtrails oral request for the consequential dismissal of Onurs appeal be made by formal application. Thus it was that on 14 January 2016 Patten LJ heard not only the anticipated application by Goldtrail for dismissal of the appeal but also a cross-application by Onur dated 7 December 2015 for discharge of the condition for payment into court of the judgment sum on the ground - asserted for the first time - that its continuation in force would stifle the appeal. The relevant findings, observations and conclusions of Patten LJ in his judgment dated 21 January 2016 were as follows: In 2013 he lent US $28m to Onur. (a) Mr Bagana was extremely wealthy and had, for example, given evidence to Rose J that 5m was not a significant outlay for himself personally. (b) He directly held 3.67% of the shares in Onur and held 81.19% of the shares in a company which held a further 92% of the shares in Onur. (c) Between 2008 and 2011 Onur had paid substantial dividends to him, which he had lent back to it, secured against its assets. (d) (e) By 2014 his loan account with Onur had increased to $68m. (f) For some reason Onur had guaranteed debts owed to him by another shareholder. (g) As Onurs largest secured creditor, Mr Bagana was in a position to decide which of Onurs unsecured debts should be paid and at what time. (h) He had a more than usually close relationship with Onur and effectively controlled its financial affairs. (i) According to Onurs Chief Financial Officer, Mr Bagana had said that he would contemplate making further loans to Onur only in exceptional circumstances to enable it to make commercial payments necessary to keep it in business. (j) With Mr Baganas support Onur was able to continue to trade. (k) Even had it been difficult for Onur to make the payment into court out of cash generated from its trading activities, it could have done so with his support. (l) Mr Bagana had decided not to fund the payment by Onur. (m) Were the court able to take his financial position into account in assessing Onurs ability to make the payment into court, its application to discharge the condition could not succeed. (n) In exceptional circumstances the ability of a company to have access to funds from a third party could be taken into account in assessing the likelihood that it could make a payment into court. (o) To take it into account would not be the same as to oblige that third party to comply with a condition imposed on a company. (p) exceptional. (q) Onur had failed to establish that the condition for payment into court would stifle its appeal. (r) So Onurs cross-application failed and, in that it had resolved not to satisfy the condition, its appeal should be dismissed. In the light of all the above features the circumstances were PRINCIPLES To stifle an appeal is to prevent an appellant from bringing it or continuing it. If an appellant has permission to bring an appeal, it is wrong to impose a condition which has the effect of preventing him from bringing it or continuing it. It is as if, on an application of summary judgment, the court were to grant leave to the defendant to defend the claim and then to attach a condition for payment which he could not satisfy. In the words of Lord Diplock in M V Yorke Motors v Edwards [1982] 1 WLR 444 at 449B: that would be a wrongful exercise of discretion, because it would be tantamount to giving judgment for the plaintiff notwithstanding the courts opinion that there was an issue or question in dispute which ought to be tried. Application of article 6 of the European Convention on Human Rights (being an article which confers its rights on companies as well as on human beings) yields the same conclusion. The article does not require a member state to institute a court of appeal but, if it does so, it must ensure that litigants in that court enjoy its fundamental guarantees: Delcourt v Belgium (1970) 1 EHRR 355. There will seldom be a fair hearing within article 6 if a court which has permitted a litigant to bring an appeal then, by indirect means, does not permit him to bring it. There is a variety of situations in which a party submits that the effect of granting or refusing an application would be to stifle his continued participation in the proceedings. He may do so, for example, as a claimant of a specified character, in response to an application by (a) a defendant for him to provide security for costs; or (b) as a defendant, in response to an application by the claimant for summary judgment in which the latter contends, as a fall-back, that, were leave to be given to defend the claim, it should be subject to a condition that the sum claimed be paid into court; or (c) as a party who has without good reason failed to comply with an order, in response to an application by the other for an order for him to make a payment into court; or (d) as an appellant, in response to an application by the respondent (as in the present case) that, as a condition of the appeal, he should provide security for the costs of it; or (e) as a former defendant now an appellant, in support of his application (as in the present case) that orders against him for payment of the judgment debt or costs be stayed pending his appeal; or (f) as a former defendant now an appellant, in response to an application by the respondent (as in the present case) that he should, as a condition of the appeal, pay the judgment debt into court. There is a qualitative difference between imposing a condition which requires a defendant/appellant to provide security for the future costs of the claimant/respondent and one which requires him to pay into court the sum awarded against him. The effect of the former is that, were his appeal to be dismissed, the burden of expenditure to be incurred by the claimant/respondent in resisting the appeal would not be borne by him. The effect of the latter is, by contrast, even more beneficial for the claimant/respondent. It is that, in the event (again) of the dismissal of the defendants appeal, the judgment sum would be there, as it were upon a tray, for the claimant to sweep into his pocket without his needing to undertake any attempt to enforce the courts order for payment of it. No doubt a court asked to impose a condition for the payment into court of the sum awarded will have well in mind that extra advantage for the claimant and corresponding disadvantage for the defendant. But a partys participation in proceedings can be as much stifled by an order for security for costs as by an order for payment into court of the sum claimed or awarded. So it is without further reference to that distinction that one may proceed to address the circumstances in which an order can be said to stifle the continuation by an appellant of an appeal. There is no doubt - indeed it is agreed - that, if the proposed condition is otherwise appropriate, the objection that it would stifle the continuation of the appeal represents a contention which needs to be established by the appellant and indeed, although it is hypothetical, to be established on the balance of probabilities: for the respondent to the appeal can hardly be expected to establish matters relating to the reality of the appellants financial situation of which he probably knows little. But, for all practical purposes, courts can proceed on the basis that, were it to be established that it would probably stifle the appeal, the condition should not be imposed. It is clear that, even when the appellant appears to have no realisable assets of its own with which to satisfy it, a condition for payment will not stifle its appeal if it can raise the required sum. As Brandon LJ said in the Court of Appeal in the Yorke Motors case, cited with approval by Lord Diplock at 449H: The fact that the man has no capital of his own does not mean that he cannot raise any capital; he may have friends, he may have business associates, he may have relatives, all of whom can help him in his hour of need. It seems that, in particular and as exemplified by the present case, difficult issues have surrounded the ability of a corporate appellant, without apparent assets of its own, to raise money from its controlling shareholder (or some other person closely associated with it); and this is the context of what follows. When, in response to the claim of a corporate appellant that a condition would stifle its appeal, the respondent suggests that the appellant can raise money from its controlling shareholder, the court needs to be cautious. The shareholders distinct legal personality (which has always to be respected save where he has sought to abuse the distinction: Prest v Prest [2013] UKSC 34, [2013] 2 AC 415, 487, para 34) must remain in the forefront of its analysis. The question should never be: can the shareholder raise the money? The question should always be: can the company raise the money? So one turns to the leading authority of the Court of Appeal in this area, namely Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, [2002] CP Rep 21, which Onur contends to be, in part, erroneous in principle. In the Hammond Suddard case the respondent solicitors sued the appellant company for unpaid fees and it counterclaimed for damages for negligence. The claim succeeded and in effect the counterclaim failed. The appellant obtained permission to appeal. It unsuccessfully sought a stay of execution of the orders made by the judge on the basis that, were they to be enforced, its appeal would be stifled. The respondents sought the imposition of conditions upon the permission to appeal. They sought a condition for provision of security for the costs of the appeal, which the appellant conceded to be appropriate. But they also sought a condition of payment into court of the judgment debt and of the sums awarded under interim orders for costs, to which, analogously, the appellant objected that its consequence would be to stifle its appeal. The appellant had been incorporated in the British Virgin Islands and was owned by trustees on discretionary trusts for an unidentified but apparently wealthy family. The appellant had, so it said, no assets. But could it raise from its beneficial owners a sum equal to the judgment debt and costs in order to enable it to make the payment into court? If so, there was a compelling reason within the meaning of Rule 52.9(2) for imposing the condition sought by the respondents. In the Hammond Suddard case the judgment of the court was delivered by my Lord, Lord Clarke (Clarke LJ, as he then was), on behalf of himself and Wall J (as he then was). Having observed, at (1) of para 41, that it would be difficult for the respondents to exercise the normal mechanisms of enforcement against the appellant and, at (2), that the appellant had had access to resources which had enabled it to secure representation of the highest quality in the proceedings to date, the court concluded, at (3): There is no convincing evidence that the appellant does not either have the resources or have access to resources which would enable it to pay the judgment debt and costs as ordered. No criticism has been directed at the above conclusion. It was an impeccable summary of the courts reason for acceding to the respondents application. The court proceeded, at para 41(4), to find that the appellants disclosure of its financial affairs had been inadequate. But then, at the end of the subparagraph, it added an observation in relation to the appellant: It has wealthy owners and there is no evidence that, if they were minded to do so, they could not pay the judgment debt including the outstanding orders for costs. Indeed, in para 43, the court added a second observation to the same effect: Thus we see nothing unjust in providing the trust which owns the appellant with a choice. If it is in the interests of the appellant for the appeal to continue, the trust must procure payment of the current orders. I am driven to the view that Onur is right to criticise the phraseology of the courts two additional observations. Their intended meaning may well have been, as Goldtrail suggests, that the appellant had failed to establish that funds with which the company could make the payment into court would not be made available to it by its beneficial owners. But, strictly speaking, it was wrong for the court to express its reasoning in terms of whether they could themselves make that payment. In Socit Gnrale SA v Saad Trading, Contracting and Financial Services Co [2012] EWCA Civ 695 the Court of Appeal was required to determine applications by Socit Gnrale SA (the bank), which was the respondent to appeals which the two appellants had been permitted to bring against orders made against each of them for payment to the bank of US$49m. The first appellant (Saad) was a limited Saudi Arabian partnership and the second appellant (Mr Al- Sanea) was a general partner of Saad and owned 90% of its share capital. One of the banks applications was for a condition to be imposed upon the continuation of each of the appeals that the appellants should pay the award of US$49m into court; to which the appellants each responded that any order for payment into court would stifle their appeals. The courts conclusion, explained in the judgment of Aikens LJ with which Rimer LJ agreed, was that a condition, which it proceeded to impose, for their joint and several payment into court of (only) $5m would not stifle their appeals. In reaching this conclusion Aikens LJ punctiliously addressed the factors identified by the court as relevant in the Hammond Suddard case. Nothing turns on his analysis of why Mr Al-Sanea had failed to make good his contention that his appeal would be stifled. In relation, however, to the analogous contention of Saad, Aikens LJ addressed the additional observation which that court had made in para 41(4). At paras 54 and 55 of his judgment Aikens LJ said that it was difficult to judge the legitimacy of imposing upon a company a the question was whether Saad had a wealthy owner who could not, if i) minded to do so, make the payment into court on its behalf; ii) condition which would effectively require an owner to fund it; iii) but the courts additional observation in the Hammond Suddard case had been clear; iv) exceptional circumstances; and v) the answer had to be that such a condition should be imposed only in the circumstances of the present case were exceptional. Possibly ham-strung by the doctrine of precedent, the court in the Socit Gnrale case evidently considered it best to treat the first additional observation in the Hammond Suddard case by consigning it to that over-used store-room in the mansion of the law which is designated as exceptional circumstances. Such a criterion is on any view dangerous because it is not, on the face of it, linked to its context: see Norris v Government of United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487, para 56. It sets a snare for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional: H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338, para 161. Having, however, an unconstrained ability to reject the phraseology of the additional observations, we in this court have no need to approve the superimposition upon the relevant criterion of a test of exceptional circumstances which neither party before the court seeks to defend. In this context the criterion is: Has the appellant company established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition? The criterion is simple. Its application is likely to be far from simple. The considerable forensic disadvantage suffered by an appellant which is required, as a condition of the appeal, to pay the judgment sum (or even just part of it) into court is likely to lead the company to dispute its imposition tooth and nail. The company may even have resolved that, were the condition to be imposed, it would, even if able to satisfy it, prefer to breach it and to suffer the dismissal of the appeal than to satisfy it and to continue the appeal. In cases, therefore, in which the respondent to the appeal suggests that the necessary funds would be made available to the company by, say, its owner, the court can expect to receive an emphatic refutation of the suggestion both by the company and, perhaps in particular, by the owner. The court should therefore not take the refutation at face value. It should judge the probable availability of the funds by reference to the underlying realities of the companys financial position; and by reference to all aspects of its relationship with its owner, including, obviously, the extent to which he is directing (and has directed) its affairs and is supporting (and has supported) it in financial terms. APPLICATION TO THE PRESENT CASE There has been lively argument before the court as to whether, in making the orders under appeal, Patten LJ must be taken to have concluded, in accordance with the correct criterion, that Onur had failed to establish that Mr Bagana would not make 3.64m available to it in order to enable it to comply with any order for its payment into court. There are grounds for thinking that such a conclusion might have been open to him. Mr Bagana signed a statement admitted by Rose J into evidence, in which, so Onur tells this court, he admitted that he was responsible for its overall operation and made the ultimate decisions referable to it; and Patten LJ made findings accordingly. Moreover Mr Baganas massive recent loans to Onur to enable it to continue to trade were on any view of substantial relevance to the probability of a further, modest advance. Oddly no statement was filed on behalf of Onur by Mr Bagana himself but the Chief Financial Officers evidence was that he would contemplate making further advances only to enable Onur to make commercial payments necessary in order to keep itself in business. This second- hand assertion called for careful scrutiny. But, in circumstances in which Patten LJ concluded that it seems clear to me that Mr Bagana has decided not to fund the payment by the company, I am driven to the view that this court cannot proceed on the basis that Onurs application for discharge of the condition was refused by reference to the correct criterion. Goldtrail submits with force that Patten LJ meant to conclude only that, up until that point, Mr Bagana had declined to fund the payment and that the evidence in support of any wider conclusion was far too thin. It further submits that for Patten LJ to have found that Mr Bagana had made a final decision never to fund it would be inconsistent with his refusal of Onurs application. Unfortunately, however, I cannot accept the further submission. The key to the proper construction of his judgment is that, following a lengthy quotation from the judgment of Aikens LJ in the Socit Gnrale case, Patten LJ concluded that the circumstances of the present case were exceptional. In other words he was proceeding by reference to the Court of Appeals misconception, born of the additional observations in the Hammond Suddard case and developed in the Socit Gnrale case, that in exceptional circumstances an order for a party, without apparent assets of its own, to make a payment into court could be justified by whether another person probably could advance the necessary funds to it irrespective of whether he probably would do so. So I would allow Onurs appeal and remit both applications to Patten LJ for him to determine Onurs application for discharge of the condition by reference to the correct criterion. I should record that Goldtrail put forward to him an alternative argument against discharge; of course he had no need to address it but he may now need to do so. I have reached a different conclusion from that arrived at by Lord Wilson. I am not persuaded that Patten LJ materially misstated the relevant principles or arrived at the wrong conclusion. It is important to put his decision in context. The issue throughout has been whether there was a compelling reason for imposing a condition upon which an appeal may be brought under what were then CPR 52.9(1)(c) and (2). Before the case came before Patten LJ it had a long history, largely before Floyd LJ. As Lord Wilson explains, at no stage when the issues were before Floyd LJ did Onur contend that payment of the judgment sum of 3.4m (or the provision of security in lieu) would or might stifle the appeal. Instead it advanced a whole series of mutually inconsistent explanations, in response to which Floyd LJ made a series of orders and gave a number of judgments, notably on 11 June, 27 July and 21 October 2015. Onurs applications included an application for permission to pay the judgment sum in monthly instalments of 500,000. Floyd LJ rejected that application on the papers, giving clear reasons, on 27 July 2015. His reasons included this passage, quoted in para 14 of his judgment given on 21 October 2015: There is no explanation of how these sums will be funded. If [the appellants] are now contending that the imposition of the order would stifle the appeal, the evidence falls far short of showing that to be the case. It is well settled that a party who wishes so to contend must show that he has explored all means of providing the necessary security. Floyd LJ added that the appellants had a right to renew the application orally and that he would consider any further evidence that became available. Floyd LJ added in para 15 of his judgment on 21 October that he had hoped to make it clear by that set of reasons that the appellants appeared to be what he called shuffling around to a position where they were saying that the payment of the sums of money placed unacceptable strains on their ability to conduct business, so much so that it was an interference with their right to appeal that the order should be enforced in its full amount. They did not however take that step. In para 17 Floyd LJ said that on 19 October, which was two days earlier, the appellants did not deal with the previous history but served a witness statement with only one paragraph as follows: Board of Onur Air is of the opinion that this decision, [which Floyd LJ assumed was a reference to his order that the judgment sum be paid into court] is unlawful and against the principles laid down by the European Court of Human Rights. Therefore, the foresaid sum will not be paid. The striking feature of that statement is that Onur was not even then saying that payment of 3.4m (or the provision of security in lieu) would or might stifle the appeal. Reliance upon Onurs human rights was a wholly new point on the part of Onur. For various reasons which are not material to this appeal Floyd LJ said in para 20 that the whole history of the appeal was very unsatisfactory but that he was very reluctant to strike out an appeal for which permission has been given without giving the appellants one final chance of explaining the position. He added: If it is now their position that they are so inhibited by the order for payment of the judgment sum that it is stifling their ability to appeal, then they should say so. I appreciate that is not something which they have so far said. They have had ample opportunity, it might be said, to put forward every argument, but stifling of the appeal is one matter which they have thus far declined to put forward. It may be that they are embarrassed by what was apparently said to Rose J about the fact, as Mr Gurbuz said in evidence, that the company was of such a size that 5m was not a large sum of money. Whatever the reason for their silence, it seems to me that they ought to come forward with their evidence now. In order to give Onur one last chance Floyd LJ directed that any application for a final order on the appeal should be made on notice to the appellants and that appropriate opportunity should be given to both sides to file evidence in relation to it. He added that it may be that not much further evidence was required from the respondents but that he was very anxious that the appeal should not be disposed of without a proper application on notice for the precise order which Goldtrail now sought. The matter then came before Patten LJ, who gave judgment on 21 January 2016. There were before Patten LJ an application on the part of Goldtrail for an order dismissing the appeal and for orders for payment of the judgment sum and interest. That would of course involve a removal of the stay. Onur opposed those applications and issued a new application under CPR 3.1(7) for the variation of the 11 June order by removal of the condition requiring payment into court of the judgment sum. It did so, as Patten LJ put it in para 15, for the first time on the ground that the payment of that sum was now beyond the means of the company and its payment would stifle the appeal. Patten LJ considered first the application under CPR 3.1(7). I will do the same. Patten LJ considered the position in some detail between paras 16 et seq and concludes in para 21 that Onurs Chief Financial Officer said in a statement dated 8 January 2016 that there had been a net increase in current liabilities of US$10m and that the net forecast for 2015 was between US$15 and US$16.5 m, that Onurs shortfall remained serious and that this was being managed by postponing current debt. Patten LJ summarised the position thus in para 22: Ms Erguven says that Onur has been unable to negotiate extended finance from banks and that existing lenders have either frozen or closed existing facilities. In these circumstances, the company has no means to pay the judgment debt. One would expect that, in these circumstances, Onur would have been forced to cease trading but this is obviously not the case and the evidence indicates that the airline continues to operate in Europe and has entered into new contracts, for example, with Bulgarian Air. An analysis of the financial information carried out by the liquidators of Goldtrail and set out in the witness statement of Mr Oakley-Smith recognises the difficulties faced by Onurs business in the present climate but identifies a continuing source of funding from Mr Hamit Cankut Bagana who is the Chairman of Onur and its controlling shareholder. According to Ms Erguvens most recent witness statement, Mr Bagana has a direct shareholding of 3.67% of Onur but owns 81.19% of a company called Ten Tour Turizm Endustri ve Ticaret Anonim Sirket which in turn owns 92% of the shares in Onur. Patten LJ continued as follows: 23. The analysis carried out by Mr Oakley-Smith of the 2013 and 2014 accounts suggests that Mr Bagana is the primary source of funding for the company. His evidence at the trial before Rose J was that he paid 1m to Mr Aydin as part of the agreement with Onur. He lent the company $28m in 2013. In the 2014 accounts this is shown as having increased to $68m. As part of these arrangements, it appears that Onur has given guarantees to Mr Bagana in respect of debts due to him from one of the other shareholders although the reasons for this are not explained. Of more significance is that in the period from 2008 to 2011 substantial dividends were paid by Onur to Mr Bagana and then loaned back to the company and secured against its assets in subsequent years. Mr Bagana therefore appears to have removed equity from the company and to have used the money to establish himself as a secured creditor. His position as the companys largest single (and secured) creditor has put him into the position where he can effectively decide which of the unsecured debts should be paid and when. This is confirmed by Ms Erguven in her second witness statement where she says that: I can confirm that Mr Bagana is fully aware of the position that Onur Air finds itself in in relation to the payment of the Judgment Sum into court as a condition of the continuation of the Appeal. He has made it clear that he would only contemplate considering the possibility of advancing further amounts to Onur Air in the most exceptional circumstances if they were commercial payments strictly and immediately necessary in order to keep Onur Air in business due to the already significant indebtedness of the company to him and the deteriorating financial condition of the company. Mr Bagana has made it clear to the management of Onur Air that he believes that if the court were to strike out the appeal on the grounds that he, as a shareholder, had failed to lend money to Onur Air to enable it to pay the Judgment Sum into court, that would be a breach of his and Onur Airs rights under the European Convention of Human Rights. 24. The liquidators evidence is that Mr Bagana is an extremely wealthy man who said to Rose J in his evidence that he did not regard 5m as a significant outlay for himself personally. Ms Erguvens response to this is that she is unable to comment on his alleged wealth and business activities. 25. Some of the argument has centred on whether the financial information produced by Onur justifies its alleged belief that it is unable to pay the 3.64m and that, to be made to do so, would lead to the stifling of the appeal. Mr Gibbon cautioned me against attempting to second guess the assessment of the financial state and prospects of the company made by its own directors and officers and I am obviously alive to those difficulties. But even taking Ms Erguvens assessment at face value, it is apparent that a decision has been taken that Onur is able to continue to trade with the support of Mr Bagana and that it could, with that financial support, have made the 3.64m payment even if it would have been in difficulties in generating sufficient cash for that purpose from its trading activities. It seems clear to me that Mr Bagana has decided not to fund the payment by the company and if I can take his financial position into account in assessing Onurs ability to satisfy the condition either prior to 9 July 2015 or thereafter then the CPR 3.1 (7) application to vary cannot succeed. There is no evidential basis for concluding that the condition could not have been complied with or that, if complied with, it would stifle the appeal. 26. Mr Gibbon submitted that it could only be in exceptional circumstances that the court would take into account on this kind of application the financial position of a third party such as Mr Bagana. To do so risks blurring the distinction between a company and its shareholders or other funders which the law habitually respects. But it is clear as a matter of authority that the ability of third parties to fund the company may be relevant in appropriate cases and that there is no jurisdictional bar to the court taking their position into account in determining whether an allegation of stifling has been made out. There is, I think, an obvious distinction between whether such a third party can be said to be under any sort of obligation as a result of an order made against the company and whether, in considering the likelihood of the company being able to make a potential payment, its access to third party funding should be taken into account. Patten LJ then referred to Socit Gnrale SA v Saad Trading, Contracting and Financial Services Co [2011] EWCA Civ 695 and to a decision of the Court of Appeal in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065; [2002] CP Rep 21, where I gave the judgment of the court, which comprised myself and Wall J. In the light of the submissions in this case, I recognise that my formulation of the principles is not entirely accurate. The basic principle is that stated by Brandon LJ with the approval of Lord Diplock in M V Yorke Motors v Edwards [1982] 1 WLR 444 at 449H (as quoted by Lord Wilson): The fact that the man has no capital of his own does not mean that he cannot raise any capital; he may have friends, he may have business associates, he may have relatives, all of whom can help him in his hour of need. The cases show that in a case such as this the burden is on the person (or entity concerned) to show that he cannot find relevant capital to support him. Wilson in his para 21: In Hammond Suddard I tried to make that clear in para 41(3) quoted by Lord There is no convincing evidence that the appellant does not either have the resources or have access to resources which would enable it to pay the judgment debt and costs as ordered. I adhere to that principle. So the question here is whether Onur either has the resources or access to resources to pay the sum of 3.64m. The statements of principle which I recognise went too far are those referred to in my paras 41(4) and 43 as identified by Lord Wilson in his para 22 above. In para 41(4) I added, of the appellant: It has wealthy owners and there is no evidence that, if they were minded to do so, they could not pay the judgment debt, including the outstanding orders for costs. In similar vein I said this in para 43: Thus we see nothing unjust in providing the trust which owns the appellant with a choice. If it is in the interests of the appellant for the appeal to continue, the trust must procure the payment of the current orders. I am also of the view that, in so far as the Court of Appeal went further in Socit Gnrale SA v Saad Trading, Contracting and Financial Services Co [2012] EWCA Civ 695, it went too far. In short, where the relevant company does not have appropriate resources of its own and the question is whether it has access to the resources of others, the question is whether the company would (not could) have had access to the resources. The onus that it would not is on the company concerned. On the facts of this case, the question is whether Onur has shown on the balance of probabilities that it did not have access to the relevant resources. On the basis that the only resources available to Onur were through Mr Bagana, the question is whether, on the balance of probabilities he would have provided the funds. As I see it, the strength of Goldtrails case is this. Onur at no stage focused on this precise point. As Lord Carnwath puts it in para 48, there was no direct evidence from Mr Bagana on the point. In short, he does not address the question whether he would have declined to provide funds to Onur. Again, as Lord Carnwath puts it, the only relevant evidence on the point was that of Onurs Chief Financial Officer that Mr Bagana would contemplate making further loans to Onur but only in exceptional circumstances [to enable it to make] commercial payments necessary to keep [it] in business. I agree with Lord Carnwath that the evidence falls far short of establishing that the condition would in fact stifle the appeal. I would only add that there has been no suggestion until very recently that the condition would stifle the appeal and that the new aspect of Onurs case is not so I would dismiss the appeal. much that the appeal would be stifled as reliance on its human rights, which is not explained and is far-fetched in the extreme. I gratefully adopt Lord Wilsons exposition of the facts and of the law, which was in effect common ground by the end of the hearing. Although Patten LJ (faithfully applying the authorities binding on him) may have misstated the law in some respects, I agree with Lord Clarke that these were not ultimately material to his determination. In any event, where an error such as this may have occurred, particularly one resulting from previous case law binding on the lower courts, the interests of justice require us in my view to avoid adding unnecessarily to the delay and expense borne by the parties. Our rules do not require us to remit the case to the lower court if we are in as good a position to decide it ourselves. This in my view is such a case. All the evidence is before us. I strongly agree with Lord Wilson that the court should not take even an emphatic refutation by the company or the owner at face value. As he says: it should judge the probable availability of the funds by reference to the underlying realities of the companys financial position; and by reference to all aspects of its relationship with its owner. Applying that approach to the present case, particularly against the background described by Lord Clarke, I have no doubt that Patten LJ would have arrived at the same conclusion, and I would do the same. There was no direct evidence from Mr Bagana himself. Although Patten LJ accepted that he had decided not to fund the payment by Onur, I take that to be no more than his inference from its opposition to the order. There is no direct evidence of such a decision. The only relevant evidence was that of Onurs Chief Financial Officer that Mr Bagana would contemplate making further loans to Onur, but only in exceptional circumstances [to enable it to make] commercial payments necessary to keep [it] in business, and that he regarded the courts requirement of such support as infringing his human rights. The latter suggestion is of course nonsense, since there is no doubt as to his ability to fund the company if he wishes. As to why he does not regard the present case as sufficiently exceptional, there is no explanation. This in my view falls far short of proving, on the balance of probabilities, that the condition would in fact stifle the appeal. Lord Wilson does not suggest otherwise. In these circumstances, no other reason having been given for remitting the case, I would uphold Patten LJs order and dismiss the appeal. |
The underlying claim in this appeal arises out of a series of contracts between the appellant, Taurus Petroleum Ltd (Taurus), a Swiss domiciled oil trading company, and the respondent, State Oil Marketing Company of Iraq (SOMO), for the sale of crude oil and LPG. Disputes arose between the parties which were referred to UNCITRAL arbitration in accordance with the contracts. Although the seat of the arbitration was Baghdad, by agreement all hearings took place in London before Mr Ian Hunter QC as sole arbitrator. It was nevertheless agreed that the seat remained in Baghdad. In due course a partial final award was made on 23 October 2012 and a final award was made on 13 February 2013, whereby SOMO was ordered to pay Taurus US$8,716,477. SOMO declined to honour the award and has paid nothing towards it, save that the debt has been reduced by set off of orders for costs made in favour of SOMO at first instance and in the Court of Appeal in these proceedings. SOMO made an application to set aside the partial final award before the Iraqi courts on the basis that it was not fair and failed to recognise justice. The application was dismissed by a judgment of the Iraqi court dated 27 December 2012 on the ground that the application was premature because the partial final award did not deal with all the issues between the parties and because neither SOMO nor Taurus had asked the Iraqi court to ratify the award. Since then, neither SOMO nor Taurus has taken steps to have either award ratified in Iraq and SOMO has made no further challenge to either award in the Iraqi courts. Taurus is now seeking to enforce the award in England. The issue in these proceedings is whether Taurus is entitled to enforce the award or judgment by means of a combination of third party debt orders and/or receivership orders to recover moneys owed to Taurus. Under CPR 72 it is the pre requisite to the making of a third party debt order that there should be a debt due or accruing due to the judgment debtor from the third party. I can take the underlying facts from the judgment of Moore Bick LJ in the Court of Appeal: [2015] EWCA Civ 835; [2016] 2 All ER Comm 1037. Taurus learned that a company in the Shell group (in the event Shell International Eastern Trading Co) had purchased two parcels of crude oil from SOMO, the price of which was to be paid under letters of credit issued by the London branch of the French bank Crdit Agricole SA (Crdit Agricole). Taurus applied to the High Court without notice for leave to enforce the award as a judgment under section 66(1) of the Arbitration Act 1966, for an interim third party debt order and for the appointment of a receiver in respect of the funds receivable by SOMO under the letters of credit. On 11, 13 and 22 March 2013 the High Court made orders in those terms and on 22 March 2013 Crdit Agricole paid the sum of US$9,404,764.08 into court. SOMO has not challenged the order under section 66(1) or the courts jurisdiction to make it. SOMO did however challenge the other orders. It originally did so principally on the grounds of want of jurisdiction and state immunity but also on the true construction of the letters of credit. In summary, each of the letters of credit provided for payment to be made in New York to the Iraq Oil Proceeds Account at the Federal Reserve Bank of New York and each contained a separate promise on the part of Crdit Agricole in favour of the Central Bank of Iraq (CBI) to make payment in that way. SOMO contended that the debts created by the letters of credit were therefore situated in New York and that the High Court had no jurisdiction to make third party debt orders in respect of them. SOMO also argued that the debts were the property of the Republic of Iraq and were therefore immune from execution. On 18 November 2013 Field J ([2014] 1 All ER (Comm) 942) held that the debts were situated in London rather than New York and that SOMO was a separate entity from the state of Iraq and did not contract as its agent. As a result, if the debts under the letters of credit had been owed to SOMO alone, they would not have been immune from execution. However, each letter of credit contained a single joint promise in favour of SOMO and CBI and thus a joint debt in respect of which the court could not make a third party debt order. He also held that the debts, being the property of CBI as the Central Bank, were in any event immune from execution under sections 13(2) and 14(4) of the State Immunity Act 1978. He therefore set aside the interim third party debt orders and the receivership orders. He also granted permission to appeal and ordered a stay of execution. Both parties appealed to the Court of Appeal, comprising Moore Bick, Sullivan and Briggs LJJ. They dismissed the appeals and the cross appeal on 28 July 2015, albeit (as explained below) in some respects for different reasons. The Court of Appeal made the same orders as the judge but refused permission to appeal. Permission to appeal to this Court was subsequently granted by Lord Neuberger, Lord Toulson and Lord Hodge. The international background As Moore Bick LJ, who gave the leading judgment, explained, as was well known, in 2003 the United Nations Security Council passed a Resolution imposing sanctions on Iraq under which the proceeds of sales of oil by Iraq were to be paid into an account held by CBI at the Federal Reserve Bank in New York designated the Oil Proceeds Receipts Account. The bulk (95%) of receipts was to be used for development within Iraq; the balance (5%) was to be used to provide reparations to Kuwait. By 2011 the formal requirements of the sanctions regime had been relaxed in relation to the use of funds for the benefit of Iraq, but the government of Iraq decided to continue the existing arrangements under which it used the Oil Proceeds Receipts Account to receive the proceeds of export sales of oil and gas from which 95% would be transferred to a separate account in the name of CBI and 5% would continue to be paid into the UN compensation fund for Kuwait. The decision was confirmed by a Note Verbale dated 29 April 2011. The letters of credit construction It is convenient to consider first the construction of the letters of credit, an issue which divided the Court of Appeal. It was submitted by Mr Pollock QC on behalf of Taurus that letters of credit are intended to be self contained, in the sense that they stand apart from the commercial transactions which they are intended to support and must therefore be construed in accordance with their terms without taking into account the wider background. For that reason, he argued, the arrangements made by Iraq for receiving and disposing of its oil revenues were of no relevance to the construction of these letters of credit. Moore Bick LJ said (in para 5) that in his view that approach was broadly correct. Although a bank must carefully assess the creditworthiness of its own customer before agreeing to open a letter of credit at its request, the actual process of doing so is essentially mechanical. The terms of the credit are likely to be determined largely, if not entirely, by the seller and will be communicated by the buyer to its bank. The bank in its turn will then issue the credit in the terms required, undertaking a liability to the beneficiary against which it will seek an indemnity from its customer. Moore Bick LJ added that one should therefore be very cautious before construing letters of credit by reference to extraneous circumstances of the kind he described and there was no evidence before the court of the extent to which those engaged in financing the trade in Iraqi oil were or were not generally aware of the arrangements to which he had referred. Moore Bick LJ further added that in those circumstances he was not persuaded that they provide any assistance in construing the letters of credit, the terms of which were prescribed by the standard form of sale contract used by SOMO. I agree. Each of the letters of credit was issued by Crdit Agricole in London and was sent in the form of a telex (as Moore Bick LJ put it) typical of this kind of business. It was addressed to CBI and provided, so far as material, as follows: Please advise our following irrevocable documentary credit to Oil Marketing Company (SOMO) after adding your confirmation. Our reference GBRM300017 We hereby establish our irrevocable documentary letter of credit Number GBRM3000017 By order of: [Shell] In favour of: Oil Marketing Company (SOMO). For a maximum amount of USD Expiry: 20 April 2013 at the counters of Central Bank of Iraq, Baghdad. This letter of credit is available by deferred payment at thirty (30) days from bill of lading date against presentation not later than 20 April 2013 of the following documents at the counters of the Central Bank of Iraq, Baghdad for negotiation. SOMOs duly signed original commercial invoice This letter of credit is not assignable and not transferable. All banking charges within Iraq are for beneficiarys account whereas all charges outside Iraq are for applicants account. [A] Provided all terms and conditions of this letter of credit are complied with, proceeds of this letter of credit will be irrevocably paid in to your account with Federal Reserve Bank New York, with reference to Iraq Oil Proceeds Account. These instructions will be followed irrespective of any conflicting instructions contained in the sellers commercial invoice or any transmitted letter. [B] We hereby engage with the beneficiary and Central Bank of Iraq that documents drawn under and in compliance with the terms of this credit will be duly honoured upon presentation as specified to credit CBI A/c with Federal Reserve Bank New York. [[A] and [B] added] This credit is subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision) International Chamber of Commerce Publication No 600. Special Instructions to Central Bank of Iraq: Upon receipt of your authenticated telex/SWIFT confirming that you have taken up documents in strict conformity with credit terms and conditions and couriered them to us, we undertake to effect payment at maturity as per your instructions, provided that such telex/SWIFT is received at least 1 New York/London banking day prior to due date. Otherwise, payment will be made 1 New York/London banking day later. If our cover does not reach you in time to reimburse you for your payment under the credit on due date, we hereby undertake to compensate you for any loss of interest incurred by you due to this delay. In the course of the argument particular attention was paid to the two provisions which I have italicised above, which were referred to by Moore Bick LJ in para 8 of his judgment as A and B respectively. As Moore Bick LJ said at para 7, Mr. Pollock submitted that, although these letters of credit included some clauses that are not routinely to be found in documents of this kind, their basic structure follows the pattern which has been established over many years for documentary credits incorporating the Uniform Customs and Practice (UCP). The opening section contains the instructions to the advising bank, in this case CBI, to notify a named party, in this case SOMO, after adding its own confirmation, that a documentary credit has been established in terms which are then set out in the body of the letter. There follow the basic terms of the issuing banks undertaking, identifying the person on whose instructions the credit has been opened, the person in favour of whom it has been opened, the expiry date, the place at which documents are to be presented and a detailed description of the documents that are required. Moore Bick LJ added at para 8 that Mr Pollock further submitted that SOMO was the sole beneficiary of each of the letters of credit. He expressed the view that in conventional terms that was correct. The opening section states that the credit is opened in favour of SOMO and to regard SOMO as the beneficiary of the undertaking is consistent with the way the term beneficiary is used in the special conditions in contradistinction to CBI. However, he noted that that leaves open the question of the meaning and effect of the special conditions A and B quoted above. Moore Bick LJ then noted at para 9 that Mr Pollock emphasised that the issue of a documentary credit ordinarily gives rise to a bundle of separate bilateral obligations reflecting the relationships between the different parties involved in the transaction. None of them, however, constitutes a joint obligation. On that basis Mr Pollock submitted that the two conditions contained nothing more than a collateral promise by Crdit Agricole in favour of SOMO and CBI which is separate from the primary obligation to make payment under the letter of credit. That obligation was owed to SOMO alone as the beneficiary. It followed that CBI had no interest of a proprietary nature in the debt due under the letter of credit; it was simply the beneficiary of a separate promise on the part of Crdit Agricole that the debt to SOMO would be discharged by making a payment into the designated account in New York. In para 10 Moore Bick LJ summarised the position of Mr Dunning QC on behalf of SOMO. Mr Dunning did not challenge Mr Pollocks analysis of the rights and obligations which arise under an ordinary letter of credit, but he submitted that the special conditions included in this particular letter of credit prevented SOMO from being anything more than a nominal beneficiary. It was unable to vary any of the terms governing the method of payment, which made it impossible for it to receive any of the funds due under them itself. In truth, SOMO was not really the beneficiary of Crdit Agricoles obligation; there was in substance one obligation to make payment, which was owed to CBI alone. No one other than CBI could take the benefit of it and enforce it. The critical part of Moore Bick LJs judgment is set out at his paras 11 and 12, which can be summarised thus. He agreed that in the ordinary way a documentary credit gives rise to a bundle of separate bilateral obligations of the kind described by Mr Pollock, none of which is joint in nature. That is because in almost all cases each of the parties to the transaction is a person or company acting solely on that partys own behalf. He could see no reason in principle why a letter of credit should not be issued in favour of joint beneficiaries, as for example if goods or property were being sold by joint owners. However, that was not much help in interpreting the special conditions in these particular letters of credit. He described the first difficulty as being to identify who is the beneficiary of the promise contained in condition A. The telex from Crdit Agricole was sent to CBI, not to SOMO, but since it contained a request to notify SOMO of the terms of the banks undertaking, it must be taken to have been addressed principally to SOMO rather than CBI. He thus concluded that that paragraph was to be read as directed to SOMO and as containing an undertaking to pay the sum due under the letter of credit to CBIs Iraq Oil Proceeds Account at the Federal Reserve Bank in New York. He added that whether that made CBI an agent for collection in the usual sense did not matter for present purposes. The reference to the beneficiary in condition B, on the other hand, must be to SOMO and accordingly it was clear that that paragraph did contain a joint promise in favour of SOMO and CBI that the proceeds of the letter of credit would be paid into CBIs account in New York. Moore Bick LJ accepted that letters of credit, like other commercial contracts, must be construed as a whole in accordance with established principles, but he did not think that, when dealing with such a well recognised and familiar form of financial instrument, it was right to ignore the established structure within which the parties must be taken to have been working. He accepted that SOMO was the beneficiary of these letters of credit in the conventional sense and was therefore, in the absence of a clear statement to the contrary, the party to whom Crdit Agricole incurred the primary obligation to make payment. Again critically, he added that the fact that Crdit Agricole was required to discharge that obligation by making payment to the account of CBI did not detract from that position. Nor did the fact that it also entered into a separate, independent, obligation to CBI to pay the funds due under the letters of credit to its account in New York. In these circumstances he concluded that Mr Pollock was right to submit that each of the letters of credit gave rise to two separate obligations: an obligation to pay the proceeds into the account of CBI in New York, which was owed to SOMO alone and sounded in debt, and a separate collateral obligation to pay the proceeds into that account which was owed to SOMO and CBI jointly and sounded in damages. I agree with Moore Bick LJs construction of the letters of credit and prefer it to that advanced by Sullivan and Briggs LJJ and indeed Lord Neuberger and Lord Mance. The language of the letters of credit seems to me to bear out Moore Bick LJs approach. It begins as follows: Please advise our following irrevocable documentary credit to Oil Marketing Company (SOMO) after adding your confirmation. Our reference GBRM300017 We hereby establish our irrevocable documentary letter of credit Number GBRM3000017 By order of: [Shell] In favour of: Oil Marketing Company (SOMO). A little further down the letters of credit expressly refer to SOMOs duly signed original commercial invoice as one of the documents to be presented at the counters of CBI in Baghdad. The letters of credit thus identify SOMO throughout as the sole beneficiary of the letter of credit, which, as Moore Bick LJ observed was clear from the expression We [ie Crdit Agricole] engage with the beneficiary and CBI. This view is also supported by the provision that the credit was subject to UCP 600, in which Beneficiary is defined in article 2 as the party in whose favour a credit is issued. UCP 600 also contains many other references to the expression beneficiary. In article 18 it states that, subject to one irrelevant exception, a commercial invoice must appear to have been issued by the beneficiary. As I see it, it follows from UCP 600 that SOMO was the sole beneficiary in this case. This is in my opinion of some importance because UCP 600 commands world wide support. In its foreword it describes its objective as follows: The objective, since attained, was to create a set of contractual rules that would establish uniformity in that practice, so that practitioners would not have to cope with a plethora of often conflicting national regulations. The universal acceptance of the UCP by practitioners with widely divergent economic and judicial systems is a testament to the rules success. What then was the status of CBI under the letters of credit? I agree with Lord Mance that the references to you and your in the letters of credit are references to CBI. However their role was said in the first sentence of the letters of credit quoted above to be to advise our (ie Crdit Agricoles) following irrevocable documentary credit to SOMO after adding your (ie CBIs) confirmation. Thus one possibility is that CBI was to be a confirming bank, which is defined in article 2 of UCP 600 as meaning the bank that adds its confirmation to a credit upon the issuing banks authorisation or request. In fact it appears that, whatever was originally intended CBI was simply a notifying bank and did not in the event add its confirmation. In para 57 Briggs LJ expressed these conclusions in respect of each letter of credit: its unusual terms make CBI not SOMO the only creditor in respect of the money promised to be paid, and therefore solely entitled to property in the debt thereby created, and that it conferred on SOMO (rather than CBI) only a non proprietary right to seek damages for breach of contract. That would of course have been fatal to the imposition of a TPDO in relation to the debt, regardless of the rule as to situs in Power Curber [infra]. The knock on consequence of that view is that I would also have concluded that, since the debt was the property of CBI and not SOMO, it was therefore immune from execution under section 14(4) of the [State Immunity] Act [1978] including by way of equitable execution. In my opinion, given that it is clear that SOMO was and remained the beneficiary of the letters of credit, I do not think that it is correct to conclude that the debt was the sole property of CBI and not SOMO. As I see it, Moore Bick LJ was correct to hold that in the absence of a clear statement to the contrary, SOMO was the party to whom Crdit Agricole incurred the primary obligation to make payment. Moore Bick LJ expressed his conclusion thus at the end of para 12, which I have summarised in para 15 above. In short, each of the letters of credit gave rise to two separate obligations: an obligation to pay the proceeds into the account of CBI in New York, which was owed to SOMO alone and sounded in debt, and a separate collateral obligation to pay the proceeds into that account which was owed to SOMO and CBI jointly and sounded in damages. I accept Mr Pollocks submission that it is a startling proposition that a promise to pay a debt owed to a named beneficiary via a nominated bank account in the name of another substitutes the latter for the former as the only beneficiary under a letter of credit. In my opinion it does not. This is an important conclusion because, as Field J said at para 13, if Crdit Agricoles obligation to pay under the credits was owed to SOMO and CBI jointly, the debt due under that promise could not be attached by a third party debt order pursuant to CPR Part 72.2(1) because the words any debt due or accruing due to the judgment debtor from the third party connote a debt owed solely to the judgment debtor. Field J added at the end of para 13: Otherwise, since payment to the judgement creditor in compliance with a TPDO discharges the debt owed to the judgement creditor (CPR 72.9 (2)), the joint promisee would be cut out of his interest in the debt. Nor in my view could execution be made in respect of the debt under the letters of credit by virtue of the receivership order because either CBI would be deprived of its interest as a joint promisee or Credit Agricole would have to pay twice, once to Taurus and again to CBI. Given that conclusion on the construction of the letters of credit, Moore Bick LJ did not have to consider a further submission made by Mr Pollock that, even if CBI was the beneficiary of the banks promises to pay under these letters of credit, they were not promises which it could enforce, because they were not supported by consideration. He did not consider this point in any detail but did say that he would be loath to hold, particularly in a commercial context, that a promise which both parties intended should be relied on was unenforceable for want of consideration. So would I. For the reasons given above, I would allow the appeal on the true construction of the letters of credit and hold that SOMO was the beneficiary of and thus the sole owner of the debts created by the letters of credit and the sole entity to which Crdit Agricole incurred the primary obligation to make payment. In all the circumstances I would accept Mr Pollocks submission that CBI had no proprietary interest in the debt and that any promise made to SOMO or to CBI as to how the debt in favour of SOMO would be paid was no bar to those debts being taken in execution at the instance of Taurus as a judgment creditor of SOMO. Lord Sumption and Lord Hodge reach similar conclusions for similar reasons, with which I agree and need not repeat here. State Immunity Before the judge and the Court of Appeal SOMO argued that it had state immunity against execution on the ground that it was an emanation of the Iraqi state. However that argument was rejected in both courts below and is no longer pursued. Situs of the debts It is common ground that all property, whether tangible or intangible, has a situs for legal purposes. It is further common ground that, as Moore Bick LJ put it in para 14, in Socit Eram Shipping Co Ltd v Cie Internationale de Navigation [2003] UKHL 30; [2004] 1 AC 260 the House of Lords held that a third party debt order is a proprietary remedy, which, when complied with, operates to discharge the debt and to release the debtor from his obligation. Since it involves dealing with property, the English courts do not have jurisdiction to make such an order in respect of debts situated outside the jurisdiction, unless by the law applicable in that place an English order would be recognised as discharging the liability of the third party to the judgment debtor: see, in particular, per Lord Bingham of Cornhill at para 26. The parties agree that it is therefore necessary to identify the situs of the debts which Crdit Agricole owes to SOMO. Taurus argument is that in the case of debts the rule chosen and applied by English law is that the situs of a debt is the debtors residence, the place where the debt is recoverable. This is a long standing rule which goes back at least to the beginning of the last century. As Mr Pollock correctly put it, its nature and application were explained in detail by Lord Hobhouse in Socit Eram Shipping Co Ltd v Cie Internationale de Navigation [2004] 1 AC 260, 287 288. As explained above, the letters of credit were issued by the London branch of Crdit Agricole, which also had places of business in France. Insofar as there was a relevant account, it would have been the account of the opener of the letters of credit, Shell, with Crdit Agricole in London. In the case of letters of credit the position of a bank with different branches has been specifically addressed by the UCP 600, which provides by article 3 that Branches of a bank in different countries are considered to be separate banks. I would accept Mr Pollocks submission that on this basis it follows that for the purposes of the letters of credit the London branch of Crdit Agricole is to be treated as a separate bank, and that therefore the sole residence of the debtor under the letters of credit is London. It further follows that, in accordance with the general rule as to the situs of debts the situs of the debts due under the letters of credit is England. The Court of Appeal did not however resolve this issue on that basis because of the decision of the Court of Appeal in Power Curber International Ltd v National Bank of Kuwait SAK [1981] 1 WLR 1233, where it was held by a majority that in the case of debts due under letters of credit the situs of the debt was the place of payment. Lord Denning MR and Griffiths LJ comprised the majority on this point, with Waterhouse J dissenting. The Court of Appeal in this case was bound by that decision but we are not. Mr Pollock invites us to hold that Power Curber was wrongly decided and submits that we should not follow it. I would accept that invitation. The reasoning of the majority was not extensive. The case involved a sale of goods paid for under a letter of credit. There were issues as to whether (a) the proper law of the contract and (b) its situs were North Carolina or Kuwait. Payment of the price was to be made against presentation of documents in North Carolina. The National Bank of Kuwait was the paying bank which was held to be in default. The Court of Appeal held that the proper law of the contract was the law of North Carolina. However, we are concerned only with what was said about the lex situs. Lord Denning said this at p 1240F: Nor can I agree that the lex situs of the debt was Kuwait. It was in North Carolina. A debt under a letter of credit is different from ordinary debts. They may be situate where the debtor is resident. But a debt under a letter of credit is situate in the place where it is in fact payable against documents. I would hold therefore that Parker J. was right in giving summary judgment against the National Bank of Kuwait for the sums due. The reasoning of Griffiths LJ was similarly brief. He said at p 1242G: Secondly, it was submitted that payment was unlawful according to the lex situs of the debt which it is said is Kuwait. But this is a debt that is owed in American dollars in North Carolina; I do not regard the fact that the bank that owes the debt has a residence in Kuwait as any reason for regarding Kuwait as the lex situs of the debt. The lex situs of the debt is North Carolina, and this ground for giving leave to defend cannot be supported. Waterhouse J agreed with the majority as to the result of the appeal but on the lex situs point he said this at p 1244B D: The more difficult issue for me has been that relating to the lex situs of the debt. A debt is generally to be looked upon as situate in the country where it is properly recoverable or can be enforced and it is noteworthy that the sellers here submitted voluntarily to the dismissal of their earlier proceedings against the bank in North Carolina. We have been told that they did so because of doubts about the jurisdiction of the North Carolina court, which was alleged in the pleadings to be based on the transaction of business by the bank there, acting by itself or through another named bank as its agent. As for the question of residence, the bank has been silent about any residence that it may have within the United States of America. In the absence of any previous binding authority, I have not been persuaded that this debt due under an unconfirmed letter of credit can be regarded as situate in North Carolina merely because there was provision for payment at a branch of a bank used by the sellers in Charlotte: and I do not regard the analogy of a bill of exchange or a security transferable by delivery as helpful. We were not referred to any other English case which has considered Power Curber. The only English text to which we were referred was para 22 033 of the 15th ed (2012) of Dicey, Morris and Collins on the Conflict of Laws, which shows no enthusiasm for the decision. It says that, according to the decision of the Court of Appeal in Power Curber a claim under a letter of credit is situate where it is payable against documents, even if (it seems) the debtor is not resident there. It adds, by reference to the short passages from the case quoted above: This exception to the general rule appears to have been laid down for reasons of policy. Under the general rule, it is more likely that the debt would be situate in the buyers country; under the exception, it is more likely to be situate in the sellers country. The effect of the exception is, therefore, to increase the sellers security, since the courts of his country are less likely to interfere with payment (by seizing or attaching the debt) than those of the buyers country. To attain this policy objective, however, it was necessary to sacrifice the link between situs and recoverability. In the Power Curber case, the issuing bank was a Kuwaiti bank. The place of payment (and hence, according to the Court of Appeal, the situs of the debt) was North Carolina. The bank apparently had no branch there. When it failed to pay (because the debt had been attached by a court in Kuwait), the plaintiff initially brought proceedings in North Carolina, but these were discontinued. Instead it sued in England, where the bank had a branch. It seems that there was some doubt whether the courts of North Carolina had jurisdiction; so the debt was probably not recoverable there. In view of this, it could be argued that it was wrong to regard the debt as situate there. In the last part of that passage the editors specifically refer to part of the judgment of Waterhouse J noted above. I detect a distinct lack of enthusiasm for the majority view. For my part, I prefer the general rule identified in paras 30 to 31 above, which is supported by the UCP. It is fair to say that Mr Dunning provided the court with a review of the position in other common law jurisdictions on the situs of a debt under a letter of credit. Many of them apply both the same general principle as is applied in England for the situs of a debt and the same exception as was derived in England from Power Curber. The respondents note addresses five jurisdictions: (i) Singapore; (ii) Australia; (iii) Malaysia; (iv) New Zealand and (v) Canada. Halsburys Laws of Singapore, Australia and Malaysia all state that the situs of a debt under a letter of credit is the place where it is payable. However, Power Curber is the only, or primary, authority cited in support of this statement. So none of them provides support for the reasoning in Power Curber. It is accepted on behalf of the respondent that the situs of a debt under a letter of credit does not appear to have been addressed under New Zealand law. The passage cited in Butterworths The Laws of New Zealand does not specifically address the position under New Zealand law as to the situs of a debt under a letter of credit. Canada is the only jurisdiction referred to in the note in which the principle in Power Curber appears to have actually been applied. The two cases in which it has been applied are both decisions of the Superior Court of Quebec. In neither of them did the case turn exclusively on the question of where the debt was situated. In HL Boulton Co v Banque Royale du Canada [1944] JQ 1448 and [1995] RLQ 213 the defendant asked the court to decline jurisdiction under article 3135 of the Civil Code, which provides that even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally decline jurisdiction if it considers that the authorities of another country are in a better position to decide. It was agreed that the Quebec court was competent to hear the dispute, as the defendant had its head office in Montreal. The question was whether British Columbia was a more appropriate forum. The court decided it was. The only link between the case and Quebec was the registered office of the defendant. The confirmation of the letter of credit was in Vancouver and payment was to take place in Vancouver where the respondents place of business was. All the witnesses from both sides were in British Columbia. The court stated that in addition, under private international law, the situs of a LC was where it was payable. It cited only Power Curber and a Canadian text on conflict of laws as authority, but did not provide any analysis of its own. The second case was Alessandra Yarns LLC v Tongxiang Baoding Textile Co Ltd [2015] QCCS 346. This case was about whether the fraud exception to a letter of credit had been met such that the court should issue an interlocutory injunction to prevent the beneficiary claiming under the letter of credit. There were four criteria that had to be met in order to grant the injunction: (1) urgency; (2) a serious question to be tried or a strong prima facie evidence of fraud by the beneficiary of the credit; (3) irreparable harm; and (4) if the prima facie case is doubtful, the balance of convenience favours granting the injunction. The situs of the debt under the letter of credit was a factor that was relevant to the fourth question. The court stated that the situs of a letter of credit is the place in which it is payable citing HL Boulton Co v Banque Royale du Canada but did not provide any further analysis. In addition, the court had already answered questions (1) to (3) in the affirmative, so arguably did not need to answer the fourth question. Those cases do not add to the reasoning in Power Curber, such as it is. None of the references persuades me to alter my conclusion that Power Curber was wrong in principle and should not be followed. As stated above, I would hold that the lex situs of the letters of credit in this case was England. Honest dealing Under this head at paras 25 to 28 Moore Bick LJ considered Mr Dunnings submission that the existence of the undertaking by Crdit Agricole to CBI to pay the proceeds of the letters of credit into the designated account in New York was itself enough to prevent the court from making third party debt orders in relation to them. Given the conclusion of the Court of Appeal on the lex situs point, this argument did not strictly arise. However, given my conclusion on the point, it does in principle arise. Moore Bick would have rejected it if it had arisen. He would have done so shortly for these reasons. The argument was based on certain comments to be found in In re General Horticultural Co, Ex p Whitehouse (1886) 32 Ch D 512, which Moore Bick LJ discussed at para 25. He summarised the position thus: In that case Wills, to whom a sum had been allowed in a winding up for work done for the liquidator, charged the amount due to him as security for the payment of three debts, the total amount of which exceeded the sum due to him from the company. Notice of the first charge was duly given to the liquidator. Some time later Whitehouse obtained a judgment against Wills, which he sought to enforce by garnishee order nisi against the sum due from the company. Later, the second and third of Wills creditors gave notice to the liquidator of their charges. It was accepted that the interest of the first chargee could not be overridden by the garnishee order, but a question arose whether Whitehouse was entitled to execute on the remainder of the debt, notwithstanding the second and third chargees. Chitty J held that he could not because a garnishee order charges only what the judgment debtor can himself honestly deal with. He pointed out that the assignment by way of charge between Wills and the second and third creditors was binding as between them and that the equitable doctrine of notice was concerned only to determine priority between competing incumbrancers. To allow the garnishee order to override the charges would enable the judgment creditor to obtain not the property of the judgment debtor, but that of someone else. Field J accepted that argument on the basis that, since SOMO had no interest in or rights over CBIs account with the Federal Reserve Bank in New York, the debts which Taurus sought to attach were never within SOMOs free disposition and could therefore not be the subject of a third party debt order. Moore Bick LJ disagreed. In para 28 he accepted Mr Pollocks submission, which he set out in para 27, that In re General Horticultural Co does not establish any independent principle of honest dealing; it merely reaffirms that a judgment creditor cannot by means of a third party debt order levy execution on property that does not belong to the judgment debtor. Moore Bick LJ accepted the submission that in that context it may be said that the judgment debtor cannot honestly deal with a debt which he has assigned to a third party and that the judgment creditor cannot execute on such a debt, but that is because it is no longer the property of the judgment debtor. He also referred to Rogers v Whitely (1889) 23 QBD 236. submission in this way: In para 28 Moore Bick LJ expressed his reasons for accepting Mr Pollocks The cases do not support the proposition that there is an independent principle limiting the scope of third party debt orders to debts with which the judgment debtor can honestly deal, otherwise than by reference to the existence of proprietary interests. Although in the present case SOMO had no control over funds once they reached the account of CBI, CBI itself had no proprietary interest of a recognised kind in the debts arising under the letters of credit until they had been paid. In my view the judge was wrong to hold that the terms of the letters of credit and SOMOs inability to control funds in CBIs account were sufficient to prevent the attachment of the debts by third party debt order. I agree with those reasons. Receivership order All three members of the Court of Appeal concluded that the receivership order should be discharged even if the debt was owed to SOMO. The grounds for this view were set out in the judgment of Moore Bick LJ. His reasoning was twofold: first, that the link between SOMO and the English jurisdiction created by the order under section 66 of the Arbitration Act 1996 was too tenuous to justify the exercise of the receivership jurisdiction; and second, that payment by Crdit Agricole to a receiver would deprive CBI of the benefit of the collateral promise made to it that payment to SOMO would be made by means of a bank account held in the name of CBI. The relevant principles are not in dispute. They were set out by Collins LJ in Masri v Consolidated Contractors International (UK) Ltd (No 2) [2008] EWCA Civ 303; [2009] QB 450. Moore Bick LJ set out the key parts of Lawrence Collins LJs judgment in paras 30 to 32 of his own judgment in this case. In particular, he noted the view expressed by Lawrence Collins LJ in para 35 of Masri that the mere fact that an order is in personam and is directed towards someone who is subject to the personal jurisdiction of the English court does not exclude the possibility that the making of the order would be contrary to international law or comity, and outside the subject matter jurisdiction of the English court. In para 31 Moore Bick LJ set out paras 50 and 51 of Lawrence Collins judgment in Masri, which he said followed a reference to the Socit Eram case, as follows: 50. In my judgment, there is no rule that the court cannot ever make a receivership order by way of equitable execution in relation to foreign debts and that the judge did not exceed the permissible limits of international jurisdiction in making such an order in the circumstances of this case. In summary my reasons are that (a) the order has no proprietary effect and acts in personam against the judgment debtor; (b) any adverse effects which the order might have on foreign parties with knowledge of the order are removed by the Babanaft provisos; (c) since the nineteenth century the English courts have recognised the legitimacy of the appointment by the court of receivers in relation to foreign property; (d) the fact that those appointments in the reported cases have been receivers appointed by the court on the application of debenture holders, or receivers appointed prior to judgment, does not affect that conclusion in relation to receivers appointed by way of equitable execution; (e) nothing in the Socit Eram Shipping Co case affects the conclusion. 51. In para 32 Moore Bick LJ said that Lawrence Collins LJ added this caveat: 59. As I have said, the fact that [the court] acts in personam against someone who is subject to the jurisdiction of the court is not determinative. In deciding whether an order exceeds the permissible territorial limits it is important to consider (a) the connection of the person who is the subject of the order with the English jurisdiction; (b) whether what they are ordered to do is exorbitant in terms of jurisdiction; and (c) whether the order has impermissible effects on foreign parties. Moore Bick LJ gave careful consideration to the question whether the order should have been made. He observed that the same obstacles did not exist as in the case of a third party debt order but that some caution was required as noted by Lawrence Collins LJ. One of the factors which led him to conclude that such an order should not be made was that, on his view of the case, as described above, the debt was not situated in England and Wales. He said in para 33 that SOMOs connection with this country was tenuous unless it can be said to be the owner of a debt which [is] situated in this country and for the reasons I have given I do not think that is the case. For the reasons I have given above, I have concluded that the situs of the debt was in this country. It follows from Moore Bick LJs approach that he would have taken a different view of the connection if he had held as I have done that that was the case. I note in passing that he concluded in para 35 that to make a receivership order in this case would not infringe the rights of Crdit Agricole. In all the circumstances it seems to me to be likely that, if Moore Bick LJ had concluded that the lex situs was England, he would have taken a different view. As I see it, it is open to us to consider this part of the case afresh. I would accept Mr Pollocks submissions on this point as follows. International trade, and particularly the international oil trade, is conducted predominantly by means of letters of credit. London is one of the two major financial centres of the world and enormous numbers of letters of credit are issued by international banks from their London branches. It would have been entirely foreseeable by SOMO that a majority of the letters of credit against which they sold oil would be issued out of London and subject to English law. SOMOs trade therefore involved a long term connection with the jurisdiction. Successful international commerce depends upon the enforcement of contracts, the enforcement of arbitration awards and the enforcement of judgments. Both the international plane, through the 1958 New York Convention and the UNCITRAL Model Law and Rules, and the domestic plane, through the Arbitration Act 1996, evince a clear policy to ensure the efficient recognition and enforcement of arbitration awards. In these circumstances it was predictable that, if SOMO failed to honour an UNCITRAL arbitration award, it would find itself sued in an English court for the purpose of enforcing that award in accordance with international norms. The Arbitration Act 1996 allowed the English court to assert jurisdiction over SOMO for the purpose of enforcing an award as a judgment of the High Court. The court did so, and SOMO has challenged neither that jurisdiction, nor the judgment. I would further accept Mr Pollocks submission that it seems inconsistent to allow an international arbitration award to be turned into an English judgment for the purpose of enforcing the award and then to limit the means available for enforcement on the grounds of an allegedly insufficient connection with the jurisdiction. Mr Pollock further challenges para 37 of Moore Bick LJs judgment as follows. He concluded that the effect of a receivership order would be to prevent CBI obtaining the benefit of Crdit Agricoles promise that the funds would be paid to SOMO via CBIs account in New York. However, CBI has no interest of any type in the Letter of Credit debts. Its account is merely the conduit via which moneys paid from Crdit Agricole at the instance of Shell pass onwards into the Iraqi government budget. If the promise as to the route of payment to SOMO is breached because of interception by judicial execution, the CBI has suffered no loss and could make no complaint, whether against Crdit Agricole or against SOMO. The obligation on Crdit Agricole to pay in accordance with its promised method is necessarily subject to the implicit qualification that the funds have not been intercepted by judicial intervention. There appears to me to be some force in that submission. Further, it appears that Crdit Agricole has so far advanced no objection to the making of a receivership order and no evidence has been adduced by SOMO to the effect that the making of the order would in any way prejudice Crdit Agricole. Mr Pollock concedes that Crdit Agricole would in any event have an opportunity to make representations hereafter should it wish to do so. In all the circumstances, I would restore the receivership order. I would only add that, given the above conclusion that the third party debt orders should be restored, I am not sure in what circumstances the receivership orders will be effective. Conclusion For these reasons I would allow the appeal and restore the third party debt orders and the receivership orders. The parties should make written submissions on the form of order and on costs within 28 days of the handing down of the judgments in this appeal. LORD SUMPTION: I agree with the disposal proposed by Lord Clarke, and with his reasons. I also agree with the concurring judgment of Lord Hodge. I add a judgment of my own because the Court is divided and it appears to me to be useful in response to some highly intricate arguments to identify the salient points of principle which have led me to this conclusion. In doing so, I shall use the same abbreviations as Lord Clarke. The first question is whether there is a debt due or accruing due to the judgment debtor [SOMO] from the third party [Credit Agricole] for the purposes of CPR Part 72, which regulates Third Party Debt Orders. This turns on the construction of a most unusual form of letter of credit. For all its unusual features, however, the instrument must be construed as a whole, and as far as possible in such a way as to make each part of it consistent with every other part. Moreover, it must as far as possible be read consistently with the UCP, which are expressly incorporated into it. The UCP may be modified or excluded in specified respects by the terms of the credit, but otherwise it is a code of rules which enables letters of credit to be routinely dealt with by banks across the world on a common basis. It is therefore fundamental to their acceptability in international commerce. The essential obligation of the issuing bank is to pay, conditionally on the presentation of conforming documents. Under the terms of this credit, it is I think clear that SOMO is the sole beneficiary of the issuing banks obligation to pay. The credit is expressed to be issued in favour of SOMO. Under UCP article 2, the party in whose favour a letter of credit is issued is the beneficiary. The purpose of the credit is to secure a debt identified in the commercial invoice, which is usually one of the documents to be presented, as it was in this case. UCP article 18 provides that the commercial invoice required to be presented, must appear to have been issued by the beneficiary, ie SOMO. The specified documents in this case included SOMOs duly signed original commercial invoice. Nothing in Conditions A and B purports to alter the identity of the beneficiary as that expression appears in the credit itself or in the UCP. Indeed, Condition B is framed as an engagement on the part of the bank with the beneficiary and Central Bank of Iraq, a formulation which necessarily identifies SOMO and not CBI as the beneficiary. The letter of credit is expressed not to be assignable or transferrable. The effect of this is to exclude the provision expressly made in UCP article 38 for transfer to another beneficiary. In the context of a credit in favour of SOMO, what is the effect of the irrevocable undertaking in Conditions A and B to honour the credit by paying into CBIs account with the Federal Reserve Bank New York? There are two possibilities. The first is that the parties have thereby agreed to treat CBI as the issuing banks debtor, subject to the presentation of conforming documents. But that cannot be inferred from the mere fact that the money is contractually payable to CBI. This is because the second possibility is that the parties have agreed that the debt is owed to SOMO as beneficiary, but that the manner of its discharge is to be by payment into CBIs account with the Federal Reserve Bank. In my opinion the latter is the better construction of Conditions A and B in this case. It accords better with the insistent identification of SOMO as the beneficiary and the exclusion of assignment or transfer of the credit to any one else. One can infer from the fact that the promise to pay into CBIs account is irrevocable and is made to CBI as well as SOMO that CBI must have had some interest of its own in the debt being discharged in that particular way. But nothing can be inferred from the terms of the credit about the nature of that interest. There are a number of possibilities: (i) CBI may have a proprietary interest in the conditional debt created by the credit, in effect by way of equitable assignment of the credit; or (ii) CBI may have stipulated for an equitable interest in the proceeds once they have been paid or, which amounts to the same thing, for there to be no liability to account to SOMO for the proceeds once it has reached CBIs New York account; or (iii) it may have a purely commercial, administrative or political interest in receiving the funds. The issuing bank would be directly affected by (i) but not by (ii) or (iii). Since either (ii) or (iii) would sufficiently explain the existence of the direct undertaking to CBI, I see no reason to assume that there was more to it than that. If the parties had wanted to make CBI the debtor, the obvious way of doing it would have been to make the credit transferrable in accordance with UCP article 38, a possibility which they have ostentatiously excluded. This is why, quite apart from the absence of any basis for it in the terms of the credit, I am unable to accept Lord Neubergers suggestion that Conditions A and B record an assignment or novation of the credit itself. In my view the credit gave rise to a debt due to SOMO as beneficiary which was required to be discharged by payment into CBIs New York account. It did not give rise to a debt owed to CBI itself. It follows, in my view, that the undertakings given jointly to CBI and SOMO are correctly analysed by Mr Pollock as collateral undertakings sounding in damages. I do not find this result odd, let alone pretty strange or mystical. As it happens, we know that the interest of the CBI was not in fact in the debt, but in the mechanics of its discharge. It had an interest in the use of its account with the Federal Reserve Bank of New York as the prescribed mode of receipt by SOMO, because of the political arrangements made by the state of Iraq to comply with the United Security Council resolution governing the use of Iraqi oil revenues. CBIs account in New York was no more than the conduit pipe used for that purpose. This fact is not relevant to the construction of the credit, which is an autonomous instrument. But it provides a condign warning of the dangers of treating Conditions A and B as a transfer of the conditional debt arising under the credit when that is in reality no more than a speculation about why Conditions A and B might have been (but were in fact not) required under arrangements to which the issuing bank was not privy. On that footing, the next question is whether a purely contractual obligation owed to CBI as to the manner in which the debt owed to SOMO would be discharged is a ground for declining to make a Third Party Debt Order. The argument is that the judgment creditor steps into the shoes of the judgment debtor and cannot succeed to any right the he did not have. If therefore the judgment debtors right to dispose of some asset is restricted by his contractual engagements to third parties, the judgment creditor cannot be any better off. The principal authority cited for this proposition is the statement of Chitty J in In re General Horticultural Co (1886) 32 Ch D 512, 515 that a garnishee order charges only what the judgment debtor can himself honestly deal with. I would not accept this statement without reservation. The context in which it was made was the attachment of a debt that had been assigned to a third party, but without notice being given to the debtor. The court held that the assignment was still binding as between the assignor and the assignee, and that notice to the debtor was relevant only to the priorities between competing assignees. It followed that the assignor had parted with his interest in the debt, and the rights of the garnishor were defeated. In Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2014] EWCA Civ 1603, the position was substantially the same. The debt sought to be attached was said to be owed by a bank to the judgment debtor Naftogaz. But the bank had received the money from Naftogaz as the agent bank under a loan agreement for distribution to the loanholders. It was not therefore, in the banks hands, a debt payable to Naftogaz. By comparison, in Rekstin v Severo Sibirsko Gosudarstvennoe Aksionernoe Obschestvo Koseverputj and the Bank for Russian Trade Ltd [1933] 1 KB 47 the result was different because the debt sought to be attached represented moneys deposited by the judgment debtor with a bank which had merely received a revocable instruction from the judgment debtor to pay it to another bank. The garnishee order was held to operate as a revocation of that instruction. These cases reflect what is in my view the general rule, namely that the essential condition for the effectiveness of a Third Party Debt Order, as with any process of enforcement against assets, is that there should be a subsisting debt owed to the judgment debtor. They are authority, on more or less complex facts, for the straightforward proposition that execution cannot be levied against a debt if the judgment debtor has parted with his interest in it. In my opinion it is necessary to distinguish between an arrangement between (i) the judgment debtor and a third party which passes a proprietary interest, legal or equitable, in the relevant asset to a third party, and (ii) a purely personal obligation owed to a third party as to the disposal of that asset. The essential point about a Third Party Debt Order is that it modifies purely personal obligations. A third party owes money to the judgment debtor. He has a personal obligation to pay the judgment debtor. The Third Party Debt Order overrides that obligation by requiring it to be paid to the judgment creditor instead. Otherwise a judgment debtor could defeat any process of execution against his assets simply by undertaking for good consideration not to comply with an order by way of enforcement. It is different if the judgment debtor has parted with his interest in the debt by assigning it, in law or equity, to another. In that case, he no longer has the asset against which enforcement is sought to be made. In the present case, on the footing that the debt created by the letter of credit was owed to SOMO, as I think it was, the issuing bank had a personal obligation to SOMO to pay it by crediting CBIs New York account. That obligation was modified by the overriding effect of the Third Party Debt Order. On the footing, which I also think correct, that the obligation owed by the issuing bank to CBI was to discharge the debt owed to SOMO by crediting CBIs New York account, that obligation depended on the continued existence of the debt owed to SOMO. Once it had been discharged by operation of law by payment to the judgment creditor in accordance with the Third Party Debt Order, there was no subsisting debt to be paid by the issuing bank into the New York account. I would agree with Lord Neuberger and Lord Mance that a Third Party Debt Order ought not to be made unless compliance with it would discharge the third party debtor. But this argument is only a reformulation of the one which I have already considered. The obligation owed by the issuing bank to SOMO is a debt and the obligations owed to both SOMO and CBI is an obligation as to the manner in which that debt is to be discharged. The subject matter of both obligations is one and the same debt. Upon its discharge neither obligation has any further content. It follows that compliance with the Third Party Debt Order would discharge the issuing bank as against both SOMO and CBI. LORD HODGE: I agree with Lord Clarke and Lord Sumption that this appeal should be allowed. In this short judgment, I will use the acronyms and abbreviations which Lord Clarke has used. I gratefully adopt Lord Clarkes summary of the relevant facts in the interest of brevity. While there is agreement as to the situs of the debt, the question of state immunity (which was not argued in the appeal) and the making of a receivership order, this court is divided on (a) whether Crdit Agricoles debt under the letter of credit is owed to SOMO or to CBI and (b) whether the contractual commitment to CBI in the letter of credit prevents the making of a TPDO. I confine my comments to the questions which divide us. To whom the debt is owed? The answer to the first question is found by construing the unusual terms of the letter of credit. A letter of credit has to be construed according to its terms which establish the nature and conditions of the banks duty to pay. Like other contracts, a letter of credit must be construed as a whole: individual clauses must be interpreted in their contractual context. In ascertaining the meaning of a particular clause or clauses, especially in an unusual contract such as this letter of credit, it is helpful and often necessary to adopt an iterative process by which an initial prima facie view as to meaning is tested against indications of another meaning or other meanings which the document gives when considered as a whole. It is well established law that a letter of credit creates an obligation to pay which is independent of and detached from the underlying contract between a seller and a buyer. The autonomous nature of a letter of credit means that, subject to qualifications which are irrelevant in this case, the conditions governing the issuing banks obligations to pay are to be found exclusively in the terms of the letter of credit. The background to the letter of credit is the international sanctions against Iraq following the invasion of Kuwait and the later continuation by the government of Iraq of the arrangement for the payment of the proceeds of sales of oil by Iraq of which a portion was used to finance the UN compensation fund for Kuwait. But I agree with Moore Bick LJ that that background in this case does not assist the construction of the letter of credit, not least as there does not appear to have been evidence of the banks knowledge of those arrangements. The focus therefore is exclusively on the terms of the letter of credit. Lord Clarke has set out the relevant parts of the letter of credit in para 9 of his judgment. In carrying out an iterative interpretation I choose in this case to start at the beginning. The letter of credit is addressed to CBI and asks CBI to advise SOMO that it has established the documentary credit by order of Shell in SOMOs favour. In that regard CBI is to act as the advising bank. The letter of credit envisages that CBI would also be the confirming bank, but in the event no such confirmation was given. Payment under the letter of credit is to be made on presentation of SOMOs duly signed original invoice. The letter of credit is stated to be neither assignable or transferable. Thus far, the letter of credit is straightforward and follows a familiar pattern: a documentary credit is created by Crdit Agricole on the order of the buyer in favour of the seller, suggesting that the debt thereby created is owed to the seller, SOMO. But the letter of credit then contains the two conditions [A] and [B] which the parties have added and which differ from the standard letter of credit, by constituting, in condition [A], an irrevocable undertaking in favour of CBI that the proceeds of the letter of credit will be paid into its (CBIs) Iraq Oil Proceeds Account with the Federal Reserve Bank, New York, and in Condition [B], an engagement to both SOMO (described as the beneficiary) and CBI so to pay the money on presentation of the documents which comply with the letter of credit. I agree with each of Lord Clarke, Lord Neuberger and Lord Mance, that the undertaking in Condition [A] is addressed to CBI. Read by itself or along with Condition [B], it might constitute a debt in favour of CBI. It is necessary to reconcile the provisions which I summarise in para 74 above with those in para 75 above. In my view that reconciliation is assisted by the paragraph of the letter of credit which follows the added conditions. It makes the credit subject to UCP 600, which seeks to facilitate the flow of international trade by creating a set of international rules that establish uniformity in the practice (ie the handling) of letters of credit. To my mind, it is both legitimate and necessary to look at UCP 600 as a guide to the interpretation of the letter of credit both because of its incorporation into the letter of credit and because the letter of credit reflects an established structure of documentary credit, which is consistent with UCP 600, but with the two conditions added. As Lord Clarke points out (para 19) UCP 600 (article 2) defines beneficiary as the party in whose favour a credit is issued. Further, as Lord Clarke observes, the term beneficiary is used repeatedly in UCP 600, including in article 18, which requires, subject to an irrelevant exception, that a commercial invoice must appear to have been issued by the beneficiary. There is no doubt in my mind that SOMO is the beneficiary of the letter of credit as envisaged by UCP 600. The use in Condition [B] of the word beneficiary to describe SOMO is consistent with this understanding. It is also consistent with the view that Conditions [A] and [B] are not intended to alter the person in whose favour the credit was issued. On this approach there is no need to struggle to give content to the use of the term beneficiary in the added Condition [B] or to the idea, which the use of that word encapsulates, that the letter of credit is in favour of SOMO. I construe the added conditions in their contractual context, which is that SOMO is the beneficiary of the letter of credit and that the credit in its favour is not assignable (para 74 above). Those two provisions are to my mind critical to the interpretation of the letter of credit and dictate a narrow view of the effect of the added conditions. Absent an assignment of the credit to CBI, which the letter of credit expressly forbids, CBI has no proprietary interest in the debt due by Crdit Agricole. But that does not denude the added conditions of content. The added conditions entail an undertaking by Crdit Agricole to SOMO and CBI jointly as to the mode of payment of SOMOs debt. It is not possible to discover from within the four corners of the letter of credit what was the relationship between SOMO and CBI which explains why SOMOs debt had to be paid into CBIs bank account and whether CBI had to account to SOMO for its receipt. It appears that one public body has required that its debt be paid into the bank account of another public body, for a purpose which the letter of credit does not disclose. But I see no basis for inferring from the terms of the letter of credit that SOMO has transferred any beneficial interest in the debt to CBI. In agreement with Lord Clarke and Lord Sumption, I conclude that the Crdit Agricoles debt was owed to SOMO. Does the contractual commitment to CBI exclude a TPDO? If I am correct in concluding that the letter of credit created a debt in which SOMO had both the legal interest and the beneficial interest, the TPDO would, if made, override and discharge Crdit Agricoles obligation to SOMO. Were that to occur, I do not see how there would be any content in the obligation as to the mode of payment of that debt which Crdit Agricole owed to both SOMO and CBI. The discharge of the debt would discharge the ancillary obligation as to the mode of its payment, leaving CBI with no claim for damages or otherwise against the issuing bank. I therefore agree that CBIs rights under the added conditions do not bar the making of a TPDO. The contrary views In so concluding, I find myself in respectful disagreement with Lord Neuberger and Lord Mance. In relation to Lord Neubergers judgment, we differ as I attach more significance to the established practice of documentary credits in construing the letter of credit and in particular to the incorporated terms of UCP 600, to which Condition [B] indirectly refers in its description of SOMO as the beneficiary. I see no basis for inferring an assignment by SOMO to CBI of the beneficial interest in the debt. In relation to Lord Mances judgment, the principal difference again appears to be that I attach more significance to the established structure of letters of credit upheld by UCP 600 and the use of its terminology in Condition [B] in providing the contractual context of the added conditions, to which he and Lord Neuberger have given priority over the other terms. To my mind, our differences are not ones of principle but of the construction of an unusual document, which on my reading (a) creates a debt in favour of SOMO but (b) requires that the money to discharge that debt be paid into CBIs bank account. On such a reading, no violence is done to the law of garnishee orders or third party debt orders. Conclusion In summary, I conclude (i) that Crdit Agricoles debt was and is owed to SOMO, (ii) the separate and ancillary obligation owed to CBI as well as SOMO was merely an obligation as to the manner of payment of SOMOs debt, and (iii) on the discharge of SOMOs debt by the making of the TPDO, the ancillary obligation as to the mode of payment also would be discharged. LORD MANCE: (dissenting) I agree with Lord Clarke for the reasons he gives that the situs of the debts constituted by the letters of credit should be held to be at the London branch of Crdit Agricole which issued the letters of credit. I would therefore allow the appeal. Debt capable of being subject of a third party debt order I am however unable to agree that there was or is any debt owed or due to SOMO under either letter of credit opened by Crdit Agricole, capable of being attached by a third party debt order under CPR72. Under that rule, it is a pre requisite to the making of a third party debt order that there should be a debt due or accruing due to the judgment debtor from the third party. Here, that means a debt due or accruing due from Crdit Agricole to SOMO. It is of no relevance to refer to any debt by way of the price of oil which may, or may not, have been owed by a company in the Shell group to SOMO outside or apart from the letter of credit. If there is a fundamental principle which is presently relevant, it is that a letter of credit is a contract separate from any underlying sale contract: UCP 600, article 4. So it must be construed according to its own terms. The issue whether a third party debt order can be made in respect of Crdit Agricoles undoubted indebtedness to someone under each letter of credit has two at points related aspects. The first is the correct construction of the letters of credit. The second is a correct understanding and application of the principles governing the making of third party debt orders. As to construction, the difference between the majority and minority conclusions may, in the grand scheme, be relatively unimportant. But, in my view, the majority judgments of Lord Clarke, Lord Sumption and Lord Hodge are forcing the present arrangement, in Procrustean fashion, into a pre conceived model (reflecting the conventional position when conforming documents are presented by a named beneficiary under a letter of credit) into which it in no way fits. In doing so, they are in this instant case also over riding rights clearly given to CBI. As to the principles governing third party debt orders, the majority judgments raise a more general concern. They fail in my view to give proper effect to the governing principles, they risk creating confusion and, on the facts of this case, they prejudice, without justification, the deliberately agreed rights of a fourth party (CBI). I add that it is in retrospect surprising (though it may reflect the respondents view about the obviousness of the principles involved) that not all the relevant authorities on third party debt orders were put before the Court, and that their case only addressed the caselaw in two short paragraphs and a footnote. Principles governing construction of the letters of credit As to construction, the general principles of construction are, I hope, well established to the point where they need little discussion. As Lord Hodge, speaking for the Supreme Court, said in Wood v Capita Insurance Services Ltd [2017] UKSC 24; [2017] 2 WLR 1095: 10. The courts task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. Interpretation is a unitary exercise; where there are 11. rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. But, in striking a balance between the indications given by the language and the implications of the competing constructions the court must consider the quality of drafting of the clause ; and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest: Similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. 12. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated To my mind once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each. Principles governing the making of a third party debt order There is no magic about the general concept of a debt. Jowetts Dictionary of English Law (3rd ed) defines it as A sum of money due from one person to another, points out that A debt exists when a certain sum of money is owing from one person (the debtor) to another (the creditor), and adds that Debt denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment. In The Scottish Law of Debt, W A Wilson, Lord President Reid Professor of Law at Edinburgh University, quotes the definition of debts in Bell, Commentaries, II, 15, as mere rights to demand payment of money at a stipulated time, going on to distinguish a debt from an obligation to account. The concept of a debt for the purposes of a third party debt order, or its predecessor the garnishee order, is particularly well settled by authority. First, The test of debt due is whether it is one for which the creditor could immediately and effectually sue: Pagets Law of Banking 14th ed (2014), para 31.8; see also Allinsons Enforcement of a Judgment 12th ed (2016), para 8 03. The test goes back at least to Webb v Stanton (1883) 11 QBD 518. There a garnishee order was obtained against a trustee purporting to attach the beneficiarys share of the trust income. No income was however in the trustees hands which he was at that time due to pay to the beneficiary. The garnishee order was set aside, on the basis that the trustee could not be said to be a debtor unless he has got in his hands money which it is his duty to hand over to the cestui que trust (p 526, per Lindley LJ); see also p 530, per Fry LJ). The Court of Appeal pointed out that an available and appropriate course in this situation would be to apply for the appointment of a receiver. The trustees receipt of income is in this situation a pre condition to the existence of a debt. So too the fulfilment of any other pre condition, such as the obtaining of an architects certificate as a pre condition to a contractors entitlement to be paid for works completed: see Dunlop & Ranken Ltd v Hendall Steel Structures Ltd [1957] 1 WLR 1102. Secondly, and as a concomitant of the first principle, a judgment creditor cannot stand in a better position than the judgment debtor did in relation to the third party against whom the third party debt order is sought: Ferrera v Hardy [2015] EWCA Civ 1202; [2016] HLR 9, para 13, per Floyd LJ, approving the commentary to rule 72.2.1 in the Civil Procedure White Book to that effect. In In re General Horticultural Co (1886) 32 Ch Div 512, 515, the issue was whether a judgment creditor could by garnishee order attach a third party debt which the judgment debtor had assigned in equity, although the assignee had given no notice of the assignment to the third party. In holding that notice was irrelevant in this context (as opposed for example to a situation of competing assignments), Chitty J said that a garnishee order: charges only what the judgment debtor can himself honestly deal with; that rule is now settled. [Counsel argues] that I ought not to apply the well settled rule to this case. But I see no reason why any Act of Parliament or Rules of Court should be so interpreted as to make a man do a dishonest act, and yet if I were to allow [counsels] argument the judgment creditor would obtain, not the property of the judgment debtor, but that of some one else. In parenthesis, this principle means that the court will look at the judgment debtors actual entitlement to sue for the money. What the third party debtor in In re General Horticultural Co would have said about the identity of the person to whom he owed money, before he had notice of the assignment, was irrelevant. Thirdly, and again as a further concomitant of the previous two principles, where a judgment debtor has precluded itself contractually from having any immediate right to recover what would otherwise be a third party debt, a third party debt order cannot be obtained. There is in this respect no difference in principle between a fetter which arises contractually and for proprietary reasons. A requirement for an architects certificate (para 89 above) is a form of contractual fetter. In Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2014] EWCA Civ 1603, Merchant International Co Ltd (MIC) had an outstanding judgment against Naftogaz. Naftogaz had, by agency agreement, engaged BNYM as its principal paying agents for the purposes of loan notes under which Naftogaz owed interest instalments to loanholders. Naftogaz made a payment to BNYM to meet one such instalment, but its use for that purpose was interrupted by a third party debt order obtained by MIC against BNYM. Naftogaz then arranged for the interest instalment to be paid by a second payment. The first payment would have been repayable but for a Supplemental Agreement covering the second payment. This provided that the first payment should, notwithstanding the discharge of the relevant interest instalment, be retained by BNYM for the purposes of the agency agreement, pending a court order in the third party debt proceedings or further written agreement in terms acceptable to BNYM. By a second third party debt order MIC sought to attach the repayment which it alleged was in substance due from BNYM to Naftogaz. MIC submitted that, despite the Supplemental Agreement, the first payment was in BNYMs hands no different to moneys in a bank account repayable on demand. The Court of Appeal rejected the submission on the basis that the Supplemental Agreement had a commercial purpose; it was designed to preserve the status quo in view of the unexpected impact of, inter alia, the first third party debt order (para 48). The parties mutual arrangements negated any immediate and unconditional obligation on BNYMs part to make a repayment. Another in relation to the circumstances of the present appeal, very telling authority is Rekstin v Severo Sibirsko Gosudarstvennoe Akcionernoe Obschestvo Komseverputj and the Bank for Russian Trade Ltd [1933] 1 KB 47. There, the judgment debtors instructed their bank to close a current account, and transfer the moneys in to another body, to whom they owed nothing. The bank closed their account, but had not yet made or informed the other body of the proposed transfer. The judgment creditors at that stage obtained a garnishee order against the bank. The instructions were held still to be revocable, and to have been revoked by service of the garnishee order, which was therefore valid. What had been done by the bank, by way of closing the account, was mere internal machinery for recording what was to be done. But what is for present purposes significant is the Court of Appeals identification of the relevant test of the existence of a debt as being whether the direction was revocable, and not subject to any contrary commitment towards the other body: see per Lord Hanworth MR, at p 64, Slesser LJ at p 69 and Romer LJ at pp 71 72. In this connection, Lord Hanworth MR cited with approval a note at the end of Gibson v Minet (1824) 1 Car & P 247, 250 on the case of Williams v Everett (also reported at (1811) 14 East 582 in slightly different terms), according to which note Lord Ellenborough said: The remitter may give and countermand his directions, as often as he pleases, and the persons to whom it was remitted, may hold the bill, or its amount, for the use of the remitter himself, until by some engagement entered into by themselves, with the person who is the object of the remittance, they have precluded themselves from so doing, and have appropriated the remittance to the use of such person. After such a circumstance, they cannot retract the consent they have once given. In short (a) a mere naked authority to pay given to a banker can be revoked, but (b), once the banker has not only been authorised to pay but has committed itself to pay a fourth party, there is no debt which can form the basis of a garnishee or third party debt order. The present case falls precisely within (b), and the majority are in error in treating it as if it fell within (a). Finally, a basic principle governing third party debt orders was underlined by the House of Lords in Socit Eram Shipping Co Ltd v Cie Internationale de Navigation [2003] UKHL 30; [2004] 1 AC 260. It is, as stated in the headnote to that case: an integral feature of the procedure, established by legislation and the rules of court, that where a final order [is] made the third party, in making payment in compliance with the order, [is] discharged from his liability in respect of the debt to the extent of his payment, and it [is] not open to the court to make an order where it appear[s] that such discharge would not be available under the law which govern[s] the debt. Construction of the letter of credit Each letter of credit identified SOMO as the beneficiary of the letter of credit as well as the relevant seller whose invoice in that capacity was among the documents required for presentation under the letter of credit. However, it is important not to be mesmerised by the term beneficiary or by the normal expectations which it generates. What matters is, as the citations from Wood v Capita Insurances Services Ltd (para 86 above) state, the effect of the particular arrangements which parties have put in place, viewed as a whole. I of course accept that, under a more normal form of letter of credit, the expectation arising from the description beneficiary would be that SOMO would also be the person to whom the proceeds of such presentation would be owed or due and who could sue in debt if they were not paid. This would be so, even if the letter of credit stipulated for their payment to a particular bank account in the name of someone other than the beneficiary; that would correspond with the simple situation identified by Lord Hodge at the end of his para 80. The potential recipient would not have or be given the benefit of any promise of payment to itself under the credit. Any payment to it would simply represent the means agreed between the issuing bank and the beneficiary for discharge of a debt which remained due to the beneficiary alone. Here matters go much further, because of two special and unusual provisions, which have been set out and identified by Lord Clarke as conditions A and B. Each letter of credit contains contractual arrangements made between three parties, Crdit Agricole by whom it is issued, Central Bank of Iraq (CBI) to whom it is in the first place directed, and SOMO to whom CBI was asked by Crdit Agricole to advise (and, although this did not happen, confirm) the credit. There is not, and could not consistently with important and well established principles governing letters of credit be, any suggestion that these arrangements were not supported by consideration or that they are not binding according to their terms, as between all these three parties. As I read the special conditions, the first, condition A, contains a promise made to CBI. Moore Bick LJ erred in reading it as containing a promise to SOMO. There is common ground between Lord Clarkes and my judgment on this point. My reasons for this conclusion are as follows. The reference to payment to your account with Federal Reserve Bank New York, with reference to Iraq Oil Proceeds Account must to my mind be a reference to CBIs account at that Bank in New York, to which the second, condition B, expressly refers. It is most improbable that the two conditions were referring successively to the same account as being both SOMOs and CBIs, quite apart from the fact that the reference Iraq Oil Proceeds Account points towards an account of CBI, rather than SOMO. A second reason for concluding that your in the first special condition refers to CBI, to whom each letter of credit is addressed, is that this is so on all the other occasions when the letter of credit uses the word your or you: see the first paragraph of the credit, the special instructions to CBI (following shortly after the two special conditions) whereby Crdit Agricole undertook to pay as per your instructions after receipt of confirmation that you have taken up documents and the next paragraph with its five further references to CBI by the words you or your. A third reason is that the first special condition makes little if any sense, read as an undertaking confined to SOMO. It would amount to an engagement to SOMO to pay the proceeds of the credit to a particular Federal Reserve Bank account irrespective of any conflicting instructions contained in the sellers [ie SOMOs] invoice or any transmitted letter. What is the sense, or legal force, of an undertaking to X to do something even if X gives contrary instructions? In contrast, an undertaking to CBI to pay CBI even if SOMO gives contrary instructions is comprehensible and valuable. Fourthly, the fact that the first special condition is addressing primarily CBI and its (your) account, rather than SOMO or any account of its, is highlighted by the contrasting use of the phrase sellers commercial invoice when reference did come to be made to SOMO in that condition. So read, the two special conditions are mutually reinforcing. They constitute a tri partite agreement between Crdit Agricole, CBI and SOMO that the proceeds of the letter of credit will be paid, and paid only by irrevocable agreement, to CBI. It is, as I have indicated, now accepted, realistically, that whatever contractual arrangements are contained in the letters of credit are binding, and that no problem relating to absence of consideration arises. That being so, I am unable to see how any debt can, upon presentation of the required documentation, be said to be owed by Crdit Agricole to anyone save CBI. No doubt, Crdit Agricole is party to a binding and irrevocable agreement with both SOMO and CBI that payment will be made to, and only to, CBI. No doubt SOMO might seek an order for specific performance of that obligation on Crdit Agricoles part towards CBI, or damages for its non performance, if SOMO could show any. But the only party which can be said to have a right to the payment, upon and following such presentation, is CBI. The only debt which can be said to be due is to CBI. When three parties have agreed between themselves, irrevocably and bindingly, that a debt which would otherwise have been payable by A to S will instead be paid, and paid only, by A to C, I cannot see how it can be said that the debt still remains, in some metaphysical world, due from A to S and that payment to C remains a means of discharging a continuing liability to section The tripartite nature of the agreement means that it is goes beyond simple assignment, in two respects: first, the debt never becomes due by the third party debtor (Crdit Agricole) to SOMO in the first place; it is from the outset due to CBI; and, second, Crdit Agricole has promised CBI, directly and irrevocably, to pay CBI the proceeds. The first reason also means that the situation goes beyond novation. But these respects make it even less permissible for a court to conclude that any debt exists in favour of SOMO. Tauruss submission that each letter of credit can be analysed as giving rise, upon presentation of the required documents, to, first, a debt in favour of SOMO, coupled with a collateral agreement that the debt would be met by paying, and paying only, CBI is, to my mind, extremely odd. Whatever the position under any sale contract (which is here irrelevant: see para 84 above), there is under the letter of credit no antecedent debt or Urschuld. This is a composite letter of credit, creating one set of rights, which must be construed as a whole. There is no question of any right to payment by Crdit Agricole arising prior to or outside the terms of the credit, and the only right to payment which the credit creates is, by agreement of all concerned, in favour of CBI. I can think of no precedent for an analysis (see per Lord Clarke in para 23 of his judgment) which would mean that, under one and the same tri partite contract, Crdit Agricole owed and could be obliged to pay moneys to SOMO (which is the precondition for a third party debt order by Taurus), but would, by performing this obligation towards SOMO, be in breach of contract towards, and become liable to pay damages to, CBI. Why an obligation to pay CBI money should only sound in damages, rather than debt, is also unexplained. I address later in this judgment the majoritys further suggestion that Crdit Agricoles obligation to CBI to pay CBI, or to pay damages in default, to CBI would somehow be conditional upon no third party debt order having been made against SOMO: see paras 109 and 110 below. I add, for completeness and not because it is critical in this case, that, even if CBI was to receive the sum of money as trustee for SOMO, still it would be CBI that would be owed the sum, not SOMO. Even if it could be suggested that the irrevocable tripartite agreement was for CBI to receive the sum simply as SOMOs banker (rather than by virtue of some arrangement giving CBI its own interest in receiving the moneys and in the moneys received), still the terms of the letter of credit make it impossible for SOMO to intervene and insist on payment to itself; the only debt due to SOMO, and capable of being the subject of a third party debt order, would on this hypothesis be the debt due by CBI as banker to SOMO, once CBI had received the proceeds of the credit. In fact, however, it is clear that CBI was not simply receiving the moneys as SOMOs banker or for the credit of SOMO, but in order to hold them for the credit of the State of Iraq in the Oil Proceeds Account, from which 95% of such moneys would be transferred to the States Oil Development Fund, while 5% would go to the United Nations Compensation Fund Account for reparations to Kuwait. It is common ground, as Field J records in para 69 of his judgment, and it was also expressly accepted by Mr Gordon Pollock QC for Taurus in his submissions before the Supreme Court, that, once the money reached CBI, it was gone, and SOMO would have no interest or rights in or over it. The effect of the parties tripartite and irrevocable agreement is, without more, to give CBI an interest of its own in the debt being discharged by payment to it. It also clear, as Lord Sumption accepts (para 64) that this must been created to protect a wider general interest in the ultimate disposition of the proceeds. Whether that wider general interest engaged CBI itself or only those for whom it was to hold the proceeds is however irrelevant. It is irrelevant to engage in speculations about possibilities, as Lord Sumption goes on to invite in para 64. The enforceable interest given to CBI sounds in debt, whether it was given to protect CBI itself or those to whom CBI was to account for the proceeds. However, if we do look at the facts, the State of Iraq and/or the United Nations Compensation Fund had the clearest interest in CBI being entitled to receive as well as receiving the moneys which it was CBIs role to hold to their credit. One can readily infer that it was to protect that interest that it was ensured that each credit contained the tripartite agreement irrevocably committing Crdit Agricole to pay the letter of credit moneys to the credit of CBI, rather than of SOMO. To attach relevance to the possibility that CBI was not thereby ultimately going to benefit itself ignores the fact that contractual arrangements are frequently made for the benefit of third parties. That does not make them any the less valid or enforceable. If the arrangements involve the creation of an obligation to CBI to pay CBI a specific sum of money, that it enforceable as such as a debt. If (contrary to the position here) the arrangements take some other form, their breach will give rise to a claim for whatever damages may flow, and be recoverable in law, as a result of that breach. (Under the doctrine of transferred loss such damages might in some cases even embrace loss suffered by the other parties for whose benefit the arrangements were made, but, whether that is so or not is irrelevant to the binding nature of the contractual arrangements themselves). References to the possibility of a transfer of the credit under UCP 600, article 38 (Lord Sumption, para 64) carry matters nowhere. Article 38 concerns transfer of the benefit of a credit to a different beneficiary, to enable it to present in its own name conforming documents in respect of all (or, where a credit is divisible, some) of the transactions to which the credit relates. It has nothing to do with and in no way impacts upon either (a) an assignment to a person other than the named beneficiary of the debt resulting from the presentation of conforming documents by the named beneficiary or (b) the present case, where all parties to the credit agreed from the outset that payment of the debt should be due, and due only and irrevocably, to such a person (here CBI). The majoritys suggestion is that a debt which remains owed to SOMO can be severed from a collateral obligation existing to pay it to CBI. The first point about this is that it begs the question to describe the obligation to pay CBI as collateral. It is the obligation to pay under the letter of credit. That is a point which takes one back to the proper construction of each credit. The second point is, however, that the suggested collateral obligation is said to entitle CBI, if it does not receive payment, at least to claim damages against Crdit Agricole (para 23 of Lord Clarkes judgment). But that on its face at once exposes Crdit Agricole to double liability contrary to Socit Eram. The answer which Lord Clarke and Lord Sumption apparently give to this objection is that the making of a third party debt order against the debt owed to SOMO would in some way or another discharge Crdit Agricoles liability to pay CBI: see their paras 56 and 69 70. Lord Sumption speaks of a third party debt order as modifying or over riding personal obligations. That is fair enough if one is talking about the effect of such an order in requiring a third party debtor, who actually owes money to a judgment debtor, to pay the money instead to the judgment creditor. As long as the third party debt is sited in the jurisdiction making the third party debt order, the effect of such payment will be to discharge the third party debtor. The third party debtors obligations are only modified to the extent of the destination of its payment. As long as whatever payment it makes discharges its liability, the modification is of no concern to the third party debtor; it is not disadvantaged. Lord Sumptions proposition is, in contrast, that a third party debt order can modify the rights of an unconnected fourth party to whom the judgment debtor and the third party have in fact contracted that the third party will pay any indebtedness. That is a completely novel proposition and contrary to principle. No feature of the legislation, rules or case law relating to third party debt orders exists, or has hitherto ever been suggested to exist, that could in this way discharge the contractual rights of a person in CBIs position owing no debt whatever to Taurus. Lord Sumption suggests (para 69) that: Otherwise a judgment debtor could defeat any process of execution against his assets simply by undertaking for good consideration not to comply with an order by way of enforcement. This suggestion is, with respect, difficult to follow. A judgment debtor clearly cannot contract with anyone not to comply with a court order. Such a contract would, among other things, be contrary to public policy. But a judgment debtor can part with assets or enter into arrangements which give another person rights that would in other circumstances be the judgment debtors. If, as here, a judgment debtor has effectively agreed that a contractual asset that might otherwise have been his, should enure solely and irrevocably to another person, the judgment debtor does not possess that asset. Lord Clarke (para 56) suggests an alternative route to his desired answer, viz that Crdit Agricoles obligation to pay in accordance with its promised method is necessarily subject to the implicit qualification that the funds have not been intercepted by judicial intervention. But implicit qualifications are no exception to the usual rules of contractual implication. There is no basis (still less any necessity) for implying that CBI (still less those to whom it was to channel the moneys) would be prepared to forego CBIs contractual right to payment, merely because a judgment creditor of SOMO happened to seek or obtain a third party debt order. The legal position is quite the opposite. It is integral to the principles governing third party debt orders, and clear beyond doubt in the caselaw discussed above, that the making of a third party debt order depends on the existence of contractual indebtedness by the third party to the judgment debtor alone, in which no fourth party has any other legally enforceable interest. Lord Sumptions more developed suggestion is that, since the obligation owed by the issuing bank to CBI was to discharge the debt owed to SOMO by crediting CBIs New York account, that obligation depended on the continued existence of the debt owed to SOMO (para 70). This again takes one back to construction of the credits. But in doing so it highlights the extent to which the majoritys construction ignores the agreement by all parties to the credits that CBI (and indirectly those for whom CBI would be receiving the proceeds) should have an interest protected by an irrevocable promise in payment being made, and made only, to CBI. One may ask: what is left of that promise if its enforcement is conditional on the debt owed to SOMO not being discharged? The logic of Lord Sumptions suggestion is, indeed, that, if, quite irrespective of any third party debt order, Crdit Agricole had chosen to pay SOMO rather than CBI, any right which CBI had to receive payment would have ceased to exist. If, on the other hand, Lord Sumption would, in some way, seek to distinguish between voluntary discharge by Crdit Agricole of the supposed debt to SOMO and forced discharge by payment to Taurus under a third party debt order, the distinction is neither explained nor justified. It would give a third party debt order a priority over the rights of innocent fourth parties which is, again, contrary to the caselaw and unprincipled. Summary In the present context, and in the light of the terms of each letter of credit and the well established principles governing construction and the meaning of debt for the purposes of third party debt orders, I am quite unable to see how SOMO itself can be said to have been owed a debt, when the terms of the letter of credit constitute an irrevocable agreement between Crdit Agricole, CBI and SOMO that (i) any payment under the credit should be made to CBI, and that (ii) SOMO should have no right itself to demand, receive from or enforce against Crdit Agricole any such payment (except no doubt a right to demand that Crdit Agricole make any payment to CBI). More particularly, the majoritys emphasis on SOMOs role as beneficiary is incapable of justifying the majority conclusion. SOMO as beneficiary has rights, which it is entitled to enforce. It can insist on performance of the letter of credit terms. But its rights do not, under the terms of this letter of credit, include the right to require or obtain payment to itself. This right it has foregone, by a binding contractual engagement, which it committed itself contractually not to revoke. Further, to hold, in these circumstance, that Crdit Agricole owes SOMO a debt, which can be the subject of a third party debt order, is in direct contradiction with the principle that a judgment creditor cannot stand in a better position than the judgment debtor did in relation to the third party against whom the third party debt order is sought: Ferrera v Hardy [2015] EWCA Civ 1202; [2016] HLR 9, para 13, per Floyd LJ, cited in para 90 above. This is, as I see it, precisely the same principle as Chitty J put in slightly more moralistic terms, when he said (para 90 above) that a third party debt order: charges only what the judgment debtor can himself honestly deal with; that rule is now settled. [Counsel argues] that I ought not to apply the well settled rule to this case. But I see no reason why any Act of Parliament or Rules of Court should be so interpreted as to make a man do a dishonest act, and yet if I were to allow [counsels] argument the judgment creditor would obtain, not the property of the judgment debtor, but that of some one else. Here, it is clear that the relevant property the contractual right to claim payment to itself under each credit was vested, by agreement of all concerned, in CBI, not SOMO. The majority judgment is also inconsistent with the reasoning of Lord Ellenborough cited with approval by the Court of Appeal in the Rekstin case (para 92 above). The suggested distinction between and co existence of inconsistent principal and collateral obligations under one and the same tri partite contract (paras 103 and 108 above) is a remarkable, and to my mind incoherent, novelty in our law, with potential to create confusion in future. Just as importantly, the majority judgment undermines the clarity and simplicity of the law regarding garnishee or third party orders as hitherto understood. Finally, it appears irreconcilable with the underlying principle governing third party debt orders highlighted by the House of Lords in Socit Eram. State immunity I prefer to express no opinion on this subject. It does not arise on the view I take of the case, because there is on that basis no question of making any third party debt order (or receivership order). Since I cannot accept the analysis of a (principal) debt owed to SOMO, with an irrevocable collateral obligation to pay it to CBI, which would then hold the proceeds for the State of Iraq (and, as to 5%, the United Nations), I find it difficult to address the implications of such an analysis. I would not exclude the possibility that, on this analysis, the making of a third party debt order against Crdit Agricole might constitute indirect impleading with the right to the proceeds which the State of Iraq would otherwise have enjoyed. But I would wish, if it had been appropriate or necessary, to consider the point further. A receivership order Had the debt under each credit been owed by Crdit Agricole to SOMO alone, with no question of any obligation (whether described as collateral or otherwise) owed to CBI to pay CBI, then I would have agreed that a receivership order could and should be made. But on the majoritys analysis of the case as involving a principal debt owed by Crdit Agricole to SOMO with a collateral obligation at the same time owed to CBI to pay it to CBI, I am unable to see how it would be appropriate to make a third party receivership order against Crdit Agricole. Such an order should not be made to interfere with the rights of an uninvolved fourth party (CBI) owing nothing to the judgment debtor (Taurus) which is what CBI on any view is. Conclusion The reasons I have given in paras 84 to 117 above for dismissing this appeal correspond broadly with, though expand upon, reasons given by both Sullivan and Briggs LLJ. They also correspond broadly with those given by Lord Neuberger whose judgment I have had the benefit of seeing after preparing the bulk of paras 84 to 117. I therefore consider that the Court of Appeal reached the right conclusion, that there was no basis for a third party debt order over the proceeds of the letters of credit in favour of Taurus and that the appeal should be dismissed on this point. LORD NEUBERGER: (dissenting) Introductory This appeal arises out of an application by Taurus Petroleum Ltd (Taurus) to enforce an Iraqi arbitration award for some US$8.7m against State Oil Marketing Company of the Ministry of Oil (SOMO) by means of a third party debt order (TPDO) under CPR 72. The TPDO sought by Taurus is in relation to sums payable pursuant to certain letters of credit (the Letters of Credit), which were issued at the request of Shell International Eastern Trading Co (Shell) by the London branch of Crdit Agricole SA, and which named SOMO as the beneficiary. Those Letters of Credit provided for payment to be made to an account in the name of the Central Bank of Iraq (CBI) at the Federal Reserve Bank of New York (FRB) in New York, and included a promise in favour of CBI that payment would be made in that way. Each of the Letters of Credit is in identical form and has been drafted by inserting two paragraphs, condition A and condition B, into the middle of what is otherwise a fairly familiar or standardly worded letter of credit, without careful thought having apparently been given to the interrelationship between those two conditions and the rest of the document. The precise terms of the Letters of Credit are as set out in para 9 of the judgment of Lord Clarke. There are five issues to which this application potentially gives rise. Those issues are as follows: a. What is the situs of the debts created by the Letters of Credit? A TPDO can only be made in respect of a debt outside the jurisdiction if compliance with the TPDO would be recognised in that jurisdiction as discharging the primary debtors liability; if the debts in this case are sited not in London but in New York, as was held below, this requirement would not be satisfied. b. To whom are the debts created by the Letters of Credit owed? Under CPR 72.2(1), a TPDO can only be granted in respect of a debt due or accruing due to SOMO; Taurus accordingly have to establish that the debts are owed to SOMO (as Moore Bick LJ held); Taurus cannot succeed if (as Field J held) the debts were also owed to CBI, let alone if (as Sullivan and Briggs LJJ held) they were not owed to SOMO at all but to CBI. c. If the debts could otherwise be subjected to a TPDO, should the commitment to CBI in the Letters of Credit prevent the court from making a TPDO? Moore Bick LJ considered that it should not. d. Does state immunity prevent the making of TPDO? The Court of Appeal decided that section 14(4) of the State Immunity Act 1978 would preclude the making of a TPDO if the debts were owing to CBI (as the sole or a joint debtor), but state immunity did not apply if the debts were owed to SOMO alone; there is no appeal against either limb of this conclusion. e. Should a receivership order be made against SOMO? The Court of Appeal decided that such an order should not be made. Taurus appeals against that decision. Although this is not quite the same order as that in which the points were argued, it seems to me that it is more logical to discuss first the self contained issue of the situs of the debts created by the Letters of Credit, then to deal with the other questions relating to the TPDO issue, all of which arise from the unusual provisions conditions A and B, and finally to address the free standing receivership issue. The first issue: the situs of the debts Lord Clarke has explained in paras 29 to 41 above why the Court of Appeal concluded that the situs of the debts created by the Letters of Credit was New York and why he considers that conclusion is wrong. For the reasons which Lord Clarke succinctly gives in para 31, the situs of the debts in this case is London. The reason the court below held that it was New York was because they were bound by the majority decision of the Court of Appeal on the situs of debt issue in Power Curber International Ltd v National Bank of Kuwait SAK [1981] 1 WLR 1233. In that case, Lord Denning MR and Griffiths LJ decided, without explaining why, that [a] debt under a letter of credit is different from ordinary debts, to quote Lord Denning at p 1240F. At p 1244B D, Waterhouse J dissented on this point, and he was quite right to do so. I can see no reason for holding that a debt due under a letter of credit should be differently treated from other debts for the purpose of deciding its situs. Such unreasoned distinctions do the common law, and in particular, commercial law, no favours. Consistency, certainty and clarity should be guiding principles. Ironically, because the decision on this point in Power Curber has stood unchallenged for over 35 years, it must be accepted that there is an argument based on certainty for not departing from it. Hence the valuable analysis of the textbooks and cases in this and other common law jurisdictions in paras 36 to 40 above. In agreement with Lord Clarke, I consider that this analysis clearly establishes that Power Curber has not been nearly well enough established as representing the law to justify us following its mistaken conclusion on this issue. The second issue: to whom are the debts owed? The issue to be resolved is the nature of the right granted to CBI as a result of the inclusion of conditions A and B in the Letters of Credit. Taurus argues that those conditions involve Crdit Agricole as debtor (i) agreeing with SOMO as the person owed the debt that the debt will be met by the sums due under the Letters of Credit (the Sums) being paid into CBIs account at FRB, and (ii) collaterally agreeing with CBI that it will pay the Sums into CBIs account at FRB. By contrast, SOMO argues that the effect of the inclusion of the two conditions in the Letters of Credit is that Crdit Agricole as debtor (i) agrees with CBI to pay the Sums into CBIs account at FRB, thereby rendering CBI the person owed the debt, and (ii) agrees with SOMO, as the initial beneficiary of the Letters of Credit, and CBI, as the person owed the debt, to comply with that obligation. The first analysis is consistent with the opening part of the Letters of Credit, bearing in mind in particular that the Letters of Credit are stated to be to SOMO, and in favour of SOMO and that SOMO is therein described as the beneficiary. Those expressions indicate that, in the normal way, the Sums due from the buyer requesting the issue of the Letters of Credit, Shell, are owing to SOMO, as the seller and beneficiary under the Letters of Credit. That, of course, reflects the fact that, as between buyer and seller at the time of issue of the Letters of Credit, there was simply a debt owing from the buyer, Shell, to the seller, SOMO, which, in the absence of any contrary provision one would expect to see reflected in the Letters of Credit. If conditions A and B simply contained a commitment by Crdit Agricole to pay the sums due into CBIs account with FRB, it would make no difference to this conclusion. However, in my opinion, the problem with the first analysis lies in the fact that conditions A and B involve commitments to CBI. Reading conditions A and B together, there can be no doubt that the your in condition A must refer to CBI, given that condition B requires payment into CBIs account at FRB as specified, and condition A is an obligation to pay into your account with FRB with reference to Iraq Oil Proceeds account. Accordingly, under condition A, Crdit Agricole agrees with CBI that it will ensure that the Sums will be paid into an account in the name of CBI not of SOMO. To put it at its lowest, that is a pretty good indication that the beneficiary, or at least a beneficiary, of the right to be paid the sums in question is CBI: if X agrees with Y that X will pay a sum of money into Ys account, the natural inference is that the debt is owed to Y. The opening words of the condition add nothing, as the sum would not have to be paid in any event unless all terms and conditions of this letter of credit [were] complied with. The point is reinforced by the irrevocability of the commitment as recorded in the last sentence of condition A, and also in my opinion by condition B. That condition is a promise to, or engagement with, SOMO as well as CBI, but, subject to any other provision of the Letter of Credit, this appears to me only to amount to a separate contractual commitment by Crdit Agricole to SOMO, as well as to CBI, to pay the Sums into CBIs account with FRB as already stated in condition A ie a collateral commitment. A contract by X with Y and Z to pay money to Y, it would, at least normally, create a debt in favour of Y, and not of Z, who merely has a contractual right to require X to pay the sum to Y. All the more so in the case of condition B, given that it follows on from condition A. Turning back to the part of the Letters of Credit preceding conditions A and B, I do not consider that there is any provision which calls into question the conclusion that the debt created by the document is owed to CBI alone. It is true that each Letter of Credit is described as being issued [i]n favour of SOMO, and that SOMO must be the person described as the beneficiary (because SOMO is clearly the beneficiary in condition B). However, in the light of conditions A and B, I am unpersuaded that those features justify the conclusion that the SOMO thereby is to be treated as entitled to the sums payable under the Letters of Credit. As I have mentioned, the Letters of Credit were issued to and in favour of SOMO as beneficiary because SOMO was providing the oil to Shell, and, therefore, subject to any agreement to the contrary, would be entitled to the Sums. However, the fact that the Letters of Credit were issued to and in favour of SOMO as beneficiary is by no means inconsistent with the notion that SOMO was obliged to ensure, and was therefore irrevocably directing, that payment of the Sums were to be made to CBI for CBIs benefit. In effect, viewed in this context, conditions A and B can be seen as recording a formal acknowledgment, binding on SOMO, CBI and Crdit Agricole, of an irrevocable assignment by SOMO to CBI of the right to receive the Sums or a novation of the contractual right to be paid those sums. A right can properly be described as created in favour of X in a case where, in the document creating or recording the right, X irrevocably assigns the whole of the right to Y or the right is novated in favour of Y. I do not regard Crdit Agricoles commitment to SOMO in condition B as inconsistent with such an analysis: the fact that the debt became vested in CBI does not mean that SOMO had no interest in where or to whom it was paid. It is true that in article 2 of UCP 600, referred to in paras 18 and 19 above, beneficiary is defined in article 2 as the party in whose favour a credit is issued. However, as I have sought to explain, that does not, at least in my view, assist Taurus in these proceedings. The Letters of Credit in this case can fairly be said to have been issued in favour of SOMO, but as at the moment they were issued the benefit of the right to be paid was effectively accepted, and irrevocably accepted, as having been divested from SOMO and vested in CBI. Accordingly, I agree with Briggs LJ when he said at para 57 of his judgment in the Court of Appeal that the unusual terms of the Letters of Credit in this case make CBI not SOMO the only creditor in respect of the money promised to be paid, and therefore solely entitled to property in the debt thereby created and that they conferred on SOMO only a non proprietary right to seek damages for breach of contract. Although I must confess to having been initially attracted by it, I have considerable difficulty with the conclusion reached by the majority, namely that, as Lord Clarke puts it, each Letter of Credit gave rise to two separate obligations: an obligation to pay the proceeds into the account of CBI , which was owed to SOMO alone and sounded in debt, and a separate collateral obligation to pay the proceeds into that account which was owed to SOMO and CBI jointly and sounded in damages. Where X agrees with Y and Z that a sum of money will be paid to Y, it is a pretty strange conclusion (unless Z is Ys principal, trustee or the like) that the debt is owed to Z (and that Z is the creditor) and Y only has a collateral right in contract to enforce payment. Conceptually, it may be possible for an agreement to have that effect, but to my mind it would require very clear words to rebut the natural presumption, namely that the debt is owed to Y (and that Y is the creditor) and Z is the beneficiary of a collateral contractual commitment from X. In my view, far from rebutting the natural presumption, the terms of the Letters of Credit support it. I have already explained why that is my view, but, in summary terms it is as follows. Conditions A and B spell out the tripartite nature of the arrangement. Condition A, being an irrevocable promise to CBI pay the Sums into its bank account, appears to bear all the hallmarks of identifying the creditor as CBI: it is a promise to CBI (and CBI alone) to pay and specifically to pay into CBIs bank account. Condition B, being a promise to CBI and SOMO to honour this irrevocable promise as specified, bears all the hallmarks of a purely contractual obligation collateral to that in condition A: it comes after, and refers back to, condition A, and it is a promise to SOMO as well as to CBI. Further, it seems to me somewhat odd to treat each Letter of Credit as imposing on Crdit Agricole an obligation to pay the proceeds into the account of CBI which was owed to SOMO alone and sounded in debt when condition A contains a clear commitment to CBI to pay the proceeds into the account of CBI. I appreciate that Lord Clarkes analysis is based on the earlier part of the Letters of Credit, but, for the reasons I have given, it does not appear to me that they undermine what appears to me to be the clear effect of conditions A and B. If this conclusion is right, the third issue does not arise. However, in view of the majority conclusion on this second issue, it does arise. In any event, it would be right to decide the issue, as it involves a point of some significance. The third issue: the effect of the agreement with CBI This issue has to be approached on the basis that (as the majority of this court have concluded and contrary to my view) SOMO is owed, and CBI is not owed, the debts created by the Letters of Credit. In other words, this issue must be approached on the assumption that each Letter of Credit gave rise to two separate obligations: an obligation to pay the proceeds into the account of CBI , which was owed to SOMO alone and sounded in debt, and a separate collateral obligation to pay the proceeds into that account which was owed to SOMO and CBI jointly and sounded in damages, to quote again Lord Clarkes conclusion. At first sight, the conclusion that SOMO is the sole creditor in respect of the debts appears to justify the conclusion that a TPDO can be made in respect of them. But it is argued by SOMO that such an order would be inconsistent with what is sometimes called honest dealing, because it would cut across the rights of third parties. In this case, even assuming that the sum payable under each of the Letters of Credit was a debt owed to SOMO alone, each Letter of Credit also contained a contractual commitment to CBI to pay the sum into its account at FRB in New York. Despite the fact that Moore Bick LJ and the majority of this Court have concluded that CBIs contractual rights as recorded in the Letters of Credit should not prevent the court making a TPDO, it seems to me that it would be inappropriate for a TPDO to be made. If the TPDO is made, then the debts owing to SOMO under the Letters of Credit would be discharged through payment of the Sums to Taurus by virtue of the TPDO, but I do not see why that should mean that the separate right enjoyed by CBI under condition A should be treated as discharged by such payment. In other words, even if the TPDO is granted and has effect, I consider that CBI should still be able to sue to enforce its contractual right under condition A to have the sum paid into its account. The enforcement of CBIs right, on this hypothesis, would only sound in damages, but it is hard to see how the measure of damages would not be an amount equal to the sum. In effect, therefore, the making of a TPDO would impose on Crdit Agricole the obligation to pay the sum due under each of the Letters of Credit twice, once as a debt to Taurus pursuant to the TPDO, and once by way of damages to CBI. In my view, if that is the result of the making of a TPDO, then it cannot be right to make such an order. It would, in my judgment, be an abuse of the courts power to make a TPDO if it had such an effect. It may well be that, as I think is suggested by Lord Mance, this conclusion can be justified by reference to a general principle that a TPDO (like its predecessor, a garnishee order) will only be made in respect of a sum which is otherwise due to be paid to the person on whose liability the applicant for the TPDO relies see eg Webb v Stanton (1883) 11 QBD 518, at pp 526 and 530, per Lindley LJ and Fry LJ respectively. Condition B does not call this conclusion into question, as it is additional to condition A. In fact it provides another ground for the same conclusion. Condition B involves a promise for the joint and/or several benefit of SOMO and CBI to have the Sums paid into CBIs account. Given that the promise is for the joint benefit of SOMO and CBI, it cannot be satisfied by a payment which can only be treated as being for the benefit of SOMO alone. It is right to add that, even if I am wrong in my view expressed in para 141 above that CBIs contractual claim would survive the grant and enforcement of the TPDO sought by Taurus, I would still consider it wrong to grant the TPDO. On this hypothesis, the grant of the TPDO would deprive CBI of its separate contractual right to be paid the sums due under the Letters of Credit. For the court to grant a TPDO would, on this hypothesis, involve enabling Taurus to obtain a right over the Sums which is superior to the rights of CBI, even though CBIs rights in relation to those sums would pre date those of Taurus, and Taurus would have had notice of CBIs rights when the TPDO was granted, indeed when it applied for the TPDO. That would seems to be contrary to normally accepted commercial practice and legal principle. I agree with Lord Mance that this conclusion derives support from the recent decision of the Court of Appeal in Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2014] EWCA Civ 1603. The argument that the grant of a TPDO would give Taurus a proprietary right over the debts created by the Letters of Credit, which is superior to CBIs simple contractual right to have the debts satisfied by payment into its account at FRB, takes matters no further in my view. It involves Taurus dragging itself up by its own bootstraps: the primary issue is whether a TPDO should be granted, not the effect of a TPDO once it is granted. As at the date that the TPDO was sought, Taurus was simply a creditor of SOMO with no rights in relation to the debts created by the Letters of Credit, whereas CBI had a contractual right to have the sums meeting the debts paid into its account. As I have said, and subject to what I say in the next paragraph of this judgment, it seems to me that it would be an abuse of the courts powers to grant a TPDO to Taurus if it would deprive CBI of its prior and bona fide contractual rights created in the very document giving rise to the debt which Taurus is seeking to divert. And if the TPDO does not prevent CBI from enforcing its contractual rights, then it would still be an abuse, as it would land Crdit Agricole with the obligation of having in effect to pay the same debt twice. In my view, the only way in which Taurus can get round this problem would be if CBIs contractual right under the Letters of Credit is no more than a right to insist on Crdit Agricole complying with its obligations to SOMO under the Letters of Credit. If that were the right analysis, then there would be no problem about making a TPDO: the making and implementing of a TPDO would not represent a breach of SOMOs rights, and therefore would not represent a breach of CBIs rights. However, I find it very difficult to accept that it is the right analysis. Even if the effect of conditions A and B is to give CBI no more than a contractual right against Crdit Agricole to have the Sums paid into its account, I do not consider that those conditions can be sensibly interpreted as limiting CBIs rights to those to which SOMO is entitled. Condition A is expressed as being an unqualified obligation, and I see no reason for implying into it a limitation of this nature. At least equally tellingly, condition B is expressed as being an obligation to both SOMO and CBI, without any suggestion that either of them is subordinate to the other. The fact that the debts arising from the Letters of Credit are (as I am assuming in connection with the third issue) owed to SOMO does not justify giving the limited effect to CBIs rights under the two conditions as, at least in my view, is required if a TPDO is to be granted. The fourth issue: state immunity No argument was developed on the issue of state immunity, although it was an issue in the courts below. Given that it is accepted that Moore Bick LJ was right to conclude that state immunity would apply if CBI was the sole creditor or a joint creditor, but not if SOMO was the sole creditor, this is readily understandable. As explained in para 123(b) above, a TPDO could anyway only be made if SOMO was the sole creditor, so the state immunity issue has no effect on the outcome of this appeal. The fifth issue: should a receivership order have been made? I have read Lord Clarkes observations on this issue in paras 47 to 58 above. The principles are not in doubt, but their application in this case is not easy. I agree that we can consider the point afresh as Moore Bick LJs decision to refuse a receivership order was clearly affected by his (inevitable but mistaken) view that the situs of the debts was outside the jurisdiction in New York, whereas it is in London. On balance, I agree with Lord Clarke that a receivership order is appropriate for the reasons which he gives. Conclusions Accordingly, I conclude that: a. The situs of the debts created by the Letters of Credit is England and there is therefore no jurisdictional impediment to the grant of the TPDO sought by Taurus; b. However, the debts are owed to CBI, and not to SOMO, so it is not open to the court to grant a TPDO as it is SOMO, not CBI, which owes money to Taurus; c. If, contrary to my view, the debts are owed to SOMO, I would still hold that a TPDO could not be granted in the light of CBIs contractual rights under the Letters of Credit; d. As CBI has state immunity, that is another reason why a TPDO cannot be granted; but if the debts were owed solely to SOMO, it would not have state immunity; e. A receivership order could properly be made against SOMO. Accordingly, in the light of my conclusions in paras 148(b), (c) and (d) above, I would dismiss Tauruss appeal so far as it challenges the refusal of the Court of Appeal to grant a TPDO, but, in the light of my conclusion in para 148(e) above, I would allow Tauruss appeal in so far as it challenges the refusal of the Court of Appeal to make a receivership order. |
In 1999 the Inland Revenue, as it was then known and to which I will refer as the Revenue, published a revised version of a booklet known as IR20 and entitled Residents and non residents Liability to tax in the United Kingdom. The 1999 version of the booklet, which remained operative until 2009 and which I will call the booklet, offered general guidance upon the meaning of the word residence and of the phrase ordinary residence in the context of an individuals liability for UK income tax and capital gains tax. The present appeals require the court mainly to construe the guidance in the booklet. For the main contention of the appellants is that, on its proper construction, the guidance contained a more benevolent interpretation of the circumstances in which an individual becomes non resident and not ordinarily resident in the UK than is reflected in the ordinary law and that the appellants had a legitimate expectation, to which the court should give effect, that the more benevolent interpretation would be applied to the determination of their status for tax purposes. Their subsidiary and alternative contention is, that, even if, when properly construed, the guidance did not contain a more benevolent interpretation than is reflected in the ordinary law, it was the settled practice of the Revenue to adopt such an interpretation of it and that the practice was such as to give rise to a legitimate expectation, to which again the court should give effect, that the interpretation would be applied to the determination of their status. The latter limb of each of the appellants alternative contentions is not in dispute. The Revenue accepts that, if either the proper construction of the booklet or its settled practice was as they contend, a legitimate expectation arose which requires that their status for tax purposes should be determined in accordance with the allegedly more benevolent interpretation of the circumstances in which an individual becomes non resident and not ordinarily resident in the UK. The issues arise within applications for judicial review. Mr Davies and Mr James (the first appellants) issued their application in February 2007. They sought judicial review of determinations by the Revenue dated 28 November 2006 that they had each been resident and ordinarily resident in the UK for the tax year 2001 02. Mr Gaines Cooper (the second appellant) issued his application in April 2007. He sought judicial review of a determination by the Revenue dated 25 January 2007 that he had been resident and ordinarily resident in the UK for the tax years from 1993 94 to 2003 04. In each application the appellants contended that, by reference to the allegedly more benevolent interpretation contained in the guidance or adopted by the Revenue in accordance with its settled practice, the determinations were erroneous. In addition to the issue of their application for judicial review the first appellants filed a notice of appeal to the special commissioners which would now be heard by the Tax Chamber of the First tier Tribunal against the determinations of the Revenue dated 28 November 2006. There was a dispute as to whether their application or their appeal should first be determined. On 10 July 2008 the Court of Appeal, in my view correctly and irrespective of its reasoning, ruled that the application should first be determined and it therefore remitted to the Administrative Court the question whether permission to apply for judicial review should be granted. The appeal of the first appellants to the commissioners has been stayed pending determination of the present proceedings. But the course taken in the case of the second appellant was different. The Revenues determination dated 25 January 2007 accorded with assessments for the years from 1992 93 to 2003 04 which it had raised against him in 2005 and against which he had appealed to the commissioners. In June/July 2006, at a hearing which proceeded for ten days, the commissioners conducted a trial of preliminary issues whether he had been: (a) domiciled in the UK from 1992 93 to 2003 04; (b) resident in the UK from 1993 94 to 2003 04; and (c) ordinarily resident in the UK from 1992 93 to 2003 04. I will explain in para 24 below why he did not dispute that he had been resident in the UK in 1992 93. In the event, by Decision dated 31 October 2006, the commissioners held that he had been domiciled, resident and ordinarily resident in the UK during all those years respectively. Against their conclusion in respect of domicile the second appellant appealed, on point of law, to the High Court; on 13 November 2007 Lewison J dismissed his appeal. The result is that the second appellant, can no longer dispute that he was domiciled in the UK from 1992 93 to 2003 04; but his UK domicile is irrelevant to the present proceedings. Nor can he continue to dispute that, according to the ordinary law, he was resident in the UK from 1993 94 to 2003 04 and ordinarily resident in the UK from 1992 93 to 2003 04. His case is, however, that, by reference to either of the contentions set out above, the ordinary law does not govern determination of the issue surrounding his UK residence and ordinary residence during those years. It is unfortunate that, for whatever reason, the course taken in the case of the first appellants was not taken in the case of the second appellant. Were either of his contentions in the present proceedings to prevail, it would follow that the commissioners invested a large amount of time as well as a conspicuous degree of care in application to the issues of his residence and ordinary residence of principles inapplicable to them. In their Decision they expressly noted that their function was to apply the law rather than the guidance in the booklet. But, whereas issues of fact between the Revenue and the first appellants in relation to their circumstances in 2001 02 remain unresolved, the now conclusive resolution by the commissioners of the issues of fact between the Revenue and the second appellant in relation to his circumstances from 1992 93 to 2003 04 at any rate throws the effect of these proceedings into sharp relief. For, although it remains an open question whether, upon application of the ordinary law, the first appellants were resident and ordinarily resident in the UK during the year relevant to them, we know that, upon application of the ordinary law, the second appellant was resident and ordinarily resident in the UK during the years relevant to him. As the appellants rightly stress, a legitimate expectation that the ordinary law will apply to them is a matter of no legal significance in that it adds nothing to the right of every citizen to due application to him of the ordinary law. A complication, to which I will turn in para 30 and para 31 below, is that, while they all contend for what I have described as a more benevolent interpretation of the circumstances in which a taxpayer becomes non resident and not ordinarily resident in the UK than is reflected in the ordinary law, the benevolent interpretation for which the first appellants contend is not identical to that for which the second appellant contends. I infer that it is the unchallengeable findings of fact made by the commissioners against the second appellant which drive him to contend for a more ambitious interpretation than that for which the first appellants now contend. In the Administrative Court permission to apply for judicial review was refused in both cases by Wilkie J on 10 October 2008 in the case of the first appellants and by Lloyd Jones J on 3 November 2008 in the case of the second appellant. All the appellants appealed against the refusals and, when granting permission to appeal, the Court of Appeal listed the appeals to be heard together. On 10 July 2009 the court allowed their appeals against the refusals and, pursuant to CPR 52.15(4), directed that it should itself, on a later date, hear their applications for judicial review. The hearing took place on 4, 5 and 6 November 2009 and judgments were handed down on 16 February 2010. The court (Ward, Dyson and Moses LJJ) thereby dismissed the applications for judicial review and it is against the dismissals that the present appeals are brought. The appellants The first appellants are successful property developers. By March 2001, then based in Swansea, they each held 50% of the preference shares in Liberty Property Holdings Ltd (Liberty). They were also prominent in the administration of Swansea Rugby Football Club and were respected members of the local community. They decided to extend their property development business to Brussels. Whether their decision was related to a possible disposal of their shares in Liberty appears to be in dispute. At all events, in March 2001, they caused a company, in which each of them had a one third shareholding, to be incorporated in Belgium. Furthermore they began to rent furnished apartments in the same block in Brussels and began to reside in them, at any rate in part, prior to 6 April 2001. They contend that, prior to 6 April 2001, they had begun to work full time for the Belgian company in the field of property development; that, alternatively, during the weeks after 5 April 2001, they had begun to work full time for it; that, from the date whatever it was when their full time work for it began, they have worked for it full time throughout a number of years; and that it has become extremely successful. On the other hand they accept that neither of them sold their homes in Swansea; that their wives, and in the case of Mr. Davies his daughters, remained resident, or partly resident, in Swansea; and that they returned very frequently, albeit not for lengthy periods, to their homes in Swansea in order to be with their families or in connection with Liberty (of which they remained non executive directors) or with rugby in Swansea or with other matters of local importance. In December 2001 Liberty acquired the first appellants shares in itself for a consideration of 4.5m each. Although the capital gain within the consideration remains unidentified, it is clearly important for the first appellants that they should be recognised at law to have been neither resident nor ordinarily resident in the UK in 2001 02. The second appellant is a successful entrepreneur. His domicile of origin was in England (and Wales) and he remains a British citizen. His case before the commissioners was that in 1976, when aged 39, he acquired a domicile of choice in the Seychelles. But, by their Decision, we know that he remained domiciled in England until, at any rate, 2003 04. Between 1976 and 2004 he led an international existence, assiduously charted in their Decision. But, by reference inter alia to two substantial homes successively maintained and to a significant extent occupied by him in Berkshire and in Oxfordshire throughout those years and to the presence in England, following 1977, of the wife whom he was ultimately to marry in 1993 and also, from his birth in 1998 until after 2004, of their son, the commissioners concluded that from 1992 to 2004 the second appellant dwelt permanently in the later home in England and that thus, notwithstanding his residence in the Seychelles throughout those years, he was resident and ordinarily resident in the UK during the years under review. C. Residence as a matter of law The status of being resident in the UK creates liability to UK tax under provisions of the Income Tax (Earning and Pensions) Act 2003 and the Income Tax (Trading and Other Income) Act 2005. But the word itself is not currently defined in statute. In 1936 the Income Tax Codification Committee appointed by the Chancellor of the Exchequer issued a Report (Cmd 5131) in which, in para 59 of Volume I, it concluded that the lack of clarity surrounding the word residence was intolerable and in which, in Volume II, it set out a proposed Bill including, in clause six, a definition of the circumstances in which an individual would be resident in the UK. But the Bill was never enacted. Under active consideration today, however, is the governments proposal to introduce a full statutory definition of tax residence for individuals; and the time for response to its initial consultation paper, issued in June 2011 by HM Treasury and HMRC and entitled Statutory definition of tax residence: a consultation, has recently expired. In the absence to date of any statutory definition of residence taxpayers and their advisers have had to turn to the guidance given by the courts and, importantly, also by the Revenue in relation to its meaning. But the courts have not nor, as we shall see, has the Revenue found it easy to formulate the guidance. For more than 80 years the leading authority has been Levene v Inland Revenue Comrs [1928] AC 217. Until 1919 Mr. Levene was resident and ordinarily resident in the UK. During the next five years he spent about five months (mainly in the summer) each year, staying in hotels in the UK and receiving medical attention or pursuing religious and social activities. He spent the remaining months staying in hotels abroad. The appellate committee declined to disturb the conclusion of the commissioners that Mr Levene had remained resident and ordinarily resident in the UK during those years. Viscount Cave, the Lord Chancellor, adopted, at p 222, the definition of reside given in the Oxford English Dictionary, namely to dwell permanently or for a considerable time, to have ones settled or usual abode, to live in or at a particular place; and, of these three descriptions, the Lord Chancellor chose, no doubt as being the most helpful, that of a settled or usual abode. Since 1928, if not before, it has therefore been clear that an individual who has been resident in the UK ceases in law to be so resident only if he ceases to have a settled or usual abode in the UK. Although, as I will explain in para 19 below, the phrase a distinct break first entered the case law in a subtly different context, the phrase, now much deployed including in the present appeals, is not an inapt description of the degree of change in the pattern of an individuals life in the UK which will be necessary if a cessation of his settled or usual abode in the UK is to take place. To the legal analysis of a taxpayers residence must be added a provision which can be traced back to section 10 of an Act of 1799 (39 Geo III, c 13) which introduced income tax in order to raise an ample Contribution for the Prosecution of the War against Napoleon. Parliament has recently placed the provision, in modified form and in clearer terms than those of its several predecessors, in section 829 of the Income Tax Act 2007; but it is convenient to cite the section in which it was to be found when the booklet was operative and indeed during the years for which assessments have been raised against the appellants. The section was section 334 of the Income and Corporation Taxes Act 1988 and it provided as follows: Commonwealth citizens and others temporarily abroad Every Commonwealth citizen or citizen of the Republic of Ireland (a) shall, if his ordinary residence has been in the United Kingdom, be assessed and charged to income tax notwithstanding that at the time the assessment or charge is made he may have left the United Kingdom, if he has so left the United Kingdom for the purpose only of occasional residence abroad, and (b) Kingdom upon the whole amount of his profits or gains shall be charged as a person actually residing in the United The effect of this provision is or should be now clear. If an individual (restricted under the 1988 Act to Commonwealth and Irish citizens) who has been resident and ordinarily resident in the UK ceases to be resident in the UK, he will nevertheless be deemed to have remained resident in the UK if he has left the UK for the purpose only of occasional residence abroad. So the provision puts a second hurdle in his way in that, in order to escape liability as a resident, he needs to establish not only that he has become non resident but also that his change to non residence was not for the purpose only of occasional residence abroad. That such is the effect of the statutory provision can be discerned in the opinions in Levene itself. For the Lord Chancellor (with whose opinion Lord Atkinson agreed) and Lord Warrington of Clyffe both held that the appellant could not overturn the conclusion that he had remained resident and ordinarily resident in the UK and, at pp 224 and 232, they each made clear that, while they considered that alternatively he may well have fallen foul of the provision (which was then in General Rule 3 in the First Schedule to the Income Tax Act 1918), they did not rest their decision upon it. Viscount Sumner, on the other hand, at p 227, expressly rested his decision upon it. In Reed v Clark [1986] Ch 1, however, Nicholls J made it expressly clear that such was the effect of the statutory provision. Mr Dave Clark, who had been resident and ordinarily resident in the UK, moved to Los Angeles on 3 April 1978 and made his home and place of business there until 2 May 1979, when, not having set foot in the UK in the interim, he returned to reside here. Nicholls J dismissed the Revenues appeal against the ruling of the commissioners that he had not been resident nor ordinarily resident in the UK in 1978 79. He rejected each of the Revenues alternative arguments that (a) on the primary facts found by the commissioners Mr Clark had been so resident and ordinarily resident and (b) for the purposes of the provision (which was then in section 49 of the Income and Corporation Taxes Act 1970) he had left the UK for the purpose only of occasional residence abroad. Nicholls J, at p 15C, accepted the Revenues submission that the provision brought into the tax net those who were not resident in the UK at all in the year of assessment. He held, at p 16H, that occasional residence was the converse of ordinary residence and he cited, at p 17D, the statement of Lord Scarman in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309, 343 that ordinary residence referred to a mans abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life or the time being, whether of short or of long duration. By that route Nicholls J came to contrast occasional residence with residence for a settled purpose. In observing, at p 18A, that his construction might give little scope in practice for the operation of the statute as an independent charging provision, Nicholls J perhaps had in mind that, were the persons residence abroad not to have been for a settled purpose, his settled or usual abode might have remained in the UK with the result that, in the light of the definition adopted in Levene, he would not have ceased to be a UK resident and so would already have fallen at the first hurdle. Nevertheless the concepts of settled purpose and settled abode are clearly different. Nicholls J proceeded to hold, at p 18G, that there had been a distinct break in the pattern of Mr Clarks life in the UK such that his becoming non resident had not been for the purpose only of occasional residence abroad. In referring to a distinct break Nicholls J, as he acknowledged at 14F, was adopting a phrase first used in this context in the decision of the Court of Session in Inland Revenue Comrs v Combe (1932) 17 TC 405. Until 1926 Captain Combe was resident and ordinarily resident in the UK. Then he went to New York to work as a broker for a firm on Wall Street. The objective was that he should become its European representative and, in furtherance of it, he returned to the UK, staying in hotels, for 52 days, 175 days and 181 days during each of the following three years. In upholding the conclusion that he was not liable to tax as a UK resident for those years the court proceeded straight to the statutory provision (which then remained in General Rule 3) and concluded that the captain had not left the UK for the purpose only of occasional residence abroad. It was implicit in its conclusion that he had left the UK in the sense of becoming non resident in it. When, therefore, Lord Sands observed, at p 411, that there was a distinct break in what he described as the captains residence in the UK, it was with a view to explaining his conclusion that the captains residence abroad had been more than occasional. In Reed v Clark Nicholls J applied the phrase in precisely the same context and helpfully added that what was required distinctly to be broken was the pattern of the taxpayers life [1986] Ch 1, 18. It is therefore clear that, whether in order to become non resident in the UK or whether at any rate to avoid being deemed by the statutory provision still to be resident in the UK, the ordinary law requires the UK resident to effect a distinct break in the pattern of his life in the UK. The requirement of a distinct break mandates a multifactorial inquiry. In my view however the controversial references in the judgment of Moses LJ in the decision under appeal to the need in law for severance of social and family ties pitch the requirement, at any rate by implication, at too high a level. The distinct break relates to the pattern of the taxpayers life in the UK and no doubt it encompasses a substantial loosening of social and family ties; but the allowance, to which I will refer, of limited visits to the UK on the part of the taxpayer who has become non resident, clearly foreshadows their continued existence in a loosened form. Severance of such ties is too strong a word in this context. It became clear from decisions like Combe that, if a taxpayer left the UK in order to pursue employment abroad which was full time, it was likely not only that he would cease to be a UK resident but also that he would escape being deemed still to be a UK resident under the statutory provision. For, from the fact that the employment was full time, it was likely to follow that he had made a distinct break in the pattern of his life in the UK. By section 11 of the Finance Act 1956 the position of the full time employee or other worker abroad was strengthened by a provision (now in effect contained in section 830 of the 2007 Act) that, in determining whether he remained resident in the UK, regard should not be had to any place of abode in the UK which he maintained for his use. As I will demonstrate in para 36 below, the Revenue also sought to eliminate any remaining element of doubt about the proper treatment of the full time employee abroad by providing in the booklet that, subject to specified conditions of ostensibly simple application, he would definitely be treated as not resident, nor ordinarily resident, in the UK. In his case, therefore, the Revenue was dispensing with the need for the multifactorial inquiry. In its piecemeal contribution to the law relating to UK residence for tax purposes, Parliament has also made provision in respect of the individual who has been non resident in the UK and challenges a contention that he has become resident here for tax purposes. He is, as Nicholls J pointed out in Reed v Clark above, at p 16G, the converse of the UK resident who contends that he has become non resident in the UK and who, as I have explained, is required by statute also to address the purpose of his change to non residence. Until 1993 Parliaments provision in respect of the former individual, now in effect to be found in sections 831 and 832 of the 2007 Act, was that, subject to one bright line rule, he did not become resident in the UK for income tax purposes if, in the words of subsections (1)(a) and (2) of section 336 of the 1988 Act (entitled Temporary Residents in the United Kingdom), he was in the United Kingdom for some temporary purpose only and not with any view or intent of establishing his residence there. The bright line rule, set out in subsection (1)(b) and, albeit in slightly different terms, in subsection (2), was that he had not actually resided in the United Kingdom at one time or several times for a period equal in the whole to six months in any year of assessment; and both subsections concluded by making clear that, if he had so resided for such a period in any year, he was chargeable to UK income tax for that year. Until 1993, however, the available accommodation rule, abrogated in 1956 in respect of the full time employee abroad, continued to apply to the person who claimed to be only a temporary resident within the meaning of section 336: its effect was that, were living accommodation in the UK to have been available for his use during any year of assessment, any presence on his part within the UK during that year would be taken to have been otherwise than for some temporary purpose only and not with any view or intent of establishing his residence there. The application to him of the available accommodation rule was abrogated, with effect from 1993 94, by the insertion into section 336 of subsection (3). It will now be clear why the second appellant did not dispute that he had been resident in the UK in 1992 93, namely the first of the 12 years of assessment. Before the commissioners he unsuccessfully contended that the relevant inquiry was not whether he had become non resident in the UK in 1976 but whether, having then become non resident, he had again become resident in the UK in any of the years of assessment. In other words he unsuccessfully contended that the parameters of the inquiry were set by section 336, rather than by section 334, of the 1988 Act. But, in that in 1992 93 living accommodation in the UK had been available for his use and in that during that year he had been present in the UK albeit not for a total of six months, he was constrained to concede that, even on his approach, he was in principle liable to tax as a UK resident for that first year. D. Revenue guidance There can be no better introduction to this section than in the words of Moses LJ in his judgment in the decision under appeal: 12. The importance of the extent to which thousands of taxpayers may rely upon guidance, of great significance as to how they will manage their lives, cannot be doubted. It goes to the heart of the relationship between the Revenue and taxpayer. It is trite to recall that it is for the Revenue to determine the best way of facilitating collection of the tax it is under a statutory obligation to collect. But it should not be forgotten that the Revenue itself has long acknowledged that the best way is by encouraging co operation between the Revenue and the public Co operation requires fair dealing by the Revenue, and frank and open dealing by the public. Of course the Revenue may refuse to give guidance and re create a situation in which the taxpayers and their advisers are left to trawl through the authorities to find a case analogous to their own, or, if they are fortunate, a statement of principle applicable to their circumstances. But since 1973, in a field fraught with borderline cases relating to an enormous variety of circumstances, the Revenue has chosen to confer what presumably it regarded as a benefit on taxpayers who wished to know whether they were likely to be treated as resident or not. The primary duty of the Revenue is to collect taxes which are properly payable in accordance with current legislation but it is also responsible for managing the tax system: section 1 of the Taxes Management Act 1970. Inherent in the duty of management is a wide discretion. Although the discretion is bounded by the primary duty (R(Wilkinson) v Inland Revenue Comrs [2005] 1 WLR 1718, para 21 per Lord Hoffmann), it is lawful for the Revenue to make concessions in relation to individual cases or types of case which will, or may, result in the non collection of tax lawfully due provided that they are made with a view to obtaining overall for the national exchequer the highest net practicable return: Inland Revenue Comrs v National Federation of Self employed and Small Businesses Ltd [1982] AC 617, 636 per Lord Diplock. In particular the Revenue is entitled to apply a cost benefit analysis to its duty of management and in particular, against the return thereby likely to be foregone, to weigh the costs which it would be likely to save as a result of a concession which cuts away an area of complexity or likely dispute. The Revenue accepts first that, were it in the booklet to have made the representations about the circumstances necessary for the achievement of non residence for which either the first appellants or the second appellant contend, such would have been within its powers; and second that, for so long as the representations remained operative, an individual would have had, and therefore have been able to enforce, a legitimate expectation that it would appraise his case by reference to them notwithstanding that they failed to reflect the ordinary law. In this connection, however, the Revenue refers to the decision of the Divisional Court of the Queens Bench Division in R v Inland Revenue Comrs Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545. It was advantageous to members of syndicates at Lloyds that funds required to be held for them by their underwriters should be so invested as to yield what the Revenue would accept to be capital gain rather than as income. Prior to their investment in American and Canadian index linked bonds underwriters had, by their agents, inquired of the Revenue whether the uplift for indexation to be achieved on sale or redemption of the bonds would be treated as capital gain rather than as income. They unsuccessfully contended that the Revenues responses constituted an affirmative to which it should be held irrespective of whether such treatment of the uplift was correct as a matter of law. Having rejected the Revenues argument that any such affirmative response would have been outside its powers, Bingham LJ proceeded, at p 1569, as follows: I am, however, of the opinion that in assessing the meaning, weight and effect reasonably to be given to statements of the revenue the factual context, including the position of the revenue itself, is all important. Every ordinarily sophisticated taxpayer knows that the revenue is a tax collecting agency, not a tax imposing authority. The taxpayers only legitimate expectation is, prima facie, that he will be taxed according to statute, not concession or a wrong view of the law Such taxpayers would appreciate, if they could not so pithily express, the truth of the aphorism of One should be taxed by law, and not be untaxed by concession: Vestey v Inland Revenue Comrs [1979] Ch 177, 197 per Walton J. No doubt a statement formally published by the Inland Revenue to the world might safely be regarded as binding, subject to its terms, in any case falling clearly within them. But where the approach to the revenue is of a less formal nature a more detailed inquiry is in my view necessary First, it is necessary that the taxpayer should have put all his cards face upwards on the table Secondly, it is necessary that the ruling or statement relied upon should be clear, unambiguous and devoid of relevant qualification. The court held that the Revenues statements about the treatment of the uplift had not been clear enough to give rise to any legitimate expectation. In that the representations in the booklet are formally published by the Revenue to the world rather than being its response to approaches of a less formal nature, a literal reading of Bingham LJs judgment suggests that, although they are binding in relation only to cases falling clearly within them, the requirement that they should be clear, unambiguous and devoid of relevant qualification does not apply to them. But in my view a case would fall clearly within them only if they were clear, unambiguous etc; and in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453, Lord Hoffmann, at para 60, applied the quoted words of Bingham LJ to a formal publication, namely a press announcement, on the part of the Foreign Secretary. It is better to forsake any arid analytical exercise and to proceed on the basis that the representations in the booklet for which the appellants contend must have been clear; that the judgement about their clarity must be made in the light of an appraisal of all relevant statements in the booklet when they are read as a whole; and that, in that the clarity of a representation depends in part upon the identity of the person to whom it is made, the hypothetical representee is the ordinarily sophisticated taxpayer irrespective of whether he is in receipt of professional advice. The alleged representations The first appellants contend that, in the booklet, the Revenue represented that an individual would be accepted as not resident and not ordinarily resident in the UK if he: (a) (paragraph 2.2 of the booklet); or (b) 2.8); or (c) went abroad for a settled purpose and remained abroad for at least a whole tax year (paragraph 2.9) left the UK to take up full time employment abroad left the UK permanently or for at least three years (paragraph provided, in each case, that his visits to the UK during the years following departure totalled less than six months in any tax year and averaged less than 91 days in each such year (the day count proviso). The first appellants accept that, if he is to become non resident in the UK, the law requires an individual to effect a distinct break in the pattern of his life in the UK such as to demonstrate that, when subsequently present in the UK, he is here only as a visitor; and they contend that, by (a), (b) and (c) above, the Revenue reflected in a simplified form the requirement of a distinct break. Their primary contention is that, irrespective of whether they fell within (a) or (b), they fell within (c). They therefore contend that, if (as appears to be the case) they went abroad for a settled purpose for at least one tax year and satisfied the day count proviso, the Revenue is bound to acknowledge their status as having been neither resident nor ordinarily resident in the UK in 2001 02 notwithstanding that, were their cases to be appraised on a wider basis, they might not have effected a distinct break in the pattern of their life in the UK. The second appellant, by contrast, contends that, in the booklet, the Revenue represented that a taxpayer would be accepted as not resident and not ordinarily resident in the UK if he went to live abroad for at least three years and satisfied the day count proviso. His contention is that, in the interests of simplicity, the Revenue thereby cut away its need or entitlement to afford any independent consideration to whether he had effected a distinct break in the pattern of his life in the UK. The proper construction of the booklet The preface to the booklet stated: The notes in this booklet reflect the law and practice at October 1999. They are not binding in law and do not affect rights of appeal about your own tax. You should bear in mind that the booklet offers general guidance on how the rules apply, but whether the guidance is appropriate in a particular case will depend on all the facts of that case. If you have any difficulty in applying the rules in your own case, you should consult an Inland Revenue Tax Office The first paragraph quoted does not advance the Revenues case: no doubt it intended the booklet to reflect the law but it accepts that, were the booklet to have failed to do so, it would be bound by its terms irrespective of the discrepancy. The second paragraph is however of greater significance: it stressed that the guidance was general; that its application to a particular case depended upon its facts; and that, in the event of any difficulties in its application to his case, the individual should consult a Revenue tax office. Neither in 1976 nor at any time thereafter did the second appellant seek advice from a tax office, still less a ruling on residence such as was available until the introduction of self assessment on 6 April 1996. Nor did the first appellants (who were at all material times advised by PricewaterhouseCoopers LLP) seek such advice in advance of their going to Brussels in March 2001. Paragraph 1.1 of the booklet stated: The terms residence and ordinary residence are not defined in the Taxes Acts. The guidelines to their meaning in this Chapter and in Chapters 2 (residence status of those leaving the UK) and 3 (those coming to the UK) are largely based on rulings of the Courts. This booklet sets out the main factors that are taken into account, but we can only make a decision on your residence status on the facts in your particular case. The paragraph therefore told the taxpayer that the booklet set out only the main factors to be taken into account and repeated that the decision in relation to residence could be made only upon an evaluation of the facts of the case. Paragraph 1.4 of the booklet stated: It is possible to be resident (or ordinarily resident) in both the UK and some other country (or countries) at the same time. If you are resident (or ordinarily resident) in another country, this does not mean that you cannot also be resident (or ordinarily resident) in the UK. So here the taxpayer learned that it would be insufficient for him to become resident abroad: if he was to become non resident in the UK, more was needed. Crucial to the appeals is the second chapter of the booklet, entitled Leaving the UK. Paragraph 2.1, headed Short absences, stated: You are resident and ordinarily resident in the UK if you usually live in this country and only go abroad for short periods for example, on holiday or on business trips. The appellants stress the reference to short periods and they reasonably submit that the day count proviso was the other side of the same coin. The Revenue, by contrast, stresses the word usually. I accept its submission that the word conveyed to the reasonably sophisticated taxpayer that the inquiry would encompass consideration of various aspects of his life with a view to the identification of its usual location. Paragraph 2.2, headed Working abroad, stated: If you leave the UK to work full time abroad under a contract of employment, you are treated as not resident and not ordinarily resident if you meet all the following conditions your absence from the UK and your employment abroad both last for a least a whole tax year during your absence any visits you make to the UK total less than 183 days in any tax year, and average less than 91 days a tax year. (The average is taken over the period of absence up to a maximum of four years Any days spent in the UK because of exceptional circumstances beyond your control, for example the illness of yourself or a member of your immediate family, are not normally counted for this purpose.) The second bullet point, which has two parts, represented the day count proviso. Although the first part of it was statutory (now section 830 of the 2007 Act), the second part of it reflected long established Revenue practice: thus, if the individual visited the UK for six months or more in any year of assessment, he was treated as resident here for that year but, if he did not do so and his visits to the UK averaged less than 91 days each year during up to four tax years, he was treated as not resident here for those years. Reluctant though I am to be distracted from consideration of the substantive issues in the appeals, it is convenient here to append a footnote about an alternative ground of appeal on the part of the first appellants, which their leading counsel described as peripheral and which he did not address in oral argument save to decline formally to abandon. The argument is based on their alternative, fall back assertion that it was only after 5 April 2001, namely during the weeks which followed it, that they began the full time work in Belgium which has since proceeded for a number of years and at least throughout the year 2002 03. On that basis the argument is that the Revenue is required to treat the first appellants as not resident and not ordinarily resident in the UK even in the crucial year 2001 02 because they had left the UK prior to the start of that year and because they had left to work full time abroad even though the work did not begin until after the start of that year. But no rational taxpayer could imagine that the route to non residence by his pursuit of full time employment abroad throughout a tax year could be successfully traversed even in relation to a preceding year. It is only the individuals full time employment abroad which yields the distinct break in the pattern of his life in the UK (see para 21 above) and the terms of paragraph 2.2 adequately convey its status as a pre requisite to non residence. Paragraphs 2.7 to 2.9, which lie at the centre of the appeals, were headed Leaving the UK permanently or indefinitely so their content was entirely governed by that rubric, in which the two adverbs provided important colour to the type of leaving which the Revenue was proposing to address. I also agree, however, with the observation of Moses LJ that: It makes no sense to construe leave when qualified by the adverbs permanently or indefinitely as referring to the process of going abroad. They clearly require consideration of the quality of the absence. (para 44) The paragraphs stated: 2.7 2.8 If you go abroad permanently, you will be treated as remaining resident and ordinarily resident if your visits to the UK average 91 days or more a year Any days spent in the UK because of exceptional circumstances beyond your control, for example the illness of yourself or your immediate family, are not normally counted for the purposes of averaging your visits. If you claim that you are no longer resident and ordinarily resident, we may ask you to give some evidence that you have left the UK permanently, or to live outside the UK for three years or more. This evidence might be, for example, that you have taken steps to acquire accommodation abroad to live in as a permanent home, and if you continue to have property in the UK for your use, the reason is consistent with your stated aim of living abroad permanently or for three years or more. If you have left the UK permanently or for at least three years, you will be treated as not resident and not ordinarily resident from the day after the date of your departure providing[viz the day count proviso]. 2.9 If you do not have this evidence, but you have gone abroad for a settled purpose (this would include a fixed object or intention in which you are going to be engaged for an extended period of time), you will be treated as not resident and not ordinarily resident from the day after the date of your departure providing your absence from the UK has covered at least a whole tax year, and your visits to the UK since leaving [satisfy the day count proviso]. If you have not gone abroad for a settled purpose, you will be treated as remaining resident and ordinarily resident in the UK, but your status can be reviewed if your absence actually covers three years from your departure, or evidence becomes available to show that you have left the UK permanently providing [viz the day count proviso]. On any view the three paragraphs were very poorly drafted. But does it follow that, when read in conjunction with the other parts of the booklet to which I have drawn attention, they amounted to a clear representation of the types for which the appellants respectively contend? Regrettable though it would be, a confusing presentation would be likely to have lacked the clarity required by the doctrine of legitimate expectation. There is now a preliminary dispute between the appellants about the nexus between paragraph 2.9 and paragraphs 2.7 and 2.8. For in this court the first appellants for the first time contend that paragraph 2.9 charts a free standing route to non residence; to be specific, that the subject of paragraph 2.7 is leaving the UK permanently, that that of paragraph 2.8 is leaving it permanently or indefinitely and that that of paragraph 2.9 is leaving it for a settled purpose; and that they themselves travelled by the route charted in paragraph 2.9. The second appellant, by contrast, accepts the Revenues contention as did the first appellants in the Court of Appeal that paragraph 2.9 was linked to paragraph 2.8 and charted only a different way in which an individual might establish that he had left the UK indefinitely. In one sense it comes as no surprise that the Revenue should explain that paragraph 2.9 (which first appeared in the 1996 version of the booklet, as paragraph 2.10) was introduced as a result of the decision in 1985 of Nicholls J in Reed v Clark [1986] Ch 1. For, by referring to the need for a settled purpose, the paragraph introduces a phrase adopted by Nicholls J: see para 18 above. But the paragraph is a garbled reference to the decision: for Nicholls J was describing the settled purpose not as a route to becoming non resident but as the means by which the taxpayer who had become non resident escaped being treated otherwise under what is now section 829 of the 2007 Act. Nevertheless, as all parties agree, the exercise required by these appeals is not to compare the booklet with the law but to construe it by reference to its own terms; and, as a matter of construction, the contention of the first appellants that paragraph 2.9 was independent of paragraph 2.8 is in my view patently incorrect. It was grouped with paragraphs 2.7 and 2.8 under the heading Leaving the UK permanently or indefinitely; and, following paragraph 2.8 in which the Revenue offered one example of evidence which might satisfy it that the individual had left either permanently or indefinitely, paragraph 2.9, which, by its opening hypothesis if you do not have this evidence, made an express link with paragraph 2.8, purported to identify another situation in which the Revenue would accept that he had left indefinitely, namely that in which he had gone abroad for a settled purpose (including for a project in which he was to be engaged for an extended period of time) and satisfied the other specified conditions. So the three paragraphs must be read compendiously. They shared one important feature: they all referred to visits on the part of the individual to the UK. If he usually resides in the UK, he will go abroad as a visitor but, if he has left the UK and has adopted a usual residence abroad, he will come to the UK as a visitor: we are not visitors in the country of our usual residence. The reference to visits to the UK therefore underlined the need for a change in the individuals usual residence and therefore, by ready inference, for a distinct break in the pattern of his life in the UK. Another important feature lay in paragraph 2.8. The evidence there suggested was that the individual had taken steps to create a permanent home abroad. He was then warned however that, if he continued to have property in the UK for his use, his reason for doing so must have been consistent with his stated aim of living abroad permanently or for at least three years. The suggestion was therefore that it might be permissible for him to maintain in the UK not a home but property for [his] use but that, if he did so, he would fail to secure non resident status unless his reason for doing so survived the test of consistency with his stated aim. In the course of his submissions leading counsel for the first appellants invited the court to consider a document not placed before the Court of Appeal. It is entitled Notes on NON RESIDENCE, ETC and, when an individual asks the Revenue to supply him with the supplementary pages of a tax return referable to his claim to non residence, it will supply not only the extra pages but also the Notes in order to assist him in completing them. The Notes put before the court were referable to the tax year 2001 02, being the crucial year for the first appellants. By question 2A, first inserted into the Notes supplied for the year 2000 01, the individual was invited to ask himself Have you left the UK? In order to help him answer the question, the Notes said: Even if you make frequent trips abroad in the course of your employment, you will not have left the UK if you usually live in the UK, and your home and settled domestic life remain there. The premise of the question which followed was that prior to the relevant tax year the individual had left in the above sense and, on that basis, he was invited to consider whether he had lived or had intended to live outside the UK for at least three years (reflective of paragraph 2.8 of the booklet) or had worked abroad full time throughout the relevant tax year (reflective of paragraph 2.2, when properly construed) or had been abroad for a settled purpose (reflective of paragraph 2.9). The proposition in the Notes quoted above was a clear (and, as it happens, also a reasonably accurate) definition of leaving the UK for the purposes of attaining non residence; and, inasmuch as the Notes had apparently been furnished in that form to everyone who submitted a claim to the Revenue that he had become non resident for any year after 1999 2000, it would, in the event of any significant doubt about the meaning of the booklet, have been legitimate to construe it in the light also of the quoted proposition. On any view it is inconsistent with the contention of the first appellants, accepted by Lord Mance, that the Revenue was treating as non resident an individual who had done no more than to go abroad for a settled purpose (and to remain there for at least a year and to satisfy the day count proviso) irrespective of whether he had continued usually to live in the UK and to make his home and settled domestic life here. At last comes the moment in which to stand back from the detailed textual analysis of the booklet and to survey the wood instead of the trees. Unlike so it seems its successor, namely HMRC6, the exposition in the booklet of how to achieve non resident status should have been much clearer. My view however, is that, when all the passages in it to which I have referred were considered together, it informed the ordinarily sophisticated taxpayer of matters which indeed were unlikely to come as a surprise to him, namely that: (a) he was required to leave the UK in a more profound sense than that of travel, namely permanently or indefinitely or for full time employment; (b) he was required to do more than to take up residence abroad; (c) he was required to relinquish his usual residence in the UK; (d) any subsequent returns on his part to the UK were required to be no more than visits; and (e) any property retained by him in the UK for his use was required to be used for the purpose only of visits rather than as a place of residence. He will surely have concluded that these general requirements in principle demanded and might well in practice generate a multifactorial evaluation of his circumstances on the part of the Revenue albeit subject to appeal. If invited to summarise what the booklet required, he might reasonably have done so in three words: a distinct break. The evaluative nature of the inquiry described in the booklet was fairly recognised by the first appellants accountant himself when he stated as follows: [W]hat IR20 does (according to the understanding which I have always had as a practitioner) is to set out certain factors which will be taken into account. Some of these factors relate to the quality of the links which the taxpayer has with another country (eg fulltime employment for at least a whole tax year, settled purpose, acquiring accommodation abroad, living outside the UK for three years or more), and some of the factors relate to the extent of the links retained by the taxpayer with the UK (eg the number of days spent here, retaining a property in the UK). It follows from this that HMRC have set out their view of the quality of the links with another country and the extent of the remaining links with the UK which should together be taken into account in determining whether someone has ceased to be UK resident. The quality of the links with the other country are relevant insofar as they help to determine the extent to which the taxpayer has removed himself from the UK. Were I wrong, however, to have concluded that the booklet succeeded in conveying to the taxpayer the information to which I have referred in para 45 above, it would in no way follow that, on this, the main, basis upon which they are advanced, the appeals should succeed. Were I wrong, I would feel driven to conclude only that the treatment in the booklet of the means of becoming non resident was so unclear as to communicate to its readers nothing to which legal effect might be given. Such a conclusion would leave the appeals far short of their necessary foundation, namely of clearly specified criteria by reference to which they legitimately expected their claims to non residence to be determined. The alleged change of practice I summarise the subsidiary and alternative contention of the appellants as follows: that, even if, on a proper construction of the booklet, the Revenue did not thereby make the representations for which they have respectively contended, its settled practice over many years was nevertheless to determine claims to non residence on the footing that, in the booklet, it had made such representations; that its settled practice continued until a date shortly after all the years of assessment (ie until a date in 2004 05); that its practice thereupon changed in that it began to conduct, including in relation to the appellants, a general inquiry into whether the taxpayer had effected a distinct break in the pattern of his life in the UK; and that the Revenue had thus raised in the appellants a legitimate expectation that it would determine their claims in respect of the years of assessment by reference to its earlier settled practice. It is an arresting proposition that, having published and regularly revised a booklet in which it purported to explain how it would determine claims by individuals to have become non resident and of which it encouraged widespread use, the Revenue departed from it as a matter of settled practice. Clear evidence would be necessary in order to make the proposition good. But there is another reason for the need for clear evidence in this connection. For, whereas, in the booklet the Revenue gave unqualified assurances about its treatment of claims to non residence which, if dishonoured, would readily have fallen for enforcement under the doctrine of legitimate expectation, it is more difficult for the appellants to elevate a practice into an assurance to taxpayers from which it would be abusive for the Revenue to resile and to which under the doctrine it should therefore be held. [T]he promise or practicemust constitute a specific undertaking, directed at a particular individual or group, by which the relevant policys continuance is assured: R (Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755, per Laws LJ at [43]. The result is that the appellants need evidence that the practice was so unambiguous, so widespread, so well established and so well recognised as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it. The appellants place before the court statements by their tax advisers and others that in their experience the Revenue did not prior to 2004 05 conduct any general inquiry into whether a person who claimed to have become non resident pursuant to paragraphs 2.7 to 2.9 of the booklet had effected a distinct break in the pattern of his life in the UK; and they add that, so far as they know, it was the settled practice of the Revenue not to do so and thus that the general inquiries in that regard which were directed at the appellants from 2004 05 onwards represented an unheralded departure from it. By its witness statements the Revenue disputes the existence of any such alleged practice and, in an argument which found favour in the Court of Appeal, suggests that the appellants witnesses may have mistakenly deduced the existence of the alleged earlier practice from what was on any view a later increase in the level of Revenue scrutiny of claims to have become non resident. In any event, however, the appellants accept that, in order to make good their case, they need evidence beyond the generalised, anecdotal understanding of their witnesses, however highly regarded; and in this regard they primarily rely on a letter, entirely unrelated to the cases before the court, from a Revenue Inspector, Mr Wilks, to an accountant, Mr Sawyer, dated 7 July 1999, which was never published and of which the appellants learnt only following the Revenues disclosure of it in the course of these proceedings. I should add that, in this court albeit not in the Court of Appeal, the appellants have also relied on a document published by the Institute of Chartered Accountants in England and Wales, dated 30 November 1994, in which, no doubt accurately, it recorded the Revenue as confirming that, were a UK resident to retire overseas to a house which he owned but to retain ownership of another house in the UK to which he were to make regular holiday visits of 50 days each year, he would have become non resident and not ordinarily resident in the UK; but in my view the quoted words sufficiently betoken a distinct break. In his letter to Mr Sawyer, Mr Wilks wrote: As promised Im writing to confirm the way we approach the residence status of individuals who leave the UK for purported permanent residence but who cannot produce the sort of evidence mentioned in paragraph 2.9 of IR20. Subject only to the caveat that the following guidance is general and particular cases will always need to be decided on their own specific facts, I can say that provided such an individual lives outside the UK for 3 years or more from the date of departure, and after departure has not visited the UK for as much as 183 complete days in any one tax year or 91 or more days a year on average then we will, after the 3 years has elapsed, accept the claim to have become not resident and not ordinarily resident. Specifically, circumstances such as the spouse and/or children having continued to live in the UK a residence having been maintained here duties having continued to be performed in the UK will not prejudice the claim to non residence. The reference by Mr Wilks to IR20 was to the 1996 version and, in the 1999 version, paragraph 2.9, which he cited, became paragraph 2.8. There is no doubt that Mr Wilks letter accords well with the assertions of the appellants professional witnesses. If and insofar as, by his reference to individuals who leave the UK, Mr Wilks was attempting to refer to individuals who effect a distinct break in the pattern of their lives in the UK, the attempted reference was too elliptical; and the fact that, in another context, he wrote a further letter to Mr Sawyer dated 8 March 2000, in which he referred to a person who continues to be resident in the UK on the basis that he hasnt in reality left the UK, cannot alter the natural construction of the earlier letter. But did it reflect a settled practice to depart from the law and indeed from the then current version of the booklet? Until 1998 some UK residents had been able to take advantage of what was known as the foreign earnings deduction. To the extent that they earned income from employment carried out wholly or partly abroad for at least a year, they had been able to deduct it in full from their income for UK tax purposes. But, by section 63 of the Finance Act 1998, the right to make the deduction was abolished. The abolition precipitated an increase in claims to non residence on the part of mobile workers, ie persons, such as lorry drivers and airline pilots, who made frequent and regular trips abroad in the course of their work but who remained based in the UK. In the present proceedings the Revenue disclosed its statements made in 2000 and 2001 to a variety of professionals about its treatment of such claims. The statements are unhelpful to the appellants case. For example the gist of a tax bulletin, published by the Revenue in April 2001, was that, unless he was working full time abroad for at least a whole tax year and so could satisfy the requirements of paragraph 2.2 of the booklet, it was probable that the mobile worker usually lived in the UK, thus also failed to fall within paragraphs 2.7 to 2.9 and so was resident in the UK. The bulletin explained that individuals usually live in the UK if their home continues to be in the UK and their settled domestic life remains here. Although the bulletin related to mobile workers, tax advisers sought clarity as to how it affected the Revenues treatment of business executives who were seconded to work abroad but who regularly returned to the UK. For example, one of the expert witnesses of the first appellants, Mr Hilton Gee, who was a senior manager at PricewaterhouseCoopers LLP until 2006 but who never handled their case, spoke to a Revenue manager on 8 May 2001 and made the following note: I asked whether the Tax Bulletin article reflects a change of Practice by the Revenue or a change in policing standards. [He] confirmed that the article does not reflect any change in the Revenues practice, but it does reflect their view that whereas in the past they might have taken a claim to non residence at face value, they now feel that they should be asking for more facts. The article was directed at a specific category of individual and [he] can see that, if you try to apply its literal wording to other categories of businessmen, one might get the wrong impression. The Revenue are attempting to describe the difference between a businessman who is based in the UK but travels abroad for most of the time, and a businessman who is based abroad but manages to visit the UK from time to time, and are saying that in a case which may not be clear cut you need to look at all relevant factors. In June 2001 accountants at Arthur Andersen raised analogous questions at a meeting with senior Revenue officers. According to the Revenues note, its officers explained that paragraph 2.2 of the booklet still applied; that mobile workers who worked partly within the UK did not fall within it; but that business executives seconded to work abroad might well do so; and that they could fall within the paragraph without severing every link with the UK. Arthur Andersen acknowledged in the words of the note that: If an individual had full time employment abroad, it was not necessary to look at the wider factors in paragraph 2.7 about personal circumstances such as accommodation, family life etc. Arthur Andersen, at any rate, were under no illusion about the nature of the inquiry into a claim for non residence which was required by the booklet when it did not fall within paragraph 2.2. The Revenues dialogue with the accountants culminated in its letter, dated July 2001, sent to the Institute of Chartered Accountants, the Chartered Association of Certified Accountants, the Chartered Institute of Taxation, the Confederation of British Industry, and the big five firms of accountants. It made clear that most mobile workers failed to become non resident because they did not fall within paragraph 2.2 and because they had not genuinely left the UK in the residence sense. In the light of the wide circulation of the letter, it is hard to imagine that tax practitioners did not realise that the Revenue required that an individual who claimed to have become non resident but who failed to fall within paragraph 2.2 should genuinely have left the UK, being a requirement reflective only of the ordinary law. Had there been a facility for cross examination of the appellants professional witnesses in the proceedings, no doubt their precise understanding of what was or was not required both in law and in practice and their grounds for having it would have been laid bare. In my view the Court of Appeal was right to hold that the appellants failed to establish that, by its inquiries and determinations in respect of them, the Revenue was departing from a settled practice such as to found a legitimate expectation. In about 2001, probably triggered by the mobile workers, scrutiny of claims to non residence became more frequent. But when, previously, claims had been scrutinised, had the Revenue adopted a settled practice of applying criteria different from those identified not only by the ordinary law but also in its own booklet read as a whole? The appellants evidence to this effect was far too thin and equivocal. H. Conclusion I would dismiss the appeals. LORD HOPE I am grateful to both Lord Wilson and Lord Mance for their description of the background to these appeals and for the way in which they have identified the points that are in issue. I have reached the conclusion that, for the reasons that are set out in Lord Wilsons judgment, the appeals should be dismissed. I have nothing to add to what Lord Wilson has said about the appellants secondary and alternative contention. Their case that the Revenue had raised a legitimate expectation that their claim would be determined more favourably than the law and a proper construction of IR 20 would indicate was simply not made out by the evidence. The difference between Lord Wilson and Lord Mance as to the primary issue turns on the meaning that paragraphs 2.7 to 2.9 of IR 20 would convey to the ordinarily sophisticated taxpayer. Is the question whether the taxpayer has become non resident and not ordinarily resident in the United Kingdom to be determined simply by reference to the taxpayers intention when going abroad regarding the overall duration of his absence and counting up the days of any return visits? Or is it to be determined by evaluating the quality or nature of the absence and of any return visits that he has made? There is an obvious attraction in keeping the test as simple as possible, especially as taxpayers are now responsible for self assessment when making their returns. But the underlying principle that the law has established is that it must be shown that there has been a distinct break in the pattern of the taxpayers life in the UK. The inquiry that this principle indicates is essentially one of evaluation. It depends on the facts. It looks to what the taxpayer actually does or does not do to alter his lifes pattern. His intention is, of course, relevant to the inquiry. But it is not determinative. All the circumstances have to be considered to see what light they can throw on the quality of the taxpayers absence from the UK. The question then is whether on its proper construction the booklet sets out tests which are so clear that they eliminate the need for an inquiry into whether there was in fact a distinct break. As Lord Mance points out, the requirement for a distinct break is not clearly expressed in the relevant paragraphs of the booklet. But I cannot agree with him that chapter 2 is to be read as substituting for that test a series of specifically delineated cases which clearly and unambiguously eliminated the need for such an inquiry: see para 100, below. The booklet must be read as a whole, including its introductory paragraphs. As the preface to the booklet made clear, it offered general guidance. Its application to a particular case was to depend on its own facts. So paragraphs 2.7 2.9 do not stand alone. Taken as a whole, the message that the booklet conveyed was that all the circumstances were open to evaluation in order to see whether the rules for non residence were satisfied. I am in full agreement with Lord Wilsons careful analysis. LORD WALKER I agree that these appeals should be dismissed for the reasons given in the judgment of Lord Wilson. The stronger appeal is that of Mr Davies and Mr James, but it is by no means as strong as is claimed by the exaggerated opening of their printed case. The preface to the relevant edition of IR 20 made clear that it gave general guidance only, and that whether the guidance was appropriate in a particular case would depend on all the facts of the case. In the event of difficulty taxpayers were invited to consult an Inland Revenue tax office. The appellants had expert professional advisers, and it was well known to them that a large amount of tax was at stake. The guidance in IR 20 is far from clear, as Lord Wilson explains. Yet there is no suggestion that any attempt was made to seek clarification from an office of the Inland Revenue, still less that any specific guidance or assurance was given on the particular course of action proposed by the appellants. It seems possible that the preferred strategy was to let sleeping dogs lie, despite the obscurity of parts of IR 20. But whether that is right or not, the appeals must be dismissed for the reasons given by Lord Wilson, which are essentially the same as those given by Moses LJ in the Court of Appeal. LORD CLARKE I agree that these appeals should be dismissed for the reasons given by Lord Wilson. I have reached the conclusion that his reasoning is to be preferred to that of Lord Mance for the reasons given by Lord Hope. LORD MANCE Introduction In these appeals, the issue is whether Her Majestys Revenue and Customs (HMRC) is entitled to treat the appellants as resident and ordinarily resident in the United Kingdom, in the case of Mr Davies and Mr James in the tax year 2001 02 and in the case of Mr Gaines Cooper in respect of the tax years 1993 94 to 2003 04. The issue turns primarily upon the interpretation and effect of Revenue guidance on the liability to tax in the United Kingdom of residents and non residents, known as IR20. IR20 was first issued in 1973, and existed in various versions developed from time to time until April 2009, when IR20 was entirely replaced by materially different guidance called HMRC 6. A secondary issue in each appeal is whether HMRC, in seeking to treat the appellants as ordinarily resident, resiled illegitimately from a practice followed prior to 2005 with respect to the interpretation and application of IR20. HMRC has confirmed in each appeal (HMRC Case para 2) that it accepts that a taxpayer has a legitimate expectation that HMRC will apply the guidance of IR20 to the facts of his particular case and, if satisfied that the facts and evidence fall within one of the circumstances in chapter 2 of IR20 indicating a certain residence treatment, will treat him accordingly. This accepts that the guidance of IR20 gives rise to a legitimate expectation, but the nature of that legitimate expectation depends upon the terms of the guidance. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453, para 60, cited recently in Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32, [2011] 3 WLR 219, para 28, Lord Hoffmann said that: a legitimate expectation can be based only upon a promise which is clear, unambiguous and devoid of relevant qualification It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power . As to the need for a representation to be clear, unambiguous and devoid of qualification, the Board in Paponette endorsed Dyson LJs statement in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473, [2003] QB 1397, para 56, that the question is how on a fair reading of the promise it would have been reasonably understood by those to whom it was made ([2011] 3 WLR 219, para 30). The primary issue in each appeal is thus how, on a fair reading, IR20 would have been reasonably understood by those to whom it was directed. It is for the courts to resolve this as a matter of law. If any of the appellants succeeds on either issue, it may also be necessary to consider what precise relief would be appropriate. Mr Eadie QC for HMRC suggested in his oral submissions that a requirement to treat the taxpayer as not resident and ordinarily resident should not follow axiomatically. However, the unequivocal nature of the above confirmation makes it difficult to see how this could be so if and in so far as any of the appellants succeeds on the primary issue. More specifically the issues are whether, upon the true interpretation of IR20 or under Revenue practice prior to 2005, taxpayers seeking to show that they are neither resident nor ordinarily resident in the United Kingdom are required to show that they have made a distinct break from or severed family and social ties in the United Kingdom. HMRC maintains and the Court of Appeal (paras 50, 53 55) has held that this is not required where a taxpayer can show that he or she is in full time employment abroad, but is required in all other circumstances. This is said to reflect the test which would, having regard to past case law, apply in strict law. The present judicial review proceedings are brought on the basis that, whatever the legal position might otherwise be, HMRC must as a matter of public law honour the terms of IR20. This, as I have explained in para 70, follows from the HMRCs assurance, that if satisfied that the facts and evidence fall within chapter 2 of IR20, it will treat the relevant taxpayer accordingly. While accepting this assurance, I confess to some residual unease about a concession so apparently general and independent of any consideration of particular circumstances, including any knowledge and advice possessed by or available to the particular taxpayer. Nevertheless, that is the agreed basis upon which this appeal falls to be considered as a matter of public law. Statutory background Although this case concerns the effect of IR20 and/or Revenue practice, I refer at points to the limited statutory provisions relating to residence to be found in the Income and Corporation Taxes Act 1988 (ICTA 1988), which it will therefore be helpful to set out: 335 Residence of persons working abroad (1) Where (a) a person works full time in one or more of the following, that is to say, a trade, profession, vocation, office or employment; and (b) no part of the trade, profession or vocation is carried on in the United Kingdom and all the duties of the office or employment are performed outside the United Kingdom; the question whether he is resident in the United Kingdom shall be decided without regard to any place of abode maintained in the United Kingdom for his use. (2) Where an office or employment is in substance one of which the duties fall in the year of assessment to be performed outside the United Kingdom there shall be treated for the purposes of this section as so performed any duties performed in the United Kingdom the performance of which is merely incidental to the performance of the other duties outside the United Kingdom. 336 Temporary residents in the United Kingdom (1) A person shall not be charged to income tax under Schedule D as a person residing in the United Kingdom, in respect of profits or gains received in respect of possessions or securities out of the United Kingdom, if (a) he is in the United Kingdom for some temporary purpose only and not with any view or intent of establishing his residence there, and (b) he has not actually resided in the United Kingdom at one time or several times for a period equal in the whole to six months in any year of assessment, but if any such person resides in the United Kingdom for such a period he shall be so chargeable for that year. (2) For the purposes of Cases I, II and III of Schedule E, a person who is in the United Kingdom for some temporary purpose only and not with the intention of establishing his residence there shall not be treated as resident in the United Kingdom if he has not in the aggregate spent at least six months in the United Kingdom in the year of assessment, but shall be treated as resident there if he has. (3) The question whether (a) a person falls within subsection (1)(a) above, or (b) for the purposes of subsection (2) above a person is in the United Kingdom for some temporary purpose only and not with the intention of establishing his residence there, shall be decided without regard to any living accommodation available in the United Kingdom for his use. Section 336(3) was only introduced for and with effect from the tax year 1993 94 by section 208 of the Finance Act 1993. IR20 has, as stated, developed over the years. The version which matters in the case of Mr Davies and Mr James was issued in December 1999. Mr Gaines Coopers case may require consideration also of earlier versions issued in October 1992, November 1993 and October 1996. However, Mr Gaines Coopers case is that he left the United Kingdom permanently long ago and has lived abroad for many years, and the changes in provisions governing his situation are relatively limited. The 1992 version read as follows: Leaving the UK permanently 2.5 If you go abroad permanently but have accommodation in the UK available for your use, you will be treated as resident for any tax year during which you visit the UK (see Chapter 4 for details of when accommodation is regarded as available). The length of the visit does not matter. If you come to the UK in most tax years, you remain ordinarily resident. 2.6 If you go abroad permanently and do not have available accommodation in the UK, you will be treated as remaining resident and ordinarily resident if your visits to the UK average 91 days or more a year. 2.7 If you claim that you are no longer resident and ordinarily resident you will normally be asked to give some evidence that you have left the UK permanently for example, that you have sold your UK home (or you have left it empty and on the market for sale) and set up a permanent home abroad. If you can provide this, you may be treated as provisionally not resident and not ordinarily resident from the day after the date of your departure. Normally this provisional ruling is confirmed after you have lived abroad for a whole tax year, as long as your visits to the UK since leaving have averaged less than 91 days a tax year. 2.8 If you do not have this evidence, a decision is postponed for up to three years. The decision will be based on what has actually happened since you left the UK. Until then you are provisionally treated as remaining resident in the UK. You continue to receive tax allowances and reliefs (see paragraph 8.1). Your tax bill may be adjusted when the final decision has been made. In the event, the guidance regarding accommodation in paragraphs 2.5 and 2.6 was superseded as a matter of law by the introduction (for and from the tax year 1993 94) of section 336(3) of ICTA 1988 (para 72 above), providing that whether a person is in the United Kingdom with the intention of establishing his residence there should be decided without regard to any living accommodation available in the United Kingdom for his use. This change was reflected in the 1993 version of IR20 which read: Leaving the UK permanently 2.6 If you go abroad permanently, you will be treated as remaining resident and ordinarily resident if your visits to the UK average 91 days or more a year. For tax years before 1993 94, if you went abroad permanently but had accommodation in the UK available for your use, you were treated as resident for any tax year during which you visited the UK (see Chapter 4 for details of when accommodation was regarded as available). The length of the visit did not matter. If you came to the UK in most tax years, you remained ordinarily resident. 2.7 If you claim that you are no longer resident and ordinarily resident, you will normally be asked to give some evidence that you have left the UK permanently for example, that you have taken steps to acquire accommodation abroad to live in as a permanent home, and if you continue to own property in the UK, the reason is consistent with your stated aim of permanent residence abroad. If you can provide this, you may be treated as provisionally not resident and not ordinarily resident from the day after the date of your departure. Normally this provisional ruling is confirmed after you have lived abroad for a whole tax year, as long as your visits to the UK since leaving have averaged less than 91 days a tax year. 2.8 If you do not have this evidence, a decision is postponed for up to three years. The decision will be based on what has actually happened since you left the UK. Until then you are provisionally treated as remaining resident in the UK. You continue to receive tax allowances and reliefs (see paragraph 8.1). Your tax bill may be adjusted when the final decision has been made. The Revenue in its submissions before the Supreme Court suggested that section 336(3) has no bearing on the present appellants situations, being relevant to persons who have established residence and ordinary residence abroad and come back here temporarily, rather than to the question whether persons have established ordinary residence abroad (an analysis encapsulated in the title to a contribution to issue 435 of CCH Taxes The Weekly Tax News after the Special Commissioners decision in relation to Mr Gaines Copper: Tis better to have left and returned than never to have left at all: p 37). Whatever the accuracy of the Revenues submission on this point in strict law, it is clear, from the change in treatment of the significance of available accommodation in the 1993 and subsequent versions of IR20, that for the purposes of IR20 the Revenue treated the thinking behind section 336 as directly relevant to the question whether a taxpayer had established residence and ordinary residence abroad. The 1996 version of IR20 was amended by the addition in the light of the decision, some ten years before, of Nicholls J in Reed v Clark [1986] Ch 1 of a new paragraph 2.10, which became paragraph 2.9 of the 1999 version and is of particular relevance to the cases of Mr Davies and Mr James. The 1999 version read: 1 Residence and ordinary residence Residence in both the UK and another country 1.4 It is possible to be resident (or ordinarily resident) in both the UK and some other country (or countries) at the same time. If you are resident (or ordinarily resident) in another country, this does not mean that you cannot also be resident (or ordinarily resident) in the UK. Where, however, you are resident both in the UK and a country with which the UK has a double taxation agreement, there may be special provisions in the agreement for treating you as a resident of only one of the countries for the purposes of the agreement (paragraph 9.2). 2 Leaving the UK . Short absences 2.1 You are resident and ordinarily resident in the UK if you usually live in this country and only go abroad for short periods for example, on holiday or on business trips. Working abroad 2.2 If you leave the UK to work full time abroad under a contract of employment you are treated as not resident and not ordinarily resident if you meet all the following conditions your absence from the UK and your employment abroad both last for at least a whole tax year during your absence any visits you make to the UK total less than 183 days in any tax year, and average less than 91 days a tax year. (The average is taken over the period of absence up to a maximum of four years see paragraph 2.10. Any days spent in the UK because of exceptional circumstances beyond your control for example the illness of yourself or a member of your immediate family, are not normally counted for this purpose.) 2.3 If you meet all the conditions in paragraph 2.2, you are treated as not resident and not ordinarily resident in the UK from the day after you leave the UK to the day before you return to the UK at the end of your employment abroad. You are treated as coming to the UK permanently on the day you return from your employment abroad and as resident and ordinarily resident from that date. If there is a break in full time employment, or some other change in your circumstances during the period you are overseas, we would have to review the position to decide whether you still meet the conditions in paragraph 2.2. If at the end of one employment you returned temporarily to the UK, planning to go abroad again after a very short stay in this country, we may review your residence status in the light of all the circumstances of your employment abroad and your return to the UK. If you do not meet all the conditions in paragraph 2.2, you remain resident and ordinarily resident unless paragraphs 2.8 2.9 apply to you. Special rules apply to employees of the European Community (see paragraph 2.14). 2.4 The treatment in paragraph 2.3 will also apply if you leave the UK to work fulltime in a trade, profession or vocation and you meet conditions similar to those in paragraph 2.2. Meaning of full time 2.5 There is no precise definition of when employment overseas is full time, and a decision in a particular case will depend on all the facts. Where your employment involves a standard pattern of hours, we will regard it as full time if the hours you work each week clearly compare with those in a typical UK working week. If your job has no formal structure or no fixed number of working days, we will look at the nature of the job, local conditions and practices in the particular occupation to decide if the job is full time. If you have several part time jobs overseas at the same time, we may be able to treat this as full time employment. That might be so if, for example, you have several appointments with the same employer or group of companies, and perhaps also where you have simultaneous employment and self employment overseas. But if you have a main employment abroad and some unconnected occupation in the UK at the same time, we will consider whether the extent of the UK activities was consistent with the overseas employment being full time. Accompanying spouse 2.6 If you are the husband or wife of someone who leaves the UK within the terms of paragraph 2.2 or 2.4 and you accompany or later join your spouse abroad, you may also by concession (extra statutory concession A78) be treated as not resident and not ordinarily resident from the day after your departure to the day before your return, even if you are not yourself in full time employment abroad. This applies where you are abroad for a complete tax year, and during your absence any visits you make to the UK total less than 183 days in the tax year average less than 91 days a tax year. (The average is taken over the period of absence up to a maximum of four years see paragraph 2.10. Any days spent in the UK because of exceptional circumstances beyond your control, for example the illness of yourself or a member of your immediate family, are not normally counted for this purpose.) Where the tax years of your departure or return are spilt in this way, your tax liabilities which are affected by residence status are calculated on the basis of the period you are treated as resident in the UK. Leaving the UK permanently or indefinitely 2.7 If you go abroad permanently, you will be treated as remaining resident and ordinarily resident if your visits to the UK average 91 days or more a year see paragraph 2.10. Any days spent in the UK because of exceptional circumstances beyond your control, for example the illness of yourself or your immediate family, are not normally counted for the purposes of averaging your visits. 2.8 If you claim that you are no longer resident and ordinarily resident, we may ask you to give some evidence that you have left the UK permanently, or to live outside the UK for three years or more. This evidence might be, for example, that you have taken steps to acquire accommodation abroad to live in as a permanent home, and if you continue to have property in the UK for your use, the reason is consistent with your stated aim of living abroad permanently or for three years or more. If you have left the UK permanently or for at least three years, you will be treated as not resident and not ordinarily resident from the day after the date of your departure providing your absence from the UK has covered at least a whole tax year, and your visits to the UK since leaving have totalled less than 183 days in any tax year, and have averaged less than 91 days a tax year. (The average is taken over the period of absence up to a maximum of four years see paragraph 2.10. Any days spent in the UK because of exceptional circumstances beyond your control, for example the illness of yourself or a member of your immediate family, are not normally counted for this purpose.) 2.9 If you do not have this evidence, but you have gone abroad for a settled purpose (this would include a fixed object or intention in which you are going to be engaged for an extended period of time), you will be treated as not resident and not ordinarily resident from the day after the date of your departure providing your absence from the UK has covered at least a whole tax year; and your visits to the UK since leaving have totalled less than 183 days in any tax year and have averaged less than 91 days a tax year. If you have not gone abroad for a settled purpose, you will be treated as remaining resident and ordinarily resident in the UK, but your status can be reviewed if your absence actually covers three years from your departure, or evidence becomes available to show that you have left the UK permanently providing in either case your visits to the UK since leaving have totalled less than 183 days in any tax year and have averaged less than 91 days a tax year. Calculating annual average visits 2.10 If it is necessary to calculate your annual average visits to the UK, the method is as follows: Total visits to the UK in days x 365 Total period since leaving (in days) = annual average visits . After the third review the year of departure is dropped from the calculation. At each subsequent review the oldest year is dropped, so that there is a rolling period of four years being reviewed. However, if during your absence the pattern of your visits varied substantially year by year, it might be appropriate to look at the absence as being made up of separate periods for the purpose of calculating average visits. This might be necessary if, for example, a shift in the pattern of your visits suggested a change of circumstances, which altered how we viewed your residence status. Contacting the Inland Revenue 2.11 You should let us know when you leave the UK (other than for short trips as in paragraph 2.1). You will normally be asked to complete form P85,which will help to determine your residence status. Paragraphs 2.1 to 2.6 repeated similar provisions in previous editions, all including a 183 day limit. Such a limit appears for the first time in the 1996 edition in paragraphs dealing with Leaving the UK permanently . Again, it is clear that, even if the scope of section 336 of ICTA 1988 may in strict law be regarded as confined to persons who have already established residence and ordinary residence abroad, the Revenue was inspired to take a more generalised view of the relevance of a 183 day limit in IR20, treating it as part of the test whether someone has established residence and ordinary residence abroad. Davies and James Mr Davies and Mr James are British citizens, who were born in the United Kingdom and lived and worked in Wales until 2001, when they took decisions, with the benefit of undisclosed professional tax advice, aimed at bringing about a cessation of ordinary residence here. In pursuit of those decisions, in March 2001, they moved from the United Kingdom to apartments in Brussels, and incorporated and became directors of a Belgian company, Beaufort House SA, in which each held one third of the shares. They also entered into employment contracts for full time work with that company for three years from 1 April 2001. They say that, in planning for and making this move, they and their tax advisers, PriceWaterhouseCoopers, relied upon the guidance in IR20 in believing that it would mean that they would cease to be ordinarily resident in the United Kingdom. The importance of this is that, in the tax year 2001 02, as they probably already envisaged, they realised chargeable gains in respect of which they became liable to capital gains tax unless they were not resident and ordinarily resident in the United Kingdom in that tax year. In May 2002 they submitted to HMRC forms P85 (Leaving the United Kingdom) declaring that their intention had been to live outside the United Kingdom for a full tax year after their departure (though not permanently), that they would be working full time under a contract for their employment abroad for three years and that they expected to be in the United Kingdom for less than 90 days a year. HMRC maintains and the Court of Appeal has held that Mr Davies and Mr James are unable to take advantage of paragraph 2.2 of IR20, because their employment by Beaufort House SA did not in fact commence from 5 April 2001, but only later, since on 5 April 2001 they were in fact on holiday in Italy. That is accepted factually, but Mr Goldberg QC does not abandon his clients submission that it is sufficient under paragraph 2.2 that their employment should last for at least a whole tax year including a later tax year, such as 2002 03. Rightly, however, he did not elaborate on the submission, which is without merit. It is plainly implicit that the whole tax year to which paragraph 2.2 refers is that in relation to which absence of ordinary residence in the United Kingdom is asserted. Mr Goldberg QC for Mr Davies and Mr James has thus to fall back on paragraph 2.8 or 2.9. In relation to these paragraphs, Mr Daviess and Mr Jamess case is that they went abroad either to live outside the United Kingdom for three years or more within paragraph 2.8 or, at least, for a settled purpose within paragraph 2.9, and that they were in fact absent from the United Kingdom for the whole tax year 2001 02, indeed for three tax years, from such departure, and that their visits to the United Kingdom totalled less than 183 days in any such tax year and averaged less than 91 days a tax year. HMRC asserts in response that Mr Davies and Mr James failed to establish the necessary distinct break with family and social ties in the United Kingdom. In particular, they continued to each to have a substantial house here, in which their spouses lived when not visiting them in Belgium and where they lived when in the United Kingdom; and they retained employment and business links in the United Kingdom, as well as other links such as with Swansea Football Club and the Area Health Authority. The Court of Appeal held that the issue whether such a break was necessary under IR20 should be determined in the present judicial review proceedings prior to any proceedings before the Special Commissioners ([2008] EWCA Civ 933, paras 18 19 and 24). Gaines Cooper Mr Gaines Coopers case involves very different and more complex facts, which have already been established in proceedings before the Special Commissioners, who, in a full and very clearly reasoned decision, concluded that Mr Gaines Cooper was in law resident and ordinarily resident during the relevant tax years in the United Kingdom. In doing so they said that in this appeal we must apply the law rather than the provisions of IR20: para 99. A brief summary will suffice, since it is of the essence of the present appeal that most of the facts so established are irrelevant under IR20 and/or under Revenue practice. Mr Gaines Cooper is also a British citizen, who was born and educated and for many years lived here. But by 1974 he had formed the view that the tax regime in the United Kingdom was unfavourable to businessmen and entrepreneurs, and on that basis he began to establish overseas interests. He did so first in Canada and then in the Seychelles, where he purchased a house (Bois Noir) in late 1975 and was granted a residency permit in February 1976 and with which he has had close links ever since, and later elsewhere worldwide. In February 1980, HMRC wrote to him asking for details of his travel to the United Kingdom between 1976 and 1979. The figures provided for days spent, which there is no reason to doubt, were 49, 45 and 56, not counting days of arrival and departure. HMRC raised no further queries thereafter and did not suggest that he might be taxable as resident or ordinarily resident in the United Kingdom until 2000, when the inquiries began which led eventually to these proceedings. After marrying Mrs Dilona Lantang in 1979, Mr Gaines Cooper also purchased a house in California, where they lived for a time, but the marriage was dissolved in 1986. In 1993 he married a Seychellois citizen, Miss Jane Laye Sion, whom he had met in the Seychelles, but who had moved with her family to the United Kingdom, and their son James was born in 1998. Through off shore companies, Mr Gaines Cooper has retained property in the United Kingdom which was, apart from occasional periods of letting, available for his use. Since early 1989 that has consisted of Old Place, near Henley, where his wife, Mrs Jane Gaines Cooper lives during term time, as does Mr Gaines Cooper when here. By reason of the availability of such property, Mr Gaines Cooper accepts that, in the tax years immediately prior to 1993 94 and under the language then of IR20, the availability of such property meant that he was, even though he might satisfy all other conditions of IR20, to be treated as ordinarily resident in the United Kingdom. In school holidays, Mrs Gaines Cooper and James also join Mr Gaines Cooper abroad in the Seychelles or wherever he may be. In October 1987 Mr Gaines Cooper acquired an Italian company, Orthofix, administered from Cyprus and from about 1988 serviced by a company of which he was director based in Henley. He developed it by 2003 into a worldwide company with subsidiaries registered in twenty four countries. From 1992 to 1995 he was employed half time to perform duties in the United Kingdom for Orthofix. After about 1987 he also became involved in manufacturing Laryngeal masks, first through a Seychelles company and then from 1988 by mass production in Indiana, USA. So far as he had earnings here, he paid tax on them here. During the relevant tax years, Mr Gaines Cooper spent about 150 days each year on airplanes, travelling between his interests in different countries, and spending each year in total about three or four months in the United Kingdom, three or four months in Jersey, six to eight weeks in the United States, two weeks in Cyprus and two weeks in Italy. He also made visits to the Seychelles, which involved in the years 1991 92 to 1995 96 weeks in total rather than months according to the Special Commissioners (para 108). It is now common ground that the total days spent by Mr Gaines Cooper in the United Kingdom, calculated by ignoring days of arrival and departure (in accordance with IR20) were, in the tax years 1992 93 to 2002 03, as follows (the square bracketed figures being those arrived at by the Commissioners who concluded that when examining the position in strict law they should add back days of arrival and departure, including single day trips to the United Kingdom): 1992 93: 107 (including 60 for a heart bypass) [147]; 1993 94: 78 [121]; 1994 95: 110 [158]; 1995 96: 66 [110]; 1996 97: 109 [146]; 1997 98: 92 (including 8 for Jamess birth) [141]; 1998 99: 110 (including 8 for Jamess birth) [151]; 1999 2000: 81 [127]; 2000 01: 50 [94]; 2001 02: 0 [27]; and 2002 03: 68 [105]. The Commissioners concluded, looking at the position overall, that England remained the centre of gravity of [Mr Gaines Coopers] life and interests, because he lived in Henley more than anywhere else and because of his many other ties to Berkshire and Oxfordshire. On the basis of figures calculated according to IR20 (and all the more so if one excludes as exceptional circumstances the time spent here for a heart bypass and Jamess birth), Mr Gaines Cooper satisfied in the relevant tax years the conditions both that his visits should in no tax year total 183 days and that they should have averaged over any four year period less than 91 days a year. Mr Gaines Cooper clearly intended to maintain that position permanently or for three years or more, and has maintained it over a period of many years. The essential question is whether that is sufficient to attract the benefit of paragraph 2.7, read with paragraph 2.8, or paragraph 2.9 of IR20. The status and interpretation of IR20 Giving the leading judgment in the Court of Appeal Moses LJ, with whose reasoning Dyson LJ agreed, addressed the question of the status and interpretation of IR20 (1999 version) in relation to questions of residence for the purpose of taxation as follows (para 4): It is notorious that the principles to be applied [on such questions] are to be found, not in the few statutory provisions (sections 334 336 ICTA 1988, now sections 829 832 ITA 2007), which do not purport to be a statutory code but in case law, mainly from the late 19th and early 20th Century. As the Codification Committee recognised, only study of that jurisprudence would enable intelligent prediction of the outcome of an assertion as to residence or non residence. All the more important, then, that guidance should be given on which taxpayers could rely. The Income Tax Codification Committee, chaired by Lord Macmillan and reporting in 1936 (Cmd 5131), put the matter strongly, saying: We are, however, of opinion that the present state of affairs, under which an enquirer can only be told that the question whether he is resident or not is a question of fact for the Commissioners, but that by the study of the effect of a large body of case law he may be able to make an intelligent forecast of their decision, is intolerable and should not be allowed to continue. (paragraph 59) The Codification Committees prescription to resolve this situation was a draft set of statutory rules, which was not however enacted. Nearly 20 years later in 1955, the Royal Commission on The Taxation of Profits and Income (Cmd 9474) set out what it believed to be the practice which the Revenue followed and claimed to derive from the few statutory rules existing and from decided cases. This included a principle that: A man who has been regularly resident in the United Kingdom and has then gone abroad may or may not be treated as a visitor if he comes back again at any time. That depends primarily on the question whether the circumstances in which he went abroad indicate a clear break with the United Kingdom as his place of ordinary residence. (paragraph 290) The Commission, quoting the 1936 reports words set out above, agreed that the state of affairs was unsatisfactory. It suggested as the remedy a printed leaflet which sets out at any rate the main lines of the Revenue Departments established practice, and went on to say that: . fixed rules would simplify the work of administration even if they worked unreasonably in some instances. But it is one of the arguments against the existing system that it does lead to the devotion of a great deal of time and skill to considering and adjudicating upon individual cases, whereas the establishment of certain fixed rules would make this unnecessary without giving any individual a serious cause of complaint. Indeed we think that the visitor or potential visitor would normally prefer certainty to the assurance that there will be the fullest consideration of his personal circumstances. (paragraph 292) By 1961 separate visitors and permanent residence leaflets were in existence, and steps were begun to bring into existence the single guidance which became the first edition of IR20 in 1973. The Preface to IR20 has since 1992 started with the statement that: The notes in this booklet reflect the law and practice at the time of writing. They are not binding in law and do not affect rights of appeal about your own tax. You should bear in mind that the booklet offers general guidance on how the rules apply, but whether the guidance is appropriate in a particular case will depend on all the facts of that case. Until 1996 it went on: From 1996, it read: You should therefore always consult an Inland Revenue Tax Office on how the rules apply in your own case . If you have any difficulty in applying the rules in your own case, you should consult an Inland Revenue Tax Office . This change followed from the introduction in April 1996 of self assessment, representing a major shift in the responsibilities of taxpayers, who from then on had to determine for themselves in the first instance whether or not they were ordinarily resident for tax purposes. However, it is not, I understand, suggested that the change is critical to the outcome of the present appeals in any year. Paragraph 1.1 of IR20 notes that the terms residence and ordinary residence are not defined in the Taxes Acts, but states that: The guidelines to their meaning in this Chapter and in Chapters 2 . and 3 . are largely based on rulings of the courts. This booklet sets out the main factors that are taken into account, but we can only make a decision on your residence status on the facts in your particular case As Moses LJ underlined in paras 17 to 25 of his judgment, HMRC has given, both by the language of paragraphs 2.2 to 2.9 and expressly in the present proceedings (para 70 above), a binding and lawful assurance that it will treat a taxpayer, whose case falls within the circumstances described, as not resident and not ordinarily resident. The significance of the words quoted above from the Preface and paragraph 1.1 is to show that the guidance is meant to reflect the law and practice, and to set out the main factors and that, although it is not binding in law and does not affect a taxpayers right of appeal, it was and is intended to obviate any need for a taxpayer to look further. As HMRC itself put the matter, in writing to PriceWaterhouseCoopers about Mr Daviess and Mr Jamess positions on 14 March 2005: it is generally accepted that some of the practices outlined in IR20 are relaxations from the strict position. Not all these relaxations are covered in Extra Statutory Concessions (ESCs). Parliamentary Draftsmen did not draw up the IR20 notes, as they are simply general guidance. Therefore it is not appropriate to seek to construe this general guidance as if it were statute law. On the other hand we do consider ourselves bound to follow the practices outlined in IR20. Therefore if your clients circumstances place them within IR20 2.2, or 2.7 etc we will accept the non resident (NR) claim. This conclusion would apply even if a strict interpretation of the law suggested otherwise. Moses LJ correctly identified each of paragraphs 2.2 to 2.9 in the 1999 version as requiring at the outset not merely a departure from the United Kingdom, but satisfaction of a further qualification (in addition to the later provisos relating to the duration of absence from and of visits to the United Kingdom). In the case of paragraph 2.2, the further qualification was that he must have left to work full time; no more, and in particular no severance of any family and social ties within the United Kingdom, was required (para 43). But, in the case of paragraphs 2.7 to 2.9, he held that severance of ties had to be demonstrated, because (para 44) The adverbs permanently or indefinitely make, as a matter of construction, all the difference. The extent to which a taxpayer retains social and family ties within the United Kingdom must have a significant and often dispositive impact on the question whether a taxpayer has left permanently or indefinitely (for at least three years). It makes no sense to construe leave when qualified by the adverbs permanently or indefinitely as referring to the process of going abroad. They clearly require consideration of the quality of the absence and contrast with 2.1 . Moses LJ considered that this interpretation was supported both by the contrast with paragraph 2.1 (short absences) and by the reference in paragraph 2.8 to the need, if you continue to have property in the UK for your use, for evidence that the reason is consistent with your stated aim of living abroad permanently or for three years or more. To my mind, however, the references in paragraphs 2.7 and 2.8 to going abroad permanently or to live outside the UK for three years or more and to a stated aim of living abroad permanently or indefinitely are directed most obviously to the taxpayers intention regarding the overall duration of his or her absence, rather than to the quality of absence or the nature of any return visits or continuing British connections. Further, it is clear that the words Leaving the UK permanently or indefinitely cannot and do not precisely or accurately reflect all the paragraphs above which they appear. Thus, the only requirements under the first part of paragraph 2.9 are (i) going abroad (ii) for a settled purpose, which is expressly defined to include a fixed object or intention in which you are going to be engaged for an extended period of time. That paragraph, reflecting Reed v Clark [1986] Ch 1, is again focused on the taxpayers intention when going abroad; and a settled purpose to engage in an overseas activity for an extended period of time may clearly exist without any intention to stay overseas either permanently or indefinitely. As in Reed v Clark, therefore, a taxpayer may have a settled purpose simply to remain outside the United Kingdom for one tax year. When paragraph 2.9 starts with the phrase If you do not have this evidence, this cannot mean that paragraph 2.9 only applies as a sort of long stop, when a taxpayer is asserting that his intention was to go abroad permanently or indefinitely, but when he cannot prove this but can prove some more limited settled purpose. To that extent, I disagree with Moses LJs description of paragraph 2.9 as designed to assist taxpayers who lack evidence (para 50), a description which may have been based on a partial concession below (para 51) which cannot however be sustained. In my opinion, paragraph 2.9 is designed to assist taxpayers who never intended to leave permanently or indefinitely, but can show a settled purpose of lesser duration. The second part of paragraph 2.9 deals likewise with situations where there was neither an intention to go abroad permanently or indefinitely nor, additionally, any settled purpose. It covers two possibilities: one that the taxpayer can subsequently say and show that he has now acquired an intention to leave the United Kingdom permanently (or, one would presume though this is not expressed, for three years or more); the other that his actual absence covers three years from departure. This second possibility looks on its face at the period for which he is abroad, again without focusing on the quality of absence. Paragraph 2.1 in my view also lends no real support to HMRCs case. It focuses on persons who usually live in this country and only go abroad for short periods for example, on holiday or on business trips. Not only does this leave open what is meant under IR20 by usually living here, but the reference to only going abroad for short periods cannot be regarded as matching either Mr Gaines Coopers or Mr Daviess and Mr Jamess lifestyles during the relevant periods, and is consistent with an analysis whereby persons spending less than 91 days here within the terms of paragraphs 2.2 onwards are not treated as ordinarily resident. What is also worth note is the use throughout chapter 2 of words such as go abroad, leave and departure interchangeably in relation to short and long term absence. It is impossible to derive from any of them any message as to the quality of the absence required for cessation of United Kingdom residency. Reference was made to a short check sheet (Notes on Non residence) issued by HMRC to persons making tax returns, which included from the tax year 2000 01 a question 2A, asking Have you left the UK? with a note: Even if you make frequent trips abroad in the course of your employment, you will not have left the UK if you usually live in the UK, and your home and settled domestic life remain here, If NO, you are resident in the UK . This was introduced after a number of long distance lorry drivers based in, but driving overseas for substantial periods from, the United Kingdom made claims to be not ordinarily resident here. One would have thought that such claims were self evidently not admissible, on the basis that part of such drivers work must have taken place in the United Kingdom, eg when they collected and returned vehicles or tractors. Question 2A recognises this by its reference to making frequent trips abroad in the course of your employment. It does not address persons who worked basically abroad, although sometimes coming here on business. In any event, it does not form part of IR20, and it has not been relied upon by HMRC as qualifying whatever IR20 may mean. It follows from what I have already said that I do not find in the express terms of paragraph 2 of IR20, or in particular in the words permanently or indefinitely, direct support for any requirement for a distinct break. Looking at the matter more broadly, it would seem to me remarkable that, if any such requirement were intended, it was not clearly expressed. The guidance is intended to be useful as well as reliable. A requirement for a distinct break from family and social ties in the United Kingdom would certainly be a main factor (see paragraph 1.1). It and its uncertainty would also be matters of obvious concern to many taxpayers. How (for example) does one demonstrate a distinct break from family ties, in a world where spouses or partners may live and work in different countries, but meet regularly in one or the other? This is highlighted by a point made by Moses LJ after he had referred to section 334 of ICTA 1988 and to case law including Levene v Inland Revenue Comrs [1928] AC 217, The Comrs of Inland Revenue v Combe (1932) 17 TC 405, Revenue and Customs Comrs v Grace [2009] STC 2707 and Reed v Clark. He said (para 53): While IR20 is designed to guide and simplify, I cannot accept that it provides a warrant for ignoring so obvious a factor [as the need for a distinct break] for determining whether a taxpayer hitherto resident and ordinarily resident in the UK has ceased to be so and has left permanently or indefinitely. Yet HMRC now suggests that the existence of so obvious a factor was left to inference from what appear, at best, very opaque clues. Moses LJ regarded the statutory and case law position as confirming his view that a distinct break was required. He said (para 52): I am confirmed in that view by the objective of IR20 stated in the opening words of the preface, that it is designed to reflect the law. It would, therefore, be surprising if IR20 had the effect of contradicting established jurisprudence. In my opinion, it is wrong to start with the premise that IR20 was designed to reflect the law as a court would interpret it apart from IR20 and Revenue practice; and also wrong to assume a knowledge of the case law as background to the construction of IR20. The purpose of IR20 was to reflect the law and practice. It was addressed to individual taxpayers, and, even if they might often have professional advisers, those advisers would be very likely to be, as Mr Daviess and Mr Jamess were, accountants rather than lawyers, and correspondingly interested in HMRCs understanding and practice rather than prepared to attempt exhaustive analysis of legal authority. These points are underlined, rather than undermined, by Miss Simler QCs submission that there is nothing in IR20 to suggest that there is likely to be any divergence from the law. To the extent that that is so, it confirms that, even if he were interested in the legal position apart from Revenue understanding and practice, a taxpayer or professional adviser need look no further than IR20. It follows that the terms of IR20 should be read as independent of any conclusion to which a strict interpretation of the law might lead: see HMRCs letter dated 14 March 2005 (para 87 above). A degree of simplification brought about by fixed rules, in place of a difficult judgment as to whether the circumstances indicated a clear break with the United Kingdom as his place of ordinary residence, is indeed precisely what the Royal Commission on The Taxation of Profits and Income encouraged in 1955 (para 84 above). The aim and function of IR20 in this respect is demonstrated by consideration of the further conditions of chapter 2. In addition to the requirements already discussed, a taxpayer seeking to take advantage of paragraphs 2.7 to 2.9 must satisfy two conditions relating to duration of absence from and visits to the United Kingdom. As I have already stated (para 75 above), the first (absence totalling less than 183 days in a tax year) was clearly inspired by the provisions of section 336(1)(b), delimiting what counts as temporary residence in the United Kingdom. The second (an average of less than 91 days a tax year in the United Kingdom) has no statutory basis. It is a condition introduced by HMRC to enable a taxpayer to know where he stands in HMRCs eyes. It is there, on its face, as a measure of the degree of separation from the United Kingdom which HMRC will in practice accept as sufficient to avoid ordinary residence here. The further references in paragraph 2.8 to the exclusion from this 91 day average period of days spent here due to exceptional circumstances such as the illness of yourself or a member of your immediate family do not fit with an expectation of a distinct break of social or family ties with the United Kingdom. The reference in all versions of IR20 from November 1993 on to a person being able to have property available for use in the United Kingdom during his visits here also militates against a requirement of a distinct break. IR20 should in this connection be read on its own terms, independently of the statutory or common law background to that reference. There is here, however, a minor paradox, since the October 1992 version contains a contrary reference, reflecting the law as it was prior to the Finance Act 1993 which introduced section 336(3) into ICTA 1988 for the tax year 1993 94 (para 74 above). Mr Gaines Cooper had property available for his use in the United Kingdom at all material times. In relation to the tax year 1993 94 he cannot simply rely on IR20, he must rely upon it as (notionally) supplemented by section 336(3). However, HMRC did not in its submissions identify this as a specific problem for Mr Gaines Cooper in relation to the tax year 1993 94, and I will put it on one side for the moment. Moses LJ found support in paragraph 1.4 for his view that a value judgment was necessary as to whether there had been a direct break (para 53). That the guidance in paragraph 1.4 is correct is clear. But it says, to my mind, nothing about whether such a value judgment is necessary under paragraphs 2.7 to 2.9. In particular, it is obvious that, if a person falls automatically to be treated as ordinarily resident here if he or she spends 91 days or more here, he or she may well be ordinarily resident in one or two other countries in the same tax year, whether on the basis of an equivalent 91 day rule there or for more general reasons. It does not follow that compliance with the express requirement and conditions of paragraphs 2.7 to 2.9 may not be sufficient to ensure that a person is not ordinarily resident here. Ward LJ appears to have concluded (paras 118 119) that the appellants each had an unarguably strong case for claiming to be ordinarily resident abroad under IR20. But he went on to say that the principle of case law recognised in Viscount Cave LCs dictum in Levene v Inland Revenue Comrs [1928] AC 218, 233, that a man may reside in more than one place, entitled HMRC to look for a clear or clean break with this country. That is once again to make the error of applying the case law, rather than the terms of IR20. In so far as paragraph 1.4 reflects a similar principle, it must be read not as watering down the categorical guidance as to situations of non residence given in chapter 2, but consistently with that guidance in the way which I have indicated in the previous paragraph. It is submitted on behalf of HMRC that all that the specific 91 day rule does is identify a limit which HMRC applies to persons who would or might otherwise be able to show that they are not ordinarily resident (ie by having made a distinct break with United Kingdom ties). It is an upper limit above which HMRC will not accept absence of ordinary residence, but keeping below that limit does not indicate or point to an absence of ordinary residence. The word providing used in paragraphs 2.8 and 2.9 of the 1999 version is particularly relied upon. The language used in IR20 is however variable. In previous versions of paragraph 2.8 (see the versions of paragraph 2.7 quoted in paras 73 and 74 above) and in paragraph 2.7, words such as as long as and if were and are used, and the limit is clearly expressed as a condition of entitlement in paragraphs 2.2 and 2.6 dealing with persons with full time employment outside the United Kingdom and their accompanying spouses. It is of course HMRCs case that a distinction is to be drawn between paragraphs 2.2 to 2.6 and later paragraphs, but to my mind the distinction rests on weak foundations in so far as it is based on such terminological differences. The natural meaning to a potential taxpayer of all relevant paragraphs of the guidance is, as I see it, that, as long as he confines his presence within the United Kingdom to less than 183 days in any one tax year and less than 91 days average per tax year, and satisfies the other requirements relating to intention and/or years spent abroad, he will qualify as not ordinarily resident. In my opinion, the natural meaning of chapter 2 in all its versions since at least 1993 is that, rather than imply the case law test of a distinct break, they introduced (and for public law purposes substitute) a series of specifically delineated cases, into which, if a taxpayer falls, he or she will be treated without more as not resident or ordinarily resident in the United Kingdom. I repeat that the suggestion that the distinct break test is implicit in the language of paragraphs 2.5 to 2.9 (though not in that of paragraph 2.2) appears to me remarkable in the light of the obvious importance of such a factor if it were envisaged. Paragraphs 2.5 to 2.9 of IR20 are essentially futile, indeed positively misleading, if they are read as incorporating or reiterating the difficult case law test of a distinct break, and moreover imposing a further specific restriction (a 91 day average limit) to the taxpayers disadvantage. I appreciate that, in all the appellants cases, the view may be taken that it is desirable and appropriate that HMRC should be able to tax as ordinarily resident persons with the life style and connections with the United Kingdom of these appellants. That is a moral or fiscal judgment, which may well reflect the strict law (and evidently does so in the case of Mr Gaines Cooper). But it does not follow that it is the conclusion to be drawn from the guidance in IR20 which HMRC issued, in the interests of good governance, clarity and transparency for the benefit of individuals, to explain the combination of the law and practice by reference to which such individuals could direct their affairs. I would therefore allow these appeals, so far as they concern the correct interpretation of IR20. It seems to me to follow from the assurance given by HMRC in these proceedings (para 70 above) that there should be a declaration that HMRC should treat the appellants in respect of the relevant tax years (save perhaps 1992 93, on which I would be prepared to hear any further specific submissions) in accordance with that interpretation of IR20. I did not find in Mr Eadies submissions any good reason to the contrary. Since writing this judgment, I have had the benefit of reading Lord Wilsons judgment. My own view, as will be apparent from what I have already written, is that to treat IR20 as pregnant with the detailed implications listed in para 45 (or, in summary, as informing an ordinarily sophisticated taxpayer of a need for a multifactorial evaluation of his or her circumstances and for a distinct break) runs contrary not only to the wording and sense of the document itself but also to its genesis and purpose: paras 83 87 above; so also, to treat IR20 as so unclear as to communicate nothing to which legal effect can be given on the means by which non resident status might be acquired. Practice It is in these circumstances unnecessary to go into the secondary issue regarding HMRCs practice prior to 2005, when the issues relating to the appellants first crystallised. Whether the appellants can show a clear and unequivocal practice is in issue, as are potentially how far it would be necessary to establish any general or particular knowledge of or reliance on such a practice and how far they could hold HMRC to such a practice as a matter of legitimate expectation. These are all matters into which I prefer not to go. Conclusion I would allow these appeals, on the primary issue of interpretation of IR20 and make the declaration to which I have referred in para 101. |
These three conjoined appeals concern section 242 of the Insolvency Act 1986, as amended. Where section 242(1) applies, and a company enters administration, an alienation by the company is challengeable by the administrator. In terms of section 242(2), section 242(1) applies where by the alienation, any part of the companys property is transferred or any claim or right of the company is discharged or renounced, and the alienation takes place on a relevant day as defined by section 242(3) (that is to say, within a specified time before the date when the company enters into administration). In terms of section 242(4), on a challenge being brought under subsection (1), the court shall grant decree of reduction or for such restoration of property to the companys assets or other redress as may be appropriate, but the court shall not grant such a decree if the person seeking to uphold the alienation establishes that it was made for adequate consideration. These proceedings were brought under section 242(1) by the joint administrators of Oceancrown Ltd, Loanwell Ltd and Questway Ltd, in respect of alienations made by each of those companies of four properties in Glasgow during November 2010, nine months before the companies went into administration. The alienations took place on relevant days as defined. The administrators are the respondents to the present appeals. The facts The facts, as found by the Lord Ordinary, are as follows. Oceancrown and the other companies in administration were part of a group of companies controlled by Ralph Norman Pelosi (Mr Pelosi senior). He was the beneficial owner of their shares, the sole director of Oceancrown and Loanwell, and a shadow director of Questway. He was also the 99% owner (subsequently 100%) of another company, Strathcroft Ltd. The nominal director of that company was John Anderson. Norman Ralph Pelosi (Mr Pelosi junior) was the sole shareholder and director of a further company, Stonegale Ltd. He is the appellant in one of the appeals, and Stonegale is the appellant in the others. A secured facility in the region of 17.3m had been made available to Oceancrown by Anglo Irish Bank. The other companies in the group had cross guaranteed the debt. Oceancrown owned a commercial property at 278 Glasgow Road, Rutherglen. It also owned properties at 110 and 260 Glasgow Road. Loanwell owned a property at 210 Glasgow Road. Questway owned a property at 64 Roslea Drive, Glasgow. The bank held standard securities over each of these five properties. Mr Pelosi senior had concluded an agreement with Clyde Gateway Development Ltd for the sale of 278 Glasgow Road for 2,467,500 inclusive of VAT: a sum far in excess of an earlier valuation of the property at the sum of 762,000. Subsequent events were, in the Lord Ordinarys words, machinations designed to protect the profit on the sale of number 278 (para 44), by keeping it out of the hands of the bank. On 19 August 2010 Robert Frame, a solicitor of Miller Becket and Jackson (MBJ), a Glasgow firm of solicitors, wrote to the banks solicitor, Mr Gillespie of McClure Naismith, in relation to the release of the properties from the banks securities, giving details of the properties and the relevant sale price. According to the details stated, the sale price of 278 Glasgow Road was 762,000; the sale price of 110 Glasgow Road was 200,000; the sale price of 210 Glasgow Road was 934,000; and the sale price of 260 Glasgow Road was 450,000. Mr Gillespie was subsequently informed that 64 Roslea Drive was also to be sold, at a price of 68,000. The total sale price of the five properties, as stated, was 2,414,000. Mr Gillespie passed this information on to the bank, and prepared discharges of the standard securities. These were duly executed by the bank, and Mr Gillespie was authorised to deliver them to MBJ in exchange for the free proceeds of sale. In reality, as explained earlier, the actual sale price of 278 Glasgow Road was 2,467,500, and no sales had been agreed in respect of the other properties. On 10 November 2010 Oceancrown disponed 278 Glasgow Road to Strathcroft. The consideration was recorded in the deed as being 762,000. On the same day, Strathcroft disponed the same property to Clyde Gateway for 2,467,500. Mr Frame witnessed the execution of both dispositions. The Lord Ordinary found that Strathcroft was involved in the whole matter only in order to provide a short lived intermediary between Oceancrown and Clyde Gateway. It was a cog in Mr Pelosis machine (para 47). On 16 November 2010 Mr Frame received a letter signed by Mr Anderson on behalf of Strathcroft, authorising MBJ to send the bank the sum of 2,414,000 in respect of purchases of [the five properties]. Mr Frame transmitted the money as instructed. Once the bank received the funds, the executed discharges were delivered. The Lord Ordinary found that the money was paid to MBJ then to the bank on the instructions of Mr Pelosi senior. Strathcroft had no real involvement in that (para 47). He also found that the bank was misled in relation to the funds it received (para 39). The bank, acting on the information from MBJ, treated the funds as the sale price of all the subjects, but that was not an accurate understanding (para 41). Everyone, apart from the bank and the banks solicitor, knew that the funds were the sale price of only 278 Glasgow Road. Had the bank known the true facts, namely that 278 was sold for almost 2.5m, the same overall reduction in bank indebtedness would have occurred, but only the standard security over 278 would have been discharged (paras 39 40). Everything depended upon the bank and the banks solicitor being unaware of the truth. No doubt they assumed that they could trust the information provided by MBJ (para 42). As a consequence of the fact that the bank was misled into using part of the sale price of 278 Glasgow Road to discharge all the standard securities (para 40), the four remaining properties, with an agreed value of 1.525m, were now free of the banks standard securities. It only remained to place them entirely beyond the banks reach. On 24 November 2010, 110, 210 and 260 Glasgow Road were disponed to Stonegale, and 64 Roslea Drive was disponed to Mr Pelosi junior. It is those dispositions which are challenged in the present proceedings. The dispositions, witnessed by Mr Frame, contained a date of entry of 16 November 2010, and recorded the consideration given as being in accordance with the figures given to Mr Gillespie. In reality, nothing was paid. The following year, Mr Pelosi junior disponed 64 Roslea Drive to a third party for 125,000. In the proceedings before the Lord Ordinary, a document was produced which purported to be a loan agreement in the sum of 1,584,000, signed by Mr Pelosi junior and dated 16 November 2010. It narrated that it had been entered into between Strathcroft and Stonegale to enable the latter to finance the purchase of the properties at 110, 210 and 260 Glasgow Road. In evidence, Mr Pelosi junior confirmed that he had signed the loan agreement on 16 November 2010. The Lord Ordinary found that the document was a sham (para 44), concocted purely for the purpose of the defence of these proceedings (para 46). The proceedings below Before the Lord Ordinary, it was argued that the four dispositions under challenge were made by the companies for adequate consideration, namely the reduction in their contingent liabilities (under their cross guarantees of Oceancrowns obligations) which resulted from the payment made by Strathcroft to the bank. That reduction in indebtedness, of 2,414,000, was in excess of the open market values of all five properties, and therefore constituted adequate consideration. That argument assumes that the open market value of 278 Glasgow Road was the 762,000 at which it had been valued by a surveyor: an assumption which is contradicted by the fact that Clyde Gateway paid almost 2.5m for it in an arms length transaction whose bona fides is not disputed. More fundamentally, the argument disregards the fact that the four other properties were all disponed gratuitously in subsequent transactions. In rejecting the argument, the Lord Ordinary focused on the latter point: No one paid anything for 110, 210, 260 Glasgow Road and 64 Roslea Drive. The sellers, namely Oceancrown, Loanwell and Questway, did not receive anything in return for the dispositions under challenge. They gifted the properties to the dispones. That the bank was prepared to discharge the standard securities over all five properties in return for the monies forwarded to it does not create a consideration given in return for the subsequent dispositions to Stonegale. No party gave the sellers anything in return for the conveyances under challenge. Any value received was the value paid in respect of number 278. That is what was transferred to McClure Naismith. In my view nothing else alters that basic fact. All that happened was that Strathcroft, on the direction of Mr Pelosi senior, paid the bank monies which were designed to, and did persuade the bank to discharge the standard securities over the five properties, all in order to facilitate the subsequent gratuitous sales. Neither that payment, nor any consequential reduction in indebtedness, was in consideration for the subsequent transactions. It was a mechanism for allowing the inter company transfers which it was hoped would achieve the retention of the profit on 278 within the group (and regarding Roslea Drive, Mr Pelosi junior) and free of the banks securities. (paras 40 and 42) The Lord Ordinary added: The dispositions under challenge were gratuitous alienations. Were it otherwise the bank would have received in excess of 4m, and the overall indebtedness would have been reduced by that amount. The price obtained for 278 was used to allow the other Glasgow Road properties to be transferred without consideration to another company which, nominally at least, was owned and controlled by Mr Pelosi junior, and, in the case of 64 Roslea Drive, to him personally. (para 43) Accordingly, the Lord Ordinary decided that he should reduce (ie set aside) the three dispositions to Stonegale, order the defenders to execute dispositions of those subjects to the administrators, and order Mr Pelosi junior to repay the 125,000 which he had received for the sale of the fourth property. Before granting decree, he decided to have the proceedings put out By Order for appropriate disposal. That decision was upheld by an Extra Division of the Inner House (Lord Menzies, Lord Brodie and Lord McGhie). No issue was taken with the facts found by the Lord Ordinary. The same argument was repeated, and again rejected, for the same reasons. The present appeal In the absence, at the relevant time, of any requirement to obtain permission to appeal to this court, the appellants took the opportunity to challenge the approach adopted by the courts below. They submitted that the administrators could have pursued a number of alternative remedies. They could have challenged the alienation of 278 Glasgow Road by Oceancrown to Strathcroft. They could have proceeded against Mr Pelosi senior as director of Oceancrown for breach of his fiduciary duty, and recovered the proceeds of his breach from the ultimate beneficiaries. If the bank was the victim of a fraudulent misrepresentation, it could have recovered damages in respect of its loss. The wrong remedy, it was argued, had been selected. The failure to challenge the transfer by Oceancrown to Strathcroft meant that the transfer by Strathcroft to Clyde Gateway could not be impeached. In any event, the 762,000 paid by Strathcroft reflected a professional valuation of the property, and therefore constituted the propertys market value. There are no doubt a variety of remedies which the administrators might have pursued, but the issue for this court is whether they are entitled to the remedy which they have sought. That remedy does not involve a challenge to the disposal of 278 Glasgow Road (or depend on whether the disposal of that property by Oceancrown was at an undervalue, although it plainly was), but a challenge to the other four dispositions as gratuitous alienations. The gratuitous nature of the alienations was clearly explained by the Lord Ordinary in the passages cited at para 13 above. Before the various conveyances, the companies owned five properties. A bargain was in place for the sale of one of those properties, 278 Glasgow Road, for the sum of 2.4m. After the sale was completed, 2.4m was transferred to the bank in reduction of borrowings, and the companies retained the other four properties, valued at 1.525m. Those properties were then conveyed to the appellants. The companies received nothing whatsoever in return. There was no reciprocity between those disposals and the earlier payment made to the bank. The purpose and effect of those transactions was to divert assets away from the companies creditors: exactly what section 242 is intended to prevent. That they were gratuitous alienations is plain and obvious. The appeal is therefore dismissed. |
We lead womens lives: we have no choice. Thus has the Chief Justice of Canada, the Rt Hon Beverley McLachlin, summed up the basic truth that women and men do indeed lead different lives. How much of this is down to unquestionable biological differences, how much to social conditioning, and how much to other peoples views of what it means to be a woman or a man, is all debateable and the accepted wisdom is perpetually changing. But what does not change is the importance, even the centrality, of gender in any individuals sense of self. Over the centuries many people, but particularly women, have bitterly resented and fought against the roles which society has assigned to their gender. Genuine equality between the sexes is still a work in progress. But that does not mean that such women or men have not felt entirely confident that they are indeed a woman or a man. Gender dysphoria is something completely different the overwhelming sense that one has been born into the wrong body, with the wrong anatomy and the wrong physiology. Those of us who, whatever our occasional frustrations with the expectations of society or our own biology, are nevertheless quite secure in the gender identities with which we were born, can scarcely begin to understand how it must be to grow up in the wrong body and then to go through the long and complex process of adapting that body to match the real self. But it does not take much imagination to understand that this is a deeply personal and private matter; that a person who has undergone gender reassignment will need the whole world to recognise and relate to her or to him in the reassigned gender; and will want to keep to an absolute minimum any unwanted disclosure of the history. This is not only because other people can be insensitive and even cruel; the evidence is that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. It is also because of their deep need to live successfully and peacefully in their reassigned gender, something which non transgender people can take for granted. This case is about how the Department for Work and Pensions (the DWP), in administering our complex welfare benefits system, treats people with a reassigned gender, and specifically whether certain policies conflict (1) with the Gender Recognition Act 2004; (2) with the Human Rights Act 1998; or (3) with the Equality Act 2010. Those policies have undergone change in the course of these proceedings, as have the arguments presented, and so the issues before this Court are in some respects different from the issues before the High Court and the Court of Appeal. The facts The appellant has undergone gender reassignment from male to female. Her transition began in 2003 and she changed her name in 2004. She has undergone full gender reassignment treatment and surgery, which in her case included facial feminisation surgery, in her words because it was incredibly important to her easily to pass as a woman. Her gender recognition certificate (GRC) was one of the first to be issued under the Gender Recognition Act 2004. The Gender Recognition Panel notified both the Inland Revenue (now HMRC) and the DWP of the change. She was employed in a variety of roles, some managerial, until she became unemployed in June 2010. Since then, apart from a period of employment in 2015 2016, she has been in receipt of Jobseekers Allowance (JSA), a benefit which is administered by the DWP through Jobcentre Plus (JCP) offices. As a condition of receiving JSA, she has to attend a JCP office in person every two weeks. Her principal concern in these proceedings is with the way in which her history is recorded by the DWP and the effect that this can have on her interactions with its officials. She has had a number of distressing experiences which indicate that DWP policies do not effectively protect the privacy of her status but rather tend to draw attention to it. The DWP policies and practice The DWP uses a centralised database, the Customer Information System (CIS), to record information relating to each of its customers and everyone else who has a National Insurance number. The CIS interfaces or links to a number of other computer systems, including over 40 systems within government and quasi government departments, local authorities and HMRC, as well as to benefit specific computer systems, including the Jobseekers Allowance Payments system (JSAPS) which is used to administer JSA. About 140,000 persons are authorised to access the CIS. The information recorded on the CIS about a customer includes his or her current sex, the fact that he or she was previously recorded as having a different sex (if applicable), his or her current name and title, and his or her former names and titles (if applicable), the fact that a person has a GRC, its date of issue and date of notification to DWP, and (where this is the case) the reason for a change of recorded sex being gender reassignment. These data, including the data recording a change of gender, are held for the life of the individual concerned and for 50 years and one day thereafter. This has been referred to as the Retention policy in these proceedings. When these proceedings were begun, as long ago as 2012, the fact of a GRC and the reason for a change of sex being gender reassignment were noted in such a way as to be visible to front line users of the CIS, such as staff at the JCP offices. This has been referred to as the GRC Noting policy in these proceedings. As a result of these proceedings and changes to the DWPs IT supplier arrangements, those matters are no longer visible to front line staff and so the GRC Noting policy is no longer under challenge. However, any previous name, title or gender is visible and in the great majority of cases the reason for a change of name, title and gender will be gender reassignment. Hence, without an extra layer of protection, front line staff could readily infer that gender reassignment had taken place. That extra layer of protection is achieved through the DWPs Special Customer Records Policy (referred to in these proceedings as the SCR policy). This sets out special procedures for dealing with the records of certain categories of customer who require extra protection, for example because unauthorised disclosure of their records could result in substantial distress or physical harm. The categories of customer to which the policy may be applied include, for example, victims of domestic or honour based violence and people with witness protection orders. But it is not applied automatically to all such people, as we are told that the great majority of those to whom the policy is applied are transgender. It is, however, applied automatically to all those recorded on the CIS as having a GRC, unless and until the customer asks for it to be disapplied. The protection is therefore optional, but without it a persons gender history would be readily discernible by staff who needed to access the CIS. Under the SCR policy, an individuals CIS record receives a protected marking, ranging (at the material time) from private, restricted, confidential, secret to top secret. Transgender records were marked restricted. Persons wishing to access them must be specifically authorised and must have a legitimate business reason for doing so; access is limited to a specific purpose or purposes; and it is time limited for a period not exceeding four hours. Access to an individuals CIS record is not required for the routine issue of benefit payments, including JSA. However, an adviser will need to access the CIS in order to make routine changes to relevant information, such as a change of address or contact details. For an SCR customer, this will require the same authorisation process as described in para 12 below. Authorisations are monitored, so that inappropriate or unauthorised access can be discovered, and this may result in disciplinary action. Typically, the administration of claims for JSA requires a JCP adviser to access two systems, the JSAPS and the Labour Market System (LMS). These are both affected by the SCR policy. The LMS records information about the steps taken by the customer to obtain employment. But it does not do so for customers who are subject to the SCR Policy. Instead, their efforts to find work are recorded manually on paper. When the customers LMS record is accessed, a warning of additional protection facility from unauthorised viewing will pop up directing the adviser to the paper record, which will only be accessed once authorisation is given. The JSAPS records information which enables an adviser to assess entitlement to JSA and authorise payment. When an adviser accesses JSAPS to authorise payment to a customer subject to the SCR policy, an error message pops up warning Sensitive account You are not authorised to view it. Access is then gained through the authorisation process: this involves applying to the DWPs specialist IT team for temporary access to Special Customer Records. Access is usually available within an hour but it can take considerably longer. The adviser is warned again that the account is sensitive and no one else should view it. On access, the front screen does not display previous names, titles or gender or the issue of a GRC and normally there would be no need to search for historical claim data. If there is such a need, the historical gender identity data will only be available where a claim was made for JSA under a previous name, title or gender and this claim is still live. It will not be displayed where the claim was made after the change of gender (as in the case of this appellant). It follows that any JCP adviser processing a JSA claim is bound to learn that the customer is subject to the SCR policy. The adviser will not usually know why that is the case, but may well be able to put two and two together. The operation of the policy causes inconvenience and delay in accessing benefits: delays of an hour are usual and they can be as much as three days. Late payment is, to say the least, a serious inconvenience to anyone on the tight budget required of JSA claimants. Ringing up to find out why payment has been delayed can also be a serious inconvenience as the authorisation process has to be followed in order for the telephone advisers to access the account. The alternatives to physically attending at the JCP offices are very limited. The appellant has on at least three occasions asked to be allowed to sign on by post but been refused. The appellant also reports some very distressing incidents in JCP offices. On several occasions she has overheard references to her transgender status in conversations in open plan offices with other customers present. Once her status has become known within an office she has felt compelled to transfer to another office to protect her privacy and dignity and, indeed, her physical safety. She adds that she has had some very positive experiences with individual DWP staff members, but every interaction with them, good or bad, is against that background of insecurity and anxiety. The evidence she has placed before the courts in these proceedings, both from experts in the field of gender dysphoria and from other transgender customers, shows not only the depth of these concerns but also that she is not alone in having them. These proceedings After considerable correspondence exploring possible alterations to the DWPs policies, these proceedings were launched in April 2012. They were then stayed in order that the DWP could review its policies on data retention and implement any changes. This review concluded that the DWP needed to improve its treatment of transgender customers but did not propose any change to the Retention, GRC Noting or SCR policies in respect of them. The claim was heard by Simon J in May 2014: [2014] EWHC 2403 (Admin). All three policies were challenged as being (1) in breach of articles 8 and/or 14 of the European Convention on Human Rights; and (2) directly and indirectly discriminatory contrary to the Equality Act 2010. It was common ground that the Retention and Noting policies engaged the right to respect for private life protected by article 8(1). Simon J held that they were not sufficiently clear, precise and accessible to be in accordance with the law for the purpose of justifying them under article 8(2) and granted a declaration to that effect. However, he held that they pursued the legitimate aims of enabling accurate calculations of state pension entitlement and of reducing opportunities for identity theft and benefit fraud and were a proportionate means of doing so. He was more doubtful whether the SCR policy even engaged article 8(2), as it was designed to protect privacy, rather than to interfere with it, although it did tend to have the opposite effect of drawing attention to transgender customers; but he held that it was in any event justified by the need to protect DWP staff. He rejected the claim based on direct discrimination, because the appellant was not treated less favourably than other customers because of her gender reassignment. He was prepared to assume that the policies were indirectly discriminatory, in that they put transgender customers at a particular disadvantage when compared with others, but they were justified under the 2010 Act for the same reasons that they were justified under the Convention. Between the High Court judgment and the hearing of the appellants appeal to the Court of Appeal in December 2015, as already noted, the DWP altered its policy and systems so that the fact of a GRC was no longer visibly noted on the CIS (although other facts from which such an inference could be drawn remained). The challenge to the GRC Noting policy was therefore no longer a live issue before the Court of Appeal. Furthermore, the Retention policy had been clarified and was now accessible, so the issue of legality was no longer live. On 9 February 2016, the appeal was unanimously dismissed. The only judgment was given by Elias LJ, with whom Patten and Black LJJ agreed: [2016] EWCA Civ 47, [2016] PTSR 1344. He accepted that article 8 was engaged by both the Retention and the SCR policies, but agreed with Simon J that the interference was proportionate. He rejected the argument that article 14 required transgender customers to be treated differently from others. Any indirect discrimination entailed in the SCR policy was justified for the same reasons that the interference with article 8 rights was justified. A new argument, that the policies were contrary to the requirement in section 9 of the Gender Recognition Act 2004 that where a full gender recognition certificate is issued, the persons gender becomes for all purposes the acquired gender was rejected: this did not require history to be rewritten. Before this court, the appellant challenges the Retention and SCR policies on three grounds: (1) inconsistency with sections 9 and 22 of the Gender Recognition Act 2004; (2) incompatibility with the rights under articles 3, 8 and 14 of the European Convention on Human Rights (article 3 is raised for the first time in this court); and (3) infringement of section 13, 19 or 26 of the Equality Act 2010 (direct discrimination under section 13 was not pursued before the Court of Appeal but is raised again before this court; harassment under section 26 is an entirely new argument). The Gender Recognition Act 2004 This Act, as is well known, was passed in response to the judgments of the European Court of Human Rights in Goodwin v United Kingdom (2002) 35 EHRR 447 and the declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467. It lays down the criteria and the process by which a person born in one gender may be recognised as having acquired a different gender. Section 9 provides for the consequences: (1) Where a full gender recognition certificate is issued to a person, that persons gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the persons sex becomes that of a man and, if it is the female gender, the persons sex becomes that of a women). (2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards). (3) Subsection (1) is subject to provision made by this Act or any other enactment or subordinate legislation. Section 22 deals with the disclosure of protected information. Section 22(1) makes it a criminal offence for a person who has acquired protected information in an official capacity to disclose that information to any other person. Section 22(2) provides that, once a GRC is issued, protected information includes information which concerns the persons gender before it becomes the acquired gender. Section 22(3) defines the acquisition of such information in an official capacity in such a way as to cover officials in the DWP, and indeed elsewhere in the civil service and otherwise in connection with the functions of a public authority. Section 22(4) and the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order, SI 2005/635, provide for circumstances in which disclosure is not an offence. These include: 22(4)(h) the disclosure is made for the purposes of the social security system or a pension scheme. The appellant accepts that section 9 does not rewrite history. Thus, in J v C [2006] EWCA Civ 551; [2007] Fam 1, the issue of a full GRC in the male gender to a person who was previously female did not retrospectively validate his prior marriage to another female (at a time when the law did not provide for same sex marriages), with the result that he did not become the father of a child born to the other female as a result of artificial insemination by donor (as would otherwise have been the case under section 27 of the Family Law Reform Act 1987, which provided that the husband of a woman who gives birth as a result of AID was to be treated for all purposes as the father of the child). But she argues that section 9(1) does require her now to be treated for all purposes as a woman and this includes how she is treated by the DWP for the purpose of claiming and receiving JSA. Section 22(1) is not an exception to the general principle in section 9(1). Rather it is an additional protection. It does not follow from the fact that no offence is committed under section 22 that a policy which is in breach of section 9(1) is lawful. The problem with this argument is that section 9(1) clearly contemplates a change in the state of affairs: before the issue of the GRC a person was of one gender and after the issue of the GRC that person becomes a person of another gender. The sections which follow section 9 are designed, in their different ways, to cater for the effect of that change. Thus, for example, section 12 provides that the acquisition of a new gender does not affect that persons status as the father or mother of a child; section 15 provides that it does not affect the disposal or devolution of property under a will or other instrument made before the appointed day (thus section 9 will apply to dispositions made after that date); section 16 provides that the acquisition of a new gender does not affect the descent of any peerage or dignity or title of honour or property limited to descend with it (unless a contrary intention is expressed in the will or instrument). There is nothing in section 9 to require that the previous state of affairs be expunged from the records of officialdom. Nor could it eliminate it from the memories of family and friends who knew the person in another life. Rather, sections 10 and 22 provide additional protection against inappropriate official disclosure of that prior history. Section 10 and Schedule 3 deal with birth registration. In summary, if there is an entry in the UK birth register relating to a person to whom a full GRC has been issued, a copy of the GRC must be sent to the appropriate Registrar General. He or she must make an entry in the Gender Recognition Register (which is not open to public inspection) which makes traceable the connection between that entry and the entry in the birth register. The entry is used to create a new birth certificate which records the acquired name and gender. Anyone who may have a copy of the UK birth register entry of a person who has a full GRC may have a copy of the new birth certificate. This must not disclose the fact that the entry is contained in the Gender Recognition Register: see Schedule 3, paragraphs 5 and 6. Section 22, as we have seen, protects from disclosure by officials information concerning a persons gender before it became the acquired gender. It contains several exceptions, including one for disclosure for the purpose of the social security system or a pension scheme. Obviously, therefore, section 9 contemplates that the previous history may be kept on record, for otherwise there would be no need for the protection given by section 22. I conclude, therefore, that the Retention and SRC policies are not inconsistent with, or prohibited by, any provision of the Gender Recognition Act 2004. But that, of course, is not the end of the story. The Human Rights Act 1998 The appellant rightly emphasises that the 2004 Act was brought about by developments in the jurisprudence of the European Court of Human Rights. In Goodwin v United Kingdom (2002) 35 EHRR 447, the court held (i) that the failure of UK law to grant legal recognition, including a new birth certificate, to a post operative transsexual was a breach of her right to respect for her private life under article 8; and (ii) that the failure of UK law to permit her to marry in her acquired gender was a breach of her right to marry under article 12. I would emphasise two passages from the Courts judgment in relation to article 8: 77. The stress and alienation arising from a discordance between the position in society assumed by a post operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Courts view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety. The Court was, of course, speaking of the position before the Gender Recognition Act which sought, so far as possible, to align the legal position with social and psychological reality. But it makes the important point that this is no small matter. It is not a minor inconvenience. It goes to the heart of the persons sense of self. This is reinforced by a later passage at para 90: the very essence of the Convention is respect for human dignity and human freedom. Under article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings. In the 21st century, the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy In short, the unsatisfactory situation in which post operative transsexuals live in an intermediate zone [in] not quite one gender or the other is no longer sustainable. This puts it beyond doubt that the way in which the law and officialdom treat people who have undergone gender reassignment is no trivial matter. It has a serious impact upon their need, and their right, to live, not as a member of a third sex, but as the person they have become, as fully a man or fully a woman as the case may be. In the courts below, the appellant relied only on the right to respect for private life, protected by article 8, and the right to enjoy the Convention rights without discrimination, protected by article 14. In this court, the statement of facts and issues raises for the first time the question of a possible violation of article 3, the right not to be subjected to inhuman or degrading treatment. In her submissions, however, article 3 was deployed to make the point that there are positive obligations to protect individuals against such treatment, as indeed there are under article 8. In Identoba v Georgia (2015) 39 BHRC 510, for example, the Strasbourg court found a breach of article 3 where the authorities had failed to protect LGBTI demonstrators from attack by homophobic counter demonstrators. One aim of the SCR policy is to protect transsexuals against the risk of physical and verbal abuse. The complaint, as I understand it, is that it may not go far enough in doing so, whether under article 3 or article 8. In my view, the article 3 cases serve mainly to underline the importance of the interests at stake here, whether under article 3 or article 8. The real focus of the argument has been on article 8. In my view, both the Retention and the SCR policies are an interference with the right of the appellant, and all people who have undergone gender reassignment, to respect for their private lives. The SCR policy may be designed to protect the privacy of their deeply private information but it has the consequence of drawing the attention of front line staff, and maybe others in the office, to it. Opting out means that front line staff who need it will have unimpeded access to the CIS, in which the gender history is recorded. So the customer has the choice between unimpeded access on those occasions when front line staff need to consult the CIS and impeded access which in itself draws attention to the possibility, even the probability, that the claimant has undergone gender reassignment. This is not a minor interference. On the contrary, it is a very serious matter. It goes to the heart of how the appellant, and others in her situation, relate to the world and the world relates to them. So the real question is whether this interference can be justified by the operational needs of the benefits system. Two legitimate aims are put forward by the DWP for the Retention policy. The first is the need to retain the information for the purpose of calculating entitlement to state retirement pension. A transgender person has pension rights in his or her acquired gender from the date of the GRC: Gender Recognition Act 2004, Schedule 5, paragraphs 7 and 8. This means that the date of the GRC will be material to the calculation of the entitlement of certain customers (those born before 6 December 1953; female to male transsexuals whose change of gender occurs after they have reached statutory retirement age for women and before equalisation on 6 March 2019; and male to female transsexuals whose change of gender occurs before 6 March 2010 and before they have reached state pension age for a man but after they have reached it for a woman). The DWP will need to know the date for the purpose of checking entitlement at the time and also for checking and maintaining claims during the customers life expectancy thereafter. With the equalisation of the pension age, there will eventually come a time when this is no longer necessary, but that is some considerable time in the future. It is accepted that this does not apply to this particular appellant, but it does apply to approximately one third of transgender customers, whose state pension calculation will be directly affected by their birth gender. The second legitimate aim put forward is to identify and detect fraud. There is a particular risk of identity theft in the case of transgender customers. A fraudster may obtain a birth certificate in the customers original name and use this, along with other evidence, to obtain a national insurance number allocated to that name (two linked examples of this were detected in 2012). The DWP also argue that front line staff are at the forefront of detecting frauds they can sense when something is not right and need to have access to the information to investigate and detect this. The appellant accepted that these were legitimate aims in the courts below and the evidence in support of them was not challenged. In her written case before this court she argues that these objectives are not sufficiently important to justify the limitation of a protected right and that those limitations are not rationally connected to the objectives. She argues that, now that the fact and date of the GRC is masked on the CIS, it cannot be necessary to retain the visible gender (name and title) history in order to calculate state pension entitlement. As for fraud detention and prevention, there are other ways of verifying the claimants identity. Under the new system for Universal Credit, front line staff will no longer have access to this information. The DWP understandably objects to the introduction of new arguments on matters which were conceded in the courts below, and on which it has not been able to file evidence in rebuttal; but they can be addressed briefly. In my view, for as long as gender is in any way relevant to the entitlement to and calculation of state retirement pension, it is necessary for the data to be retained on the CIS system and the rational connection between the two is obvious. The question of whether it should remain visible to some front line staff or whether it is feasible to mask it in some way which nevertheless enables those who need to see it to be able to do so are questions which go to the overall balance between the aims pursued and the means used to pursue them, in other words to the proportionality calculation. As for fraud detection and prevention, the problem lies, not so much with verifying the identity of the genuine transgender claimant but with verifying the identity of the fraudulent claimant who has stolen that persons previous identity. The legitimacy of the objectives for which the current computer systems are designed cannot be affected by the development of wholly new computer systems to support a wholly new benefits system. Once again, the real issue is not the aim, but the overall balance between ends and means which is of the essence of the proportionality calculation. In addressing that balance, several points must be made: (1) While I would certainly not minimise the depth of the intrusion where it takes place, for the most part there is no need for front line JCP staff to consult the CIS. Whether or not the SCR policy applies, it is only rarely that they will need to access the CIS and thereby discover the historic information recorded there. (2) The DWP has been engaging with the appellant and those advising her over many years in an attempt to understand and cater for her concerns. Following the High Court decision, the GRC data were masked on the CIS. If nothing else, this litigation has taught the DWP the importance of doing what can be done within the existing systems to cater for those concerns. (3) We are here dealing with large computer systems, designed to cater for vast numbers of customers, which interact with one another in complex ways. It is no simple matter to modify existing systems in a way which will not compromise their efficiency and effectiveness. It is one thing to devise a completely new computer system, such as that now being developed for Universal Credit, and quite another to modify an old one which has been in operation for many years. (4) The DWPs evidence is that it is not possible to make further adjustments to the CIS system except at inordinate expense. This court is in no position to question that. (5) Most importantly, it is not for this or any other court to administer the benefits system. That is the business of the DWP. The courts can correct individual decisions or actions which violate an individuals human rights: if a DWP official gained unnecessary or unauthorised access to a customers records, or made improper use of the information obtained through authorised access, the customer would have a claim under section 6(1) of the Human Rights Act 1998 against a public authority which had acted incompatibly with her privacy rights. The courts can also correct legal provisions which violate human rights (unless contained in an Act of the United Kingdom Parliament). But the courts can only rarely correct the systems set up by the responsible government departments or public authorities to administer the law unless perhaps they systemically and inevitably result in violations of individuals rights. That is not this case. (6) The courts must inevitably place great weight on the judgment of those whose business it is to design and administer those systems. They are the experts in administration and we are not. In my judgment, therefore, the courts below were entitled to reach the conclusion that the CIS Retention policy was a proportionate means of achieving its legitimate aims and I share their view. In reaching this conclusion, I in no way seek to minimise the importance to the appellant and others in her situation of the intrusion into her privacy which is entailed by the policy. For her, and for others, it must be good news that the Department has taken their concerns seriously, and that they will be differently catered for when Universal Credit is rolled out throughout the country. The SCR policy and the Retention policy cannot be considered in isolation from one another. The SCR policy is designed to restrict access to the CIS to those who are authorised because they have a real need for that access. This of course has the legitimate aim of protecting the privacy of those SCR customers who need and want it. This brings with it the problems of delay, with its attendant inconvenience or even hardship, and it may well draw attention to the very matter which it is designed to protect. But such problems are inevitable if access to the CIS is to be restricted. They can be avoided if the customer does not want the policy to apply, but at the cost of less restricted access to the CIS. The real question, therefore, is whether the CIS Retention policy is justified and in my judgment, for the reasons given above, it is. Discrimination The appellant relies both on discrimination in the enjoyment of Convention rights, in violation of article 14 of the Convention, and on direct and indirect discrimination in breach of sections 13 or 19 of the Equality Act 2010 respectively. Gender reassignment is a protected characteristic by virtue of sections 4 and 7 of the Equality Act and is undoubtedly a status for the purpose of article 14. Her submission on direct discrimination, under both article 14 and section 13, is that the policies treat transgender customers in the same way as other customers when in fact their situations are different and they should be treated differently. As the Strasbourg court held in Thlimmenos v Greece (2000) 31 EHRR 411, just as like cases must be treated alike, unlike cases must be treated differently. The problem with this submission is that the DWP policies do treat transgender customers differently from others. For those who want it, the SCR policy applies. In this respect, transgender customers are in no different position from any of the other vulnerable groups to whom the policy is applied if wanted and needed. The admitted problems associated with the SCR policy are the inevitable concomitant of offering them this extra protection for their privacy. Once again, the real complaint is that, once accessed by those with a reason to do so, the CIS reveals the customers previous name and title, from which an inference of gender reassignment may, but need not, be drawn. However, it is not clear in what way transgender customers are treated less favourably than others on the CIS because of their transgender status. The current names and titles, and any previous names and titles, of all customers are recorded. Customers change their names and titles for a wide variety of reasons, not least because of marriage or divorce. All are treated in the same way. Of course, a change of sex may often be readily deduced from a change of name and title, whereas other changes may be more speculative. But all relate to the customers private (and sometimes family) life. There is no difference in treatment from others who change their name or title because of the customers transgender status. For these reasons, in my view, Simon J was right to reject the claim of direct discrimination under both article 14 and section 13 and it is not surprising that the direct discrimination claim under section 13 was not pursued, by counsel then appearing for the appellant, before the Court of Appeal. The indirect discrimination claim under both article 14 and section 19 of the Equality Act relies upon the particular disadvantage that transsexual customers suffer as a result of the Retention and SCR policies, either together or separately, when compared with other customers, whether in general or those to whom the SCR policy is also applied. I would be prepared to accept, for the reasons given earlier, that many, if not all, customers who have undergone gender assignment feel a greater need to protect that information from others than do customers who have changed their names or titles for other reasons. Gender reassignment changes ones identity at a much deeper level than does getting married, getting divorced, being bereaved, adopting a new name, or any of the other reasons why a change of name or title may be recorded. It may also be the case that justification for an interference with the article 8 right is not invariably justification for discrimination under article 14 or indirect justification under section 19. However, in this case, the provision, criterion or practice in question, the SCR policy, is a proportionate means of achieving a legitimate aim for the purpose of section 19(2)(d) and, for the same reasons, any discrimination involved in the policies is justified for the purpose of article 14. For the first time in this court, and somewhat faintly, the appellant argues that the DWPs policies, and specifically the implicit outing involved in the SCR, create a harassing environment contrary to section 26 of the Equality Act 2010. This allegation was not pleaded in the claim form or argued in the courts below and is not clearly spelled out in the appellants case. Under section 29(3) of the Equality Act, a service provider must not harass a person requiring the service or a person to whom the provider is providing the service. Under section 26(1), A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating Bs dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. This is not an allegation which can sensibly be made in a claim for judicial review of the DWPs policies in relation to transgender people. It might be made in a substantive claim under the Equality Act in relation to the sorts of incidents of which the appellant has complained (and on occasions received some compensation). Then there would have to be specific evidence directed towards such a claim and the DWP would have the opportunity of investigating the complaint and putting in evidence in rebuttal. None of that has happened in this case. But in any event it is quite clear from the DWPs efforts to understand and to meet the appellants concerns within the bounds of practicality that its policies aim to have the reverse effect: to respect the dignity of transgender customers and to avoid creating an intimidating, hostile, degrading, humiliating or offensive environment for them. There are disciplinary measures in place for staff who are guilty of such behaviour. In other words, if such behaviour takes place, it is not the system which is to blame. Conclusion In my view, the concerns which the appellant has raised before and during these proceedings are very real and important to her, and no doubt to other transgender customers of the DWP. The proceedings have already brought about some change in DWP policy and no doubt the DWP will continue to consider how the service it offers to transgender customers could be improved. The introduction of Universal Credit is an opportunity to do this. But for all the reasons given earlier the Retention and SCR policies are not unlawful under either the Human Rights Act 1998 or the Equality Act 2010 and this appeal must be dismissed. |
We have before us two cases under the Extradition Act 2003 involving the parents of young children. In one, an Italian court has issued a European Arrest Warrant (EAW) in respect of both parents of three children now aged 11, 8 and 3, the parents having been convicted of a series of drug trafficking offences. The parents are both British nationals. In the other, a Polish court has issued EAWs in respect of the mother of five children aged 21, 17, 13, 8 and 3, who is accused of offences of dishonesty. The parents are both Polish nationals who have been living here since 2002, after the alleged offences were committed. No one seriously disputes that the impact upon the younger children of the removal of their primary carers and attachment figures will be devastating. The issue is the relevance of their interests in the extradition proceedings. The question certified by the Administrative Court in each of the two cases before us is as follows: Where, in proceedings under the Extradition Act 2003, the article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? It is necessary, therefore, to consider what each of those cases decided. In Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487, the issue was the compatibility with the article 8 rights of both Mr and Mrs Norris of extraditing Mr Norris to the USA to face charges of conspiracy to obstruct justice. The couple were both in their mid sixties and had a long and close marriage which made them highly dependent on one another. The husband had a variety of health problems, including a history of prostate cancer and other ailments. The wife was suffering from either a major depression of moderate severity or a moderate depressive episode. The proceedings had caused her severe psychological suffering and mental deterioration which would be greatly worsened were her husband to be extradited. Lord Phillips gave the leading judgment, with which all other members of the court agreed, including those who added short judgments of their own. He agreed that there could be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. On the other hand, it was certainly not right to equate extradition with expulsion or deportation in this context (para 51). It was instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate (para 52). He rejected counsels submission that it was wrong to apply a categorical assumption about the importance of extradition in general. Such an assumption was an essential element in the task of weighing the public interest against the rights of the individual. It did not mean that the latter could never prevail, but the interference with human rights will have to be extremely serious if the public interest is to be outweighed (para 55). Thus: The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. (para 56) However, he also rejected the submission that the gravity of the offence could never be relevant. Usually it would not be. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition disproportionate . (para 63). Furthermore, the impact upon family life was not to be considered only from the point of view of the person facing expulsion. In Beoku Betts v Secretary of State for the Home Department [2009] AC 115, the House of Lords concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be treated as a victim. This also applied to extradition (para 64). Finally, Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee . (para 65). Agreeing with Lord Phillips, Lord Hope also stressed that exceptionality is not a legal test and that extradition was not a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The public interest in extradition is a constant factor and will always be a powerful consideration to which great weight must be attached. Against this, those aspects of the article 8 right which must necessarily be interfered with in every case where criminal proceedings will be brought will carry very little, if any, weight. What is the extra compelling element that marks the given case out from the generality? (para 91). The only feature of this case which was not inherent in every extradition case was the delay (para 93). Lord Mance cautioned against formulations such as a high threshold, striking and unusual facts or exceptional circumstances. They could be read as suggesting that the public interest in extradition is the same in every case, when it is not, and also that the extraditee has some sort of legal onus to overcome the threshold, when in fact the competing public and private interests have to be weighed against each other (para 108). Further, such formulations may tend to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill. Some circumstances which might influence a court to find that the interference was unjustified could hardly be described as exceptional or striking and unusual: Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependent upon the care performed by the former (para 109). He too favoured balancing the general public interest in extradition to face trial for a serious offence against the exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case (para 114). We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no safe havens to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe. I turn, therefore, to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. This was an expulsion case. The mother had been in the United Kingdom since 1995. She formed a relationship with a British citizen and had two children with him, born in 1998 and 2001, both of whom were British citizens and had lived here all their lives. They had a good relationship with their father, although the parents were now separated. Because of his health and other matters, their father would not be able to look after them if their mother were removed to Tanzania, so they would have to go with her. Their mother had an appalling immigration history. She had made three unsuccessful applications for asylum, one in her own name and two in false identities. Because of this she had twice been refused leave to remain under different policy concessions. An earlier human rights application had also been refused, as was the current claim, by the Secretary of State, the immigration appellate authorities, and the Court of Appeal. Before the case reached the Supreme Court, however, the Secretary of State had conceded that on the particular facts of the case removing the mother would be a disproportionate interference with the article 8 rights of the children. I gave the leading judgment, and all the other members of the court, including those who added short judgments of their own, agreed with it. The Strasbourg jurisprudence had adopted rather different approaches to the assessment of article 8 rights when considering the expulsion of, on the one hand, long settled foreigners who had committed criminal offences and, on the other hand, foreigners who had no right to be or remain in the country. In the former type of case, the best interests and well being of the children had been explicitly recognised as a factor by the Grand Chamber in ner v The Netherlands (2006) 45 EHRR 421, at para 58. In the latter type of case, this was not explicitly listed as a factor in, for example, Rodrigues da Silva, Hoogkamer v The Netherlands (2006) 44 EHRR 729, at para 39. Nevertheless, the court had in fact taken into account that it was clearly in the best interests of the child that her mother remain in the Netherlands. Significantly, the childs interests prevailed, despite the fact that the [mother] was residing illegally in the Netherlands at the time of [the childs] birth (para 44). In Neulinger v Switzerland (2010) 28 BHRC 706, the Grand Chamber had held that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law (para 131). These of course included article 3.1 of the United Nations Convention on the Rights of the Child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. I pointed out that despite the looseness with which these terms are sometimes used, a primary consideration is not the same as the primary consideration, still less as the paramount consideration (para 25). Where the decision directly affects the childs upbringing, such as the decision to separate a child from her parents, then the childs best interests are the paramount, or determinative, consideration. Where the decision affects the child more indirectly, such as the decision to separate one of the parents from the child, for example by detention or deportation, then the childs interests are a primary, but not the paramount, consideration (para 25). As the Federal Court of Australia had explained in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, at para 32: [The tribunal] was required to identify what the best interests of Mr Wans children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative weight of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. Although nationality was not a trump card it was of particular importance in assessing the best interests of any child (para 30). As citizens the children had rights which they would not be able to exercise if they moved to another country (para 32). We now had a much greater understanding of the importance of such issues in assessing the overall well being of the child: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. The countervailing considerations were the need to maintain firm and fair immigrations control, the mothers immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that (para 33). Lord Hope also stressed the importance of the childrens citizenship as a very significant and weighty factor in the overall assessment of what was in the childrens best interests (para 41) and, more fundamentally, that it would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held responsible, such as the suspicion that they might have been conceived as a way of strengthening the mothers case for being allowed to remain here (para 44). international and domestic instruments: Lord Kerr put it even more strongly. It is a universal theme of both that, in reaching decisions that will affect a child, primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them (para 46). However the matter is put, therefore, ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the childs best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents case. Should Norris be modified? Mr David Perry QC, who appears for the respondent in each case, argues that nothing in ZH (Tanzania) was intended to depart from the approach to the assessment of proportionality in Norris. The extraditing judge may properly proceed on the basis that the best interests of the child are a primary consideration, but they are not the primary or the only consideration. The compelling public interest in extradition will ordinarily outweigh the best interests of the child, especially where the offence is serious. Indeed, there is no known Strasbourg case in which article 8 interests have prevailed against the legitimate aims of extradition, recognised by the court in Launder v United Kingdom (1997) 25 EHRR CD67 and Aronica v Germany, (Application No 72032/01) (unreported) given 18 April 2002. The court has recently stated that only in exceptional circumstances will an applicants private or family life outweigh the legitimate aim pursued by extradition: see King v United Kingdom, (Application No 9742/07) (unreported) given 26 January 2010, para 29; Babar Ahmad v United Kingdom (2010) 51 EHRR SE97, para 172. The appellants all argue that some modification, either of the approach in Norris or of its application, is required in the light of ZH (Tanzania). Mr Alun Jones QC, on behalf of the mother in the Italian case, argues that no distinction should be drawn between extradition and immigration cases. In Harkins and Edwards v United Kingdom (Application Nos 9146/07 and 32650/07) (unreported) given 17 January 2012, the Strasbourg Court drew no such distinction when considering whether a person would face a real risk of treatment contrary to article 3 if sent abroad (thus disagreeing with the majority in R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] AC 335). The same should apply in the context of article 8. It was wrong to treat the public interest in extradition as a constant factor or to conclude that the best interests of children could not generally override it. Mr Matthew Ryder QC, on behalf of the father in the Italian case, does not consider that it is necessary to modify the general principles in Norris, provided that primacy of importance is given to the childrens rights. But this may involve some changes in practice. Any infringement of the childrens rights which causes significant and serious damage to their development should be considered sufficiently exceptional to warrant the court considering carefully whether the infringement is justified. The court will need to examine carefully the extent of the public interest in extradition in the particular case and also whether there is any course of action which might reduce the damage to the childrens well being. Mr Edward Fitzgerald QC, on behalf of the mother in the Polish case, also argues that it is wrong to say that the public interest in extradition is always greater than the public interest in sound immigration control. It will vary. He also points out that the effects upon family relationships are far more extreme and immediate in extradition than are the effects of domestic prosecution and imprisonment. The extraditee may be sent a very long way away with little or no opportunity to maintain contact with the family left behind. The mitigating effects of wise prosecutorial or judicial discretion are less predictable when extradition is to a totally different judicial system. In the domestic context it is clearly established that a sentencing judge should have at the forefront of his mind the consequences for the children if their sole carer is sent to prison and consider whether on balance the seriousness of the offence(s) justifies their separation: see R (P) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, per Lord Phillips MR at para 79; R v Mills [2002] EWCA Crim 26, [2002] 2 Cr App R(S) 229; R v Bishop [2011] EWCA Crim 1446 and see also the South African case of M v The State [2007] ZACC 18. The Court in Norris did not have to consider the special rights of children when the extradition of their sole or primary carer will have a devastating impact upon their wellbeing. Mr Hugo Keith QC appears for the Official Solicitor as litigation friend of the children in the Italian case. He argues that the best interests of the children of extraditees should be considered first and foremost, and separately, and in a fact sensitive and meaningful way which pays regard to their individual circumstances. A conclusion that the undoubted public interest in extradition (which may not be of a wholly different order from that which arises in deportation and immigration cases) outweighs the best interests of the children should never be reached automatically or mechanically. Consideration should be given, where necessary, to any alternatives to extradition: for example, delaying the extradition of the primary carer parent; arranging for a mother to be placed in a mother and baby unit in the requesting state; seeking an assurance that speedy repatriation will be considered by both the requesting and the sending state; when available in a conviction case, arranging for the sentence to be served here; and, where possible in an accusation case, prosecuting the case here rather than in the requesting state. The court should also consider the alternative care arrangements for the child and satisfy itself that steps have been taken to protect the childs welfare if a sole or primary care giver is extradited. We have also had the benefit of valuable interventions by JUSTICE and the Coram Childrens Legal Centre. Mr Alex Bailin QC, for JUSTICE, emphasises that the requirement to interpret article 8 in the light of the Convention on the Rights of the Child (CRC) is of general application and is not limited to immigration cases. The CRC has also been enshrined in article 24 of the European Union Charter of Fundamental Rights. Article 24.2 requires that In all actions relating to children, whether taken by public authorities or private institutions, the childs best interests must be a primary consideration. Article 24.3 requires that Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. He points to recital 12 of the Framework Decision on the European arrest warrant and article 1.3, which provides that the Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as enshrined in article 6 of the Treaty on European Union. Full and proper adherence to article 8 is thus entirely compatible with the EAW system. The executing state cannot rely upon the issuing state to have considered the childrens rights before issuing the warrant or to protect those rights after the warrant is executed. A bright line distinction between the public interest in extradition and the public interest in deportation could not be drawn (he too makes reference to Harkins and Edwards). As for domestic criminal proceedings, the interests of children were not infrequently a material consideration in sentencing and there were more options available to mitigate the consequences of separating parent and child. As to alternatives to extradition, articles 4.6 and 5.3 of the Framework Decision, which permit refusal to execute a conviction EAW if the sentence is to be served in the UK, or the conditional execution of an accusation EAW, have not been transposed into UK law. But it would be possible to refuse to execute an EAW, indicating that the childrens article 8 rights currently prevent this, but would be unlikely to do so in the future. Most helpfully, he points out that further guidance on the application of Norris in cases involving dependent children is necessary, because later cases show that Norris has been wrongly interpreted so as to impose an exceptionality test and applied so as to set a threshold which is unattainable in practice. They reveal a reluctance to make a detailed assessment of the effect of extradition on each child and a failure to consider the childs best interests first. The examples he gives are (in chronological order): R (Stojkova) v District Court in Okresny, Slovakia [2010] EWHC 3532 (Admin), para 31; R (Antonovic) v Prosecutor Generals Office (A Lithuanian Judicial Authority) [2010] EWHC 2967 (Admin), paras 18 and 20; Budaj v District Court of Presnov, Slovak Republic [2011] EWHC 193 (Admin), para 14; R (Bartosiewicz) v District Court Warszawa Praga, Warsaw [2011] EWHC 439 (Admin), paras 7 and 9; B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), paras 63 and 68; Irwinski v Regional Court in Bydgoswcz, Poland [2011] EWHC 1594 (Admin), para 8; Rzeczkowski v Provincial Court in Warsaw, Poland [2011] EWHC 1698 (Admin), paras 13, 15 and 16; Semen v Legnica District Court, Poland [2011] EWHC 1960 (Admin), para 7; Smuda v District Court of Poznan, Poland [2011] EWHC 2734 Admin), para 7. A similar approach can be detected in Kudzevica v Riga Circuit Court Latvia [2010] EWHC 3505 (Admin), paras 11 and 12, and R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378 (Admin), paras 11 and 12. After the oral hearing, the court was informed that the Strasbourg Court has granted interim relief under rule 39 of the Rules of Court (2009) in the Gorczowska case, as it had already done in the case of R (B) v Regional Court of Elbag [2010] EWHC 2958 (Admin): see EB v United Kingdom (Application No 63019/10) (unreported) given 28 February 2011. This indicates that the Court is at least prepared to consider that there may be circumstances in which extradition (in that case of a breast feeding mother) would be in breach of the article 8 rights of the family. JUSTICE does not argue that any of these cases was necessarily wrongly decided, rather that they are indicative of an approach which prevents the court from taking account of the welfare of children as it is required to do. In fact, Mr Bailin suggests that there are very few cases in which the right approach would have produced a different result. He has produced a list of 75 cases decided after Norris involving article 8 and dependent children. In only five of these was the prospective extraditee the sole carer and in only one was the extradition of both parents sought. But in only one (R (Cepkauskas) v District Court of Marijampole, Lithuania [2011] EWHC 757 (Admin)) was extradition refused, and then on grounds of delay and oppression rather than because of the rights of the children. In his written submissions on behalf of the Coram Childrens Legal Centre, Mr Manjit Gill QC argues that international human rights instruments, including the Universal Declaration of Human Rights and the UNCRC, have recognised the special and unique status of children. This involves not only a negative duty to avoid doing them harm but also positive obligations to promote their development into adulthood. In this they are different from adults, even vulnerable adults, because adults have passed the growing up stage while children need special attention in order to grow up. It is not just a matter of balancing the private rights of children against the public interest in extradition, because there is also a wider public interest and benefit to society in promoting the best interests of its children. Children are (as Latey J put it in In re X (A Minor)(Wardship: Jurisdiction) [1975] Fam 47, at 52) a countrys most valuable asset for the future. More than that, promoting their proper development is in the public interest in order to prevent their becoming the criminals of the future. In addition to article 3.1 of UNCRC, he draws attention to article 3.2: States Parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Norris concerned an adult couple and so the court did not, and did not have to, consider the special position of children. It could, and did, treat the interests to be balanced as the public interest in extradition and the individuals interest in their private and family life. There is, however, a strong public interest in the protection of children which makes their case different from that of adult family members, even adults who need support on health grounds. Discussion It will be apparent from the above that, for the most part, the parties do not criticise the principles laid down in Norris. But they make two points. First, they criticise the way in which those principles have been summarised and applied in subsequent cases. Some of those criticisms might apply whether or not there were any children involved. And second, they point out that Norris did not, and did not have to, consider the special position of children. These cases give the court the opportunity to fill that gap. Two main criticisms are levelled against the approach of the Administrative Court in these and other cases after Norris. The first is the bright line distinction between the public interest in extradition and the public interest in immigration control, exemplified by the observations of Laws LJ in the Italian case at [2011] EWHC 1145 (Admin): Expulsion and deportation are matters only of domestic policy (para 62), in which the striking of reasonable balances is an inherent feature of the policy itself (para 63); whereas extradition promotes a universal public benefit (para 62), which is systematically served by the extraditions being carried into effect (para 63). An even stronger view was taken by Silber J in B v District Court in Trutnov and District Court in Liberec [2011] EWHC 963 (Admin), at para 55, when he stated that It is clear that the approach of the courts to article 8 rights has to be radically different in extradition cases . because of the very important obligation of the state to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries (emphasis supplied). It is not correct that the approach of the court to article 8 rights has to be radically different as between extradition and expulsion cases. The Extradition Act 2003 imposes a structured approach upon the court, so that it will already have considered the validity of the warrant (section 2), the identity of the person arrested (section 7), whether the offences are extradition offences (section 10), whether the various bars listed in section 11 apply, and conviction in absentia (section 20), before it gets to section 21. Section 21 requires the judge to decide whether the persons extradition would be compatible with the Convention rights and to discharge the person if it would not. In answering that question, the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is necessary in a democratic society in the sense of being a proportionate response to that legitimate aim. In answering that all important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale. There are differences between extradition and other reasons for expulsion. Thus, as Lord Judge points out (para 122), an extradition order may be appropriate where deportation or removal would not. In particular, extradition is an obligation owed by the requested state to the requesting state in return for a similar obligation owed the other way round. There is no comparable obligation to return failed asylum seekers and other would be immigrants or undesirable aliens to their home countries (which would sometimes be only too pleased never to see them again). But there is no obligation to return anyone in breach of fundamental rights. Furthermore, although domestic immigration policy does try to strike a balance between competing interests, article 8 typically comes into play when it has not done so. That is why an exceptionality test was disapproved in immigration cases in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, just as it was later disapproved in extradition cases in Norris. Hence, as Lord Hope observed, there are [no] grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individuals right to respect for his family life (para 89). The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life. In focussing on some quite exceptionally compelling feature (para 56 in Norris), they have fallen into the trap identified by Lord Mance, tending to divert attention from consideration of the potential impact of extradition on the particular persons involved . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill (para 109). Some particularly grave consequences are not out of the run of the mill at all. Once again, the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued (see also Lord Wilson, at para 152). Exceptionality is a prediction, just as it was in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, and not a test. We are all agreed upon that. These two points clarified, what more needs to be said about the interests of children? There appears to be some disagreement between us about the order in which the judge should approach the task. I agree entirely that different judges may approach it in different ways. However, it is important always to ask oneself the right questions and in an orderly manner. That is why it is advisable to approach article 8 in the same order in which the Strasbourg court would do so. There is an additional reason to do so in a case involving children. The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Childrens Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the childs best interests to find an alternative home for her. But sometimes the parents past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the childs interests is always likely to be more severe than the effect upon an adults, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child. One thing is clear. It is not enough to dismiss these cases in a simple way by accepting that the childrens interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope in Norris. How the court is to go about investigating the situation of the children is a question to which I shall return. In each of the cases before the court, the interests of the children have been fully investigated. In the Polish case, this was done by those representing the mother. In the Italian case, the children have had the benefit of separate representation by the Official Solicitor. I turn, therefore, to the facts of each case, beginning with the more straightforward Polish case. F K v Polish Judicial Authority The father, MF K, and the mother, AF K, were married in 1991. They are both Polish. They have five children. A, who is now 21, B, who is now 17, and C, who is now 13 years, were born in Poland before the family moved to this country in June 2002. D was born here on 17 February 2004, so is now aged eight, and E was born here on 14 August 2008, so is now aged three years and ten months. The whole family live together in a house where they have lived since December 2007. The father works as a builder. The mother looks after the family. They applied for permanent residence here before these proceedings were begun and were granted it in 2010. The mothers extradition is sought on two European Arrest Warrants. The first in time (EAW1 issued by the Gliwice Circuit Court) is dated 10 January 2006. It alleges that she, together with her husband, misappropriated clothing entrusted to her for sale to a value equivalent to 4307, between 19 June and 24 August 2001. The second (EAW2 issued by the Katowice Regional Court) is dated 9 July 2007. It alleges three offences: (i) falsifying customs documents in relation to an imported car between 17 November 1997 and 24 January 1999; (ii) seven instances of fraud involving a total equivalent to 1160 between 19 May and 12 June 2000; and (iii) a further instance of a similar fraud, on 21 June 2000. It appears from the further information obtained from the issuing judicial authorities that the bill of indictment in relation to the offences alleged in EAW2 of July 2007 was filed at court in May 2002. It is also said that she failed to appear at court in relation to the theft offences alleged in EAW1 of 10 January 2006 despite having been instructed to do so whenever required by the district public prosecutor on 10 June 2002. AF K denied this or that she and the children left Poland later that same month in order to escape prosecution. It is, as the District Judge observed, difficult to match some of the information received from Poland to the offences in the two EAWs, and some of it appears to relate to different matters. But having heard evidence from AF K, he made a clear finding that she fled in June 2002 to avoid prosecution and that she was a fugitive from justice (for the purpose of section 14 of the Extradition Act 2003). Domestic warrants for her arrest in Poland were not issued until 9 January 2003 in respect of the customs offence in EAW2 (by the District Court in Chorzw), until 7 April 2003 in respect of the fraud offences in EAW2 (by the District Court in Bytom), and until 29 March 2004 in respect of the theft offences in EAW1 (by the District Court in Racibrz). Further information (from the District Court in Bytom, via the Circuit Court in Katowice) in relation to EAW2 states that the police informed the (Bytom) court in May 2004 that she might be staying outside Poland. The request for EAW2 was made in April 2007, three years after that, and the warrant issued that July. Further information (from the Circuit Court in Gliwice) states that the request for EAW1 was made on 1 December 2005 and the EAW issued on 10 January 2006. The international search started in January 2006. EAW2 issued on 9 July 2007 was certified by SOCA on 14 April 2008. EAW1 issued on 10 January 2006 was certified on 2 September 2008. AF K was arrested under both warrants on 10 March 2010. Senior District Judge Riddle ordered her extradition on 28 September 2010. Ouseley J dismissed her appeal to the Administrative Court on 19 January 2012: [2012] EWHC 25 (Admin). The District Judge had before him a report on the family from Dr Ruth Armstrong, a consultant clinical psychologist; Ouseley J had before him a second report from Dr Armstrong, to which was attached some literature on attachment (Dr Peter S Cook) and on the effect of parental incarceration on young children (Ross D Parke and K Alison Clarke Stewart). Both reports were based on long visits to the home, interviews, observations, psychological tests and questionnaires and information provided by the childrens school and college. In her first report, dated 2 July 2010, Dr Armstrong stated that all the children had good health and good emotional and social adjustment. The mother appeared to be at the heart of the family, providing loving warmth and nurturing of a high calibre. If she were extradited, the childrens secure attachment to her would be ruptured and many negative consequences are likely to ensue. D and E, in particular, were likely to be devastated by the loss of their mother which would be very likely to have severe detrimental consequences psychologically and for their developmental trajectories. They were reported to have reacted very badly to the mothers short absence after her arrest in 2010. The father had shown evidence of significant emotional disturbance (and even suicidal traits) on psychological testing. Without his wife he would have to give up work to look after the children and this was likely to lead to severe and crippling depression. Returning to Poland would cause a significant upheaval and damage to the older childrens education. She concluded that the potential psychological damage all the other six members of the family would be very likely to suffer and the educational setbacks for each of the children, were [the mother] to be deported, would be extreme. In her second report, of 15 July 2011, she remained very concerned for the welfare of the family should the mother be extradited. The father had had to give up work because of an earlier accident. His physical mobility had deteriorated markedly (although his physical symptoms might in part have a psychosomatic origin) and he might even be more psychologically fragile than before, although he was trying to create a good impression, and determined to keep the family together. The enormous attachment of the children to their mother means that they might be plummeted into what could be paralysing grief. There could be many risks to the young children. Apart from grief and loss, the two youngest, who are girls, would be looked after only by older males, which could pose risks in terms of inappropriate relationships developing as the family members seek comfort normally provided in an entirely appropriate way by the presence of a nurturing and competent mother and wife. There was also evidence that if extradited the mother would be detained in prison pending trial and would not be able to have her youngest child, who is still under four, with her in prison. Mr Fitzgerald drew attention to two Strasbourg decisions in which the length of pre trial detention in Poland had been held to violate article 5.3: Dyller v Poland (Application No 39842/05) (unreported) given 7 July 2009; Kumenda v Poland (Application No 2369/09) (unreported) given 8 June 2010. Discussion If we were only concerned with the three oldest children, things would be different. They would be very unhappy at the loss of their mother, and might suffer some educational setbacks as a result, but they would be able to get on with their lives with the help of their father, who is determined to keep the family together. They would be able to recall their mother while she was away, even if they were only able to see her rarely, and they would be able to look forward to her coming back. As Dr Armstrong points out, the consequences for the two youngest would be far more severe. E, in particular, would be deprived of her primary attachment figure while she is still under the age of four. Such losses can have lasting effects upon a childs development and it does not appear that her father would have the psychological resources to fill the gap or that help would be available from the social or other services to support the family. The eight year old would also suffer from the loss of her mother, might well blame herself for it, and would find it hard to look forward to her return. It is not an abuse of language to describe the effects upon these two children as exceptionally severe. Indeed, Ouseley J accepted without reservation that the impact on the two younger children would be very severe: para 44. Against that, there is the constant factor of the need to honour our obligations under the Framework Decision. But as these are subject to the need to respect fundamental rights, they do not absolve us of the duty to weigh the competing interests as required by article 8. The various offences for which extradition is sought are by no means trivial. But they are offences of dishonesty which can properly be described as of no great gravity. Furthermore, we can take notice of the fact that no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW, no matter how comparatively minor the offences, how much time has elapsed since they were committed, and how respectable the life which the offender has led since then. The European Commission has criticised the lack of a proportionality check in some states before issuing an EAW: it is not suggested that an article 8 proportionality check is required, but that there should be some relationship of proportionality between the offending and the consequences. The delay in this case has been considerable. There was some delay between the offences themselves and the bringing of the Polish prosecutions; there was further delay between the appellants failure to attend court in Poland and the issue of the domestic arrest warrants; even further delay between the issue of the domestic arrest warrants and the requests for the EAWs; and again between the issue of the EAWs and the appellants arrest in March 2010. While the district judge did find that the appellant fled Poland in order to avoid prosecution, and thus was not entitled to rely upon passage of time as a bar for the purpose of section 14 of the 2003 Act, the overall length of the delay is relevant to the article 8 question. Whatever the reasons, it does not suggest any urgency about bringing the appellant to justice, which is also some indication of the importance attached to her offending. During that lapse of time, the appellant and her family have made a new, useful and blameless life for themselves in this country. Two more children have been born. D must have been conceived approximately eleven months after the family arrived here and E more than four years after that. At neither time did the parents have any reason to believe that the Polish authorities were seeking the mothers return. Whatever the relevance of deliberately conceiving children in order to strengthen the case against extradition (which does arise in the next case) it does not arise on the facts of this case. In all the circumstances, the public interest in returning the appellant to face trial and sentence upon the charges in these two warrants is not such as to justify the inevitable severe harm to the interests of the two youngest children in doing so. I would allow this appeal. HH and PH v Deputy Prosecutor of the Italian Republic, Genoa PH, the father, and HH, the mother, were married in 1996. Both are British citizens but HH was born and bred in Morocco, where they met while PH was working as a long distance lorry driver all over Europe. They bought a house in Spain in 2000. Their first child, X, was born in England on 23 November 2000, so he is now aged 11. The events which led to these proceedings took place between April and September 2003, when X was only two, and his mother was pregnant with their second child. The parents were arrested in Italy on 23 September 2003. HH, then 8 months pregnant, was released under house arrest on 20 October 2003. The child, Y, was born in Italy on 21 November 2003, and so she is now aged eight. HH left Italy in July 2004 in breach of the conditions of her release. PH remained in prison in Italy until the custody time limit ran out and he too was conditionally released on 7 October 2004. He too left Italy shortly afterwards, also in breach of his conditions. Both were formally declared to be unlawfully at large on 15 March 2005. Having heard their evidence, District Judge Evans found (in his judgment of 25 March 2009) that both HH and PH had quite deliberately breached their bail and fled Italy in the full knowledge that they were to be tried for very serious offences. They were arrested for two offences connected with drug trafficking: (1) criminal association for the purpose of drug trafficking, which carries a sentence of between ten and 24 years imprisonment; and (2) a specific act of importation, transportation, possession and supply of drugs, aggravated by being committed by more than three persons, which carries a sentence of between three and nine years imprisonment. As to (1), it was alleged that they had conspired with one another, with HHs uncle Hassan El Faria, with a courier Brian Stott, with Hassan El Farias wife, Virginia Donnarumma, with Abderrahin Fadlam, and with other people as yet unknown, to commit multiple offences of smuggling hashish. The uncle was the point of contact with the suppliers; PH and HH received the drugs, recruited the couriers and took part in the importation; Fadlam received the drugs in Italy and was in charge of trading them there; and Donnarumma was in charge of trading the proceeds and sending it back to her husband to finance further operations. These operations continued from April to September 2003. As to (2), it was alleged that they had imported over 205 kilos of hashish into Italy on 23 September 2003. It was also alleged that there had been six earlier such episodes involving similar quantities, totalling some 1613 kilos in all. These formed part of the subject matter of the later convictions, but not of the original remands in custody. The Italians had been intercepting their telephone calls and monitoring the car, rented in Spain, in which they were travelling. This showed that they were in repeated contact with the courier, Stott, guiding him into the hotel car park where they met. The couriers car had been hired by him in Italy, but paid for by PH, and the car was carrying false English number plates. After they left the car park, heading for France, Stott was arrested with the drugs. They both phoned him to find out what had happened. Once they found out that he had been arrested, they both phoned their accomplices, in particular Hassan, to explain what had happened. Hassan advised HH to take advantage of her pregnancy to avoid pre trial custody and escape from justice. On 17 December 2004, they were both convicted in the first instance court in their absence and sentenced to 14 years imprisonment. The first European Arrest Warrants (EAWs) were issued on 11 January 2006. The first instance judgment was confirmed in the second instance in the Court of Appeal in Genoa on 19 April 2006. The EAWs with which these proceedings began were issued on 1 August 2008. These were still accusation warrants, because the proceedings were not yet finally over. There was a further appeal to the Court of Cassation, which on 28 April 2009 confirmed the sentence on HH which then became final. A conviction European Arrest Warrant was therefore issued in respect of HH on 23 October 2009. This states that she has nine years, six months and 21 days of her 14 year sentence still to serve. However, the conspiracy case against PH was sent back to the Court of Appeal in Genoa to determine whether he had been organiser and instigator of the conspiracy or a mere participant. On 25 January 2010, a conviction EAW was issued in respect of PH for the seven specific importation offences, which states that he has four years of imprisonment of the original eight year sentence still to serve. On 9 February 2010, the Court of Appeal determined that he had been a lesser participant in the conspiracy and imposed a (total) sentence of nine years and four months imprisonment which became enforceable on 1 February 2011. On 21 September 2011, therefore, a new conviction EAW was issued in respect of all eight offences, which states that he has eight years and four months still to serve. According to the calculations of his legal team, however, if the collective clemency law and the potential reduction for good behaviour are taken into account, this would come down to four years and 22 days. Proceedings first began in this country on 16 July 2008, after PH was arrested pursuant to the first EAW of 11 January 2006. He was arrested again on 4 August pursuant to the EAW dated 1 August 2008. HH was arrested pursuant to the EAW dated 1 August on 8 August 2008. The proceedings have been continuing ever since. Both parents have been on bail most of the time since their arrest. Between one and two months after her arrest, HH must have become pregnant with their third child, Z. Z was born on 10 June 2009 (it is said in one of the reports that she was born one month prematurely because of her mothers diabetes) and so is now just three years old. District Judge Evans commented that It must remain an open question whether Zs conception was (irresponsibly and selfishly) intended to provide a useful argument in support of HH and PHs opposition to the extradition request (Judgment of 14 April 2010, para 44). But in the Divisional Court, Laws LJ considered this comment to be unwarranted (para 38). After a number of vicissitudes, the hearing before the District Judge was fixed for 20 February 2009. Both parents gave evidence, but it was adjourned part heard. They were told by counsel that things were not looking good and extradition was likely. This was an accurate prediction as District Judge Evans ruled on 25 March 2009 that he would have ordered extradition against both had it not been for HHs illness. He later observed that on 20 February she was able to give coherent if untruthful evidence and was not suffering from any significant ill health (judgment of 14 April 2010, para 45). HH collapsed shortly after the hearing, was taken to A & E in London, transferred to a psychiatric hospital and then admitted to a psychiatric ward in Nottinghamshire, initially under section 2 of the Mental Health Act 1983. She remained there voluntarily until discharged on 17 or 18 June 2009, a week after the birth of her younger daughter. From March 2009 she was unfit to attend court. Eventually, on 14 April 2010, District Judge Evans ordered the extradition of HH on the conviction EAW, and on 21 June 2010, he ordered the extradition of PH on both the accusation and the first conviction warrants. Their appeals were dismissed by Laws LJ in the Administrative Court on 11 May 2011: [2011] EWHC 1145 (Admin). In relation to the mothers mental health, there were reports from her consultant psychiatrist, Dr Meats, dated 20 March 2009 and 3 April 2009, finding no evidence of any psychotic illness, diagnosing a conversion disorder in association with repeated court appearances, for which a small dose of anti anxiety medication had been prescribed, and predicting that her condition would persist and become long term, but that a decision one way or the other would allow resolution of her anxiety symptoms. There was a report commissioned by the Crown Prosecution Service, from Dr Philip Joseph, dated 22 May 2009. He agreed that she had suffered an acute stress reaction after court on 20 February, but other forms of mental illness had been excluded and she was not suffering from mental disorder of a nature or degree which would prevent her extradition. There was a report commissioned by HHs solicitors, from Dr Seyyed Nabavi, dated 8 August 2009. He diagnosed post traumatic stress disorder with co morbid depressive and anxiety disorders of moderate to severe severity, precipitated by her experience of arrest and being treated inappropriately in Italy, and continued by the lengthy legal proceedings. She was unable to look after herself or her children. The prognosis was moderately poor and she was currently unfit to plead and stand trial. In a follow up report on 26 October 2009, Dr Joseph strongly disagreed with these diagnoses. He maintained the diagnosis of an acute stress reaction to the fear of being extradited to Italy and being separated from her children. If there were no court proceedings she would have no difficulty living her life and managing her family. In November 2009, there was another brief admission to hospital under section 2 of the Mental Health Act 1983, after HH walked blindly (according to PH) into the road shortly before they were due to appear in court on 10 November 2009. A follow up report from Dr Nabavi, dated 31 December 2009, maintained the view that her current mental disorder, a dissociative (conversion) disorder, was a reaction to her arrest in Italy, maintained by the continuing court proceedings. He ruled out malingering or factitious disorders and remained of the view that she was unfit to look after her family or take part in the proceedings. These reports were all before District Judge Evans on 14 April 2010. There was also a letter from Gabrielle OBrien, a mental health support worker who had been regularly visiting the home, where she found that HH appeared to be extremely unwell and withdrawing into herself on each visit, lying on a mattress and apparently unaware of her husband, her children or visitors. A witness statement from HHs solicitor described the pitiful condition in which he had found her when visiting the home in September 2009 and the unedifying events when she was (eventually) arrested on the conviction warrant and brought to court in London in February 2010. It had not proved possible to transfer her from the security van into court and the hearing had to be held in the car park. Incontinence was a feature on both occasions. The district judge heard evidence from both Dr Nabavi and Dr Joseph and found Dr Joseph the more compelling. He concluded that HH had a real condition, which she was not putting on only when she was in public, but that it appeared to be self induced and not as severe as suggested by Dr Nabavi. He had little doubt that she would recover quickly if not extradited. Similarly the realisation that the game was up could also assist in her speedy recovery. There was therefore no medical condition rendering her extradition inappropriate and it would not be oppressive to order it (judgment of 14 April 2010, paras 58 59). When the appeal came before Laws LJ, there were fresh psychiatric reports. Dr Samantha Dove was instructed by HH, whom she had visited at home. In her report of 6 December 2010, her opinion was that HHs presentation was consistent with the initial diagnosis of dissociative conversion disorder, but that the symptoms of a moderate to severe depressive disorder had now become more marked. It was likely that the stress of the current legal situation had precipitated her mental illness. This was of a nature or degree to warrant her detention in hospital as she was unable to look after herself, including taking her medication and maintaining personal hygiene. She was not fit to plead or attend court. Dr Joseph provided a further report dated 20 January 2011. He had read the records of HHs short readmission to hospital in November 2009, after which it had been concluded that her presentation was due to a current life situation rather than a mental illness. He had also discussed the case with Dr Dove, and concluded that it would not help for him to see HH again. He disagreed with the diagnosis of dissociative disorder and also that her disorder warranted detention in psychiatric hospital or that she was unfit as opposed to unwilling to take part in the proceedings. Laws LJ heard brief evidence from both doctors. He also took into account the observations of Dr Pettle, the psychologist (instructed by the Official Solicitor) who had visited the family to assess the children. The childrens comments suggested that HHs withdrawn state persisted within the family and not just when professionals visited. He considered that there was a third explanation for HHs behaviour pattern, not that it was all a deliberate pretence, or that it was the product of a mental illness, but that it was an extreme reaction to the extradition proceedings (hardly different from the notion of an unconscious fabrication spoken of by Dr Dove) (paras 44 to 46). If so, it was perhaps more likely to be resolved once the proceedings were over. Her mental condition was not such that it would be oppressive to extradite her. Further, that is not to say that I would have found the other way had I concluded she was suffering from a mental illness. There was every reason to conclude that she would be properly looked after in Italy (para 47). (It may be that Laws LJ had in mind psychosis when he referred to mental illness, for many perhaps most psychiatrists would label the mothers condition an illness.) By the time of that judgment (in May 2011), following a suggestion made in Dr Doves report, HH had already been referred by her GP to the neuropsychiatry unit at the Maudsley Hospital, where she was admitted on 11 June 2011. This Court has a report from Professor Anthony David dated 30 January 2012. He had prompted an unannounced visit in February from Gabrielle OBrien, who found HH in the kitchen talking (and not lying mute on a mattress in the lounge). HH had taken a significant overdose of diazepam and citalopram on 9 May 2011 (perhaps connected with or in anticipation of the High Court judgment handed down on 11 May 2011). On admission, she walked with a pronounced stoop, was very tearful, had difficulties with sleep, refused meals at times, showed very poor levels of self care and personal hygiene, with episodes of incontinence, showed little interest in ward activities but apparent signs of severe memory difficulties and an inability to perform routine tasks such as boiling a kettle. Her very poor performance in psychometric testing showed that she was not engaging with the tasks. Professor Davids opinion is that her initial presentation was characterised in part by regressive and pseudo demented behaviour which though variable to an extent, was persistent and highly dysfunctional. This may have been feigned or a gross exaggeration given the close temporal relationship between the onset of the disorder and court appearances connected with extradition to Italy. Once they had been able to get her to relinquish these behaviours, there was revealed a clear and genuine phobic anxiety disorder (agoraphobia with panic) associated with busy streets, policemen and women, and sirens and alarms obviously relating to her dread of extradition and separation from her children, together with an underlying affective component of low mood and hopelessness. His view is that there was a strong element to the regressive behaviour which was under conscious control but that once HH had sunk into this state it took on a life of its own. Given that there was a background of low mood and fear, complicated perhaps by a reawakening of adverse childhood experiences, it was impossible for her to simply snap out of it. The behaviours then became habitual and ingrained. It had taken three months in a specialist unit to overcome this. Further court appearances would cause major disruption in her mental state. He is convinced that the profound overt distress they would cause would soon become intractable and she would end up once again in a totally dependent and dilapidated condition. She would resist extradition and any attempt to force her to return to Italy under any circumstances would result in a catastrophic collapse. Following the proceedings in the Magistrates Court, the Official Solicitor was permitted to file evidence and make submissions on behalf of the children in the Administrative Court. Dr Sharon Pettle, a clinical psychologist, prepared a report dated 13 September 2010. X, then nearly ten, generally appeared to be a well adjusted boy, sensitive and caring, with a strong bond with his father, but he was highly anxious about the deterioration in his mothers functioning, and has no clear explanation of what is wrong. Y, then nearly seven, was a bright and articulate child who did not express anxiety about her mothers condition, and whose strongest relationship was with her father. Z, then 15 months old, was meeting all her developmental milestones and clearly looked to her father as her primary attachment figure. It was inevitable that separation for years from one or both parents would cause the children intense and long lasting distress. Being left in the sole care of their mother would be an intensely worrying experience unless she were to make an immediate recovery. Separation from their father would be acutely emotionally distressing for all the children, and their responses would vary in severity according to what other losses followed. If separated from their mother, X and Y would be likely to worry about her health and who was looking after her, but if they remained with their father, it seemed likely that he would go on looking after them well and offer them as much support as possible. To be suddenly faced with the departure of both parents, and a move to live with strangers is one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. The departure of both parents, even for children with some resilience, is likely to be an overwhelmingly painful experience, and their immediate reactions may be very similar to bereavement: over activity, profound sadness and distress, withdrawal and regression, anger and defiance, poor sleeping and eating, and a deterioration in their school performance. The research on children of imprisoned parents would suggest that X, Y and Z are all in a highly vulnerable group. Generally siblings should be kept together. X and Y would find it hard to understand if Z were to be cared for by their mothers family in Morocco and would worry about her. Worst of all would be if all three had to be separated, with Z in Morocco and X and Y in different foster placements. In an addendum report, dated 24 March 2011, based on an interview with PH who had brought Z with him, she described Z as a very happy and well adjusted two year old, secure enough in her attachment to her father to be able to spend time at playschool and with other familiar people. But from her fathers description, she had not formed a significant bond with her Moroccan grandmother while she was staying with the family. Based on school reports, the older children appeared to be showing signs of strain which were not apparent last year. Dr Pettle expected that they would be hopeful that their mother would return from her stay in the Maudsley Hospital more like the mother they remembered (and it would appear from Professor Davids report that such hopes have been fulfilled). If she were then to be removed to serve a prison sentence, this would be particularly difficult for them to accept. It was likely that Z would be extremely distressed at being uprooted from her family and going to live in Morocco, all her familiar routines disrupted and in a new culture with a different language spoken around her. If all the children were in foster care, there would be some advantage to all of them in being able to remain in touch with one another even if placement together were not possible. The Official Solicitor also prompted a report, dated 15 September 2010, from Gemma Manzoor, of the local Childrens Services department, who had been the childrens allocated social worker from August 2009 until June 2010. The reason for this was concern about the childrens welfare because of their mothers mental state. The case was closed in June 2010 because there were no issues about their fathers care of them. Were the extradition to go ahead, PH accepted that it might be difficult to place all three children together, so he had agreed to X and Y being looked after by the local authority, but was at that time hoping that Z would be looked after by HHs family in Morocco. However, as explained in the witness statement of the solicitor instructed by the Official Solicitor of 24 November 2010, the maternal grandmother did not feel able to look after any of the children, owing to her other responsibilities and her own ill health. Their solicitor then explored with PH whether there were other members of the family who might be able to look after the children. In his witness statement of 30 March 2011, he explains why none of the fathers four siblings or his three children by an earlier marriage is able to help. None of them has appropriate accommodation to take in three more children, all have jobs, and most have other children to look after. The solicitor has recently made further inquiries of the local authority, from which it is clear that they will not reopen the case until they are told that the parents are to be extradited, even if this means that there would then be only a very short time in which to make the arrangements. Thus the prospect of the children being placed together, and in an area close to where X and Y are at school, will not be known until the decision is made. It follows that no thought has been given to how the children will be able to keep in contact with their parents if they are extradited to Italy. Discussion Before Laws LJ, HH relied, not only on article 8, but also on section 25 of the Extradition Act, which permits the judge to discharge the person or adjourn the hearing if her physical or mental condition is such that it would be unjust or oppressive to extradite her. As by now she was wanted on a conviction warrant, the question was whether it would be oppressive (as opposed to unjust) to extradite her. Having heard the evidence described earlier, he concluded that it would not. The question certified for this court relates only to the article 8 question. It is open to the court to consider issues other than those certified: Attorney General for Northern Ireland v Gallagher [1963] AC 349. However, this court would not normally entertain an appeal on a question of fact or on the application of settled law to the facts of the case. It would be difficult for us to differ from the factual findings of Laws LJ, who heard as well as read the psychiatric evidence. His findings on the nature and causes of the mothers condition are in any event broadly consistent with Professor Davids report, although they do differ in their predictions as to the effect of extradition. That is not, however, a reason for us to differ from the conclusion reached by Laws LJ. He concluded that it would not be oppressive to extradite the mother in the condition she was then, before she had had the benefit of three months specialist treatment in the Maudsley. She is better now, and would be no worse than she was when Laws LJ reached his conclusion, even if she were to regress in the way predicted by Professor David. We cannot, therefore, reach any different conclusion under section 25. But we can, of course, take the mothers mental condition into account when we are considering the situation of the whole family under article 8. The principal focus of this appeal has been on the article 8 rights of the children, not of the adults. It is a very rare case indeed when the extradition of both parents is sought. The table prepared by JUSTICE contains only one other, apart from the case of BH and KAS v United States of America, which was heard along with this case (see Lord Advocate on behalf of Criminal Court of Lisbon, Portugal v JK and NF [2011] HCJAC 121, 9 December 2011). These are all young children, Z is just three and still at the age when the effect of breaking her most secure attachment will be severe, Y is also at a vulnerable age, and X appears to be less resilient than she. They have already had to cope with living with a mother who, on any view, has not been able to look after them properly since February 2009. The father has given up work to look after them all and by all accounts has done a very good job. They are happy and well adjusted children now, but the evidence is that separation for years from one or both parents would inevitably cause the children intense and long lasting distress. It would be akin to taking the children compulsorily into care. But whereas children are only taken compulsorily into care if they are already suffering or likely to suffer significant harm, these children have not so far suffered significant harm. On the contrary, they are doing well in difficult circumstances. It is the compulsory separation from their parents, and the move to live with strangers, which will do them harm; it is, in Dr Pettles words, one of the most catastrophic events to befall any child, and represents a massive emotional and psychological challenge. There is, of course, every incentive for parents in this position to fail to find or encourage other family members to take care of the children, so that they will have to be looked after by the local authority. But in this case we have the benefit of the enquiries made by the Official Solicitor, and it would appear that the family members whom the children know have good and genuine reasons for not being able to look after them if their parents are extradited. It is regrettable in the extreme that the local authority have apparently made no plans at all for where they will place the children if extradition is ordered. This means that no work has been done with the children to prepare them for this; that places will have to be found in a hurry; that it is quite likely that those places will be short lived; and it is also quite likely that they will be placed in separate foster homes. These too may well be short lived and unstable, not through any fault of the local authority, but because of the pressures under which they have to work. The state, however well meaning, is no substitute for the family. There has even been mention of the possibility that Z might be compulsorily placed for adoption, but Lord Wilson and I share the view that it is unlikely that a court would find that her welfare required it to dispense with parental consent in circumstances such as these. Evidently, too, no thought has been given by the local authority to how they will maintain contact with their parents while the parents are in prison in Italy. Yet such contact will obviously be essential for them. That harm would be much reduced if only one parent were to be extradited. If the mother were extradited alone, the children would no doubt grieve for her, and worry about her, but they have been used to her absence in hospital before. They have not been used to relying upon her for their day to day care and emotional support. Their father would be able to help them maintain contact with her. If their father were extradited alone, on the other hand, they would lose the mainstay of their lives to date. Z would lose her primary attachment figure. And we have been presented with no evidence that their mother is capable of looking after them alone. The plain fact of the matter, therefore, is that from the childrens point of view, the extradition of their father would be seriously damaging, but the extradition of their mother would not. Against all that there is, of course, the constant public interest in extradition and the gravity of the offences of which both parents have been convicted. We are not here dealing with comparatively routine crimes of dishonesty, but with a major drug smuggling conspiracy, persisted in over many months. As Laws LJ put it, the appellants were effectively caught red handed while escorting a consignment to its destination. The sentences imposed were lengthy, although possibly not as lengthy as the sentences which would be imposed for comparable offences here. Just as the harm to children will be greater if the father is extradited than it will be if the mother is extradited, it is also the case that the public interest in extraditing the mother is greater than the public interest in extraditing the father. The Italian courts have held that the mother played the greater part in the conspiracy and imposed a correspondingly longer sentence upon her. She fled the country having spent only three weeks in prison. Although Dr Nabavi attributed her initial mental distress to the treatment which she had received in Italy, she was in apparent good health until the hearing on 20 February 2009. By contrast, although the father has now been convicted of both the conspiracy and the seven specific smuggling offences, he has been held to have played a lesser part in the conspiracy. He also spent a year in prison in Italy before his release. He has therefore paid some part, albeit only a small part, of the debt he owes to society on account of his very serious and persistent offending. Furthermore, he has so far evaded paying the rest of that debt by breaching the conditions of his release. But the point urged most strongly upon us on his behalf is that his lawyers researches suggest that, if the family were living in Italy, he would be allowed to serve most of the rest of his sentence at home in order to look after the children. They calculate that the total sentence of 9 years and 4 months would be reduced: (1) to 6 years and 4 months, because of the Collective Clemency Bill, Law 214/06, which reduces all sentences for offences committed before 2 May 2006 by three years; then (2) to 5 years and 3 and a half months, because of the time already spent in prison; then (3) to one year and 27 days, because of the Prison Reform Law No 354 of 26 July 1975, which allows sole carers of young children who have served one third of their sentence to serve the remainder on home detention; and finally (4) to 10 months, because of the potential reduction (of 45 days per six months) for good behaviour. We have looked at the laws in question but have no expert evidence as to how they would operate in a case where the primary carer was the father rather than the mother. The position is not, however, disputed by the respondent. Thus, it is argued, if the family were living in Italy, the Italian state would not consider it in the public interest for this father to serve more than ten more months in a prison. They would prioritise the interests of his children over the serving of his sentence. It is wrong, therefore, to conclude that the public interest requires him to be sent back to Italy to serve a further four years and 22 days in prison. Against that, of course, is the fact that the Italian authorities have issued these warrants to secure his return. In common with the other members of this court, I have found the case of PH the most difficult of all the five parents in the three cases with which we are concerned. There is no doubt that the offences of which he has been convicted are very serious indeed. They are the sort of cross border offending in which international co operation is particularly important. If we were concerned only with the two older children, I would have concluded that these considerations were sufficiently weighty to justify the interference with their lives. They are old enough to retain memories of their father, and to understand that he will come back to them one day, and they would have one another. There is a better chance that they would be found a foster placement together, or even that other members of the family would be persuaded to step in after all. But Z is in a different situation. She is still at the most vulnerable age. And her presence makes finding satisfactory placements to keep the children together more difficult. It is troubling that Z was conceived so very soon after the parents were arrested on the EAWs. No court wishes to send a message that drug smugglers or other serious criminals might escape extradition by getting their partners pregnant. However, the district judge declined to make a finding to that effect, despite the generally unfavourable view that he took of the parents evidence and the information from Italy that the mother had been advised to take advantage of her earlier pregnancy to escape from justice. Laws LJ described his remark that it remained an open question as unwarranted. We must therefore approach this particular case on the basis that it has not been shown that this was a deliberate attempt to improve their position in the proceedings. If there had been such a finding, what relevance would it have had? Z did not ask to be born and is in no way to be blamed for her parents conduct. But it would have made the parents offending behaviour even more serious than it already was: it is an act of some wickedness deliberately to bring a child into the world in an attempt to evade justice. It would have added to the weight on one side of the scales, while in no way diminishing the weight to be given to the childs interests on the other. The circumstances in this case can properly be described as exceptional. The effect upon the children, but Z in particular, of extraditing both their parents will be exceptionally severe. The effect of extraditing their mother alone would not be so severe and is clearly outweighed by the public interest in returning her to Italy. But the same cannot be said of the effect of extraditing their father. I have, not without considerable hesitation, reached the conclusion that it is currently so severe that the proportionality exercise requires the court to consider whether it can be mitigated. If he is discharged in the current proceedings (and in these I would include the proceedings under the warrant issued in September 2011), it will remain open to the Italian authorities to consider whether to issue another warrant in the future, when the effect upon the children will not be so severe. In doing so, they would no doubt wish to consider whether the spirit, if not the letter, of the Prison Reform Law of 1975 reduces the public interest in having him return to Italy to serve the balance of his sentence, in circumstances were, if it were an Italian family, he would be able to serve it at home looking after his children. We do not know whether this consideration was present to the minds of the authorities when the warrants were issued. Left to myself, therefore, I would have struck the balance in that way in this very unusual case and discharged PH in the current proceedings. Postscript: Conviction in absentia Mr Jones sought to raise a further point on behalf of HH. Section 20 of the 2003 Act has not been amended to take account of the amendments to the 2002 Framework Decision made by the Framework Decision of 2009 (2009/299/JHA), which required implementation by 28 March 2011 (with a possibility of delayed implementation by March 2014). This adds a new article 4a to the Framework Decision, permitting the executing authority to refuse to execute an EAW if a person was convicted in her absence, unless she was unequivocally made aware of the date and place of the trial. The EAW in question was issued before the 2009 Framework Decision took effect and does not state that HH was unequivocally made aware of the date and place of her trial. Were this to raise a discrete point of law as to the alleged non implementation of the 2009 Framework Decision in UK law, it would in my view be quite inappropriate for this court to consider it. It has not been certified as a point of law of general public importance and it has not been fully explored in the arguments before us. Rather, the point has been argued as a technical matter concerned with the content of the EAW. It is difficult to believe that HH has been the victim of a serious injustice in this case, as she was represented by lawyers throughout the Italian proceedings, who clearly pursued every avenue of appeal on her behalf, while she had deliberately deprived herself of any additional advantage that presence at those proceedings might have given her. Indeed, given the circumstances of the arrest and the nature of the evidence against her, it is perhaps difficult to envisage what that advantage would have been. For the same reasons, it is difficult to see what this factor adds to the strength of the article 8 case on her behalf. Procedure If the childrens interests are to be properly taken into account by the extraditing court, it will need to have some information about them. There is a good analogy with domestic sentencing practice, although in the first instance the information is likely to come from the parties, as there will be no pre sentence report. The court will need to know whether there are dependent children, whether the parents removal will be harmful to their interests and what steps can be taken to mitigate this. This should alert the court to whether any further information is needed. In the more usual case, where the person whose extradition is sought is not the sole or primary carer for the children, the court will have to consider whether there are any special features requiring further investigation of the childrens interests, but in most cases it should be able to proceed with what it has. The cases likely to require further investigation are those where the extradition of both parents, or of the sole or primary carer, is sought. Then the court will have to have information about the likely effect upon the individual child or children involved if the extradition is to proceed; about the arrangements which will be made for their care while the parent is away; about the availability of measures to limit the effects of separation in the requesting state, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face time over the telephone or internet; and about the availability of alternative measures, such as prosecution here or early repatriation. Some of this information should be available from the parents, but the court may also wish to make a referral to the local Childrens Services for the childrens needs to be assessed under the Children Act 1989. If the children are to lose their sole or primary carer for any length of time, they may well have to be accommodated under section 20 of the 1989 Act and will almost certainly be children in need for the purposes of section 17(10) of that Act. In some cases, especially where there is a very young child or a child with health or developmental problems, it may be necessary to obtain a psychological or psychiatric assessment, as in fact was done in these cases. There is also the question of the childrens own views (or wishes and feelings) to consider. Article 12 of UNCRC provides: 1. States Parties shall assure to the child who is capable of expressing his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. The United Nations Committee on the Rights of the Child, in its General Comment No 12 on The Right of the Child to be Heard (CRC/C/GC/12, July 2009), points out that this is one of the fundamental values of the Convention and that there can be no correct application of article 3 if the components of article 12 are not respected. This poses a problem in extradition cases, as there is no obvious machinery for ascertaining the childs views, save by making the child party to the case or (at least in the Administrative Court) by allowing the child to file evidence or make representations under CPR rule 52.12A. The Official Solicitor accepts that this will rarely be necessary, as Laws LJ observed in the postscript to his judgment (para 68), but the Coram Childrens Legal Centre submit that this understates the strength of the obligation to hear the child. They point out that the childrens views and interests do not always coincide with their parents and that, especially in criminal cases, the parents may not be able properly to put the childrens views before the court. There is the further problem, exemplified in these cases, that a loving parent may be reluctant to discuss the problem with the children, hoping to spare them the distress and anxiety involved in what may be a long drawn out process. Indeed, that problem illustrates only too well how the interests of the parents and the children diverge. The parents may wish to fight extradition for as long as and as hard as they can, thus increasing the stress and the delay which, as section 1(2) of the Children Act 1989 tells us, is bad for children whose sense of time is so different from that of adults. I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be serious damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly. Conclusion dismiss the appeal in the case of Mrs HH. I would therefore allow the appeal in the cases of Mrs F K and Mr PH, but LORD HOPE I am grateful to Lady Hale for her careful description of the facts of these cases and for her analysis of the extent to which the approach of the Supreme Court in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 needs to be modified in the light of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. I agree with her that the need to examine the way the process will interfere with the childrens best interests is just as great in extradition cases as it is in cases of immigration control. The context in which the exercise must be conducted is, of course, quite different and the nature and weight of the interests that are to be brought into the balance on each side will differ too. But I remain of the view which I expressed in Norris, para 89 that it would be wrong to treat extradition cases as falling into a special category which diminishes the need to examine carefully the article 8 issues that the separation of the parents from the children will give rise to. As Lady Hale says in para 33, this involves asking oneself the right question and in an orderly manner, following the example of the Strasbourg court. That having been said, each case will depend on its own facts and some cases will be more easily resolved than others. An exploration of the theoretical basis for the exercise can only carry one so far. Ultimately it will come down to the exercise of judgment as to where the balance must be struck between what Lord Wilson has described in para 150 as two powerful and conflicting interests. The facts are fully before us, and so are the factors that must be weighed in the balance. I agree with Lady Hale that the public interest in returning Mrs F K to Poland is not so great as to justify the severe harm that this would cause to the two youngest children. The offences of dishonesty that are alleged against her, while not trivial, are relatively minor and certainly not of the kind that could be described as seriously criminal. There has been a conspicuous delay on the part of the prosecuting authorities. The welfare of these children would be at serious risk if their mother were to be removed from them. For these and all the reasons that Lady Hale gives I too would allow this appeal. The offences of which PH and HH have been convicted are of a quite different kind. We are dealing in their case with serious professional cross border crime involving trading in narcotic drugs which there is an international obligation to suppress. As Lord Judge says (see para 137), there are very strong reasons of public policy that persons who are accused or found guilty of such crimes and who break their bail conditions abroad should not be permitted to find a safe haven in this country. I agree with Lady Hale (see para 79) that the part the mother HH played in the conspiracy was such that the effect on her children is clearly outweighed by the public interest in returning her to Italy. So I too would dismiss her appeal. This leaves the case of the father PH. Like Lady Hale, I have found this by far the most difficult of all the cases that are before us, including those of the parents in BH and KAS v Lord Advocate [2012] UKSC 24. For the reasons she has explained, the effects that the extradition of both parents would have on their children, and on the youngest child Z in particular, are likely to be deeply painful and distressing and the long term effects very damaging. Such steps as might be taken to minimise these effects and ensure that the children will be adequately cared for are unresolved and are likely to remain so until extradition takes place. The uncertainty that this creates increases ones deep sense of unease. The circumstances can, as Lady Hale puts it in para 79, properly be described as exceptional. To accord them that description is, of course, not the end of the exercise. It cannot, in itself, be the test: see Norris, para 89. What then are the factors on the other side of the balance which would justify the fathers extradition despite the effects that have been described? Are the very strong reasons of public policy referred to in para 91 above as strong in his case as they are in the case of the mother? The fact that the father was not proved to have organised or promoted the trafficking enterprise shows that he played a lesser part in it. But I cannot attach much weight to this in view of the serious nature of the other offences of which he has been convicted. He too came to this country in breach of his bail conditions. There is really not much to choose between the father and the mother in these respects. I was initially attracted by the argument that, if the family were living in Italy, the father would be allowed to serve most of the rest of his sentence at home so that he could look after the children. I was attracted too by the point that Lady Hale makes in para 79 that if extradition were to be refused now it would remain open to the Italian authorities to issue another warrant in the future when the effects on the children would not be so severe. But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy. If these factors are left out of account, as I think they must be, the decision remains a very difficult one. Taking everything into account, however, the balance seems to me to lie in favour of the fathers extradition. For all the reasons that Lady Hale gives, I very much hope that leniency will be exercised in his case having regard to the interests of the children. But that must be left to the authorities in Italy. I would dismiss his appeal. LORD BROWN I have read with great admiration the draft judgments respectively of Lady Hale in favour of allowing Mr PHs appeal and Lord Judge and Lord Wilson for dismissing it. Of all the many final appeals to which I have been party, truly I have found this to be one of the most troubling, each of the two powerful and conflicting interests (per Lord Wilson at para 150) at stake carrying such obvious weight. In the end, however, sorely tempted though I confess to have been to adopt Lady Hales approach, I am persuaded by the majority judgment that it would not be right to succumb. PHs criminality here was simply at too high a level of gravity to be outweighed by the interests of his children, heart rending though in the result their plight must be. For what seemed to me ultimately the yet more compelling reasons given by Lord Judge and Lord Wilson I too, therefore, would dismiss Mrs HH and Mr PHs appeals whilst (in common with the rest of the Court) allowing that of Mrs F K. LORD MANCE I have read to great advantage the draft judgments prepared by other members of the Court. Each case falls for consideration on its own facts, but, speaking generally, I agree that there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion (Lady Hale, para 8(1)). One difference between extradition and deportation or expulsion is that the former process is usually founded on mutual international obligations (Lady Hale, para 31 and Lord Judge, paras 120 121). Both the UN Convention on the Rights of the Child dated 20 November 1989 and the Charter of Fundamental Rights referred to in article 6 TEU make the childs best interests a primary consideration in all actions concerning children. This means, in my view, that such interests must always be at the forefront of any decision makers mind, rather than that they need to be mentioned first in any formal chain of reasoning or that they rank higher than any other considerations. A childs best interests must themselves be evaluated. They may in some cases point only marginally in one, rather than another, direction. They may be outweighed by other considerations pointing more strongly in another direction. In some circumstances, it may be appropriate from the outset to identify competing primary considerations. Thus, in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), cited by Lord Kerr in his para 145, the court found it appropriate to refer to the expectations of the Australian community (in an effective immigration policy) as one primary consideration and the separate interests of the children of the applicant for a visa as another (see para 33 in the judgment in Wan). Under article 8 of the European Convention on Human Rights, the ultimate substantive issue, where a right to respect for family life is engaged, is whether there exist factor(s) within article 8(2) outweighing that right. It is likely to be helpful at some point to address the issue specifically in those terms. But I do not think that any particular starting point or order can or should be imposed in the way in which courts address such an issue in the context of extradition. On this I agree with Lord Judge (para 126) and Lord Wilson (para 155). So long as it is clear that the issue has in substance been addressed and answered, that is what matters, rather than how or in what order the judge has expressed him or herself. At root, therefore, what is required is a balancing of all relevant factors in the manner called for by the Supreme Courts decision in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The Courts subsequent decision in ZH (Tanzania) v Secretary of the State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, as explained by Lady Hale in para 15 of her judgment on the present appeal, emphasises the importance of any relevant childs interests as a primary consideration, and is consistent with all that I have already said. Taking the present appeals, I entirely agree with and have nothing to add to Lady Hales reasoning on and disposition of the appeal in F K v Polish Judicial Authority. Like other members of the Court, I have found the appeal in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa much more troubling. The difficulty is not just that the considerations on each side are powerful and conflicting, but that they are entirely different in nature. Balancing them against each other is inherently problematic. Like other members of the Court, I see no reason to disturb the factual or legal assessment of the position relating to the mother HH. But, ultimately and although this will involve the extradition of both parents, I also conclude that the childrens interests are under article 8 outweighed by the very strong considerations (identified in particular by Lord Judge in para 135 and Lord Wilson in paras 163 172) militating in favour of the extradition of the father PH as well as the mother HH. I am not persuaded that the position (as to the length of time that PH would have to serve) that would apparently apply if the family were living in Italy is relevant in circumstances where it cannot be said, by any stretch, that the sentence which PH would in fact to serve following return would be objectively disproportionate to what one might expect for the offences committed. Nor do I do think that it could be appropriate to invite the Italian authorities in effect to make another application in some years time. It is not easy to fit such a possibility within the scheme of the relevant Council Framework Decision of 13 June 2002 (2002/584/JHA) and Part 1 of the Extradition Act 2003, both of which contemplate a speedy once and for all resolution of any request for surrender. But, assuming that that problem were overcome, such a procedure would mean that the shadow of extradition would hang over the father and children for an uncertain period and would require at some future point to be dissolved or resolved under different circumstances which could prove no less difficult to balance than the present. In reaching my decision relating to HH and PH, I am though this is not essential to my conclusion comforted by the hope that it may be possible for both parents to be returned speedily to the United Kingdom to serve here the balances of their sentences under Council Framework Decision 2008/909/JHA of 27 November 2008. The Court was informed that this Framework Decision has now been transposed into Italian law. Mr Perry QCs instructions were that, under the previous regime of the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983, repatriation from Italy took 8 to 12 months, although statistics for all repatriations from all Council of Europe countries show a longer average period of around 18 months. Whichever figure is taken, it is to be hoped that much speedier results can be achieved under the Framework Decision, the purpose of which is to limit the rupture of environmental and family links resulting from imprisonment abroad. LORD JUDGE The issue in these appeals from the Administrative Court in England and Wales is summarised in the certified questions. This reads: Where, in proceedings under the Extradition Act 2003, the Article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of the United States of America (No 2) in light of ZH (Tanzania)? The same issue arose, via the devolution route, in the appeal from the High Court of Justiciary in Scotland. In Norris v the Government of the United States [2010] 2 AC 487, sitting in a constitution of nine Justices, this court addressed the impact of section 21 and section 87 of the Extradition Act 2003 (the Act) in the context of the right to respect for private and family life contained in article 8 of the European Convention of Human Rights. The case was concerned with the rights of a husband and wife, neither of whom was in good health, who had been married for many years. The interests of children were not directly involved and did not arise for consideration. Nevertheless this decision was focussed on the single issue of article 8 rights in the context of extradition proceedings. Consistently with section 21 of the Act, section 87 provides: (1) If the judge is required to proceed under this section (by virtue of section 84, 85, or 86) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. (2) If the judge decides the question in subsection (1) in the negative he must order the persons discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited. The legislative structure of the Act clearly envisages that the extradition process should be sequential, and that the question whether the extradition of any individual would be compatible with Convention rights does not arise for consideration until the statutory requirements have otherwise been fulfilled. The procedures envisaged in the Act include an examination of the relevant material sent to the court by the Secretary of State (section 78), and the requirement for the judge to address the question whether there is any bar to extradition (sections 79 83). These include, among other considerations, whether extradition is being sought for the purpose of prosecuting or punishing an individual on the basis of his race, religion, nationality, gender, sexual orientation or political opinions, and whether at any trial in the country seeking extradition he might be prejudiced on these grounds. By section 84 itself, which applies where there has been no conviction, the judge must decide whether there is sufficient evidence to make a case requiring an answer. If, in relation to any of these stages in the process, the application for extradition is flawed, the process comes to an end. It is only when the judge is otherwise satisfied that the statutory requirements justifying extradition are established that the final hurdles remain. One is the compatibility of the extradition with Convention rights, including article 8 (section 87): another is that extradition would be unjust or oppressive because of the physical or mental ill health of the person to be extradited (section 91). Article 8 of the Convention is familiar. It provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others. In Norris it was accepted without reservation, and in accordance with section 87 of the Act, that on occasions in the extradition process article 8 rights may prevail, with the result that what would otherwise be a well founded extradition application would be dismissed. All that acknowledged, the judgments are unequivocal about the importance of giving full weight to the public interest in well founded extradition proceedings: (a) Lord Phillips of Worth Matravers speaking for the Court, made clear at para 56 that these occasions would inevitably be rare: The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. (b) Lord Hope of Craighead, at para 87, observed: Resisting extradition on this ground (respect for family life under article 8) is not easy. He continued by expressly agreeing with the passage from the judgment of Lord Phillips referred to in the previous paragraph: The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it (para 91). (c) Lord Brown of Eaton under Heywood, at para 95, added: It will be only in the rarest cases that article 8 will be capable of being successfully invoked under section 87 of the Extradition Act 2003. (d) Lord Mance, at para 107, stated: Interference with private and family life is a sad, but justified, consequence of many extradition cases. Exceptionally serious aspects or consequences of such interference may however outweigh the force of the public interest in extradition in a particular case. (e) Lord Collins of Mapesbury, at paras 127 and 128, commented: It hardly needs to be said that there is a strong public interest in international co operation for the prevention and punishment of crime. Consequently, the public interest in the implementation of extradition treaties is an extremely important factor in the assessment of proportionality As a result, in cases of extradition, interference with family life may easily be justified under article 8(2) . (f) Lord Kerr of Tonaghmore, at para 136, addressed the exceptionality question: It is entirely possible to recognise that article 8 claims are only likely to overcome the imperative of extradition in the rarest of cases without articulating an exceptionality test. The essential point is that such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any article 8 argument. This merely reflects the expectation of what will happen. It does not erect an exceptionality hurdle. These observations from the Supreme Court speak for themselves. They provide the clearest, authoritative, indication of the approach to be taken to extradition proceedings where article 8 considerations are engaged. What is more, the approach is entirely consistent with the views adopted in the European Court of Human Rights itself. The jurisprudence of the European Court of Human Rights to which reference was made by Lord Phillips (with whose wide ranging judgment every member of the Court agreed) includes a number of decisions of the court where the interests of young children of the individual whose extradition was in contemplation were engaged. In Launder v United Kingdom (1997) 25 EHRR CD67 a complaint of a potential violation of article 8 if the applicant were extradited to Hong Kong was found to be manifestly ill founded. The Commission emphasised that it was only in exceptional circumstances that extradition to face charges of serious criminal offences would constitute an unjustified or disproportionate interference with the right to respect for family life. In King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010 a much more recent case, the defendant was facing serious drug trafficking charges in Australia. His extradition was ordered. He was a husband, father of two children born in 1998 and 2004, and his mother was in poor health. If convicted he faced a very lengthy term of imprisonment. The application was unanimously declared to be inadmissible: Mindful of the importance of extradition arrangements between states in the fight against crime (and in particular crime with an international or cross border dimension), the court considers that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. If the applicant were [eventually] sentenced to imprisonment [in Australia, with the consequent impact on the rest of his family,] his extradition cannot be said to be disproportionate to the legitimate aim served. It is unnecessary to add to the authorities, but the trend has been consistent. (See, for example, Aronica v Germany (Application No 72032/01) (unreported) given 18 April 2002 and Kleuver v Norway (Application No 45837/99) (unreported) given 30 April 2002 another drug trafficking case, in which a baby was separated at birth from his mother). As far as counsel have been able to discover in the European Court itself the article 8 rights of young children whose parents have been involved in extradition proceedings, have never yet prevailed over the public interest considerations involved in their extradition. That, of course, and entirely consistently with the decision in Norris does not mean that they never will, or that they never should, (see R (Gorczowska) v District Court in Torun, Poland [2012] EWHC 378), but it does underline that there is no difference between the approach of this court in Norris and the European Court of Human Rights to the possible impact of article 8 considerations in the context of extradition. Not long after Norris was decided, in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, this court was concerned with the implementation of immigration law in the context of a decision to remove or deport a non citizen parent of two UK citizens, who were born and had lived here throughout their 12 and 9 years. Their article 8 rights were clearly engaged because, if their mother were deported, they would inevitably have to accompany her. In the Supreme Court it was conceded on behalf of the Secretary of State that the decision to remove the mother was incompatible with article 8. Article 8, it was submitted, involved a careful evaluation of all the relevant factors, with no one factor decisive or paramount. Counsel argued that although the best interests of the child were a primary consideration, they were not the primary consideration. The issue of principle was examined in the context of immigration control, and well established principles in the House of Lords in Beoku Betts v Secretary of State for the Home Department [2009] AC 115 and EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159 and the Privy Council decision in Naidike v Attorney General of Trinidad and Tobago [2005] 1 AC 538. The Strasbourg jurisprudence, again in the context of immigration control, was also analysed. Baroness Hale identified two different situations, the first involving long settled alien residents who had committed criminal offences, and the second where an individual was to be removed because he or she had no right to be or remain in. Having described the entitlement of states to control the entry and residence of aliens as the starting point, Baroness Hale concluded that: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. She identified what she described as the countervailing considerations, which, in the particular context of ZH, did not begin to displace the best interests of the children. However the best interests of the children were not the paramount nor even the primary consideration. Lord Kerr spoke of a primacy of importance to be accorded to the best interests of a child, which although not a factor of limitless importance was said to rank higher than any other. They should normally dictate the outcome of cases such as the present. The approach of the European Court of Human Rights to the relationship between immigration control and article 8, like its approach to the relationship between extradition and article 8, is well established. Taken together, Boultif v Switzerland (2001) 33 EHRR 1179 and ner v The Netherlands (2006) 45 EHRR 421, identify no less than ten factors or guiding principles which might arise for consideration in the context of immigration control and article 8. None is given priority over any of the others, and by the same token, none is secondary to any of the others. ZH (Tanzania) was not concerned with and did not address extradition. Neither the decision in Norris, nor the judgment of Lord Phillips, nor those of any other members of the court, nor the decisions relating to extradition from the European Court of Human Rights, nor indeed the structure of the Act itself, were cited or addressed, nor was it suggested that in the context of extradition proceedings the principles identified in Norris were subject to any further amplification or modification. It seems improbable that, without doing so expressly and unequivocally, the Court in ZH (Tanzania) intended to or would have modified the way in which Norris had stated that the article 8 rights of the family of a proposed extraditee should be approached. Stripped to essentials ZH (Tanzania) decided that in the context of immigration control and the entitlement of this country to decide which aliens may reside here, the article 8 rights of a child or children should be treated as a primary consideration against which other relevant factors might countervail, whereas in Norris, in the context of extradition, it was decided that article 8 rights might prevail notwithstanding the immense weight or imperative which attached to the public interest in the extradition of those convicted or suspected of having committed offences abroad. It is of course well understood that the critical question, whether the decision arises for consideration in the context of immigration or extradition, is whether the interference is necessary in a democratic society for the prevention of disorder or crime. Unlike the absolute prohibition against torture in article 3, the right to family life involves a proportionality assessment. In this assessment public interest considerations arising from the control of immigration and the implementation of extradition obligations arise in distinct contexts. Dealing with it briefly, in the immigration process this country is exercising control over the presence of aliens. This is a purely domestic decision made subject to domestic considerations, in the light of domestic legislation, including the Human Rights Act 1998 and the Borders, Citizenship and Immigration Act 2009. An order for deportation may be wholly unconnected to any criminal activity, and even when it is consequent on criminal convictions, it usually follows after not before the appropriate sentence has been imposed and served here. On the occasions when, because of fears of persecution or prosecution abroad, an order is not made, that continues to be a reflection of domestic rather than international processes. As explained in Norris extradition is concerned with international co operation in the prevention and prosecution of crime. The objectives served by the process require international co operation for the prosecution of crimes and the removal of sanctuaries or safe havens for those who have committed or are suspected of having committed criminal offences abroad. The private and family rights of the victims of criminal offences committed abroad will themselves have been damaged by offences like rape and wounding, theft and robbery and child abduction, as well as drug trafficking and fraud. That consideration is absent from the immigration context. Consistently with this analysis, section 55 of the Borders, Citizenship and Immigration Act 2009 made specific provision which imposed an obligation on the Secretary of State to make arrangements to ensure that the welfare of children in the United Kingdom should be safeguarded and promoted in the context of immigration, asylum or nationality processes without identical responsibilities being enacted in the context of the exercise of the extradition process. And, as already noted, to date at any rate, the European Court of Human Rights has treated immigration and extradition as distinct concepts, while in the context of immigration control, enumerating guiding principles of equal importance to the balancing exercise. For these reasons, in my judgment, assuming for the sake of argument that the child or children are in identical family situations, it follows that an extradition order for one or both parents may be appropriate when deportation or removal would not. In other words, because distinct issues are involved, the same facts, involving the same interests of and the same potential or likely damage to the child or children, may produce a different outcome when the court is deciding whether to remove foreign citizens from this country or extraditing convicted or suspected criminals (including citizens of this country) to serve their sentences or stand trial for crimes committed abroad. The impact of ZH (Tanzania) and the valuable submissions made to this court founded on it in the context of the extradition process, is to highlight that Norris has been subject to a deal of misunderstanding. Norris did not decide that the article 8 rights of the family of the proposed extraditee can never prevail unless an exceptionality test is satisfied. What it suggested was that when article 8 rights were properly examined in the extradition context, the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition. This description of the likely results of the extradition process appears to have been adopted as a forensic shorthand for the test. Just because courts fully appreciate that children who are subjected to long term separation from their parent or parents will almost without exception suffer as a result, the application of a stark exceptionality test may, even if unconsciously, diminish the weight to be given to the interests of the children. The prohibited thought processes run along readily identified lines: as separation from their parent or parents inevitably causes damage to virtually every child, what is exceptional about the situation of the children involved in this particular case, and what would be exceptional about the extradition of their parent or parents? Accordingly the decision in ZH (Tanzania) provided a helpful opportunity for the application of Norris to be re evaluated, and the principles identified in the judgments to be better understood. In the end, however, the issue remains proportionality in the particular circumstances in which the extradition decision has to be made when the interests of dependent children are simultaneously engaged. With respect to those who, by reference, by example, to an international Convention like the UN Convention on the Rights of the Child or the Charter of Fundamental Rights of the European Union, or indeed article 8 of the Convention itself, take a different view, it does not seem to me appropriate to prescribe to the judges who deal with extradition cases any specific order in which they should address complex and sometimes conflicting considerations of public policy. Indeed in some cases it may very well be sensible to postpone any detailed assessment of the interests of children until the crime or crimes of which their parents have been convicted or are alleged to have committed, and the basis on which their extradition is sought have all been examined. Self evidently theft by shoplifting of a few items of goods many years earlier raises different questions from those involved in an armed robbery of the same shop or store: possession of a small quantity of Class C drugs for personal use is trivial when set against a major importation of drugs. Equally the article 8 considerations which arise in the context of a child or children while nearly adult with the advantages of integration into a responsible extended family may be less clamorous than those of a small baby of a single mother without any form of family support. Ultimately what is required is a proportionate judicial assessment of sometimes conflicting public interests. Like the sentencing decision following conviction, the extradition process arises in the context of alleged or proved criminal conduct. The sentencing decision is similarly based on statute. By section 142 of the Criminal Justice Act 2003 (the 2003 Act) the court must have regard to a number of wide ranging and sometimes inconsistent specific purposes of sentencing. Thus, they include the punishment of offenders and their rehabilitation. By section 143 the seriousness of the offence must be considered and when it is being determined, the court is required to consider the offenders culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. By section 166 any matters which the sentencing court considers relevant to mitigation may be taken into account. It is at this stage of the sentencing process that, among other matters of mitigation, the interests of the defendants child or children, and any of his or her or their dependants and indeed his or her health, and the health and wellbeing of members of the family usually fall to be considered. Bringing the somewhat complex statutory threads together, unless it is justified by the seriousness of the offence a custodial sentence may not be imposed, and when a custodial sentence is justified, it must be no longer than appropriate in the light of all the aggravating and mitigating features (see section 152(2) and section 153(2)). From this it follows that even if the custody threshold is passed, matters of mitigation may nevertheless result in the imposition of a non custodial sentence: and even if a custodial sentence must be imposed, it may be reduced for the same reasons. However, in accordance with statute and practice, the starting point is not usually the mitigation, whatever form it may take, but the offence and its seriousness. In the end what of course matters, whatever starting point may have been taken, is that all the considerations should have been carefully evaluated and a fair balance struck between them. Long before the enactment of the Human Rights Act 1998, sentencing courts had taken account of the likely impact of a custodial sentence on children dependent on the defendant, not in his or her interests, but in the interests of the children. The history can be traced in the first and second editions of Principles of Sentencing, first published in 1970, and by the date of publication of the second edition in 1979, based on a study by Dr David Thomas of the Institute of Criminology at Cambridge University of many thousands of judgments in sentence appeals, beginning in 1962. Dr Thomas identified what he described as a marked difference in the approach to sentences imposed on mothers with caring responsibilities. There are numerous examples; thus, in Smith (February 1965) the sentence of 18 months imprisonment for cheque book frauds by a deserted mother with four dependent children was varied to a probation order. Some ten years later, in Charles (July 1975) a woman convicted of unlawful wounding, using a pair of scissors to stab her victim, was suspended partly because the defendant was the mother of a number of small children. The continuing responsibility of the sentencing court to consider the interests of children of a criminal defendant was endorsed time without number over the following years. Examples include Franklyn (1981) 3 Cr App R(S) 65, Vaughan (1982) 4 Cr App R(S) 83, Mills [2002] 2 Cr App R (S) 229, and more recently Bishop [2011] EWCA Crim 1446 and, perhaps most recently in Kayani; Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197 where, in the context of child abduction, the court identified a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision. Recent definitive guidelines issued by the Sentencing Council in accordance with the Coroners and Justice Act 2009 are entirely consistent. Thus, in the Assault Guideline, taking effect on 13 June 2011, and again in the Drug Offences Guideline, taking effect on 29 February 2012, among other features the defendants responsibility as the sole or primary carer for a dependant or dependants is expressly included as potential mitigation. The principle therefore is well established, and habitually applied in practice. However it should not obscure the reality that in the overwhelming majority of cases when the criminal is convicted and sentenced for offences which merit a custodial sentence, the innocent members of his family suffer as a result of his crimes. Although custodial sentences are sometimes avoided altogether where the level of seriousness is relatively minor and are sometimes reduced by reference to the needs of dependent children, care must also be taken to ensure that considerations like these do not produce injustice or disparity as between co defendants with different family commitments, or undermine the thrust towards desirable consistency of approach to sentencing decisions on a national basis, a process which began with the issue of sentencing guidelines by the Court of Appeal, Criminal Division, and now given statutory authority by the creation of first, the Sentencing Guidelines Council (by section 167 of the 2003 Act), and now the Sentencing Council itself. Accordingly, while for generations making allowances for the interests of dependent children, and what would now be described and in Bishop were described as their article 8 interests, the need to impose appropriate sentences in accordance with established, and now statutory provisions, is unchanged. As Hughes LJ has recently explained in R v Boakye and others (3 April 2012) The position of children and a defendants family may indeed be relevant, but it will be rare that their interests can prevail against societys plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so. This observation mirrors observations to the same effect in Norris in the context of extradition. The effect of this analysis is to underline that the starting point in the sentencing decision involves an evaluation of the seriousness of the crime or crimes and the criminality of the offender who committed them or participated in their commission and a balanced assessment of the countless variety of aggravating and mitigating features which almost invariably arise in each case. In this context the interests of the children of the offender have for many years commanded principled attention, not for the sake of the offender, but for their own sakes, and the broader interests of society in their welfare, within the context of the overall objectives served by the domestic criminal justice system. Sadly the application of this principle cannot eradicate distressing cases where the interests even of very young children cannot prevail. The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non custodial sentence (including a suspended sentence). F K (FC) v Polish Judicial Authority The facts are fully described in the judgment of Lady Hale. They are stark, and in the present context highlight the combination of circumstances which can fairly be described as borderline. We must proceed on the basis that the appellant fled Poland knowing of the criminal charges she was due to face. The offences were not trivial, but nor were they of the utmost seriousness. The most recent occurred over a decade ago. The prosecuting authorities have been dilatory in the extreme. As far as we can tell, the extradition process began without reference to the new life the appellant and her husband have made for themselves in this country, and in particular the birth to them of two further children, one of whom is very young, and the other who is only just past the toddler stage. Given the interests of the two youngest children in the context of the current long established family arrangements in this country, and not least the uncertain health of their father, it can safely be said that an immediate custodial sentence would not be in contemplation. In agreement with Lady Hale I agree that the damage to the interests of the two youngest children would be wholly disproportionate to the public interest in the extradition of the appellant on the two European Arrest Warrants. R (HH) and R (PH) v Deputy Prosecutor of the Italian Republic Genoa. The facts are fully described in the judgments of Lady Hale and Lord Wilson. They show something of the heavy burden resting on judges responsible for the application of the Act. They are agreed that the appeal of HH should be dismissed. I, too, agree. The effect of this decision is to highlight the desperate plight which will befall the children if the appeal of PH, too is dismissed. This is movingly analysed in the judgment of Lady Hale, and no member of the Court could be unaware of it or fail to give it the full measure of importance which it commands. What, then, is the basis on which the extradition of PH is sought? HH and PH were both engaged in serious professional cross border crime. This involved not one but seven separate expeditions from Morocco across the Mediterranean into Europe for onward distribution from their eventual destination in Genoa. Although PH was not to be treated as an organiser of the enterprise in the sense required for a conviction of this offence in Italy (see the decision of 9 February 2010) in English law he was undoubtedly guilty of conspiracy to import drugs. Whether correctly described in law as a conspirator or not, PH was an active participant and member of a gang of professional criminals, with a crucial role as a trusted member of the gang, trusted to supervise and see to the safe arrival and eventual disposal and distribution of the drugs after they arrived in Italy. He was therefore crucial to the inner workings and success of the enterprise. As to the offences themselves, there was no personal mitigation. At all material times PH was a mature intelligent adult who appreciated exactly what he was doing. Unlike some of those who become involved in drug smuggling he was not under any form of pressure or compulsion, whether arising from fear of the consequences of non participation or motivated by some desperate family need for funds. In short he was no more, and certainly no less than a professional criminal. Making full allowance for the interests of his children and their welfare in the absence of their mother, in England and Wales anything lower than a 10 year sentence would be improbable. On the basis of such a sentence, imposed today he would serve 5 years, with credit given for the time spent in custody on remand before sentence. In the extradition context, but not the sentencing context, there is this further consideration. PH was granted bail in Italy and almost immediately broke his bail conditions and has now made his home in the United Kingdom. In this jurisdiction that would constitute a separate offence, normally dealt with by way of a consecutive sentence. In the extradition context it is sufficient to underline the very strong public policy consideration that professional criminals who break their bail conditions abroad should not be permitted to find a safe haven here. Taken together, I cannot avoid the conclusion that the overwhelming public interest requires the extradition of PH as well as HH, and accordingly that his appeal, like her appeal, should be dismissed. By way of further comment, I should add that I have ignored my misgiving that the youngest child may have been conceived in an endeavour by the parents to improve their position in the criminal justice and extradition processes. Of course that would neither be the fault of nor diminish the article 8 entitlements of the child. Nevertheless it would in my view have had an impact on the proportionality test adverse to the irresponsible parent who treated the conception of a child as a selfish device to evade justice. LORD KERR Should the approach of the courts to article 8 rights be radically different in extradition cases from that in deportation or immigration cases because of the very important obligation of the State to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries as per Silber J in para 55 of his judgment in B v District Courts in Trutnov and Liberec [2011] EWHC 963 (Admin)? There is a principled distinction to be recognised between extradition and expulsion. The latter is performed unilaterally and is designed to protect the states national interest; the former involves compliance with an international obligation and is performed in furtherance of the suppression of transnational crime and the elimination of safe havens. But, just because the interests that require to be protected are different in the two contexts, it does not automatically follow that the approach to an evaluation of article 8 rights has to be different. It is true that the importance of protecting a system of extradition carries greater weight than will (in general terms) arrangements to expel unwanted aliens or the control of immigration. Extradition is, par excellence, a co operative endeavour and it depends for its success on comprehensive (if not always total) compliance by those who participate in the system. As a matter of generality, therefore, it will be more difficult to overcome the imperative for extradition by recourse to article 8 rights than it will be in the field of expulsion and immigration. But that is a reflection of the greater importance of the need to promote the system of extradition rather than a diminution in the inherent value of the article 8 right. The intrinsic value of the right cannot alter according to context; it will merely be more readily defeasible in the extradition context. Although there were some references in Norris (Norris v Government of the United Sates of America (No 2) [2010] UKSC 9, [2010] 2 AC 487) to article 8 considerations arising from separation from dependent relatives, these were, at most, fairly oblique. There was no discussion in ZH (ZH (Tanzania) v Secretary of State for the Home Department) [2011] UKSC 4, [2011] 2 AC 166 about extradition but I agree with Lady Hale that this does not mean that it has nothing to say about how article 8 issues involving children should be approached in the extradition context. As she has pointed out, these cases provide the opportunity to synthesise the reasoning that underlies both Norris and ZH. The debate about whether the interests of the child should be, in article 8 terms, a primary consideration or the primary consideration is a fairly arid one but I have to say that I find the notion that there can be several primary considerations (or even more than one) conceptually difficult. Primary, as an adjective, means occurring or existing first in a sequence or series of events or circumstances (Oxford English Dictionary). Its natural synonyms are main, chief, most important, key, prime, and crucial. I have found the argument about the place that childrens interests should occupy in the hierarchy of the courts consideration of article 8 most persuasively expressed in the Coram Childrens Legal Centre note submitted in the course of this appeal. It is unquestioned that in each of these cases, the childrens article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the childrens rights (by obtaining a clear sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the childrens interests. It also ensures a structured approach to the application of article 8. Lord Wilson says (in para 153) that there is no great logic in suggesting that in answering the question, does A outweigh B, attention must first be given to B rather than to A. At a theoretical level, I do not disagree. But where a childs interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open ended inquiry can be avoided. Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between a factor of primary importance and the factor of primary importance. What I was seeking to say was that, in common with the opinion of the High Court of Australia in Wan (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133), no factor must be given greater weight than the interests of the child. This is what that court said at para 32: Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. (Emphasis added). In the field of extradition, as in every other context, therefore, the importance of the rights of the particular children affected falls to be considered first. This does not impair or reduce the weight that will be accorded to the need to preserve and uphold a comprehensive charter for extradition. That will always be a factor of considerable importance, although, as Lady Hale has said (in para 8(5)), the weight to be attached to it will vary according to the nature and seriousness of the crime or crimes involved and (at para 8(6)), delay in applying for extradition may reduce the weight to be attached to the public interest in maintaining an effective system of extradition. Following the approach that I have outlined, I have no hesitation in expressing my agreement with Lady Hale in her proposed disposal of the appeal in F K v Polish Judicial Authority. As she has pointed out, the offences, although not trivial, do not rank among the most serious in the criminal calendar. There has been substantial delay. The offences are already of considerable vintage. The public interest importance of maintaining a comprehensive system of extradition will not suffer a significant impairment if F Ks surrender to the Polish authorities is not ordered. By contrast, the adverse impact on her family and, particularly its younger members, is likely to be profound and irretrievable. I too would allow the appeal in that case. In the case of PH and HH, the consequences of both parents being extradited have been thoroughly charted by Lady Hale and Lord Wilson and need no further elaboration. The anticipated plight of these innocent children, the momentous upheaval to their lives and the inevitable emotional damage that they will suffer are indeed, as Lord Wilson has put it, heart rending. But pitted against those circumstances are the extremely serious crimes of which both PH and HH were convicted; the nature of their participation in those crimes; and the fact that they have exploited the criminal justice system in Italy in their attempts to avoid punishment. These considerations, allied to the pressing need to preserve an effective system of extradition based on international co operation and the denial of safe havens, create a formidable case in favour of the appellants extradition. Ultimately, as Lord Wilson has said (para 150), the differing conclusions as to the disposal of these appeals rests not on any difference in legal analysis but on a judgment as to where the balance of the competing interests is found to fall. For the reasons given by Lord Judge and Lord Wilson, with which I agree, I have concluded that it must firmly fall in favour of the appellants extradition. I would dismiss their appeals. LORD WILSON In her judgment Lady Hale sets out the facts of the appeals comprehensively; and analyses the law in terms to which, in most respects, I can readily subscribe. But while I agree with her, for the reasons which she gives, that the appeal of Mrs F K should be allowed and that that of Mrs HH should be dismissed, I do not agree with her that the appeal of Mr PH should be allowed. The difference between us represents no difference of legal analysis. It is a difference of value judgement upon the weight to be attached to two powerful and conflicting interests. To be more specific, our sense of proportion in relation to them is different. In accordance with that reached by Laws LJ, and now by Lord Judge, the Lord Chief Justice, with whose judgment I agree, I have reached the conclusion, heart rending in the light of its devastating effect upon his three children, that the order for the extradition of PH to Italy should stand. Section 21 of the 2003 Act provides: (1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the persons extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42). The reference to sections 11 and 20 is a reference to subsections (4) of each of the sections, which relate to warrants prior to, and following, conviction respectively. What section 21(1) adds to the overarching obligation of the court under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with Convention rights is to identify the stage in its sequential consideration of an application for an extradition order under Part 1 of the 2003 Act at which it must turn to that question. It follows that the nature of the offence of which the person stands convicted or accused will already have been considered at an earlier stage or stages, in particular at that of considering pursuant to section 10(2) whether the offence specified in the warrant is an extradition offence. Where it is suggested to the court (or, in the light of its free standing obligation not to act incompatibly with Convention rights, where it appears to the court) that the defendants extradition might infringe the rights of himself and of the other members of his family to respect for their family life under article 8, the requisite inquiry under para 2 of the article is likely to reduce to one issue. There is likely to be no doubt (a) that the extradition would interfere with the exercise of their rights; (b) that, inasmuch as the application for the extradition order will have survived the earlier stages of the inquiry, the interference would be in accordance with the law; and (c) that the aim of the extradition would be one of those specified in para 2, namely the prevention of crime. The issue is likely to be whether the interference is necessary in a democratic society. [The] notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued: Olsson v Sweden (No 1) (1988) 11 EHRR 259. The concept of a pressing social need adds little, if anything, to that of a legitimate aim: in Norris v Government of the United States of America (No 2), [2010] UKSC 9, [2010] 2 AC 487, Lord Phillips, with whose judgment all the other members of the court agreed, equated them (para 10). So the court must survey the individual, or private, features of the case, namely the circumstances of the family on the one hand and of the offence (or alleged offence) on the other and, in the light also of the public interests on both sides to which I will refer in paras 156 and 167, must proceed to assess the proportionality of the interference. Is the right question whether the likely gravity of the interference with respect for family life outweighs the potency of the legitimate aim of the extradition order? Or is it whether the potency of the legitimate aim outweighs the likely gravity of the interference? Such is a question, of significance no doubt much more theoretical than practical, in which, perhaps to its credit, the European Court of Human Rights (the ECtHR) seems not much interested. It stated in Babar Ahmad v UK, (2010) 51 EHRR SE97, at para 172, that it will only be in exceptional circumstances that an applicants private or family life in a contracting state will outweigh the legitimate aim pursued by his or her extradition. As it happens, however, I agree with the submission on behalf of the Coram Childrens Legal Centre, reflective of an observation by Lord Kerr in the Norris case, at para 137, that the structure of article 8, which requires the state to justify interference, is such as to cast the question in the opposite way: does the aim outweigh the interference? In ZH (Tanzania) v Secretary of State for the Home Department, [2011] UKSC 4, [2011] 2 AC 166, Lady Hale said, at para 33: In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. With great respect, I do not consider that Lady Hales second sentence follows logically from her first. Nor do I discern any greater logic in a conclusion that, in answering a question does A outweigh B?, attention must first be given to B rather than to A. In my view a judge is entitled to decide for himself how to approach his task. No doubt in some cases a defendant to an application for an extradition order will invoke the article 8 rights of himself and his family in circumstances in which the judge can swiftly reject the suggested incompatibility. But in others, in particular where the defendant lives in a family with a minor child, of whom he is (or claims to be) the sole or principal carer, a full inquiry is necessary, such as was indeed conducted in the case of PH and HH by the district judge and, on appeal and with the benefit of additional evidence adduced by the Official Solicitor, by Laws LJ. Article 3.1 of the UN Convention on the Rights of the Child dated 20 November 1989 provides that in all actions concerning children. the best interests of the child shall be a primary consideration. Analogously article 24.2 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) dated 7 December 2000 provides that in all actions relating to children. the childs best interests must be a primary consideration. The word concerning in article 3.1, like the phrase relating to in article 24.2, encompasses actions with indirect, as well as direct, effect upon children: the ZH (Tanzania) case, para 26 (Lady Hale). The rights of children under article 8 must be examined through the prism of article 3.1: see paras 21 to 23 of the same case. Thus, in the present inquiry, article 8 affords to the best interests of the three children a substantial weight which, following examination, other factors may earn and even exceed but with which, under the law of the article, they do not start. When we come to consider the other side of the equation, we will notice, at para 167 below, not just the importance that PH should be punished for his wrong doing but the public importance of adhering to arrangements for extradition. So, at this earlier stage, we should notice not just the grave effects of his extradition upon these three children but the public importance that children should grow up well adjusted. The principle which pervades the despatch of issues relating to children in the family courts is that, as a rule, they are more likely to grow up well adjusted if they continue to live in the home of both or at least one of their parents: see, for example, In re KD (A Minor) (Ward: Termination of Access) [1988] 1 AC 806 at p 812 B C (Lord Templeman). I agree with Lady Hales comments on this point at para 25 above. To A commentary on the UN Convention on the Rights of the Child, published by Nijhoff in 2007, Professor Freeman contributed Chapter 3, of which the title was Article 3: The Best Interests of the Child. He wrote, at p 41: There are also utilitarian arguments in favour of prioritizing childrens interests. Thus, it may be thought that giving greater weight to childrens interests maximises the welfare of society as a whole. Barton and Douglas have even argued that children are important for the continuity of order in society. Putting children first is a way of building for the future. It is significant that countries reconstructing after nightmares of rightlessness have put childrens interests in the foreground. I turn to consider the likely arrangements for the children in the event that PH, as well as HH, was to be extradited to Italy. Although there are wider members of the family, to whom I will refer in para 158, who would be likely to continue to have contact with the children, none of them is in a position to offer any of them a home. So the local authority would have to accommodate the children. In para 69 above Lady Hale criticises the authority for not having made plans for them in that event and thus for not having done work with them in preparation for it. But the parents have decided not to explain, even to X, that they might be removed to Italy so no work could have been done with the children until they had been persuaded to reverse that decision. They raise the spectre that, notwithstanding their refusal to consent, Z might be adopted. It is, however, clear to me that, in circumstances in which a loving father was to say that, following the next four years in prison, he wished to resume his care of a child, a court could not properly be satisfied that the childs welfare required it to dispense with his consent pursuant to section 52(1)(b) of the Adoption and Children Act 2002. So the authority would accommodate all three children in foster homes. Under section 22C(7)(b) and (8)(c) of the Children Act 1989 (the 1989 Act) the authority would have a duty to place all three children together so far as was reasonably practicable. My past service in the Family Division emboldens me to predict, with fair confidence, that they would succeed in placing X and Y together but that it might prove not reasonably practicable to place Z with them. The three children have a close relationship with each other and any placement of Z separately from X and Y would be highly unfortunate, perhaps particularly for Z herself. But the local authority would undoubtedly arrange regular contact between the three of them; and it is of some, if limited, comfort that, in the event of the sudden dismantling of their home life, at least the three of them would have a continuing relationship with each other to which to cling. Paragraph 15(1) of Schedule 2 to the 1989 Act would oblige the authority, so far as was reasonably practicable and consistent with their welfare, to endeavour to promote contact not only as between the children themselves, if placed separately, but also between them and their parents and other relatives. It would be nave to consider that more than about one annual visit to PH and HH in prison in Italy would prove practicable. But PHs wide extended family is close knit: both one of his sisters and the wife of one of his sons by his former marriage have, in particular, been visiting the three children on a regular basis and have expressed a wish to continue to do so. Equally HHs mother came from Morocco to help to look after the children for three months in 2011 and might well make further visits to them. Nevertheless, although she acknowledged the value of the likely continuing contact to which I have referred, Dr Pettle expressed in stark and convincing terms the emotional damage likely to be caused to the children by the extradition of PH as well as of HH. It would, she said, be likely to be catastrophic for them; a massive emotional and psychological challenge; overwhelmingly painful; and analogous to a bereavement. She predicted that the carers would need to cope with withdrawal, regression, anger and defiance on the part of the children; that they would sleep and eat poorly; and that the performance of X and Y at school would deteriorate. Although he lacked the benefit of Dr Pettles evidence, the district judge squarely confronted the effect of his order upon the children. He said that it would tear the family apart, would profoundly affect the childrens physical and emotional health and might lead to multiple future problems for them. With the benefit of her evidence, Laws LJ endorsed the district judges conclusions. In relation to Z the Official Solicitor also pressed upon Laws LJ, as he does upon this court, the statement on p 19 of the paper published by the Childrens Commissioner for England in January 2008, entitled Prison Mother and Baby Units do they meet the best interests of the child?, that Attachment between babies and their mothers or primary caregivers starts in the early stages of life and babies become attached by around six months. Severe psychological damage may occur to babies if the bond or attachment with the primary caregiver is severed between the age of six months and four years. Z will not attain the age of four until a year from now; and so the Official Solicitor suggests that consideration of PHs extradition might at least be delayed until next year. It is now clear that the law does not welcome, still less require, an examination of whether the circumstances disclosed by the inquiry under article 8 are exceptional. In the Norris case, cited above, there are helpful observations by Lord Phillips in para 56, by Lord Hope in para 89 and by Lord Mance in para 109, about the snare that, as in many other areas of the law, a test of exceptional circumstances sets: for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional. Take, suggested Lord Mance at para 109, a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby: the circumstances might not be exceptional yet the proper application of article 8 might lead to a refusal to make the order. Lord Kerr observed, at para 136, that the importance of preserving an effective system of extradition . will in almost every circumstance outweigh any article 8 argument but he explained that such was a fact which exemplified the likely result of the inquiry rather than furnished the criterion by which the issue should be resolved. I should add that I am not convinced that, in the eleven appeals to the Divisional Court cited in para 22 of Lady Hales judgment, the judges fell, as suggested, into the error of applying a test of exceptional circumstances. In his judgment in the Norris case Lord Phillips stated in para 56: Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of He added in para 62: interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. If. the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material. He gave an example at para 65: [In] trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditees family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee. No one suggests a need to dilute the strength of these remarks just because in the present appeal, unlike in the Norris case, the rights in play under article 8 are those of children, whose interests are a primary consideration. Nevertheless my view of the evidence in the present appeal supports a conclusion that the consequences of extradition upon the rights of the three children under article 8 would be interference with them of an exceptionally serious character. The importance of PHs extradition might therefore fail to outweigh consequences of such seriousness. But does it? On 23 September 2003 HH and PH drove across the French border into Italy. They were escorting another car, driven by a courier and containing 205.7 kg of hashish. By telephone they instructed the courier to drive to a rendezvous at which he was supposed to deliver the drugs to them for onward distribution to others. But the Italian police were intercepting their calls. When the police were about to arrest him, the courier alerted PH and HH, who, by telephone, acquainted others with what had happened and tried to drive back into France. On their way back, however, they too were arrested, charged and remanded in custody. HH and PH were charged with, and later convicted of, being concerned in the importation of cannabis into Italy from Morocco, through France, not just on 23 September 2003 but also on six earlier occasions. The details of the seven charges were as follows: 350 kg (a) 25 April 2003 94.2 kg (b) 11 June 2003 120 kg (c) 19 July 2003 310 kg (d) 6 August 2003 334.6 kg (e) 29 August 2003 200 kg (f) 13 September 2003 205.7 kg (g) 23 September 2003 Total 1614.5 kg An eighth charge was brought against HH and PH, namely of conspiracy with other persons, of whom four were named, to import cannabis into Italy. They were both also convicted under the eighth charge. But on 28 April 2009 the Court of Cassation in Rome ordered a retrial of that charge in the case of PH; and on 9 February 2010 the Court of Appeal in Genoa held that, unlike in the case of HH, it had not been proved that PH, albeit an active participant, had organised or promoted the trafficking enterprise in the sense necessary for a conviction under the eighth charge. His acquittal in this respect explains the fact that, whereas the time likely to be served by HH in prison in Italy is nine and a half years, that likely to be served by PH, following various adjustments, is four years and 22 days. I should add that the fact that, had he been resident with the family in Italy, a further significant adjustment would have been made in his favour adds yet further piquancy to the case; but it is not for the requested court to pick over the rules of the requesting court which govern the time to be served by the defendant in prison any more than it should appraise the justice of his sentence itself although it must be long enough to qualify as an extradition offence. There is an important extra dimension to the gravity of PHs conduct. Just as in 2004 HH had sought to evade justice by leaving Italy in breach of her conditions of bail, so too, later in 2004, did PH. On 7 October 2004, following a year spent in custody on remand, he was granted bail on condition that he should reside in Genoa and report daily to the police; but three weeks later he left Italy and rejoined HH in Spain. In Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038, Lord Brown, giving the opinion of the appellate committee, said at para 36: The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co operation in this field is ever more important to bring to justice those accused of serious cross border crimes and to ensure that fugitives cannot find safe havens abroad. Rolled up in Lord Browns observations are several overlapping considerations which combine to confer upon the UKs extradition arrangements their profound importance: (a) perpetrators of crimes should be punished; (b) crime is deterred by the likelihood of punishment; (c) cross border crime is increasing; (d) the movement of criminals across borders has become easier; (e) inter state co operation is increasingly necessary in order to combat crime and to bring criminals to justice; (f) states which offer sanctuary to criminals substantially undermine the efforts of the others to eliminate any advantage in remaining in, or indeed escaping to, a jurisdiction other than that of the prosecuting court; and (g) the UK should adhere to its bilateral (or multilateral) treaty obligations and its breaches or perceived breaches may generate a more widespread unravelling of them on both (or all) sides. The especial importance of adherence to arrangements for extradition is written across all the judgments in the Norris case, and one could well argue that it transcends even the importance of immigration control. Of course I accept that an effective system of removal, or deportation, from the UK of a foreign citizen who has had no right, or has forfeited his right, to remain here carries an importance which extends well beyond his particular circumstances; but the destructive effects on societies of crime are far less plainly and directly countered by immigration control than by adherence to arrangements for extradition. There is a dearth of decisions in which an order for extradition has been refused by reference to the rights of the defendant and his family under article 8. There is Ministry of Justice of Lithuania v AI, [2010] EWHC 2299 (Admin): the defendant had served eight months of a sentence of 20 months for fraud prior to her departure, in breach of the conditions of her release, from Lithuania to England, where she was forced into prostitution, suffered serious trauma and was providing valuable assistance to the police, such combination of circumstances being (said Leveson LJ at para 21) truly exceptional and from which nobody should seek to derive any wider principles. There is Jansons v Latvia [2009] EWHC 1845 (Admin): the defendant was accused of thefts to a value of about 450 and would commit suicide if extradited. Now, today in these conjoined proceedings, also arrives the unanimous decision of this court in F K v Polish Judicial Authority: the facts are set out by Lady Hale in paras 35 to 43 above and reveal not only the need of children aged eight and three for the defendants care but also, and in particular, the relative lack of gravity of the offences alleged against her, their antiquity and the delay in the seeking of her extradition. Counsel can find no evidence that article 8 has ever operated so as to bar extradition for an offence approaching the gravity of those of which PH has been convicted, whether in the courts of England and Wales or of any other member state of the Council of Europe or in the European Court of Human Rights itself. No doubt the constituency of defendants who provide the sole or main care to young children is relatively small. But in my view the principal driver behind such absence of authority is the high degree of public importance attached throughout (and no doubt beyond) Europe to the extradition of persons so that they may answer for serious crime. Indeed the Conseil dEtat in France, for example, appears even to take a step further in considering that, as a matter of principle, extradition will justify any interference with rights under article 8: the Norris case, para 50 (Lord Phillips). The effects on family life of a defendants imprisonment in England and Wales following domestic criminal proceedings, on the one hand, and of his imprisonment abroad following extradition there, on the other, are likely to be somewhat different. Visits to him by his family members would more easily be arranged if his prison was in England and Wales although whether, for his children, the positives outweigh the negatives would so I have long considered be an interesting subject for study; and special facilities, such as for a mother to have her baby with her in prison, might be available in England and Wales but not abroad. In my view, however, it remains of substantial relevance to note the extent to which rights under article 8 affect the process of sentencing in domestic criminal proceedings. In para 128 above Lord Judge quotes from para 54 of his own recent judgment on behalf of the Court of Appeal in R v Kayani, R v Solliman [2011] EWCA Crim 2871, [2012] 1 Cr App R 197. But having stressed in the passage which he has set out, the need in every case for careful scrutiny of the plight of children for whom a defendant has primarily been caring, Lord Judge continued, at para 56: Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. There are a number of reported examples of sentences of immediate imprisonment, almost all measured in months, which, even before article 8 acquired the force of law, the Court of Appeal set aside in the interests of children of whom the defendant was the sole or primary carer: see, for example, R v Whitehead [1996] 1 Cr App R(S)111; and now see also R v Bishop cited above. But, on behalf of the Deputy Prosecutor of the Italian Republic, Genoa, Mr Perry made an unchallenged submission that, were PH to have been sentenced in England and Wales for offences of drug trafficking of gravity equivalent to those of which he has been convicted in Italy, he would be likely to have received a very substantial sentence of imprisonment which, in that they would have been outweighed, the rights of his children under article 8 would not have displaced. Indeed Lord Judge predicts, at para 136 above, that the sentence would be likely to have been at least ten years; and there can be no more authoritative prediction than his. In M v The State [2007] ZACC 18 the Constitutional Court of South Africa delivered judgment on the following question, posed by Sachs J at para 1: When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention to the constitutional provision that in all matters concerning children, the childrens interests shall be paramount? Sachs J thereupon offered an analysis of the relevant principles; and with that part of his judgment all the other members of the court agreed. He referred, at para 10, to the classic approach to sentencing, articulated in S v Zinn 1969 (2) SA 537 (A) at 540G H, that what has to be considered is the triad consisting of the crime, the offender and the interests of society. He explained, at para 26, that, when used in s 28(2) of the Constitution, the word paramount does not mean that the interests of the children necessarily dictate the result. He proceeded as follows: 33. Specific and well informed attention will always have to be given to ensuring that the form of punishment imposed is the one that is least damaging to the interests of the children, given the legitimate range of choices in the circumstances available to the sentencing court. 34 In this respect it is important to be mindful that the issue is not whether parents should be allowed to use their children as a pretext for escaping the otherwise just consequences of their own misconduct. This would be a mischaracterisation of the interests at stake. 35. Rather, it is to protect the innocent children as much as is reasonably possible in the circumstances from avoidable harm. 36. (c) If on the Zinn triad approach the appropriate sentence is clearly custodial and the convicted person is a primary caregiver, the court must apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated. (e) Finally, if there is a range of appropriate sentences on the Zinn approach, then the court must use the paramountcy principle concerning the interests of the child as an important guide in deciding which sentence to impose. The judgment of Sachs J draws the interests of children vividly into the foreground and it has led me to reflect again, albeit more profoundly, upon the plight of the three children of PH. It is also important to observe that the exercise mandated by article 8 is not identical to that required by the Constitution of South Africa. For we do not start, as a given, with the legitimate range of choices and then fit the interests of the children into it; under article 8 their interests may, through the proportionality exercise, help to identify the legitimate range. But, in a judgment of especial child sensitivity, the weight which Sachs J nevertheless places upon the public interest in the punishment of serious domestic crime confirms me in my conclusion, firm if bleak, that the public interest, not identical but no less powerful, in the extradition of PH to Italy outweighs the interference with the rights of his children. |
This appeal concerns the correct treatment for income tax purposes of the respondents (Mr Derrys) claim for share loss relief under section 132 of the Income Tax Act 2007 (ITA). The claimed loss arose in this way. On 22 March 2010 (tax year 2009/10) Mr Derry bought 500,000 shares, at a cost of 500,000, in a company called Media Pro Four Ltd. On 4 November 2010 (tax year 2010/11) he sold them to the Island House Private Charitable Trust for 85,500, thereby realising a capital loss of 414,500. In his return for 2009/10, submitted by his accountants on 24 January 2011, he claimed share loss relief for that amount against his income for that year under ITA section 132, with the aim of reducing to that extent his taxable income for that year. The appellant (the Revenue) has identified the claim as a case of possible tax avoidance, but whether that is so is not an issue presently before us. The appeal raises two questions. The first relates to the effect in law of such a claim to set the relief against the income for the previous year (the loss relief issue). The second relates to the effect of the inclusion of such a claim (even if erroneous) within Mr Derrys return for the previous year, in circumstances where the Revenue have failed to institute a timeous enquiry into the return under Taxes Management Act 1970 as amended (TMA) section 9A (the tax return issue). The first is an issue of pure statutory interpretation, depending on the interaction of the certain provisions of the ITA and of the TMA. The second raises issues as to the correct understanding and effect of Mr Derrys return, in the light of the law and practice relating to the self assessment regime, having regard in particular to the guidance given by this court in Revenue and Customs Comrs v Cotter [2013] UKSC 69; [2013] 1 WLR 3514 (Cotter). The procedural background is as follows. In December 2011, Mr Derrys accountants submitted his tax return for 2010/11 online, which (consistently with the position as stated in his 2009/10 return) said of the loss of 414,500: This loss relief has already been claimed and relief obtained in 2009/10. Nothing turns on the detail of this return. The Revenue responded by three steps: i) On 4 January 2012, the Revenue gave notice of their intention to open an enquiry into the claim for share loss relief for 2009/10. This notice was issued under TMA Schedule lA, on the footing that the claim had been made outside of a return by virtue of paragraph 2(3) of Schedule 1B. That enquiry remains open. However, if, as Mr Derry submits, Schedule 1B had no application and the claim was properly made within the return for 2009/10, then (as is common ground) the enquiry under Schedule 1A had no statutory basis. ii) On 16 February 2012, the Revenue gave notice of their intention to open an enquiry under TMA section 9A into the return for 2010/11. The accompanying letter indicated that it would be necessary to look at all the arrangements surrounding the claim, an area of concern being that the claimed losses might have arisen from a marketed scheme of arrangements with the purpose of avoiding tax. That enquiry also remains open. iii) On 21 February 2014, the Revenue issued a demand under TMA section 60 for tax allegedly due for the tax year 2009/10 in the sum of 166,044.26 with interest. On 6 June 2014, this was replaced by a demand for 95,546.36 with interest. On 21 May 2014, Mr Derry began the present judicial review proceedings, which were treated by agreement as relating to the replacement demand of 6 June 2014. He failed on both issues before the Upper Tribunal but succeeded on the second issue before the Court of Appeal (and therefore succeeded overall). The Revenue appeal on that issue with the permission of this court; Mr Derry resists the appeal on that issue but seeks to uphold the decision in any event on Issue 1. The statutory framework The Tax Law Rewrite project As noted above, the relevant provisions are contained in the ITA and the TMA. In considering the interpretation of the ITA it is necessary in my view to have in mind its genesis as part of the Tax Law Rewrite project. The main purpose of that project, as stated in the ITA Explanatory Notes (paras 5 and 7) was to rewrite the income tax legislation that has not so far been rewritten so as to make it clearer and easier to use The Act does not generally change the meaning of the law when rewriting it. The minor changes which it does make are within the remit of the Tax Law Rewrite project and the Parliamentary process for the Act. In the main, such minor changes are intended to clarify existing provisions, make them consistent or bring the law into line with established practice. For a useful description and evaluation of the project, see David Salter The tax law rewrite in the United Kingdom: plus change plus cest la meme chose? [2010] BTR 671. I would also refer to the explanation of the drafting approach for the project, given by Stephen Timms MP, then Financial Secretary to the Treasury, in 2009 in the course of opening the Second Reading Committee debate on the second Corporation Tax Bill: The project now has a well established approach to rewriting legislation, developed with the help of people whom it has consulted over a number of years. It restructures legislation to bring related provisions together and to provide more logical ordering. It also helps users by providing navigational aids, such as signposts, to make relevant parts of the legislation easier to find, and it has introductory provisions to set the scene. It unpacks dense source legislation by using shorter sentences and, where possible, it harmonises definitions. It uses modern language and helps the reader with aids such as formulae, tables and method statements, when appropriate. (Hansard, HC, col 3, Second Reading Committee, Corporation Tax Bill, 2008 2009 (January 15, 2009) (HC General Committee Debates, Session 2008 09) cited by David Salter op cit p 680.) In Eclipse Film Partners (No 35) LLP v Comrs of Her Majestys Revenue and Customs [2013] UKUT 639 (TCC); [2014] STC 1114 Sales J, likened the correct approach to statutory interpretation to that appropriate to a consolidation statute (as explained by the House of Lords in Farrell v Alexander [1977] AC 59): When construing a consolidating statute, which is intended to operate as a coherent code or scheme governing some subject matter, the principal inference as to the intention of Parliament is that it should be construed as a single integrated body of law, without any need for reference back to the same provisions as they appeared in earlier legislative versions. An important part of the objective of a consolidating statute or a project like the Tax Law Rewrite Project is to gather disparate provisions into a single, easily accessible code. That objective would be undermined if, in order to interpret the consolidating legislation, there was a constant need to refer back to the previous disparate provisions and construe them (para 97) I would respectfully endorse this guidance, which should be read with Lady Ardens comments (paras 84 90) on the relevance of prior case law. At the same time I would emphasise that the task should be approached from the standpoint that the resulting statutes are intended to be relatively easy to use, not just by professionals but also by the reasonably informed taxpayer, and that the signposts are there for a purpose, in particular to give clear pointers to each stage of the taxpayers journey to fiscal enlightenment. Income Tax Act 2007 The ITA clearly reflects these principles (as will be readily apparent from a comparison with its immediate predecessor, the Income and Corporation Taxes Act 1988 ICTA 1988). It starts in section 2 with an Overview of the Act, designed to give specific guidance as to what follows. Thus, the reader is told that the Act has 17 Parts, the effect of each of which is then summarised with references to the corresponding chapters. Relevant in the present context are Part 2, which contains basic provisions about income tax, including (a) provision about the annual nature of income tax (Chapter 1) and (c) the calculation of income tax liability (Chapter 3); and Part 4 which is about loss relief including relief for (d) losses on disposal of shares (Chapter 6) . In Part 2, section 4 establishes income tax as an annual tax, charged for a tax year running from 6 April to 5 April in the following year. Chapter 3, headed Calculation of Income Tax Liability provides in section 23 a step by step guide to the process: 23. The calculation of income tax liability To find the liability of a person (the taxpayer) to income tax for a tax year, take the following steps. Step 1 Identify the amounts of income on which the taxpayer is charged to income tax for the tax year. The sum of those amounts is total income. Each of those amounts is a component of total income. Step 2 Deduct from the components the amount of any relief under a provision listed in relation to the taxpayer in section 24 to which the taxpayer is entitled for the tax year. See sections 24A and 25 for further provision about the deduction of those reliefs. The sum of the amounts of the components left after this step is net income. Steps 3 to 7 (not relevant to the present dispute) set out further steps in the calculation process, leading to the conclusion: The result is the taxpayers liability to income tax for the tax year. As Henderson LJ noted (para 50) the introduction of the statutory concept of net income under Step 2 was an innovation, bringing about (in his words): a welcome degree of precision and clarity in place of the previous non statutory concept of net statutory income representing total income less allowable deductions. In the present case Step 2 would have pointed a taxpayer in Mr Derrys position to sections 24 and 25 for guidance on the reliefs there mentioned, including (under section 24(1)(a)) Chapter 6 of Part 4 (share loss relief). Section 25(2) would have told him to deduct such reliefs in the way which will result in the greatest reduction in his tax liability. Moving on, as directed, to Part 4 (Loss relief), he would have found in section 59 an Overview of that Part, including a reference to losses on a disposal of certain shares (see Chapter 6) (section 59(1)(d)); and (in case he had forgotten) reminding him that this Part needs to be read with Chapter 3 of Part 2 (calculation of income tax liability) (section 59(2)). Section 131 is the first of a group of sections under Chapter 6, dealing with Share loss relief against general income. An individual is eligible for share loss relief if he incurs an allowable loss for capital gains tax purposes on the disposal of any qualifying shares in any tax year, defined as the year of the loss. Qualifying shares include shares in a qualifying trading company, the conditions for which are set out in sections 134 to 143. Section 132 provides: Entitlement to claim (1) An individual who is eligible for share loss relief may make a claim for the loss to be deducted in calculating the individuals net income (a) (b) (c) for the year of the loss, for the previous tax year, or for both tax years. (See Step 2 of the calculation in section 23.) If the claim is made in relation to both tax years, the (2) claim must specify the year for which a deduction is to be made first. (3) Otherwise the claim must specify either the year of the loss or the previous tax year. (4) The claim must be made on or before the first anniversary of the normal self assessment filing date for the year of the loss. Notable here again is the specific reference back to Step 2 in the calculation of liability under section 23. Section 133 (headed How the relief works) provides: (1) This subsection explains how the deductions are to be made. Step 1 Deduct the loss in calculating the individuals net income for the specified tax year The reference to net income again takes the reader back to section 23 where that concept is defined. At this point, in relation to the first issue, I note Ms McCarthy QCs submission, for Mr Derry, that the provisions of the ITA so far considered give clear and conclusive guidance as to the treatment of his claim to share loss relief for the purposes of assessing his liability for the tax year 2009/10, which is not overridden by anything elsewhere in the ITA or in the TMA. On the other side, for the Revenue Mr Nawbatt QC submits that this is only part of the story. He refers to ITA section 1020(2) which, as he says, would have pointed the taxpayer in the direction of TMA in these terms: For further information about claims and elections, see TMA 1970 (in particular section 42(2), (10) and (11) and Schedule 1A). Although there is no specific reference to TMA Schedule 1B, that as he submits is to be taken as encompassed in the general reference to the TMA itself. He also relies by way of analogy on more specific references to the TMA in other chapters of Part 4. They are in Chapter 2 (Trade losses) and Chapter 5 (Employment loss relief). The legislative pattern in each case is very similar to the provisions relating to share loss relief, but in each case, there appear (respectively in section 60(2) and section 128(7)) the following words: This Chapter is subject to paragraph 2 of Schedule 1B to TMA 1970 (claims for loss relief involving two or more years). There is no equivalent reservation in the sections relating to share loss relief. However, Mr Nawbatt submits that the analogy indicates the appropriate relationship between the loss relief provisions and the TMA; and that, even without such a specific reference, section 1020 is sufficient to point the taxpayer in that direction; or alternatively that the terms of Schedule 1B are sufficiently clear in themselves to make such a signpost unnecessary. The TMA, as its title implies, is concerned principally with the management of the tax rather than fixing liability. Although it dates back to 1970, it has been subject to substantial amendment since then, in particular in connection with the introduction of self assessment (under the Finance Act 1994) with effect from the year 1996 1997. The following provisions are those in force in the relevant tax year, that is 2009/10. I refer first to those relating to tax returns and self assessment, which are relevant principally to the second issue. Section 8(1) empowers an officer of HMRC to give a notice requiring a person chargeable to income tax and capital gains tax for a year of assessment to make and deliver, on or before the date specified in subsection (1A), a return containing the information required by the notice, supported by such accounts and other relevant material as may reasonably be so required. The date so specified (for present purposes) is 31 January next following the year of assessment. By subsection (1AA)(a): the amounts in which a person is chargeable to income tax and capital gains tax are net amounts, that is to say, amounts which take into account any relief or allowance a claim for which is included in the return; By subsection (1AA)(b) the amount payable by way of income tax is the difference between the chargeable amount and the aggregate amount of any income tax deducted at source and certain tax credits. Subsection (1H) requires the Commissioners to prescribe what constitutes an electronic return. (See also section 113 which provides generally for any returns to be in such form as the Board prescribe.) Section 9(1) provides that, subject to immaterial exceptions, every return under section 8: shall include a self assessment, that is to say (a) an assessment of the amounts in which, on the basis of the information contained in the return and taking into account any relief or allowance a claim for which is included in the return, the person making the return is chargeable to income tax and capital gains tax for the year of assessment; and (b) way of income tax an assessment of the amount payable by him by Section 9A enables an officer of the Board to give notice of his intention to enquire into a return under section 8 within the time allowed, that is 12 months from the date of delivery for returns delivered on or before the date specified in the previous section. By subsection (4)(a), an enquiry may extend to anything contained (or required to be contained) in the return, including any claim included in the return. Returning to the first (loss relief) issue, section 42 (headed Procedure for making claims etc) provides: (1) Where any provision of the Taxes Acts provides for relief to be given, or any other thing to be done, on the making of a claim, this section shall, unless otherwise provided, have effect in relation to the claim. (2) where notice has been given under section 8 of this Act, a claim shall not at any time be made otherwise than by being included in a return under that section if it could, at that or any subsequent time, be made by being so included. (11) Schedule 1A to this Act shall apply as respects any claim or election which is made otherwise than by being included in a (a) return under section 8 of this Act, (11A) Schedule 1B to this Act shall have effect as respects certain claims for relief involving two or more years of assessment. Thus subsections (11) and (11A) take the reader on to Schedules 1A and 1B. The latter is most directly relevant to the first issue. Schedule 1A (headed Claims etc not included in returns) provides for any such claim to be made in such form as the Board may determine (paragraph 2(3)), and provides power to enquire into the claim within a specified period (paragraph 5). The Board is required to give effect to a claim as soon as practicable by discharge or repayment of tax (paragraph 4(1)), save that, if an enquiry has been opened into the claim, this obligation is postponed until the enquiry is completed, subject to power before then to give effect to all or part of the claim on a provisional basis (paragraph 4(3)). Schedule 1B (headed Claims for relief involving two or more years) provides in paragraph 2 (headed Loss relief): (1) This paragraph applies where a person makes a claim requiring relief for a loss incurred or treated as incurred, or a payment made, in one year of assessment (the later year) to be given in an earlier year of assessment (the earlier year). (2) Section 42(2) of this Act shall not apply in relation to the claim. (3) The claim shall relate to the later year. (4) Subject to sub paragraph (5) below, the claim shall be for an amount equal to the difference between the amount in which the person is chargeable to (a) tax for the earlier year (amount A); and (b) the amount in which he would be so chargeable on the assumption that effect could be, and were, given to the claim in relation to that year (amount B). (6) Effect shall be given to the claim in relation to the later year, whether by repayment or set off, or otherwise. The loss relief issue The issue in short is whether, having exercised his right (under section 132) to claim the relevant loss relief in the previous year (2009/10), Mr Derry was correct to deduct that loss in calculating his net income and consequent tax liability for that year (under section 23); or whether, as the Revenue contend, that right was in effect overridden by TMA Schedule 1B, with the result that the loss, though claimed in year 2009/10, was to be treated as relating to the following year. The decisions below Both the Upper Tribunal and Court of Appeal decided this issue in favour of the Revenue. It is not possible to do justice to their reasoning without relatively full reference to the leading judgment of Henderson LJ in the Court of Appeal (agreed by the other members of the court), which in turn refers with general approval to that of Morgan J in the Upper Tribunal. It also provides a useful summary of the respective contentions of the parties, which have been substantially repeated in this court. Having set out the relevant provisions of the TMA, Henderson LJ observed (paras 26 28) that the terms of paragraph 2 of Schedule 1B, read in isolation, were apt to apply to a claim for loss relief under section 131, and as such would have the same consequences as explained (in respect of employment loss relief) by Lord Hodge in Cotter. He identified the critical issue as being whether the omission from Chapter 6 of a provision equivalent to section 60(2) or section 128(7) reflects a legislative intention that Schedule 1B should not apply to Chapter 6, even though (as I have already pointed out) the language of paragraph 2 of Schedule 1B would be entirely apt to apply to Chapter 6 in the same way as it applies to Chapters 2 and 5. (para 35) He recorded (paras 37ff) that Morgan J had begun by observing that TMA section 42 applied unless otherwise provided and asking whether there was anything to disapply the section in respect of Mr Derrys claim under section 132. He had answered that question in the negative, noting also that neither side had put forward any persuasive reason for the difference of treatment between claims under Chapters 2 and 5 as compared to Chapter 6. He had described the specific references in the former to Schedule 1B as signposts; but he did not regard the lack of a similar signpost in Chapter 6 as clear enough to be otherwise provided for the purposes of section 42(1). He had also concluded that there was no inconsistency between the detailed provisions of sections 132 and 133 of ITA 2007, taken together with the operation of section 23 and paragraph 2 of Schedule 1B. Henderson LJ regarded this observation as clearly correct, adding that it (was) not challenged by Mr Derry. (The latter understanding appears to have been mistaken, having regard to an extract we were shown by Ms McCarthy from Mr Derrys Replacement Skeleton Argument in the Court of Appeal.) Morgan J had also considered and rejected an argument for Mr Derry based on the reference in section 42(11A) to its application only to certain claims. Again, Henderson LJ agreed commenting: The structure of Schedule 1B is that it applies to certain specified claims for relief involving two or more years. The provisions relating to loss relief are contained in paragraph 2. The remaining paragraphs deal with entirely separate claims, for example relief for fluctuating profits of farming etc in paragraph 3, and the carry back of post cessation receipts in paragraph 5. It is therefore entirely natural for the provision in the body of TMA 1970 which gives effect to Schedule 1B to say that it shall have effect as respects certain claims for relief involving two or more years of assessment, that is to say the various claims for relief which are dealt with in the Schedule. Much clearer language would in my judgment have been needed if Parliament had intended to stipulate that the provisions contained in Schedule 1B were to apply only to claims expressly identified elsewhere in the Taxes Acts as ones to which Schedule 1B applied. Another way of making the same point is to say that the subject matter of Schedule 1B is to be ascertained by looking at its provisions, which are given effect (but not circumscribed) by section 42(11A). (para 42) Turning to the submissions in the Court of Appeal, he noted Ms McCarthys reliance on Lord Dunedins well known enumeration of the three stages in the imposition of a tax that is, declaration of liability, assessment, and methods of recovery (Whitney v Inland Revenue Comrs [1926] AC 37, 52). The first (in Lord Dunedins words) was the part of the statute which determines what persons in respect of what property are liable. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. She submitted that Mr Derrys liability was fixed by the provisions of Chapter 6 and could not be overridden by provisions relating to the assessment stage, other than by clear words as found in Chapters 2 and 5 of ITA Part 4. Henderson LJ disagreed (para 49). Lord Dunedins classic statement was of little assistance in respect of the present UK tax system which is vastly more complex than it was a century ago: one cannot always expect today to find that provisions relating to the imposition and calculation of liability are unaffected by provisions relating to the machinery of assessment. The language of Schedule 1B paragraph 2 was clearly apt to cover Mr Derrys claim, and the absence of an express signpost in Chapter 6 was not a sufficiently strong counter indication. He also rejected (para 50) an argument that sections 132 133 constituted a more specific statutory regime, enacted later than Schedule 1B, and should therefore take precedence. Finally, he agreed with the Upper Tribunal that there was nothing in the legislative history which cast useful light on the question (paras 51 52). He noted Ms McCarthys submission that the inclusion of signposts in respect of trade loss relief and employment loss relief may have been connected with the treatment of the predecessor provision (section 380 of ICTA 1988) by the Court of Appeal in Blackburn v Keeling [2003] EWCA Civ 1221. But the reason for the absence in sections 132 133 of a similar cross reference remained obscure; the possibility that it was simply an oversight certainly cannot be excluded. Comment on Issue 1 With respect to the carefully developed reasoning of the judges below, they seem to me not only to have paid too little regard to the legislative purpose and scheme of the ITA, but also to have started from the wrong point. It is notable that the introductory paragraphs of Henderson LJs judgment make only passing reference to the opening sections of the ITA discussed above, and in particular to section 23, by which (on its face) Mr Derrys liability for the relevant tax year 2009/10 was fixed. Instead, his reasoning on this part of the case starts from the proposition that the words of TMA Schedule 1B paragraph 2 read in isolation are apt to cover Mr Derrys claim, and only then refers to the governing provisions of the ITA, asking whether the omission of a specific signpost in ITA Chapter 6 reflects a legislative intention that it should not apply (paras 26, 35). While it may be true, as Henderson LJ said, that modern tax legislation in general is much more complex than at the time of Lord Dunedins classic statement, the purpose of the tax law rewrite was to restore a measure of simplicity and coherence to the principal tax statutes. In any event, one does not need high judicial authority to make the obvious point that the first step in the imposition of a tax is to establish (in Lord Dunedins words) what persons in respect of what property are liable. Taken together section 23 and sections 131 132 appear to constitute a clear and self contained code for the treatment of a claim to share loss relief such as that of Mr Derry. Sections 132 133 in terms give him an entitlement to make the claim, to specify the tax year to which it is to be applied, and to do so by deducting it in the calculation of his net income for the purpose of section 23. For good measure section 132(1) provides a specific signpost to Step 2 in section 23. That section in turn makes clear that the result of that, and the other steps there set out, is his tax liability for the tax year in question. Having taken such care to walk the taxpayer through the process of giving effect to his entitlement as part of his tax liability for the year specified by him, it would seem extraordinary for that to be taken away, without any direct reference or signpost, by a provision in a relatively obscure Schedule of another statute concerned principally, not with liability, but with management of the tax. Section 1020 makes no specific reference to Schedule 1B, and in any event refers only to information in general terms, rather than anything likely to affect the substance of liability. By contrast sections 60(2) and 128(7) are more than mere signposts, as the judges below characterised them. The words subject to are substantive in effect, imposing a qualification on the right otherwise conferred by those provisions. Applying ordinary principles of interpretation, the absence of similar words in section 132 would naturally be taken as indicating that this right is not subject to the same qualification. Turning to the TMA, it is true that words of Schedule 1B taken on their own would be apt to apply to a claim under sections 132 133. However, I do not regard that as enough to displace the clear provisions of the ITA in respect of liability. I do not see this as turning so much on whether one set of provisions is more specific than the other, but rather on the fact that the ITA is in principle the governing statute in respect of tax liability, and as such should take precedence in the absence of any indication to the contrary. Further, unlike the judges below, I see a significant inconsistency between the two sets of provisions: the first gives the taxpayer an unqualified right to claim a deduction in the previous year; the second in effect removes that right by treating it as relating to the current year. I also see force in Ms McCarthys reliance on the reference in section 42(11A) to certain claims for relief involving two or more years. As she says, this may be read as implying that not all such claims are covered, and that one needs to look elsewhere to identify which. (I do not forget that in Cotter para 14, Lord Hodge proceeded on the basis that section 42(11A) had the same effect in respect of employment loss relief as the specific provision in section 128(7), but the point was not in issue and does not seem to have been subject to argument.) The only countervailing consideration, to my mind, is the lack of any obvious explanation, in the statutory history or otherwise, of the different treatment of this form of loss relief. In a post hearing note Mr Nawbatt gave a detailed account of the treatment of the various forms of loss relief under the previous legislation. This shows, as is common ground, that the pre 2007 law did not draw any material distinction between share loss relief (section 574 ICTA 1988), and trade and employment loss relief (section 380 ICTA 1988). Mr Nawbatt was also able to point to some indications in the ITA Explanatory Notes (eg in respect of section 1025, which is not directly relevant to the present case) that the authors of the notes may have assumed that share loss relief would be subject to TMA Schedule 1B, in the same way as the other forms of relief. However, taken at their highest, these indications are far from providing a basis for departing from the ordinary principles of statutory interpretation, absent any suggestion that they produce a result which is absurd or unworkable. Indeed, for the taxpayers liability to be determined by reference to legal archaeology of this kind would negate the whole purpose of the tax law rewrite. It is neither necessary nor appropriate for the court to speculate as to Parliaments intentions to justify a departure from the natural interpretation of the statutory language. For these reasons, in respectful disagreement with the Upper Tribunal and the Court of Appeal, I would hold that Mr Derry was entitled to make his claim to share loss relief in the year 2009/10. The tax return issue The view I have reached on the first issue makes it strictly unnecessary to reach a conclusion on the second issue. So much was conceded by Mr Nawbatt for the Revenue in response to a question from the court early in the hearing but see para 65 below. Consistently with that concession, if (as I have decided) Mr Derry succeeds on Issue 1, then the claim properly formed part of Mr Derrys return for the year 2009/10, and that it could only be challenged by a notice served within time under TMA section 9A. However, the second issue is of some difficulty and of general importance. It may be helpful therefore for us to express some views on the respective submissions. This issue has to be approached on the assumption that Mr Derry was wrong on the first issue, and that the inclusion of the loss relief claim in the assessment of his liability for 2009/10 was in error. Before further considering this issue, it is necessary to refer in more detail to the factual background. The sequence of events On 24 January 2011 Mr Derrys accountants filed his 2009/10 self assessment tax return (the 2010 return). The Additional Information pages (Ai3 and Ai4) were completed as follows. In Boxes 3 and 4 (headed Trading Losses) he put 414,500.00 as the amount for which he was claiming relief, and 2009/10 as the tax year for which it was claimed. Box 19 (which was a blank space for additional information) contained the following entry: Box 3 of page Ai3 shows capital losses realised on disposal of subscriber shares in an unlisted trading company in year ended 5 April 2011. These losses have been carried back to year ended 5 April 2010 and relief claimed under section 131, section 132 ITA 2007. He also calculated his own tax and completed the tax calculation summary pages (pages TC1 and 2) in the 2009 10 return as follows. On page TCl (headed self assessment), in Box 1 (total tax due before any payments on account), the figure of 95,546.36 appeared automatically as a result of entries made elsewhere on the form. Page TC2 (headed adjustments to tax due) stated You may need to make an adjustment to increase or decrease your tax for 2009 10 because you are . carrying back to 2009 10 certain losses from 2010 11 . In Box 15 (Any 2010/11 repayment you are claiming now) Mr Derry inserted the figure of 165,800; and in Box 16 (Any other information) the words: The reduction in tax payable in Box 15 of page TC2 relates to the loss carry back claim arising from the carry back of losses of GBP 414,500 as set out on page Ai3. The corresponding reduction in tax payable in the year ended 5 April 2010 following this loss carry back claim is GBP 165, 800 being GBP 414,500 at 40%. Mr Derry had already suffered tax deducted at source of 102,233.64 on his income for 2009/10 (made up principally of employment income of 497,120). What followed was described by Henderson LJ: 10. the effect of his claim for loss relief carried back from 2010/11 was to generate a significant repayment of tax due to him. This was quantified in his personal tax computation, generated by the 2010 Return, as a refund due to him of 70,253.64. 11. On 18 October 2011, HMRC repaid a sum of 70,487.90 to Mr Derry. It is unclear why HMRC refunded this slightly higher amount, but the payment was clearly intended to include the amount claimed by Mr Derry, albeit HMRC now say that the payment was made in error because full checks had yet to be completed in relation to the loss relief claim. The legal effect of these entries is a matter of dispute. In the first place the Revenue do not accept that the personal tax computation is properly to be characterised as generated by the 2010 Return (in Henderson LJs words). They accept that Mr Derry self assessed his own tax liability for 2009/10, but their position is that his self assessed liability was in the sum of (plus) 95,546.36, given in Box 1 on page TC1, not the figure after taking account of loss relief. The reference to the loss relief claim was to be treated as additional information in respect of a free standing credit or FSC (a non statutory term: see Upper Tribunal para 61), but not as directly relevant to his liability for the year 2009/10. The judgments below On this issue there was a difference between the Upper Tribunal and the Court of Appeal. Morgan J agreed with the Revenues interpretation: I consider that the tax return should be construed against the background of the relevant legal provisions. Under Chapter 6 of Part 4 of ITA, Mr Derry is able to make a claim in relation to such capital losses against the income in the year 2010 2011 and also the year 2009 2010 but such a claim relates to the year 2010 2011 and does not reduce the tax payable for the year 2009 2010. Against that background, I consider that the presence of the claim for capital losses does not displace the clear assessment to tax in the sum of 95,546.36. (UT para 52) Henderson LJ disagreed with this reasoning (CA para 60). It failed to recognise the distinction between the claim itself, which could only be given effect in 2010/11, and the self assessment which Mr Derry performed, albeit on an erroneous basis, for 2009/10; and also failed to give effect to the adjustment made and explained in Boxes 15 and 16 on page TC2. Further it was inconsistent with parts of Lord Hodges reasoning in Cotter. He also rejected as an impossible contention the submission for HMRC that the entry in Box 15 should not be construed as forming part of the calculation of liability to tax for 2009/10: The purpose of the tax calculation is to calculate the tax due for the year of assessment. The rubric above boxes 13 to 15 refers to the need to make an adjustment to increase or decrease your tax for 2009 10, because of claims (inter alia) to carry back to 2009/10 certain losses from 2010/11. In this context, although the wording of Box 15 itself (Any 2010 11 repayment you are claiming now) is on any view rather imprecise, it can only sensibly be understood as referring to a carry back of losses from 2010/11 in reduction of the tax actually due for 2009/10. This is what Mr Derry purported to do, and this was the basis on which he calculated the repayment of tax due to him (para 63) Cotter At this stage it is necessary to refer in more detail to the leading judgment of Lord Hodge in Cotter itself. Mr Cotter had claimed to carry back to the previous year (2007/08) loss relief allegedly sustained in 2008/09. He had originally submitted his return for 2007/08 without a claim for loss relief and had left it to the Revenue to calculate the tax due. That had led to a calculation of his tax liability for the year based on the return as it then stood. He later entered into a tax avoidance scheme intended to eliminate that liability, for which purpose his accountants submitted a provisional 2007/08 loss relief claim and proposed amendments to his 2007/08 self assessment form relying on his loss relief claim. The Revenue opened an enquiry into the claim under Schedule 1A, and in the meantime refused to give effect to the claim. In due course they instituted county court proceedings for the tax due. In his defence Mr Cotter challenged the jurisdiction of the court, on the grounds that he had made an effective claim for relief in his tax return for 2007/08 which could only be challenged by an enquiry under section 9A, and in relation to which the First tier Tribunal had exclusive jurisdiction. The proceedings were transferred on this issue to the Chancery Division of the High Court, which rejected his defence. Although his appeal to the Court of Appeal was successful, their decision was reversed by the Supreme Court (the single judgment being given by Lord Hodge). It was held that by virtue of Schedule 1B his claim, though referred to in his amended 2007/08 tax return, must be treated as relating to the following tax year, and not therefore as part of the return in the relevant sense, that being limited to the information required to establish his liability for the year in question. More directly relevant to the present case, however, is a passage in Lord Hodges judgment commenting (obiter) on the position if Mr Cotter had made the calculation of liability himself, rather than leaving it to HMRC to do so. In order to set this passage in the context of Lord Hodges discussion of the interaction of the relevant provisions and the tax return form, it is appropriate to quote the relevant paragraphs in full: 24. Where, as in this case, the taxpayer has included information in his tax return but has left it to the revenue to calculate the tax which he is due to pay, I think that the revenue is entitled to treat as irrelevant to that calculation information and claims, which clearly do not as a matter of law affect the tax chargeable and payable in the relevant year of assessment. It is clear from section 8(1) and 8(1AA) of the 1970 Act that the purpose of a tax return is to establish the amounts of income tax and capital gains tax chargeable for a year of assessment and the amount of income tax payable for that year. The revenues calculation of the tax due is made on behalf of the taxpayer and is treated as the taxpayers self assessment: section 9(3)(3A) of the 1970 Act 25. The tax return form contains other requests, such as information about student loan repayments (page TR2), the transfer of the unused part of a taxpayers blind persons allowance (page TR3) or claims for losses in the following tax year (Box 3 on page Ai3) which do not affect the income tax chargeable in the tax year which the return form addresses. The word return may have a wider meaning in other contexts within the 1970 Act. But, in my view, in the context of sections 8(1), 9, 9A and 42(11)(a) of the 1970 Act, a return refers to the information in the tax return form which is submitted for the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for the relevant year of assessment and the amount payable by him by way of income tax for that year: section 8(1) [of] the 1970 Act, as substituted firstly by section 178(1) of the Finance Act 1994 and then further amended by section 121(1) of the Finance Act 1996 and by section 114 of and Schedule 27 to the Finance Act 2007. 26. In this case, the figures in Box 14 on page CG1 and in Box 3 on page Ai3 were supplemented by the explanations which Mr Cotter gave of his claim in the boxes requesting any other information and additional information in the tax return. Those explanations alerted the revenue to the nature of the claim for relief. It concluded, correctly, that the claim under section 128 of the 2007 Act in respect of losses incurred in 2008/2009 did not alter the tax chargeable or payable in relation to 2007/2008. The revenue was accordingly entitled and indeed obliged to use Schedule 1A of the 1970 Act as the vehicle for its enquiry into the claim: section 42(11)(a). 27. Matters would have been different if the taxpayer had calculated his liability to income and capital gains tax by requesting and completing the tax calculation summary pages of the tax return. In such circumstances the revenue would have his assessment that, as a result of the claim, specific sums or no sums were due as the tax chargeable and payable for 2007/2008. Such information and self assessment would in my view fall within a return under section 9A of the 1970 Act as it would be the taxpayers assessment of his liability in respect of the relevant tax year. The revenue could not go behind the taxpayers self assessment without either amending the tax return (section 9ZB of the 1970 Act ) or instituting an enquiry under section 9A of the 1970 Act. It follows that a taxpayer may be able to delay the 28. payment of tax by claims which turn out to be unfounded if he completes the assessment by calculating the tax which he is due to pay. Accordingly, the revenues interpretation of the expression return may not save it from tax avoidance schemes. But what persuades me that the revenue is right in its interpretation of return is that income tax is an annual tax and that disputes about matters which are not relevant to a taxpayers liability in a particular year should not postpone the finality of that years assessment. While recognising that the last two paragraphs were not binding, Henderson LJ regarded them as following logically from Lord Hodges earlier analysis. He saw a clear distinction between the inclusion in the return of information which is irrelevant in law to the taxpayers liability for that year (even if included by implicit invitation of the Revenue), and the taxpayers self assessment of the tax which he is due to pay: a taxpayers self assessment is a different matter. Plainly, errors of many different kinds may be made in such an assessment, and they may include errors about the availability of a relief. If the Revenue is dissatisfied with the taxpayers self assessment, its remedy is either to amend the return or to open an enquiry into it under section 9A of TMA 1970. , such an enquiry may extend to anything contained (or required to be contained) in the return. The boxes on page TC2 for adjustments to tax due must in my view be regarded as containing information required to be contained in the return, where the taxpayer elects to perform his own self assessment, because such adjustments form an integral part of the calculation of the tax due to be paid by him for the year in accordance with sections 23 and 24 of ITA 2007. It follows that the information contained in those boxes cannot be regarded as extraneous to the return. As I understand it, this is the essential point which Lord Hodge was making in Cotter at para 27, and if I may respectfully say so, I agree with it. (para 57) The Revenues difficulty in the present case arose simply from their failure to take the obvious step of opening an enquiry into the 2010 return within the statutory time limit. The submissions in the appeal Ms McCarthy generally supported the reasoning of the Court of Appeal on this issue, and relied in particular on Lord Hodges observations in paras 27 28 as directly applicable to Mr Derrys claim. For the Revenue, Mr Nawbatt submitted that the obiter observations in Cotter cannot be taken as suggesting that reliefs may be forced into year 1 where they do not in law relate to year 1. Lord Hodges observations should not be taken as intended to create a situation where a taxpayer can erroneously (or perhaps deliberately) make a claim as part of his self assessment exercise and expect to benefit from the error unless noticed and acted upon by the Revenue. The Court of Appeals reasoning in the present case, he submitted, turned on a misunderstanding of the correct meaning of self assessment, which relates solely to the action required to establish the amounts in which a person is chargeable to tax for the year, as reflected in the total tax figure given in the self assessment Box. It is wrong to regard other parts of the Tax Calculation Summary pages as part of that exercise if, as explained in Cotter (para 25) they do not affect the assessment of income tax chargeable for the year. Mr Deans evidence At this point I should refer to the witness statement of Mr Graham Dean, a Senior Investigator with the Revenue, which was admitted before the Upper Tribunal and referred to by Morgan J on other matters (see UT paras 47, 59ff). Mr Deans evidence was not mentioned by the Court of Appeal. Nor was it included in the original papers for this court or referred to in the written submissions; it was only produced at the request of the court. He speaks with experience as an Inspector of Taxes for more than 25 years, and particular experience of leading investigations into share loss relief avoidance. Mr Dean explains the procedures governing the submission of tax returns online, by use either of the Revenues own software, or software provided by other suppliers complying with the Revenues technical specifications and designed to produce the same computations (paras 5 6). He comments on the significance of different parts of the return: As well as the mandatory information relating to income and gains and the self assessment for the year in question (as required under sections 8 and 9), the tax return also provides spaces to allow the taxpayer, if he wishes, to provide other information or to make claims not related to the year in question. These are provided for administrative convenience and customer service but, being optional, are not subject to the consistency checks described above. One such matter is the ability to submit an early claim to relieve trading or capital losses arising in the immediately following tax year (year 2) by reference to income for the current year (year 1) or an earlier year. If the taxpayer wishes to make such a claim effective, he would also need to compute the amount of the tax repayment that he considers will arise from the claim and enter this in the box labelled Any [year 2] payment you are reclaiming now within the section headed adjustments to tax due. As these claims are not part of the year 1 return and do not affect the self assessment for that year, they are frequently referred to as stand alone claims. (paras 12 13) He explains that such a year 2 repayment claim is shown on the taxpayers self assessment statement of account as a Free Standing Credit or FSC. This, he says, simply records what the taxpayer has claimed. It does not represent HMRCs approval of the claim. Referring to Box 15 on page TC2, he says that is not part of the return, so it is not subject to any of the automated tax consistency checks (para 16). Commenting on Mr Derrys own return, and the entry in Box 15, he says that the effect of entering the figure of 165,800 in this box was to automatically generate an FSC of the same amount ; and that, when it was set against the balancing payment of 95,546.36 due on 31 January 2011, the computer automatically allocated the FSC against that liability first showing the balance as a repayment pending of 70,253.64 (paras 25, 28). Although he has been unable to ascertain the precise circumstances of the repayment made to Mr Derry before the conclusion of the enquiry, his own view, given the size of the claim and the fact that the company in question had not been identified, was that it had been made if not in error, then prematurely (para 31). Finally, he mentions the operational problems caused for the Revenue by the Court of Appeals decision in Cotter. But notes without further comment that the Revenues appeal was allowed by the Supreme Court. It does not appear that any similar evidence was before the court in Cotter. There was some uncertainty at the end of the hearing about the precise status of Mr Deans evidence, or the extent to which it was relied on in support of the Revenues submissions. Although we invited further submissions on certain questions apparently arising from it, I do not think the evidence itself is critical to our consideration of this issue. It is of some interest in explaining, not only the background to the present appeal, but more generally aspects of the Revenues approach to the self assessment process, and the workings of its internal systems. However, as Ms McCarthy rightly submits, neither the Revenues internal management systems, nor Mr Deans subjective understanding of them, can ultimately be determinative of the issue before us. That must turn on the correct interpretation of the law, and an objective reading of the tax return within its statutory framework. It may be, as Lady Arden suggests, that the relevant statutory framework should be taken as including the terms in which the relevant return forms, paper or electronic, are prescribed by the Revenue (under sections 8(1H) and 113 of the 1970 Act). That may in turn raise a question whether, in respect of the on line forms, those prescribed terms include, or are to be taken as including, the automatic adjustments built into the Revenues software, including the calculation in Box 1. Mr Deans evidence provides no direct assistance on the point, and neither party based any submissions on it. On the limited material before us, it is difficult to draw any firm conclusions. Post hearing submissions on Cotter One point on which we asked for clarification was the Revenues position on Lord Hodges obiter comments in Cotter, and in particular whether it mattered that the return in that case was in paper form rather than on line as in the present case. I quote Mr Nawbatts response: The material difference between submitting a paper return (including the tax calculation pages) and an on line return is that because the tax calculation pages on the paper return are completed manually it is physically possible for the taxpayer to enter into Box 1 TC1 a figure that is not the sum of the relevant boxes that feed into the self assessment for the year. As explained in Rouse 2 [R (Rouse) v HMRC [2014] STC 230], at para 14, if HMRC wanted to enquire into that Box 1 figure it would have to open a section 9A enquiry Mr Cotters case involved a paper return and had he requested the tax calculation pages he would have completed the Box 1 TC1 calculation manually rather than leaving it to HMRC to carry out the calculation. It is HMRCs position that Lord Hodges obiter comments in para 27 were addressing a hypothetical scenario in which Mr Cotters manual calculation of the Box 1 figure had involved the deduction of the year 2 loss relief, ie the figure Mr Cotter had manually inserted into Box 1 had been arrived at after deducting the year 2 relief . This interpretation, he submitted, is supported by Lord Hodges reference to Mr Cotter having calculated his liability to income tax by completing the tax calculation summary pages, giving the Revenue his assessment that specific sums or no sums were due as the tax chargeable for that year. The equivalent pages of the on line form used by Mr Derry did not permit such a specific calculation. To establish his claim he would have needed to complete the capital gains pages on the year 1 return, which it is said would have fed into the figure in Box 1. Ms McCarthy rejected this narrow view of Lord Hodges comments, and also the Revenues attempt to distinguish between the different parts of the Tax Calculation Summary. As she points out, Box 1 includes a reference to student loan repayment, which as Lord Hodge accepted (para 25) is extraneous to the chargeable income tax of the year. On the other hand, the Revenue accept that some other parts of the summary (Boxes 11 and 12: Blind persons surplus allowance and married couples surplus allowance) do feed into the tax for the current year. As Ms McCarthy submits, it is impossible to draw any clear distinction based simply on the printed entries in the form itself. She rejects as absurd the novel suggestion that, in order to claim a relief relevant to his income tax liability, he should have to fill in a part of the return dealing with capital gains. Comment on Issue 2 Ms McCarthys submission, like the Court of Appeals reasoning, appears consistent with the natural reading of the statutory provisions. Section 9 requires the taxpayer to make a self assessment of the chargeable amount of tax on the basis of the information contained in the return and taking into account any relief a claim for which is included in the return (emphasis added). On its face, this implies that the return is treated as including the relief as claimed by the taxpayer in his return, whether or not the claim ultimately proves well founded. The Revenues case rests on the assertion that the process of self assessment is defined by the figure which appears in Box 1 under that title, and that other claims, including in particular in Box 15, are irrelevant in so far as they do not feed into the self assessment for the current year. Although, as already noted (para 40 above), Mr Nawbatt had conceded that this issue would not arise if Mr Derry succeeded on the first issue, his post hearing submission appeared to go back on that. Mr Nawbatt has not in terms sought permission to withdraw his concession and I agree with Ms McCarthy that it is much too late for him to do so. But in any event, the submission seems to me misconceived. It implies that, by prescribing an on line form which makes it impossible to make the necessary adjustment to the self assessment figure, the Revenue can deprive a taxpayer of a relief to which he is lawfully entitled and to which a claim has been clearly included on the face of his return. That cannot be right. It may be, as Mr Dean seems to be saying, that it would have bypassed the Revenues automated tax consistency checks. However, that is not the fault or the concern of the taxpayer. Whether the same would apply if the taxpayer had no such lawful entitlement raises more difficult issues. As already noted (para 52 above), the Court of Appeal proceeded on the basis that, even if the claim was made in error in that year, it would still be part of the self assessment. As Henderson LJ said: Plainly, errors of many different kinds may be made in such an assessment, and they may include errors about the availability of a relief. If the Revenue is dissatisfied with the taxpayers self assessment, its remedy is either to amend the return or to open an enquiry into it under section 9A of TMA 1970 (para 57) As he saw it, the Revenues difficulty was of their own making, in that they had failed to take the obvious step of opening a timely enquiry into the 2010 Return, so enabling them to challenge the repayment of tax claimed by Mr Derry at the same time as pursuing enquiries into the claim itself and into his 2011 return (para 58). Ms McCarthy in substance adopts the same reasoning. The fact that the taxpayers self assessment may be erroneous in some respect does not impact on the procedural means available to the Revenue to challenge it. Mr Nawbatt on the other side submits that, if the inclusion of the claim for that year was invalid in law, it could not be relied on to create an immunity from challenge which would not otherwise be available. I am not satisfied that these issues have been fully explored in argument before us, which has concentrated on the entitlement to relief rather than the means of enforcement. As has been seen, there remain unresolved uncertainties as to the correct interpretation of the entries in the on line form and their treatment by the Revenue. In addition, we heard little discussion of the relationship of the enquiries respectively under section 9A and Schedule 1A paragraph 5. Apart from timing, I did not understand it to be suggested that there was any material difference between the processes. While it may be prudent for the Revenue to institute an enquiry under the former section, if there is any doubt about what is properly to be treated as part of the return, it does not necessarily follow that the Revenue is thereafter bound by the contents of the return for all purposes. If it later emerges that a claim was wrongly included in the return for that year (for example, because it should have been treated as subject to TMA Schedule 1B), it may at least be arguable that the Revenue should not be precluded at that later stage from opening an enquiry on the correct basis. These are potentially important issues. Since we do not have to decide them in the context of the present case, I would prefer to leave them open for further consideration in an appropriate case with the benefit of full examination of the relevant law and practice. Conclusion For the reasons given under Issue 1 I would dismiss the Revenues appeal, and confirm the order of the Court of Appeal. Finally, I repeat Lord Hodges concluding comment in Cotter: 36 The revenues submission, which I have accepted, that some entries in a tax return form are not part of the tax return for the purposes of, among others, section 9 and 9A of the 1970 Act, may create avoidable uncertainty to taxpayers and their advisers. But that uncertainty could be removed if the return form which the revenue prescribes (section 113 the 1970 Act) were to make clear which boxes requesting information were not relevant to the calculation of tax due in the particular year of assessment. In particular, the revenue could make this clear where the form provides for the intimation of stand alone claims which relate to another tax year. We were not told what action, if any, has been taken in response to this advice. The uncertainties revealed by the submissions in the present case have underlined its importance. There is an urgent need for clarification, not only of the precise legal status of the different parts of the return, but also of any relevant differences between the paper and electronic versions of the return, and their practical consequences. LADY ARDEN: I am most grateful to Lord Carnwath for his judgment. I agree that this appeal should be dismissed as a result of Issue 1, subject to the observations on interpreting consolidation statutes made below. But on the second issue I have respectfully reached a different conclusion and so I will take that issue first. In summary on Issue 2, I would provisionally express the view that in consequence of this courts decision in Revenue and Customs Comrs v Cotter [2013] 1 WLR 3514 and the evidence of Mr Graham Dean on behalf of HMRC, which Lord Carnwath summarises at paras 57 58 above, the erroneous entry of a loss relief claim which a taxpayer was not entitled to make in that year (not this case) in Box 15 of the prescribed online tax return does not make that tax return form a tax return for enquiry purposes. That (provisionally) means that in those circumstances HMRC would be right to open an enquiry into the claim and not the return. Because this appeal is principally about which enquiry HMRC must open, I will take Issue 2 first. Issue 2: would making an erroneous claim for relief in an online tax return make that claim part of the tax return? Issue 2 arises where a taxpayer has a claim for relief which relates to two years and Taxes Management Act 1970 (TMA), Schedule 1B applies to it (a year 2 related claim). Under TMA, section 9(1) he must include in his return an assessment of the amount for which he is liable to pay tax taking in to account any relief or claim included in the return (see paras 22 and 64 above) (the tax calculation pages). Suppose that the taxpayer submits a return online for the year and claims in it relief for a loss which relates to the following year. His return will contain Box 15 (described by Lord Carnwath at para 43 above). Will his entry of a claim in Box 15 form part of that return for the purposes of the enquiry provisions of the TMA so that if HMRC wish to open an enquiry into that claim for relief they must open an enquiry into the return and not the claim? There needs to be a clear answer to this question to avoid unnecessary service of numerous precautionary enquiry notices. The relevant part of the tax calculation pages of the tax return is Box 1, which set out the total tax due, and Boxes 13 15 and the narrative above all three boxes, namely Boxes 13 15. Lord Carnwath has described Box 15 and that narrative in para 43 above. Box 13 is for increase in tax due because of adjustments in an earlier year and Box 14 is for decrease in tax due because of adjustments in an earlier year. HMRC has filed the evidence of Mr Dean. According to Mr Dean, once the information in the tax return (apart from the tax calculation pages) has been completed, the software presents a tax calculation from that information. Mr Dean further explains that, when a claim is inserted into Box 15, the tax payable by the individual and shown in Box 1 is unaffected. Using my own words, there is no reconciliation or adjustment between Box 15 and Box 1: the figure for the tax due for the year covered by the return remains exactly the same. What Box 15 on Mr Deans evidence enables the taxpayer to do is to make an early claim for the relief and to adjust his liability for tax for the following year in accordance with HMRCs understanding of the law. There is a dispute between the parties as to the extent to which Mr Deans evidence forms part of the evidence in these proceedings but the Upper Tribunal noted that it was accepted by both parties save in relation to a point which is no longer material (see [2016] STC 334, para 46). In those circumstances I propose to deal with the issue on the basis of Mr Deans evidence, but on a provisional basis only because this matter needs to be argued between HMRC and a taxpayer who is interested to argue otherwise. I agree with Lord Carnwath that it is not open to HMRC to argue that the online form prevented Mr Derry from making an adjustment to his calculation of the tax due if that is what he is entitled to do. They can, however, raise that argument against taxpayers with year 2 related claims. It is pertinent here to note that HMRC must not simply prescribe a separate form of tax return for use online they must also prescribe what constitutes an electronic return: see Taxes Management Act, section 8(1H), as amended by the Finance Act 2007. This power is conferred by primary legislation and therefore sections 9(1) and 8(1H) must be read harmoniously together. The form is in fact available for use only through HMRCs online services or with third party software approved by HMRC. It seems reasonable to infer that the automatic calculations and inhibitors on reconciliations built into the software and, it may be assumed, HMRCs online return form constitute part of the prescribed return and are included in what constitutes the return, but this point has not been the subject of argument. Again provisionally, there is no reason as it seems to me why the online form should not preclude an adjustment which would produce a result which was incompatible with the Taxes Acts. The objective in designing a tax return form, including an online form, is to help the taxpayer file a tax return which properly shows his liability, no more and no less. Indeed, Lord Hodge in Cotter specifically envisaged that HMRC could take steps to prevent a taxpayer making claims in the online form which he was not entitled to make: see para 24 set out by Lord Carnwath at para 51 above. It is now necessary to go back to Cotter. As I see it, Cotter teaches us that there is a difference, for the purposes of the TMA sections 8(1), 9, 9A and 42(11)(a) at least, between a tax return and a tax return form. This may be seen from paras 25 and 36 of Lord Hodges judgment in Cotter, cited by Lord Carnwath at paras 51 and 52 above. This court there held that, if an item does not fall to be taken into account for the purpose of calculating the tax payable by the taxpayer submitting the form, it is to be left out of account and does not constitute part of the return for the purposes mentioned. Mr Dean supplies the evidence as to how the relevant item in this case (the entry in Box 15) is treated in the online form, and that is only to notify HMRC of the claim and not to affect the tax payable. The Court of Appeal reached the conclusion that the claim made by Mr Derry was relevant to the calculation of the tax due (see para 47 above) but they took no account of the Mr Deans evidence. However, if that evidence is accepted, it would seem to me provisionally to follow that that their conclusion was wrong and that the effect described by Lord Hodge in para 27 of Cotter (para 51 above) would apply only in this case to a paper return in which the taxpayer performed his calculation of tax due taking the claim into account. It follows that the Court of Appeal would be in error in applying Lord Hodges reasoning to an online return (see per Henderson LJ cited at para 52 above). If that is correct, then as I see it (as I have said) provisionally, unless the ratio in Cotter is to be in some way qualified for online tax return forms (which is not suggested), the relief claimed through Box 15 would not form part of the statutory return even if the true interpretation of Box 15 is that it is permitting an adjustment to the tax. I do not consider that a taxpayer would necessarily have been misled by this since he would see that his entry had no effect on the figure in Box 1. On that basis, HMRC would not have to open an enquiry into the return where the taxpayer had filled in Box 15 with an erroneous claim as opposed to an enquiry into the claim. I would provisionally so hold for the reasons that I have given. Issue 1: approach to interpretation of tax rewrite statutes On Issue 1, while agreeing with all that Lord Carnwath has said, I add some observations about the approach to interpretation of the ITA and consolidation statutes in general to provide the context in which the passage from the judgment of Sales J approved by this court should be applied. In deciding how the court should interpret a statute, the type of statute as set out in the statutes preamble is a relevant consideration. In the case of the Income Tax Act 2007 (ITA), the preamble provides that the Act is to restate, with minor changes, certain enactments relating to income tax; and for connected purposes. So, ITA is not a pure or straight consolidation Act. However, as the Explanatory Notes cited by Lord Carnwath confirm, it is not (except for the minor changes) intended to change the law. That is a matter which the courts must in my judgment respect when interpreting the new legislation. In this regard it is of some significance in interpreting consolidation statutes that they receive less Parliamentary scrutiny than other primary legislation. The respect to which I have referred for giving effect to Parliaments intention where it is possible to do so is often expressed in terms of a presumption, in relation to consolidating statutes, that Parliament did not intend to change the law. It would often be laborious for a court to investigate what provisions had been consolidated in any particular provision of a consolidating statute. It would be wrong in general for it to do so. The process of drafting a consolidation statute requires specialist techniques and skills and can be very complex. But the position is different in relation to prior case law. The restraint required by the House of Lords in Farrell v Alexander [1977] AC 59 relates to legislative history, and not to relevant antecedent case law. Moreover, in practice, even where a statute is a consolidation statute, courts often look at previous case law on provisions that are consolidated to assist them interpret the new provision where there is any doubt or simply to confirm the view that they have formed. This is good sense in the interest of the consistency of the law, the fulfilment of Parliaments presumed intention and the efficient use of judicial resources. There is a further issue, yet to be resolved, as to the application of the doctrine of precedent where there is a previous binding decision on the same provision in the earlier enactment: see the discussion in Bentine v Bentine [2016] Ch 489. Reference back to the earlier case law does not undo the good work done by the consolidation, or run counter to it, since Parliament is likely to have had the previous case law in mind in any event when enacting the consolidating statute without any pre consolidation amendment. I agree that HMRCs appeal should be dismissed. |
The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights (ECHR). A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR. The story so far This is a claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971 (the 1971 Act). That reads: A person to whom this sub paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State. There is a dispute about the claimants identity. He claims to be a Liberian national named Ibrahima Jalloh. The Secretary of State asserts that he is a Guinean national named Thierno Ibrahima Diallo. This dispute is irrelevant to the issues before this Court. The claimant was granted asylum under his claimed name on 29 August 2003. However, following his conviction of various offences in 2006, the Secretary of State made a deportation order against him on 21 July 2008. This was still extant when the events with which we are concerned began. (It was revoked on 22 September 2015 and a new order made on 20 December 2016.) On 15 April 2013, the claimant was convicted and sentenced for a further offence and on 16 April 2013, when the custodial part of his sentence expired (because of time already spent in custody on remand), he was detained by the Secretary of State under powers conferred by the 1971 Act. On 29 October 2013, the claimant was given bail by a judge of the First tier Tribunal. The bail conditions included requirements as to residence and electronic monitoring but not a curfew. On 30 October, as required in the grant of bail, the claimant reported to an immigration officer. The bail granted by the tribunal thereupon came to an end. The claimant was then issued with a document headed NOTICE OF RESTRICTION. This stated that he was liable to be detained under the Immigration Act 1971 but that he would not be detained. Instead, he would have restrictions imposed upon him under paragraph 2(5) of Schedule 3 to the 1971 Act. The restrictions included a requirement to report to an immigration officer every Monday, Wednesday and Friday, to live at a specified address and YOU ARE TO ELECTRONICALLY BY MEANS OF BE MONITORED TAGGING/TRACKING. He was to be at his address in Sunderland between specified hours on a specified date for induction into the monitoring system. Following induction, he must be present at the address shown above between the hours of 23.00 hours to 07.00 am every day, and every day thereafter between the hours of 23.00 hours to 07.00 am. This imposed a curfew of eight hours every day. The notice continued: You should note that [i]f without reasonable excuse you fail to comply with any of these restrictions you will be liable on conviction to a fine not exceeding the maximum on level 5 of the standard scale (currently 5,000) or imprisonment for up to six months or both. The monitoring equipment was installed on 3 February 2014 and the claimant was fitted with an electronic tag. The claimant was issued with a further Notice of Restriction on 8 March 2014 to the same effect as the first. The curfew was in place from 3 February until 14 July 2016, a total of 891 days. The claimant did not always comply with it. On 37 occasions he was away from home without permission for the whole of the curfew period, 29 of those because he was attending care proceedings in Coventry relating to his daughter and step daughter. On 108 occasions he was away from home without permission for part of the curfew period, 57 of those for more than an hour. Some of those were connected with Ramadan and some with returning from Coventry. But the claimant did, broadly, seek to comply with the curfew and curtailed his social activities to a limited extent. The curfew was lifted by order of Collins J in these judicial review proceedings, which were brought by the claimant following the judgment of the Court of Appeal in the case of R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409; [2016] 4 WLR 93. The court there held that paragraph 2(5) of Schedule 3 to the 1971 Act (see para 2 above) did not empower the Secretary of State to impose a curfew by way of a restriction under that paragraph. The Secretary of State has, understandably, not sought to challenge that holding. However, she did seek to impose the same curfew again on the claimant, but this time under paragraph 22 of Schedule 2 to the 1971 Act. On 14 July 2016, Collins J ordered that that curfew be lifted, which it was. On 14 February 2017, at a preliminary hearing, Lewis J held that the curfew constituted imprisonment for the purpose of the tort of false imprisonment, following the decision of Edis J at first instance in the case of R (Gedi) v Secretary of State for the Home Department [2015] EWHC 2786 (Admin) (the Court of Appeal did not deal with this point in Gedi but left it open): [2017] EWHC 330 (Admin). After a three day trial, on 9 November 2017, Lewis J awarded the claimant 4,000 damages for false imprisonment: [2017] EWHC 2821 (Admin). On appeal, the Court of Appeal held that the curfew did indeed amount to imprisonment and so dismissed the Secretary of States appeal on liability; it also dismissed the claimants cross appeal on the measure of damages: [2018] EWCA Civ 1260; [2019] 1 WLR 394. The Secretary of State now appeals to this Court, arguing, first, that the curfew did not amount to imprisonment at common law, and second, that if it did, it did not amount to a deprivation of liberty under article 5 of the ECHR and the common law concept of imprisonment should now be aligned with that concept. The first issue: Imprisonment at Common Law Mr Robin Tam QC, for the Secretary of State, argues that the curfew did not amount to imprisonment at common law. He makes five propositions. His first proposition is that imprisonment requires constraint on a persons freedom of movement, usually by physical or human barriers, such as locked doors or guards. Voluntary compliance with a request or instruction is not enough. An illustration is the Irish case of Phillips v Great Northern Railway Co (1903) 4 NIJR 154. There was an argument between the claimant, who was travelling with two daughters and a dog, and the ticket collector, who wrongly thought that she was defrauding the company. As the claimant was stepping into the cab ordered by one of her daughters, the ticket collector told her not to move. He fetched the station master, but after some further argument, she got into the cab and it drove off. Lord OBrien LCJ held that there was no evidence of total restraint of the person. Voluntary compliance is not enough, even if the request is backed up with a warrant which could be executed by force. He cites Arrowsmith v Le Mesurier (1806) 2 Bos & P (NR) 211, 127 ER 605, where Sir James Mansfield CJ held that there was no imprisonment when a constable simply showed the claimant a magistrates warrant for his arrest and the claimant went voluntarily with the constable to see the magistrate: the warrant was treated as a summons rather than an arrest. Berry v Adamson (1827) 6 B & C 528, 108 ER 546, was a fortiori: the officer merely sent his man with a message to the claimant that there was a writ and that he should fix a time for giving bail. On the other side of the line was Grainger v Hill (1838) 4 Bing (NC) 212, 132 ER 769. Tindal CJ held that it was enough for the sheriffs officer to tell the claimant, while he was lying ill in bed, that there was a writ of capias against him and unless he surrendered his ships register or found bail, he would be taken away or a man would be left with him: this was a sufficient restraint of his person to amount to an arrest. His second proposition is that, if the constraint is not by physical barriers, it has to be of a nature that is intended to keep the person in the same place and there have to be the means of doing so. He cites Grainger v Hill as an illustration of this form of imprisonment; also Warner v Riddiford (1858) 4 CB (NS) 180, 140 ER 1052, where it was held that the claimant was imprisoned when he was refused permission by police officers, acting on behalf of his employers, to leave the room and go upstairs in his own house; and Meering v Graham White Aviation Co Ltd (1920) 122 LTR 44, where the claimant was suspected of being involved in thefts of material from the company. A warrant was obtained to search the place where the claimant was staying. The claimant was not there when the search took place, but the companys own security officers waited until he returned and took him to the companys offices where they waited for the police officers who eventually arrested him. It was held that he was imprisoned by the companys officers while they were waiting. From the moment that the claimant had come under the influence of the companys officers, there was evidence to support the jurys conclusion that he was no longer a free man. Atkin LJ emphasised, at p 53, that it is perfectly possible for a person to be imprisoned in law without his knowing the fact and appreciating that he is imprisoned: if a man could be imprisoned in a locked room without knowing that the door was locked, he could also be imprisoned by being in a room with guards who would prevent his leaving, even if he did not know this. His third proposition is that the constraint must be total or complete, restricting the person to a particular place. The leading case is Bird v Jones (1845) 7 QB 742. Part of Hammersmith Bridge, which was usually used as a footpath, was enclosed and seats were erected for people to watch a boat race on the Thames, for which they were charged a fee. The claimant wanted to walk along the footpath in the usual way but was forcibly prevented by policemen from doing so. He could always have left the enclosure, and crossed the bridge along the roadway, but he could not leave in the way that he wanted to do. The majority held that this was not imprisonment because it was only a partial obstruction. Bird v Jones was approved by the Judicial Committee of the Privy Council in Syed Mahamad Yusuf Ud Din v Secretary of State for India (1903) 30 Ind App 154, where it was held that a prisoner who was out on bail was not imprisoned while on bail: nothing short of actual detention and complete loss of freedom would do. Robinson v Balmain New Ferry Co Ltd [1910] AC 295 was another Privy Council case. There were entry and exit turnstiles to the ferry wharf on each side of the water to be crossed. The claimant paid his penny to enter the wharf on one side, intending to take the ferry to the other side, but then changed his mind and was not allowed to leave without paying the exit penny. This was not imprisonment as there was an exit route and he had agreed to the terms. His fourth proposition is that a person is not imprisoned if he is able to leave that place by another route, even if that is not the way he wants to go and even if it involves trespassing. The earliest case cited was Wright v Wilson (1699) 1 Ld Raym 739, 91 ER 1394, where Holt CJ ruled that it was not false imprisonment to lock one of two doors out of a room, when the claimant could have got out through the other door, although this would involve trespassing through another persons room. His fifth proposition is that it is not enough that the act of leaving would trigger an adverse response, such as prosecution or arrest. This is illustrated by cases such as Arrowsmith v Le Mesurier and Phillips v Great Northern Railway Co, but also by the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust, Ex p L [1999] 1 AC 458. L was a severely mentally disabled man who became agitated at his day centre and an emergency psychiatric team was called. He was sedated and taken to hospital. The psychiatrist decided to admit him as an informal patient, rather than compulsorily, because by that time he was compliant and showing no desire to leave. He was placed in an unlocked ward, but his foster parents were not allowed to visit in case he showed signs of wanting to leave with them. If he had wanted to leave, he would have been compulsorily detained under the Mental Health Act 1983. The House of Lords held, by a majority, that he had not been detained while an informal patient. Lord Steyn and Lord Nolan disagreed. Lord Steyn, at p 495, described the suggestion that he was free to leave as a fairy tale. The fact that he did not know that he was imprisoned was irrelevant, as Meering showed. Applying these propositions, Mr Tam argues that the claimant was not locked into his home; there were no guards to prevent his leaving; there was no other way in which he was physically prevented from leaving home; indeed, he was able to break the curfew on numerous occasions the constraint was not total or complete; there might be adverse consequences if he did so either prosecution for an offence or being detained once more under the 1971 Act but these would not result in his being kept in the place where he was instructed to remain. The situation is not comparable to being detained in an open prison or psychiatric hospital, to which one can be returned by force if one goes absent without leave. Against this, Ms Dinah Rose QC, for the claimant, derives the following propositions from those same authorities. First, imprisonment is the imposition of restraint upon a persons liberty so that he is compelled at the will of a third person to stay within a defined boundary. Second, the restraint must be complete, in the sense that he is required to stay within a defined area. There is no imprisonment if movement is blocked in one direction but he remains free to depart in a different direction. Third, it is imprisonment no matter how short the period a few seconds is sufficient. Fourth, the restraint must be immediate and not conditional. Fifth, complete restraint does not mean that there must be physical barriers such as locks or guards to prevent him leaving. Nor does it mean that it must be physically impossible to leave. He is imprisoned if he is made to stay by intimidation or threats, fear of the consequences, or submission to apparent legal authority. Sixth, it is also imprisonment if he is made to stay by the threat of imprisonment if he leaves, including the threat of arrest or prosecution. Seventh, the threat does not have to be a threat to return him to the same place of confinement. Eighth, it is also imprisonment if he is only able to leave the defined area by an unreasonable means or route, for example, by jumping out of a first floor window or risking prosecution by doing so. An obvious illustration of the reasonableness principle is the true story told by Eric Williams in his 1949 novel, The Wooden Horse. Prisoners of war escaped from their prison camp by concealing their tunnelling under a wooden vaulting horse: their will was never overborne because they always intended to escape and it did prove physically possible for them to do so but they clearly were imprisoned while they were in the camp. Another illustration is the decision of the Court of Appeal of Victoria in McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; [2007] 20 VR 250. The Union set a picket round a camp set up by anti logging protesters to prevent the protesters getting out. The protesters could have asked the police to escort them out, but that did not mean that they were not imprisoned until they did so. But the protesters could also have escaped at any time along a track through the bush: this was a reasonable means of egress and so they had not been imprisoned. The most problematic case from the claimants point of view is the Bournewood decision in the House of Lords. But, argues Ms Rose, it has no bearing because if a person is not actually confined at the moment, the fact that he might be confined if he tries to leave does not make it imprisonment. This is different from being actually confined by fear of the consequences if one leaves. In any event, she points out that the case might well be decided differently today. The Court of Appeal were unanimous in holding that the patient was imprisoned. The House of Lords decided otherwise by a narrow majority and it is not easy to grasp their rationale. And the European Court of Human Rights held that he had been deprived of his liberty: HL v United Kingdom (2004) 40 EHRR 32. So far as is known, this is the only example of a deprivation of liberty which did not amount to imprisonment at common law: generally speaking, one may well be imprisoned without being deprived of ones liberty, but the other way round is harder to envisage. Discussion on the first issue As it is put in Street on Torts, 15th ed (2018), by Christian Witting, p 259, False imprisonment involves an act of the defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant. The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process. A good example is R v Rumble [2003] EWCA Crim 770; (2003) 167 JP 205. The defendant in a magistrates court who had surrendered to his bail was in custody even though there was no dock, no usher, nor security staff and thus nothing to prevent his escaping (as indeed he did). The point is that the person is obliged to stay where he is ordered to stay whether he wants to do so or not. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendants permission. This is not a case like Bird v Jones where the claimant could cross the bridge by another route or Robinson v Balmain New Ferry Co Ltd where he had agreed to go onto the wharf on terms that he could only get out if he paid a penny. The fact that the claimant did from time to time ignore his curfew for reasons that seemed good to him makes no difference to his situation while he was obeying it. Like the prisoner who goes absent from his open prison, or the tunneller who gets out of the prison camp, he is not imprisoned while he is away. But he is imprisoned while he is where the defendant wants him to be. There is, of course, a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction. The Court of Appeal held that this was a case of enforced not voluntary compliance and I agree. It is not to be compared with those cases in which the claimant went voluntarily with the sheriffs officer. There can be no doubt that the claimants compliance was enforced. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a 5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the State, which was claiming to have the power to do this. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal. For what it is worth, in the case of Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385, it was taken for granted that a curfew enforced by electronic tagging, clocking in and clocking out, and arrest or imprisonment for breach was a classic detention or confinement (para 59). The only question was whether it was also a deprivation of liberty within the meaning of article 5 of the ECHR, which leads on to the second issue. The second issue: Deprivation of Liberty Mr Tam makes an alternative argument in this Court which was not open to him in the courts below. This is that the concept of imprisonment for the purpose of the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of article 5 of the ECHR. The classic definition of this concept is taken from Guzzardi v Italy (1980) 3 EHRR 333, para 92: In order to determine whether someone has been deprived of his liberty within the meaning of article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The ECHR distinguishes between the deprivation and restriction of liberty and the court emphasised that this was a matter of degree rather than nature or substance (para 93). This multi factorial approach is very different from the approach of the common law to imprisonment. In Austin v Comr of Police of the Metropolis [2007] EWCA Civ 989; [2008] QB 660, the Court of Appeal held that kettling the claimants for several hours at Oxford Circus was indeed imprisonment at common law, but that it was justified by the common law principle of necessity; however, it was not a deprivation of liberty within the meaning of article 5, a conclusion with which both the House of Lords and the European Court of Human Rights agreed: [2009] UKHL 5; [2009] 1 AC 564, and Austin v United Kingdom (2012) 55 EHRR 14. The trial judges observation that there could be imprisonment at common law without there being a deprivation of liberty under article 5 and vice versa was cited by the Court of Appeal with apparent approval (para 87). That observation was repeated by the Court of Appeal in Walker v Comr of Police of the Metropolis [2014] EWCA Civ 897; [2015] 1 WLR 312, where it was held to be false imprisonment for a police officer to stand in the front doorway of a house so as to prevent the claimant from leaving, even for a very short time, but it was not a deprivation of liberty within the meaning of article 5. By contrast, when the Bournewood case reached the European Court of Human Rights, that court held that the patient had been deprived of his liberty within the meaning of article 5: HL v United Kingdom. This is thought to be the only case going the other way. Imprisonment for the purpose of the tort of false imprisonment can take place for a very short period of time, whereas a number of factors are relevant to whether there has been a deprivation of liberty. On the other hand, imprisonment may be justified at common law in circumstances which are not covered by the list of possibly permissible deprivations of liberty in article 5(1) of the ECHR. Mr Tam argues that the time has now come to align the two concepts: specifically to align the concept of imprisonment with the concept of deprivation of liberty. He says this because, in Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] AC 385, while the House of Lords held, by a majority, that a 16 hour curfew was a deprivation of liberty, Lord Brown of Eaton under Heywood expressed the view that an eight hour curfew, such as this, would not be such a deprivation. It is, of course, the case that the common law is capable of being developed to meet the changing needs of society. In Lord Toulsons famous words in Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 435, para 133, it was not the purpose of the Human Rights Act that the common law should become an ossuary. Sometimes those developments will bring it closer to the ECHR and sometimes they will not. But what Mr Tam is asking this Court to do is not to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR. The Strasbourg court has adopted this approach because of the need to draw a distinction between the deprivation and the restriction of physical liberty. There is no need for the common law to draw such a distinction and every reason for the common law to continue to protect those whom is has protected for centuries against unlawful imprisonment, whether by the State or private persons. The Court of Appeal in Austin and in Walker were right to say that there could be imprisonment at common law without there being a deprivation of liberty under article 5. Whether they were also right to add and vice versa may be open to doubt in the light of the Bournewood saga, but it is not necessary for us to express an opinion on the matter. Conclusion I would dismiss this appeal. |
reasonable reader of a Facebook post? Background The respondent to this appeal, Ronald Stocker, is the former husband of the appellant, Nicola Stocker. Their marriage ended in acrimony in 2012. Mr Stocker subsequently formed a relationship with Ms Deborah Bligh. On 23 December 2012 an exchange took place between Mrs Stocker and Ms Bligh on the Facebook website. In the course of that exchange, Mrs Stocker informed Ms Bligh that her former husband (now Ms Blighs partner) had tried to strangle her. It is now clear that the date on which this is alleged to have occurred is 23 March 2003. Mrs Stocker also said that her husband had been removed from the house following a number of threats that he had made; that there were some gun issues; and that the police felt that he had broken the terms of a non molestation order. These statements and the allegation that Mr Stocker had tried to strangle her were the basis on which he took proceedings against her for defamation. The allegations about threats, gun issues and the breach of a non molestation order are relevant to provide context to the statement that Mr Stocker had tried to strangle Mrs Stocker. They paint a picture of acute marital conflict and on that account set the scene for any reader of the Facebook post. That reader would know that Mrs Stockers statement that her former husband had tried to strangle her was made against the background that this had been, towards the end of its life, a most disharmonious marriage. The proceedings in the High Court Mr Stocker issued proceedings against his former wife, claiming that the statement that he had tried to strangle her was defamatory of him. He claimed that the meaning to be given to the words tried to strangle me was that he had tried to kill her. Mrs Stocker denied that the words bore that meaning. She claimed that, in the context of domestic violence, the words do not impute an intention to kill. What they would be understood to mean, she said, was that her husband had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed. Mr Stocker also claimed that the statement that he had uttered threats and breached a non molestation order was defamatory and was to be taken as implying that he was a dangerous and thoroughly disreputable man. Mrs Stocker refuted this. She said that it was not reasonable to infer that she had suggested that her husband was dangerous on account of his having been arrested a number of times. It is to be observed, however, that in the defence filed on her behalf, Mrs Stocker averred that the statement that her husband was dangerous and disreputable was justified. It seems likely that this was by way of alternative plea. In any event, for reasons that will later appear, this is immaterial because of the rule concerning the substantial truth of the statements made by the alleged defamer. At the start of the defamation proceedings, Mitting J, the trial judge, suggested that the parties should refer to the Oxford English Dictionarys definition of the verb, strangle. This provided two possible meanings: (a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully. The judge was asked by counsel for the appellant, Mr Price QC, to consider how the words, tried to strangle had been used in different contexts. Mr Price also sought to introduce legal definitions of the word strangle. These do not appear to have been taken into account by Mitting J and he did not refer to them in his judgment. Mr Stocker gave evidence that, on the occasion when the altercation which led to his wife accusing him of trying to strangle her took place, he had been standing on a stool or a chair while she was adjusting the length of a pair of his trousers. She had pricked him with a pin. He had sworn at her. She swore back at him and he placed his hand over her mouth to prevent her raised voice from waking their sleeping son. The judge rejected this account, saying, at para 43: I do not accept [Mr Stockers] account that he merely put one hand over [Mrs Stockers] mouth while he was standing on the stool or chair. His hand would have been at his thigh level. He could not have exerted more than momentary pressure on her mouth, from which she could instantly have escaped. Nor could he have left the reddening marks on her neck or throat which I am satisfied were seen by the police. I do not, however, believe that he threatened to kill her or did anything with his hands with that intention. I do not believe that he was capable even in temper of attempted murder. The most likely explanation about what happened is that he did in temper attempt to silence her forcibly by placing one hand on her mouth and the other on her upper neck under her chin to hold her head still. His intention was to silence, not to kill. This finding implicitly rejects Mrs Stockers account of the incident also. She had said that her husband had dismounted from the chair, had pushed her against a small sofa, put his hands around her neck and squeezed, causing her to believe that he would kill her. The judge accepted that some two hours after the incident, red marks on Mrs Stockers neck had been seen by police officers but he came up with a theory as to how those had come about which neither party had proposed. It is of course open to a trial judge, after considering all the evidence, to reach his or her own conclusions or to draw inferences which neither party has advanced or espoused. But there must be a sound basis for doing so. In this case, the judge accepted the police evidence that there were red marks on Mrs Stockers neck. Mr Stocker had agreed during a police interview that it was possible that he had put his hand around his wifes neck and, implicitly, that this had caused the red marks that were found there. He had also said that he had dismounted from the chair or stool on which he had been standing; had followed Mrs Stocker over to a chair and that it was possible that he had put his hand around her neck. Unsurprisingly, he was content to go along with a suggestion put to him by a police officer that he had not maliciously grabbed her around the throat or tried to assault her. At no point did Mr Stocker claim that he had grasped his wife by the throat in order to secure his hand covering her mouth or to prevent her from wrenching free from his grasp. Nor did he suggest that he could not have prevented her from shouting simply by placing his hand over her mouth. It is to be noted that he had admitted to police that he had alighted from the stool or chair. If that statement was accurate and truthful, he was therefore on the same level as his wife. Yet, the judge rejected Mr Stockers evidence that he had simply put his hand over his wifes mouth. Mitting J considered that a further hand (on the neck) was needed to secure the grip on Mrs Stockers mouth. This conclusion seems to have been premised on Mr Stocker remaining on the chair. (And, in fairness to the judge, it seems that Mr Stocker so claimed in evidence.) If other considerations had not supervened, there might well have been an issue as to whether it was open to the judge to reach the conclusion which he did, particularly because that conclusion is more benevolent to Mr Stocker than any version of the facts which he could reasonably have advanced. It seeks to explain the red marks on a basis which Mr Stocker has never argued for. In the event, however, it is unnecessary to deal with that matter because of the conclusions that I have reached on other issues and, since it had not been argued that the judges finding on this point was one which he should not have made, I say nothing more about it. The judge began his discussion about the meaning to be given to the statements said to be defamatory by referring to the well known case of Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and cited the eight propositions made in that case by Sir Anthony Clarke MR in para 14. The judge also quoted the supplementary qualification to those propositions provided by Sharp LJ in Rufus v Elliott [2015] EWCA Civ 121, para 11. (Both authorities will be considered below.) Having considered these judicial pronouncements, Mitting J said that he did not understand that either authority indicated that, in order to confirm the meaning in ordinary usage of a single English word, it was impermissible to refer to an authoritative English dictionary such as the Oxford English Dictionary. He then referred to the two dictionary definitions which I have set out at para 7 above and continued at para 36: If the defendant had said he strangled me, the ordinary reader would have understood her to have used the word in the second sense for the obvious reason that she was still alive. But the two Facebook comments cannot have been understood to refer to trying to strangle her in that sense because, as she said, the police had found handprints on her neck. These could only have been caused by the painful constriction of her neck or throat. If understood in that sense, she could not have been taken to have said that the defendant had tried to strangle her because he had succeeded. The ordinary reader would have understood that the defendant had attempted to kill her by external compression of her throat or neck with his hands and/or fingers. It is clear from this passage of his judgment that the trial judge had confined the possible meaning of the statement, he tried to strangle me to two stark alternatives. Either Mr Stocker had tried to kill his wife, or he had constricted her neck or throat painfully. In the judges estimation, the fact that Mrs Stocker had said that her husband tried to strangle her precluded the possibility of her statement being taken to mean that he had constricted her neck painfully. This approach produces an obviously anomalous result. If Mrs Stocker had said, he strangled me, she should be understood to have meant that her husband had constricted her neck or throat painfully, on account of her having survived to tell the tale. But, because she said that he had tried to strangle her (in the normal order of things and in common experience a less serious accusation), she was fixed with the momentous allegation that her husband had tried to kill her. On this analysis, the use of the verb, to try assumes a critical significance. The possible meaning of constricting the neck painfully was shut out by what might be regarded as the adventitious circumstance that Mrs Stocker had said that her husband had tried to strangle her rather than that he had strangled her. This anomalous result was the product of confining the meaning of the words exclusively to two dictionary definitions. If tried to strangle did not fit with the notion of trying to constrict the neck or throat painfully (because of the prosaic fact that Mrs Stocker was still alive), the only possible meaning was that Mr Stocker had tried to kill. On the remainder of the claimed defamatory meaning the judges reasoning was closely allied to that on the first part. In the passage of his judgment which immediately succeeded that quoted at para 14 above, he said at para 36: That understanding [that her husband had tried to kill Mrs Stocker] would have informed the ordinary reader about the meaning of the remaining comments. They were that he had been arrested on at least two other occasions for gun issues and for breach of a non molestation order and possibly on a third for threats. In addition, he would have understood her to assert that the police believed that he had broken the terms of the non molestation order; in other words, that there was a basis beyond mere suspicion for doing so. The judge then dealt with an argument made on behalf of Mrs Stocker that all that she had done was to state that Mr Stocker had been arrested on more than one occasion and that this was not itself a defamatory statement. Of these claims, the judge said this at para 37: I agree that in principle the statement that a person has been arrested is not necessarily defamatory. But these statements, taken together, go well beyond that. They justify the claimants pleaded case that the reasonable inference to draw from the statement was that the defendant was dangerous, at least to any woman with whom he lived or had lived, that he was a man who tried to kill on one occasion, had been arrested for an offence involving firearms on another, and had given the police reason to believe that he had broken a non molestation order made against him. To describe him thus was defamatory. The meaning attributed by the judge to the statement that the claimant had been arrested, in the context of the other statements, therefore was that Mr Stocker was a man who was dangerous to any woman with whom he had lived or might live. Mrs Stocker had pleaded that her statements were substantially true and that she was therefore entitled to rely on the defence of justification. The judge dealt with that plea in para 54 of his judgment: The defendant has proved some justification for the words which she used in the Facebook postings. The claimant did commit an offence against her on 23 March 2003, at least common assault. He was arrested three times. There were gun issues. He had made threats, though not of immediate violence against her. But she has not met the sting of the postings that the claimant was a dangerous man. The impression given by the postings to the ordinary reader was a significant and distorting overstatement of what had in fact occurred. The Court of Appeal At para 17 of her judgment, Sharp LJ in the Court of Appeal said this about the use of dictionaries as a means of deciding the meaning to be given to a statement alleged to be defamatory: The use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words, because what matters is the impression conveyed by the words to the ordinary reader when they are read, and it is this that the judge must identify. As it happened however no harm was done in this case. The judge told counsel during the course of submissions that he had looked at the OED definitions and what they said, so the parties had the opportunity to address him about it; the judge, as he then said, merely used the dictionary definitions as a check, and no more; those definitions were in substance the rival ones contended for by the parties, and in the event, the judges ultimate reasoning, not dependent on dictionaries, was sound. The suggestion that the judge told counsel in the course of submissions that he had looked at the dictionary definition may mislead. On the first day of the trial, before any evidence had been given, counsel for Mr Stocker, Mr Barca QC, had suggested to Mitting J that no time would be saved by asking him to deliver a preliminary ruling on meaning. The judge replied that he had a preliminary opinion about it which he was willing to disclose. Shortly thereafter, he suggested that counsel should look at the Oxford English Dictionary definitions and said, You might from that gain the primary and secondary definition and fit it (sic) into the context of a message that he tried to do something. All of this occurred before the judge heard any argument about meanings. This suggests that, contrary to Sharp LJs view, the judge was not using the dictionary definitions as a cross check. Plainly, he regarded those definitions as comprehensive of the possible meanings of the statement, he tried to strangle me. Sharp LJs statement that Mitting J merely used the dictionary definitions as a check may have been based on his comment in para 36 of his judgment that the authorities do not prohibit reference to an authoritative English dictionary such as the Oxford English Dictionary to confirm the meaning in ordinary usage of a single English word. I do not construe this statement as signifying that the judge was using the dictionary definitions as a cross check and, indeed, neither in his judgment nor in his exchanges with counsel, does he ever use the expression, check. Given that Mitting J had consulted the dictionary before the trial began and commended consideration of it to counsel, it seems to me plain that, far from using the definitions as a check, what the judge did was to regard the two definitions as the only possible meanings which he could consider or, at the very least, the starting point for his analysis, rather than a cross check or confirmation of the correct approach. Therein lies the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement. That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made. Moreover, once the verb, strangle is removed from its context and given only two possible meanings before it is reconnected to the word, tried the chances of a strained meaning are increased. The words must be taken together so as to determine what the ordinary reasonable reader would understand them to mean. Mitting J examined the word strangle in conspicuous detail before considering it in conjunction with the word, tried. Having determined that strangle admitted of only two possible meanings, he then decided that tried could be applied to only one of these. Underpinning his reasoning is the unarticulated premise that to try is necessarily to try and fail. Since Mr Stocker had not failed to constrict his wifes throat, the judge concluded that the only feasible meaning of the words was that he had tried (and failed) to kill her. But that is not how the words are used in common language. If I say, I tried to regain my breath, I would not be understood to have tried but failed to recover respiratory function. On the meaning found by the judge at para 37 of his judgment (that Mr Stocker was dangerous to any woman with whom he lived), Sharp LJ at para 21 of her judgment said: The judges reference to the respondents dangerousness was merely his overall characterisation of the impression the [comments made by Mrs Stocker on Ms Blighs Facebook wall] conveyed, in the light of the discrete meanings he had found them to bear (the respondent had tried to kill etc). This was not a freestanding meaning therefore detached from the meanings complained of, nor was this a characterisation which founds an appeal that the judge was wrong; indeed to my mind, in the light of the meanings found by the judge, this overall characterisation of what was alleged was self evidently correct. (Emphasis added) Plainly, the Court of Appeal considered (as did, indeed, the judge) that that meaning was dependent, to some extent at least, on the correctness of Mitting Js conclusion as to the meaning to be given to the words, tried to strangle me. The passage quoted was in reaction to Mr Prices argument that the judge was wrong to have fastened on that meaning when it had not been advanced by Mr Stocker. Sharp LJ had observed of this argument that the judge was not bound to accept either partys contention on meaning; his task was to identify the single meaning of the words complained of within the relevant area of contention. For reasons that will appear, it is important to note the two aspects of Sharp LJs reasoning: first that the judge was entitled to fix on a meaning which had not been advanced by either party; and, secondly, that his choice of meaning was influenced by his findings in relation to the first defamatory meaning that Mrs Stockers words he tried to strangle me were to be taken as meaning that her husband had tried to kill her. Sharp LJ then turned to the question of justification. She referred to an argument advanced on behalf of Mrs Stocker that the judge had failed to advert to section 5 of the Defamation Act 1952 (which has now been replaced by section 2(3) of the Defamation Act 2013): In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiffs reputation having regard to the truth of the remaining charges. At para 25, Sharp LJ said: I can see why an issue in relation to section 5 might arise for consideration if the judge was wrong to conclude that the comments alleged the respondent had tried to kill the appellant by strangling her. In my view however, the failure of the principal argument on meaning deprives the argument on section 5 of any force that it might have had. The judge found in short that there was a real and substantial difference between the allegations made and those proved; and in my view he was entitled to reach that view on the evidence he heard. Having carefully appraised the evidence of justification and dealt with the essential points relating to that defence, the judge put the matter in this way. Though the appellant had proved some justification for the words she used, the allegations made in the comments were a significant and distorting overstatement of what had in fact occurred. His views were similarly expressed during the course of submissions. It is true that the judge found as a fact that during the course of an argument, the respondent had committed common assault at least, by placing his hand over the appellants mouth and putting his hand under her chin, to stop her speaking. However there is a material difference in gravity between such conduct, however unpleasant it may be, and an attempt to kill by strangulation; and it was plainly open to the judge to find, as he did, that what the appellant had proved in this and other respects, fell short by some measure of establishing a successful defence of justification, by reference to section 5 or otherwise. Again, it is to be noted that the finding of Mitting J about the meaning to be given to the words, he tried to strangle me was pivotal to the conclusion that section 5 could not be prayed in aid by Mrs Stocker. It is clear that, if it had been held that Mitting J was wrong to fix on the meaning of those words that he did, a markedly different view as to the applicability of section 5 would have been warranted. The single meaning rule Section 11 of the Defamation Act 2013 abolished the statutory right to trial by jury (in section 69(1) of the Senior Courts Act 1981). Under the previous dispensation, the judge would determine which meanings the allegedly defamatory words were capable of bearing and exclude those which she or he considered they were not capable of bearing. The judge would then put to the jury the various possible meanings and, with appropriate directions, invite the jury to decide which of those adumbrated meanings was the one to be attributed to the words said to be defamatory. The almost complete abolition of jury trial meant that the task of choosing a single meaning fell to the judge alone. The exercise of choosing a single immutable meaning from a series of words which are capable of bearing more than one has been described as artificial see, in particular, Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 172C. But the single meaning rule has had its robust defenders. In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd [2013] EMLR 7, Lord Neuberger of Abbotsbury, sitting as a judge of the Hong Kong Court of Final Appeal, said at para 138 that the criticism of the rules artificiality and (implicitly) its irrationality was misplaced. He suggested that the identification of a single meaning to be accorded a statement arose in many areas of law, most notably the interpretation of statutes, contracts and notices para 140. Whether the analogy between a single defamatory meaning and a sole meaning to be given to a contractual term, statutory provision or notice is apt (which I take leave to doubt), it is clear that the single meaning approach is well entrenched in the law of defamation and neither party in the present appeal sought to impeach it. And, whatever else may be said of it, it provides a practical, workable solution. Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding that one particular meaning should be ascribed to the statement. It is then for the judge to decide which meaning to plump for. Guidance as to how she or he should set about that mission was provided in Jeynes (mentioned in para 13 above). At para 14, Sir Anthony Clarke MR set out the essential criteria: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not nave, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non defamatory meanings are available. (3) Over elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any bane and antidote taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at para 7 and Gatley on Libel and Slander (10th ed), para 30.6). (8) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense. Neville v Fine Arts Co [1897] AC 68 per Lord Halsbury LC at 73. Sharp LJ added a rider to the second of these criteria in Rufus v Elliott when she said at para 11: To this I would only add that the words should not select one bad meaning where other non defamatory meanings are available are apt to be misleading without fuller explanation. They obviously do not mean in a case such as this one, where it is open to a defendant to contend either on a capability application or indeed at trial that the words complained of are not defamatory of the claimant, that the tribunal adjudicating on the question must then select the non defamatory meaning for which the defendant contends. Instead, those words are part of the description of the hypothetical reasonable reader, rather than (as) a prescription of how such a reader should attribute meanings to words complained of as defamatory: see McAlpine v Bercow [2013] EWHC 1342 (QB), paras 63 to 66. Clearly, therefore, where a range of meanings is available and where it is possible to light on one meaning which is not defamatory among a series of meanings which are, the court is not obliged to select the non defamatory meaning. The touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning. All of this, of course, emphasises that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this highlights the courts duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post. To fulfil that obligation, the court should be particularly conscious of the context in which the statement was made, and it is to that subject that I now turn. Context The starting point is the sixth proposition in Jeynes that the hypothetical reader should be considered to be a person who would read the publication and, I would add, react to it in a way that reflected the circumstances in which it was made. It has been suggested that the judgment in Jeynes failed to acknowledge the importance of context see Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529; [2018] 4 WLR 13 where at para 13 Simon LJ said that the propositions which were made in that case omitted an important principle [namely] the context and circumstances of the publication . It may be that the significance of context could have been made more explicitly clear in Jeynes, but it is beyond question that this is a factor of considerable importance. And that the way in which the words are presented is relevant to the interpretation of their meaning Waterson v Lloyd [2013] EWCA Civ 136; [2013] EMLR 17, para 39. The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read. at para 35 said this about tweets posted on Twitter: In Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68, Warby J The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter. I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre eminently one in which the reader reads and passes on. That essential message was repeated in Monir v Wood [2018] EWHC (QB) 3525 where at para 90, Nicklin J said, Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly. Facebook is similar. People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting. Some observations made by Nicklin J are telling. Again, at para 90 he said: It is very important when assessing the meaning of a Tweet not to be over analytical. Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader. And Nicklin J made an equally important point at para 92 where he said (about arguments made by the defendant as to meaning), these points only emerge as a result of close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by his/her side making points like this. A similar approach to that of Nicklin J had been taken by Eady J in dealing with online bulletin boards in Smith v ADVFN plc [2008] EWHC 1797 (QB) where he said (at paras 13 to 16): 13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court. 14. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or give and take. 16. People do not often take a thread and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it. Further discussion It will be clear from what I have said already that, in my view, Mitting J fell into legal error by relying upon the dictionary definition of the verb to strangle as dictating the meaning of Mrs Stockers Facebook post, rather than as (as Sharp LJ suggested) a check. In consequence, he failed to conduct a realistic exploration of how the ordinary reader of the post would have understood it. Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post. Anyone reading this post would not break it down in the way that Mitting J did by saying, well, strangle means either killing someone by choking them to death or grasping them by the throat and since Mrs Stocker is not dead, she must have meant that her husband tried to kill her no other meaning is conceivable. In view of the judges error of law, his decision as to the meaning of the Facebook post cannot stand, and this court must either determine the meaning for itself, or if that is not possible, remit the case for a rehearing. It is entirely appropriate in this case for us to take the former course, determining the meaning ourselves. I return to the ordinary reader of the Facebook post. Such a reader does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance. Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her. Ironically, perhaps, this conclusion is reinforced by the consideration that only one meaning is to be attributed to the statement. Taking a broad, overarching view, and keeping in mind that only one meaning could be chosen, the choice to be made between the meaning of the words being that Mr Stocker grasped his wife by the neck or that he tried to kill her is, in my opinion, a clear one. If Mrs Stocker had meant to convey that her husband had attempted to kill her, why would she not say so explicitly? And, given that she made no such allegation, what would the ordinary reasonable reader, the casual viewer of this Facebook post, think that it meant? In my view, giving due consideration to the context in which the message was posted, the interpretation that Mr Stocker had grasped his wife by the neck is the obvious, indeed the inescapable, choice of meaning. I emphasise again that it is a legal error on the part of the judge that has opened the door to a redetermination of the meaning of Mrs Stockers words. This is not a case of the appellate court giving precedence to its view of meaning over that legitimately reached by the judge. To the contrary, it is the courts recognition that the meaning determined by the judge was reached via a route which was impermissible and having then to confront the question what meaning should properly be attributed to the relevant words. It is nevertheless appropriate to say something generally about the role of the appellate court in appeals concerning the meaning of avowedly defamatory words chosen by a trial judge. The role of the appellate court The question of when it was appropriate for an appellate court to substitute its view for that of a trial judge on the meaning of a claimed defamatory statement was addressed at some length in Bukovsky. At para 30 Simon LJ set out the competing contentions of counsel as to how this issue should be approached: [Counsel for the appellant] submitted that the relevant test on an appeal on meaning was whether the decision of the lower court was wrong: see CPR rule 52.11(3)(a), now CPR rule 52.21(3)(a). In contrast, [counsel for the respondent] submitted that this court should only reject the meaning found by the judge if it was clear that some other meaning applied. A passage in Duncan & Neill at para 33.03 describes both arguments in relation to the determination of meaning (a different approach is adopted in a determination made under paragraph 4 of CPR Practice Direction 53 that a statement is capable or incapable of bearing a particular meaning). I have added the letters A and B to para 33.03 so as to distinguish the two approaches: [A] A determination of the actual meaning of a statement is a determination of fact that an appeal court is bound to overturn if the judges determination was wrong. Since determination of meaning is often based on the consideration of a single document, an appellate court, it might be said, is as well placed as the first instance judge to decide the issue and should simply substitute its own view if it disagrees with the judge. [B] On the other hand, it might be said, determination of meaning is nevertheless an exercise that involves the evaluation and weighing of various parts of a statement, such that an appeal court should normally accord a degree of deference to the first instance judge and interfere only when quite satisfied that a judges determination of meaning was wrong and that some other meaning clearly applied. It appears that this more deferential approach is the one likely to be adopted. At para 31, Simon LJ observed that proposition B had been supported by a number of judgments of the Court of Appeal, including that of Sir Thomas Bingham MR in Skuse v Granada Television Ltd [1996] MLR 278, 287, where he said: The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong. (Emphasis added) As Simon LJ noted, however, when the Court of Appeal came to state its conclusion in Skuse, it merely said that it was satisfied that the natural and ordinary meaning which the judge gave to the material complained of was wrong. The satisfied/quite satisfied dichotomy featured again in Cruddas v Calvert [2013] EWCA Civ 748; [2014] EMLR 5, para 18 Longmore LJ summarised the claimants argument thus: [Counsel for the claimants] relied heavily on a supposed principle that the meaning of words was a jury question (and thus a question of fact) and that the judge was the best person qualified to reach the right conclusion which should not be second guessed by this court. He then referred to Skuse v Granada Television Ltd and to Cammish v Hughes [2012] EWCA Civ 1655; [2013] EMLR 13, where Arden LJ had said at para 31: As to the test that this court should apply, although this court has the same documents as were available to the judge, and the meaning depends on documents, we apply the dictum of Sir Thomas Bingham MR, [in Skuse]. The determination of meaning does not depend solely on the documents, but on an evaluation of those words in their context. In those circumstances, we consider that we should not depart from the judges meaning unless it is clear that some other meaning applies. (Emphasis added) Longmore LJ in Cruddas acknowledged the force of the submission that the Court of Appeal should not second guess the judge and said at para 19: 19. There is, of course, considerable force in this argument. On the other hand, imputations of criminal conduct are extremely serious and, if an appellate court thinks that an article just does not bear that imputation, it should say so. It is an important aspect of the law of libel that it should be open to a defendant to justify a lesser defamatory meaning than that alleged by a claimant if that is the right meaning to be given to the article. He concluded by saying that if, in order to come within Sir Thomas Binghams eighth principle in the Skuse case, he had to, he would say that he was not merely satisfied but quite satisfied. For my part, the difference in this context between being satisfied and being quite satisfied, if it can be discerned at all, is so ephemeral, so elusive a concept as to be of scant utility. Ultimately, the court in Bukovsky elected to steer a middle course between what Simon LJ had described as options A and B. At para 39, Simon LJ said: It seems to me that the better approach is for this court to adopt a position somewhere between Duncan & Neills propositions A and B. It should proceed cautiously before substituting its own views on meaning and only do so when satisfied that the judge is wrong, not least because meaning is very often a matter of impression, because experienced defamation judges are well practised at applying the relevant tests for determining meaning and because it is plainly undesirable for the Court of Appeal to approach the issue on appeal simply on the basis that they might have formed a different view from the judge. Of course, a reviewing court should be slow to disturb a finding of a trial judge as to the meaning of a claimed defamatory statement. This is mainly because it is a finding of fact, whereas the construction of a written contract is a question of law. It is well settled, outside the field of defamation, that an appellate court will not interfere with a finding of fact by a first instance judge merely because it takes a different view of the matter. The degree of restraint which the appellate court will exercise will depend upon whether the judge had the advantage of seeing and hearing the witnesses, whether the finding is an inference based upon the review of a large mass of primary factual material, and whether the finding is in the nature of an evaluation involving mixed fact and law. The following passage from the judgment of Lord Reed in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, paras 3 4 sufficiently covers the ground: 3. The reasons justifying that approach are not limited to the fact, emphasised in Clarkes case and Thomas v Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer (1985) 470 US 564, 574 575: The rationale for deference to the original finder of fact is not limited to the superiority of the trial judges position to make determinations of credibility. The trial judges major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judges efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be the main event rather than a try out on the road For these reasons, review of factual findings under the clearly erroneous standard with its deference to the trier of fact is the rule, not the exception. 4. Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235, para 14: The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged. As to whether the appellate task needs to be described as one requiring caution, as Simon LJ suggested, I am doubtful. I would prefer to say that it calls for disciplined restraint. Certainly, the trial judges conclusion should not be lightly set aside but if an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as plainly or quite satisfied. If it was vitiated by an error of law then the appellate court will have to choose between remitting the matter or, more usually in this context, determining the meaning afresh. But if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere. This discussion is academic in the present case for I am of the view that Mitting Js use of the dictionary definitions to confine the possible meanings of the Facebook post involved an error of law and, on that account the Court of Appeal needed to approach the question of meaning afresh. Since it did not do so, that task falls to this court, with the consequence which I have described. Justification In light of my conclusion as to the correct meaning to be given to the words, tried to strangle me, section 5 of the Defamation Act 1952 must occupy centre stage. It is beyond dispute that Mr Stocker grasped his wife by the throat so tightly as to leave red marks on her neck visible to police officers two hours after the attack on her took place. It is not disputed that he breached a non molestation order. Nor has it been asserted that he did not utter threats to Mrs Stocker. Many would consider these to be sufficient to establish that he was a dangerous and disreputable man, which is the justification which Mrs Stocker sought to establish. Mitting J considered that the meaning of the statement that the claimant was arrested on numerous occasions, in the context of the other statements, was that he represented a danger to any woman with whom he might live. I see no warrant for adding that dimension to the actual words used by Mrs Stocker in her various Facebook postings. Even if all her allegations were considered not to have been established to the letter, there is more than enough to satisfy the provision in section 5 of the 1952 Act that her defence of justification should not fail by reason only that the truth of every charge is not proved, having regard to the truth of what has been proved. Conclusion I would allow the appeal, and subject to any submissions which the parties might wish to make, order that the costs of the appeal and the hearings before the lower courts be borne by the respondent. |
This has proved an unusually difficult case to resolve. Not only are the substantive issues, relating to the compatibility of abortion law in Northern Ireland with articles 3 and 8 of the European Convention on Human Rights (the ECHR or the Convention), of considerable depth and sensitivity; but there is also the procedural issue raised by the Attorney General for Northern Ireland, who challenges the standing of the Northern Ireland Human Rights Commission (NIHRC) to bring these proceedings. The court is divided on both questions, but in different ways. On the substantive compatibility issues, a majority Lord Mance, Lord Kerr, Lord Wilson and I hold that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 of the Convention, insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality. Lady Black agrees with that holding in the case of fatal foetal abnormality. Lord Kerr and Lord Wilson also hold that it is incompatible with the right not to be subjected to inhuman or degrading treatment, guaranteed by article 3 of the Convention. Lord Reed and Lord Lloyd Jones hold that the law is not incompatible with either article 8 or article On the procedural issue, a majority Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones hold that the NIHRC does not have standing to bring these proceedings and accordingly that this court has no jurisdiction to make a declaration of incompatibility to reflect the majority view on the compatibility issues. A minority Lord Kerr, Lord Wilson and I hold that the NIHRC does have standing and would have made a declaration of incompatibility. In these unusual circumstances, it is not possible to follow our usual practice and identify a single lead judgment which represents the majority view on all issues. We have therefore decided to revert to the previous practice of the appellate committee of the House of Lords and print the judgments in order of seniority. It is for that reason only that my judgment comes first. Far more substantial judgments on all issues follow from Lord Mance and Lord Kerr. Introduction The substantive questions in this case are legal issues specifically related to the implementation in UK law, by the Human Rights Act 1998 (HRA), of the ECHR, which in turn has to be interpreted in the light of other international treaties to which the UK is a party, in this case the United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) and the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD). Moral and political issues, important though they undoubtedly are, are relevant only to the extent that they are relevant to the legal issues which have to be resolved. The starting point for any discussion of the legal issues has to be the right of all human beings, male and female, to decide what shall be done with their own bodies. This right has long been recognised by the common law: it is the reason why consent is needed for invasive medical treatment however well intentioned: see Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] AC 1430. It is also recognised by the ECHR: see Pretty v United Kingdom (2002) 35 EHRR 1, where it was said that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees (para 61). For many women, becoming pregnant is an expression of that autonomy, the fulfilment of a deep felt desire. But for those women who become pregnant, or who are obliged to carry a pregnancy to term, against their will there can be few greater invasions of their autonomy and bodily integrity. The point is vividly made in Professor Thomsons famous article (A Defence of Abortion, reprinted in R M Dworkin (ed), The Philosophy of Law): You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinists circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, Look, were sorry the Society of Music Lovers did this to you we would never have permitted it had we known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, its only for nine months. By then he will have recovered from his ailment, and can be safely unplugged from you. There can be no doubt that the grossest invasion of your legal rights has taken place: the question is whether you are now under a legal duty to endure that invasion for the next nine months. By definition we are here considering the cases of women and girls who either did not want to become pregnant at all, or having experienced the joy of a wanted pregnancy, have reached the agonising conclusion that because of the foetal abnormalities, they do not wish to carry the pregnancy to term. There will of course be women who decide that they do wish to continue the pregnancy despite the circumstances. Any woman or girl who finds herself in such a situation and wants an abortion will have made her own moral choice, often a very difficult moral choice. The question is whether others, many of whom will never be placed in that situation, are entitled to make a different moral choice for her, and impose upon her a legal obligation to carry the pregnancy to term. The present law, contained in sections 58 and 59 of the Offences Against the Person Act 1861, an Act of the UK Parliament, and section 25(1) of the Criminal Justice Act (NI) 1945, an Act of the Northern Ireland legislature, does impose that obligation upon her, unless there is a risk to her life or of serious long term or permanent injury to her physical or mental health. Indeed, it does more than that. It has, as the United Nations Committee on the Elimination of Discrimination against Women has recently pointed out, a chilling effect upon clinicians, who are reluctant to discuss the options for fear of being thought to aid, abet, counsel or procure an abortion which might be unlawful. It also discourages women who have had abortions, lawful or unlawful, from seeking proper after care, because of section 5 of the Criminal Law Act (NI) 1967: anyone who knows or believes that an offence has been committed and has information which might be of material assistance in securing the apprehension, prosecution, or conviction of the person who committed it, commits an offence if they fail without reasonable excuse to give that information to the police within a reasonable time. The Departmental Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland (March 2016) draws professionals attention to both these risks. The Royal Colleges of Obstetricians and Gynaecologists, of Midwives and of Nursing described the 2013 draft as intimidating for women and for professionals and the CEDAW Committee found that the finalised Guidance perpetuates such intimidation (Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/GBR/1, published 23 February 2018, para 18). This being the state of the law in Northern Ireland, it is not suggested that this Court can strike it down or interpret it out of existence. The only question is whether it is incompatible with either article 3 or article 8 of the ECHR and whether the Court both can and should declare it so. The first question, therefore, is whether the NIHRC has standing to bring these proceedings. Standing This is an arid question, because there is no doubt that the NIHRC could readily have found women who either are or would be victims of an unlawful act under the Human Rights Act 1998 and either supported or intervened in proceedings brought by those women. The relevant sections of the Northern Ireland Act 1998, which established the Commission, are set out in full in paras 48, 49 and 50 of Lord Mances judgment. Under section 69(5) of the Northern Ireland Act 1998, the NIHRC may do two things: the first is to give assistance to individuals in accordance with section 70 (section 69(5)(a)). Section 70 applies to proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has brought or wishes to bring (section 70(1)(a)) or proceedings in which such a person relies or wishes to rely on such law or practice (section 70(1)(b)). This will clearly encompass, not only actions brought under section 7(1)(a) of the HRA, but also other proceedings in which a person wishes to rely on the HRA; the latter must include cases such as Ghaidan v Godin Mendoza [2004] 2 AC 557, in which there was no suggestion of an unlawful act by a public authority but the court was being asked to construe certain provisions of the Rent Act 1977 compatibly with the Convention rights. The second thing that the NIHRC may do is to bring proceedings involving law or practice relating to the protection of human rights (section 69(5)(b)). Unlike section 69(5)(a), there is no cross reference to another section of the Act which might limit the breadth of that power. Nevertheless, it is argued that the power is limited by section 71, which is headed Restrictions on application of rights. The first thing to notice about section 71 is that it is directed to sections 6(2)(c) or 24(1)(a) of the Northern Ireland Act (set out in para 51 of Lord Mances judgment). Section 71(1) provides that nothing in those sections shall enable a person to bring any proceedings on the ground that any legislation or act is incompatible with the Convention rights or to rely on any of the Convention rights in any such proceedings unless he would be regarded as a victim of the legislation or act in the European Court of Human Rights in Strasbourg. Section 6(2)(c) provides that an Act of the Northern Ireland Assembly is outside its competence (and thus not law under section 6(2)) if it is incompatible with any of the Convention rights. Section 71(3) limits the scope of that prohibition. Section 24(1)(a) provides that a Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the Convention rights. Section 71(4) similarly limits the scope of that prohibition. The aim of section 71(1) was thus to prevent private persons bringing proceedings to challenge Acts of the Assembly, subordinate Northern Irish legislation or executive acts unless they could claim to be victims. But, under section 71(2), the principal Law Officers of England, Northern Ireland and Scotland could bring such proceedings. It is not clear why the original version of section 71(1) (set out in para 175 of Lord Kerrs judgment) referred to section 69(5)(b), but it had the effect of preventing the NIHRC bringing proceedings to challenge any legislation or act, because the NIHRC could never (or hardly ever) claim to be a victim of such legislation or act. That defect was recognised by the House of Lords in In re Northern Ireland Human Rights Commission [2002] NI 236 and the problem dealt with by deleting the reference to section 69(5)(b) in section 71(1) and expressly providing in section 71(2A) that the prohibition did not apply to the NIHRC. It is clear, therefore, that the NIHRC has power to challenge any legislation or act without being its victim. Sections 71(2B) and (2C) go on to deal with the Commissions instituting or intervening in human rights proceedings. Section 71(2B)(a) makes it clear that the Commission itself need not be a victim of the unlawful act to which the proceedings relate. But section 71(2B)(c) provides that the Commission may act only if there is or would be one or more victims of the unlawful act. By section 71(2C) human rights proceedings means proceedings under section 7(1)(b) of the HRA or under section 69(5)(b) of the Northern Ireland Act. Section 7(1)(b) refers to claims that a public authority has acted or proposes to act incompatibly with a Convention right, which claims may be relied on in any legal proceedings, but only if the person making the claim is or would be a victim of the unlawful act. Construing the subsection as a whole, the reference to proceedings under section 69(5)(b) must mean proceedings brought by the NIHRC claiming that a public authority has acted or proposes to act incompatibly with a Convention right. It then makes perfect sense for section 71(2B)(c) to provide that the NIHRC can only bring proceedings in respect of an unlawful act if there is or would be a real victim of such an act. But we know that the Human Rights Act provides two different methods of seeking to ensure compliance with the Convention rights. One is for victims to bring proceedings in respect of an unlawful act of a public authority, or to rely on such an unlawful act in other proceedings, pursuant to section 7(1) of the HRA. The other is to challenge the compatibility of legislation under sections 3 and 4 of the HRA, irrespective of whether there has been any unlawful act by a public authority. This may be done in proceedings between private persons, as in Wilson v First County Trust (No 2) [2004] 1 AC 816 and Ghaidan v Godin Mendoza. But it may also be done in judicial review proceedings brought by person with sufficient standing to do so. A current example is Steinfeld v Secretary of State for Education [2017] 3 WLR 1237, where the provisions in the Civil Partnership Act 2004 limiting civil partnerships to same sex couples are under challenge. The NIHRC clearly has standing to bring such proceedings by virtue of section 69(5)(b). In my view, therefore, section 71(2B) and (2C) are dealing only with proceedings brought by the NIHRC, or interventions by the NIHRC in proceedings brought by others, in respect of claims that a public authority has acted or proposes to act unlawfully. Not surprisingly it requires that there be an identifiable victim of such an unlawful act. But it does not apply to or limit the general power of the NIHRC to challenge the compatibility of legislation of any sort under sections 3 and 4 of the HRA. This would be clearer still if the words if any were inserted after unlawful act in section 71(2B)(c), but it is in my view clear that the unlawful act means the unlawful act alleged in the proceedings, so it does not apply where no such unlawful act is alleged. For the reasons given by Lord Kerr, it would be very surprising if it did limit the NIHRCs power to bring such a challenge. It is to my mind clear that the Equality and Human Rights Commission in Great Britain, albeit operating under different legislation (set out in para 63 of Lord Mances judgment), does have that power, so there can be no objection in principle. Article 8 I propose first to address the compatibility of Northern Ireland abortion law with article 8 of the ECHR, because it is common ground that the current law is indeed an interference with the right of pregnant women and girls to respect for their private lives which is guaranteed by article 8(1). The question is whether in terms of article 8(2) it is justified because it is in accordance with the law and is necessary in a democratic society for the protection of health or morals, or for the protection of the rights and freedoms of others. In answering the second part of that question, it is now customary to ask whether the measure in question has a legitimate aim, is rationally connected to that aim, and is a proportionate means of achieving it. For the reasons given by Lord Kerr and Lord Mance, I agree that such interference is not justified, but would like to make a few points of my own. Although the current state of the law has been criticised for its lack of clarity and is certainly not as clear as is the law in the rest of the UK it is no more uncertain than many other areas of the law which rely upon the application of particular concepts in this case a risk to life or of serious and prolonged or permanent injury to physical or mental health to the facts of a particular case. It is also sufficiently accessible to those affected by it for the interference to be in accordance with the law for this purpose. It is more difficult to articulate the legitimate aim. It cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life, health and welfare of the pregnant woman that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights holders under the both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two. Where there is no consensus of opinion among the member states of the European Union, the Strasbourg court will usually allow individual member states a wide (though not unlimited) margin of appreciation when undertaking such balancing exercises. In A, B and C v Ireland (2010) 53 EHRR 13, the majority of the Grand Chamber of the Strasbourg court took the unusual step of holding that the margin of appreciation allowed to Ireland had not been decisively narrowed, despite the existence of a consensus amongst a substantial majority of the contracting States allowing abortion on wider grounds than those allowed under Irish law (which was and, for the time being at least, remains even narrower than the law in Northern Ireland). The majority felt able to do this because the prohibition was based on the profound moral views of the Irish people as to the nature of life and women had the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland (para 241). The minority (of six) pointed out that this was the first time that the court had disregarded a European consensus on the basis of profound moral views and considered it a real and dangerous new departure, even assuming those views were still well embedded in the conscience of the Irish people (para O III11). Two of the women in the A, B and C case were seeking abortions on what were described as health and well being grounds: the majority found no violation. The third was concerned that continuing her pregnancy might endanger her life because she had cancer: the Court found a violation of the States positive obligation to secure effective respect for her private life because there was no accessible and effective procedure by which she could have established whether she qualified for a lawful abortion in Ireland. The position in this case is quite different. In the first place, there is no evidence that the profound moral views of the people of Northern Ireland are against allowing abortion in the three situations under discussion here. Quite the reverse. There is a remarkably consistent series of public opinion polls showing majority support for abortion in these circumstances. The most recent survey was a serious academic study, more rigorous than a conventional opinion poll (the results of the Northern Ireland Life and Times Survey are set out in para 110 of Lord Mances judgment). This evidence cannot be lightly dismissed when the argument is that profound moral views of the public are sufficient to outweigh the grave interference with the rights of the pregnant women entailed in making them continue their pregnancies to term even though they, by definition, have reached a different moral conclusion no doubt, for many, an agonising one. In the second place, we are dealing with three very different situations from those with which the A, B and C case was concerned, situations in which it cannot seriously be contended that a pregnant woman has a duty to carry the pregnancy to term. In the case of rape, not only did she not consent to becoming pregnant, she did not consent to the act of intercourse which made her pregnant, a double invasion of her autonomy and the right to respect for her private life. In this connection, it is worth noting that the Sexual Offences (Northern Ireland) Order 2008 labels two offences rape: article 5 makes it the offence of rape intentionally to penetrate, inter alia, a vagina with a penis where the woman does not consent and the man does not reasonably believe that she consents; article 12 makes it the offence of rape of a child intentionally to penetrate a person under 13 with a penis, irrespective of consent or a belief in consent; both offences carry a maximum of life imprisonment. Article 16 is labelled Sexual activity with a child and makes it an offence for a person of 18 or older intentionally to touch another person where the touching is sexual and that other person is either under 16 and the toucher does not reasonably believe that she is 16 or over or she is under 13. If the touching involves penetration of a vagina with a penis, the offence carries a maximum sentence of 14 years imprisonment. Thus the only difference between the article 16 offence and the article 12 offence is that, if the child is 13 or over but under 16, no offence is committed if the penetrator reasonably believed that she was 16 or over. Consent or reasonable belief in consent does not feature in either offence. Thus it is conclusively presumed in the law of Northern Ireland that children under 16 are incapable of giving consent to sexual touching, including penetration of the vagina by a penis. It is difficult, therefore, to see any reason to distinguish between the offences under article 12 and article 16 for the purpose of this discussion, nor indeed to exclude pregnancies which would be the result of an offence under article 16 were it not for the penetrators reasonable belief that the child was 16 or over: she is still deemed incapable of giving a real consent to it. The claim refers only to rape and incest (as well as foetal abnormality) but there is no longer any offence labelled incest in Northern Ireland law. There is, however, an offence under article 32 of the 2008 Order labelled Sexual activity with a child family member which follows the same pattern as article 16: it covers sexual touching of a child whom the toucher knows or can reasonably be expected to know is related in the defined ways; if the child is 13 but under 18 the toucher must not believe that she is 18 or over; no such exception applies if the child is under 13; the offence carries a maximum penalty of 14 years imprisonment if the touching involves penetration, inter alia, of the vagina. Article 68 creates an offence labelled Sex with an adult relative: penetration and article 69 creates an offence of consenting to such penetration. Thus the criminal law covers (in substance) the same ground as was previously covered by the law of incest. I see no reason to exclude pregnancies which are the result of the offences created by articles 16, 32 and 68 from this discussion. Nor do I see any reason to treat child pregnancies resulting from penetration by a relative any differently from child pregnancies arising in other circumstances. Adult pregnancies are different, because there may have been genuine consent to the penetration. But the giving of that consent is itself an offence, and so the law should not treat it on the same footing as a real consent. Furthermore, as Lord Mance has convincingly demonstrated, there is good evidence that most intra familial sexual relationships are abusive. And once again, by definition we are discussing a woman who does not consent to the pregnancy: she has made a conscious choice that she does not wish to continue with it. These are all, therefore, situations in which the autonomy rights of the pregnant woman should prevail over the communitys interest in the continuation of the pregnancy. I agree, for the reasons given by Lord Kerr and Lord Mance, that in denying a lawful termination of her pregnancy in Northern Ireland to those women and girls in these situations who wish for it, the law is incompatible with their Convention rights. I agree with Lord Mance, in particular, that relying on the possibility that she may be able to summon up the resources, mental and financial, to travel to Great Britain for an abortion if anything makes matters worse rather than better. This conclusion is reinforced by the recent Report of the CEDAW Committee. This contains a helpful discussion of the difficulties of travelling out of Northern Ireland for abortion, which it concludes is not a viable solution (paras 25 to 32). The third type of case with which we are concerned, that of foetal abnormality, does have to be separated into cases where the foetus suffers from a fatal abnormality, one which will cause death either in the womb or very shortly after delivery, and other serious abnormalities. Both share the feature that the pregnancy may have been very much wanted by the woman, and her partner, and the news of the abnormality will have been doubly devastating. But in the case of fatal foetal abnormality, there can be no community interest in obliging the woman to carry the pregnancy to term if she does not wish to do so. There is no viable life to protect. It is, of course, essential that the diagnosis be as accurate as possible, but we have the evidence of Professor Dornan that, before the law was clarified in Family Planning Association of Northern Ireland v Minister for Health, Social Security and Public Safety [2004] NICA 39; [2005] NI 188, abortions were offered in such cases and there was a high level of accuracy in the diagnosis. Travelling to Great Britain is even more difficult in such cases, as the problem is often detected comparatively late in the pregnancy, at 18 to 20 weeks, which leaves very little time to make the arrangements and there may be no counselling offered on what the options are. If the woman does manage to travel, not only will she have all the trauma and expense associated with that, but also serious problems in arranging the repatriation of the foetal remains. Serious foetal abnormality is a different matter. The CEDAW committee has obviously had some difficulty in reconciling its views on the legalisation of abortion, which it systematically recommends in all cases (Report, para 58), with the views of the United Nations Committee on the Rights of Persons with Disabilities. Thus the CEDAW Committee states (Report, para 60): The Committee interprets articles 12 and 16, clarified by GR Nos 24 and 28, read with articles 2 and 5, to require States parties to legalise abortion, at least in cases of rape, incest, threats to the life and/or health (physical or mental) of the woman, or severe foetal impairment. The Committee has not taken the view it does of the legalisation of abortion because there is an express provision to that effect in the Convention: it has taken the view that it is the inescapable conclusion from the rights which the Convention does recognise. Article 12 requires State parties to eliminate discrimination against women in the field of health care, in order to ensure equality between men and women in access to health care services. Article 16 requires the same in relation to family relations, including the right to decide freely and responsibly on the number and spacing of children. Article 2 is a general prohibition of discrimination against women and requires positive steps to achieve equality between men and women. Article 5 requires, inter alia, the elimination of practices based on the inferiority or superiority of either of the sexes or on stereotypical roles for men and women. However (Report, para 62): In cases of severe foetal impairment, the Committee aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex selective and disability selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities. While the Committee consistently recommends that abortion on the ground of severe foetal impairment be available to facilitate reproductive choice and autonomy, States parties are obligated to ensure that womens decisions to terminate pregnancies on this ground do not perpetuate stereotypes towards persons with disabilities. Such measures should include the provision of appropriate social and financial support for women who choose to carry such pregnancies to term. Accordingly, the CEDAW Committee recommended to the UK that it adopt legislation legalising abortion at least where there is a threat to the pregnant womans physical or mental health; rape or incest; and severe foetal impairment, including fatal foetal abnormality without perpetuating stereotypes towards persons with disabilities and ensuring appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term (para 85). As already stated, the guarantees contained in the ECHR should be interpreted in the light of other relevant international human rights instruments. Some may think that the CEDAW Committees recommendations strike the right balance, but I recognise and understand that others may think that they do not give sufficient weight to the valuable and rewarding lives led by many people with serious disabilities. Article 3 Article 3 differs from article 8 in several ways. First, the right not to be subjected to torture or inhuman or degrading treatment or punishment is absolute it is not to be balanced against any other rights, including the right to life of people whose lives might be saved if, for example, a prisoner were tortured in order to discover their whereabouts. Second, therefore, the treatment complained of has to reach what is referred to as a minimum level of severity but which actually means a high level of severity in order to attract the prohibition. Third, although the motive with which the treatment is inflicted may be relevant, the principal focus is upon the effect upon the victim. I have no doubt that the risk of prosecution of the woman, and of those who help her, thus forcing her to take that risk if she procures an illegal abortion in Northern Ireland, or to travel to Great Britain if she is able to arrange that, constitutes treatment by the State for this purpose. It is the State which is subjecting her to the agonising dilemma. I also have little doubt that there will be some women whose suffering on being denied a lawful abortion in Northern Ireland, in the three situations under discussion here, will reach the threshold of severity required to label the treatment inhuman or degrading. This is another respect in which article 3 is unlike article 8. In every case where a woman is denied a lawful abortion in Northern Ireland which she seeks in the three situations under discussion, her article 8 rights have been violated. But it cannot be said that every woman who is denied an abortion in such circumstances will suffer so severely that her rights under article 3 have been violated. It depends upon an intense focus on the facts of the individual case which the article 8 question, at least in the three cases under discussion, does not. This is not a situation, as it is under article 8, where the operation of the law is bound to produce incompatible results in every case. But neither is it a situation where the law can always be operated compatibly with the Convention rights if the public authority takes care to act in a way which respects those rights. Rather, it is a situation in which the law is bound to operate incompatibly in some cases. I have sympathy for the view expressed by Lord Kerr that the risk of acting incompatibly with article 3 rights is such as to engage the positive obligation of the state to prevent that risk materialising; but it is unnecessary to decide the point, in the light of my conclusion that the present law is incompatible with article 8 in the three respects discussed above. Remedy I have reached the following conclusions (i) that the NIHRC does have standing to challenge the legislation in question here; (ii) that, in denying a lawful abortion in Northern Ireland to a woman who wishes it in cases of rape, incest and fatal foetal abnormality, the law is incompatible with article 8 of the Convention; and (iii) that it will also operate incompatibly with article 3 of the Convention in some cases. I agree, for the reasons given by Lord Kerr, that the incompatibility with article 8 cannot be cured by further reading down of section 58 of the Offences against the Person Act 1861 under section 3 of the HRA. Should we therefore make a declaration of incompatibility under section 4 of the HRA? I understand, of course, the view that this is a matter which should be left entirely to the democratic judgment of the Northern Ireland Assembly (or the United Kingdom Government should direct rule have to be resumed). But I respectfully disagree for several reasons. First, although the Strasbourg court was prepared to accord Ireland a wide measure of appreciation in the A, B and C case, that was, as the minority pointed out, most unusual. It cannot be guaranteed that the Strasbourg court would afford the United Kingdom the same margin of appreciation in this case, given that public opinion in Northern Ireland is very different from assumed public opinion in Ireland at the time of the events in A, B and C. In any event, even if it did, that does not answer the question. It means only that the United Kingdom authorities have to decide what is, or is not, compatible with the Convention rights. Second, this is not a matter on which the democratic legislature enjoys a unique competence. It is a matter of fundamental human rights on which, difficult though it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified, because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject. It falls within the principle accepted by the House of Lords in In re G (Adoption: Unmarried Couple) [2009] AC 173 and indeed by the majority of this Court in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657. Third, Parliament has expressly given the higher courts the power to rule upon the compatibility or incompatibility of legislation with the Convention rights. Parliament did not say, when enacting section 4 of the HRA, but there are some cases where, even though you are satisfied that the law is incompatible with the Convention rights, you must leave the decision to us. Parliamentary sovereignty is respected, not by our declining to make a declaration, but by what happens if and when we do. Parliament has three options. First, it may share the courts view and approve a fast track remedial order under section 10 of the HRA, which is appropriate if the matter is quite simple and easy to solve. Second, it may share our view and pass an Act of Parliament to put things right, which is appropriate if the matter is not simple and easy to solve, and complex arrangements have to be put in place. Third, it may do nothing. This could be because it disagrees with courts view, and prefers to wait and see what view is eventually taken by the European Court of Human Rights. Or it could be because it is inclined to leave matters as they are for the time being. The do nothing option is no doubt more attractive if the matter is one which Strasbourg would regard as within the UKs margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day. All that a declaration on incompatibility does, therefore, is place the ball in Parliaments court. This is not a case like Nicklinson in which the matter was already before Parliament and the issues were not as clear cut: the case had changed from one of active euthanasia to one of assisted suicide in the course of its progress through the courts. In this case, if the court has reached a firm conclusion that the law is incompatible there is little reason not to say so, particularly where, as here, the UK has already been advised that the law is in breach of its international human rights obligations under another treaty. I would therefore have allowed this appeal and made a declaration accordingly, but in the light of the majoritys view of the standing of the NIHRC to bring these proceedings it must follow that we have no jurisdiction formally to declare the majoritys view. But, as Lord Mance explains in para 135 that does not mean that it can safely be ignored. LORD MANCE: Summary (a) By these proceedings against the Department of Justice and the Attorney General for Northern Ireland (the respondents), the Northern Ireland Human Rights Commission (the Commission) challenges the compatibility of the law in Northern Ireland with articles 3 and 8 of the European Convention on Human Rights (the Convention rights), insofar as that law prohibits abortion in cases of fatal and other foetal abnormality, rape and incest. (b) The respondents raise an initial objection to the challenge, that it is outside the Commissions competence (in the sense of power) to institute abstract proceedings of this nature (an actio popularis). I deal with this issue in paras 47 to 72. The courts below considered that the Commission had competence. The Supreme Court concludes by a majority, consisting of Lord Reed, Lady Black, Lord Lloyd Jones and myself, that the objection is well founded and that the courts below were wrong on this issue. (c) It follows that the Supreme Court has no jurisdiction to give any relief in respect of the challenge to Northern Ireland abortion law. But that challenge has been fully argued, and evidence has been put before the Court about a number of specific cases. It would, in the circumstances, be unrealistic and unhelpful to refuse to express the conclusions at which I would have arrived, had I concluded that the Commission had competence to pursue the challenge. (d) I would have concluded, without real hesitation at the end of the day, that the current state of Northern Ireland law is incompatible with article 8 of the Convention, insofar as it prohibits abortion in cases of fatal foetal abnormality, rape and incest, but not insofar as it prohibits abortion in cases of serious foetal abnormality: see paras 73 to 134. That conclusion, obiter in my case, is of the essence of the judgments of the three members of the Court (Lady Hale, Lord Kerr and Lord Wilson) who (dissenting) would have held that the Commission had competence. Lady Black would (obiter) reach the same conclusion as I do with regard to fatal foetal abnormality, but not rape or incest. Lord Kerr and Lord Wilson would go further than I would have done and hold that the current law in Northern Ireland law is also incompatible with article 3 of the Convention rights as regards fatal foetal abnormality, rape and incest. Lady Hales view on this point appears in paras 28 to 30 of her judgment. (e) With that summary, I will turn to introduce the proceedings more fully. However, those who may at the outset wish to have an idea of the distressing cases to which the Commission has drawn attention in the context of its challenge can look at once at paras 84 to 90 below. Introduction This is an appeal in proceedings for judicial review commenced by the Northern Ireland Human Rights Commission (the Commission) on 11 December 2014. By their Order 53 statement, the Commission sought general relief, unrelated to any particular set of facts, consisting of: a. A declaration pursuant to section 6 and section 4 of the Human Rights Act 1998 (the HRA) that sections 58 and 59 of the Offences against the Person Act 1861 (the 1861 Act) and section 25 of the Criminal Justice Act (NI) 1945 (the 1945 Act) are incompatible with articles 3, 8 and 14 of the European Convention on Human Rights so far as they relate to access to termination of pregnancy services for women with pregnancies involving a serious malformation of the foetus or pregnancy as a result of rape or incest; b. A declaration that, notwithstanding the provisions of the above sections, women in Northern Ireland may lawfully access termination of pregnancy services within Northern Ireland in cases of serious malformation of the foetus or rape or incest; c. A declaration that the rights of women in Northern Ireland with a diagnosis of serious malformation of the foetus or who are pregnant as a result of such rape or incest are breached by the above sections; and/or d. such further or other relief as the Court might think appropriate. The declarations sought to focus on three broad situations: serious malformation of the foetus; rape; and incest. In this judgment, I shall divide the first into fatal foetal abnormality and serious (but not fatal) foetal abnormality. The expert evidence before the judge indicated that doctors are well capable of identifying cases of fatal foetal abnormality, that is cases where the foetus will die in the womb or during or very shortly after birth. As to rape, it was made clear during the course of submissions before the Supreme Court, that the Commission, when commencing these proceedings, had in mind situations in which, because a child was under the age of 13, consent cannot in law be given, but had not focused on, for example, sexual offences (not described in law as rape) committed against children aged 13 or more, but under the age of 16. I return to this aspect in paras 73 and 131 below. As to incest, there was again no detailed examination of the offence(s) in question. There is no longer any offence called, in law rather than colloquially, incest. Since 2008, the relevant law is found in articles 32 to 36 and 68 to 69 of the Sexual Offences (Northern Ireland) Order 2008, mirroring sections 25 to 29 and 64 to 65 of the Sexual Offences Act 2003 in England and Wales. These articles introduce a very wide range of penetrative offences involving related persons, but it is only those which can lead to pregnancy which are presently relevant. In this context, article 32 contains offences under the head Sexual activity with a child family member. This is capable of commission where the child family member (B) is either under 18, and is someone who the person committing the offence (A) does not reasonably believe to be 18 or over, or is under 13. The relevant family relationships are defined in section 34, and the maximum punishment on conviction on indictment of an offence involving penetration of the vagina is up to 14 years. Article 68 contains the offence of Sex with an adult relative: penetration, which may, inter alia, be committed when a person aged 16 or over (A) penetrates the vagina of (B) aged 18 or over. Article 69 contains the offence of Sex with an adult relative: consenting to penetration, which may be committed where A (aged 18 or over) penetrates the vagina of B (aged 16 or over) with Bs consent. Articles 68 and 69 have their own definition of the prohibited relationships, and the maximum sentence on conviction of indictment is in each case up to two years. For convenience, I shall in this judgment continue to use the colloquial term incest to refer to all three offences, although it is clear that the legislator has identified a significant general difference between offences under article 32 involving a child family member on the one hand and offences under articles 68 and 69 involving adults. I shall consider the position in respect of incest in greater detail in paras 127 to 131 below. In support of its Order 53 statement, the Commissions Chief Commissioner, Mr Les Allamby, swore an affidavit, confirming that the Commissions case was made pursuant to section 4 of the HRA and based on alleged incompatibility with Convention Rights of the sections identified above of both the 1861 and the 1945 Acts. In other words, it treated both Acts as primary legislation. On that basis, it is not clear on what basis it could have been thought that any relief could be granted beyond that identified in sub para (1). Just conceivably, sub paras (2) and (4) may have been framed to cover the possibility of a more expansive interpretation of the Bourne exception (deriving from R v Bourne [1939] 1 KB 687), along the lines which the Lord Chief Justice accepted in the Court of Appeal: para 79. Be that as it may be, while the 1861 Act is clearly primary legislation, the same cannot in my opinion be said of the 1945 Act. The 1945 Act was an Act of the Parliament of Northern Ireland, established by the Government of Ireland Act 1920. In terms of the HRA, it constitutes subordinate, rather than primary, legislation: see the definitions in section 21 of the HRA, and in particular paragraph (c) in relation to subordinate legislation. For present purposes, this point may not prove significant, since it is unclear what section 25 of the 1945 Act adds, at least in law, to sections 58 and 59 of the 1861 Act. Brice Dicksons Law in Northern Ireland, para 7.17, instances the 1945 Act as one of a number introduced in the face of jury reluctance to convict of existing offences with greater overtones of evilness in the same areas. Before the Supreme Court, the first issue is whether it was within the Commissions competence to seek the relief identified in sub paragraph 43 above, that is a general declaration of incompatibility in relation to primary legislation of the United Kingdom Parliament. This issue is raised both in direct response to the Commissions claim and pursuant to devolution questions referred to the Supreme Court under section 33 of the Northern Ireland Act 1998 (the NI Act 1998) by the Attorney General for Northern Ireland by notice dated 18 January 2017. The devolution questions which have been referred ask, in summary, whether the Commission was empowered to institute human rights proceedings or seek a declaration of incompatibility other than as respects an identified unlawful act or acts. Only if it was within the Commissions competence to issue proceedings for the relief claimed, could the court make any declaration of incompatibility, even if incompatibility was otherwise established. The second issue, arising strictly only if the Commission had such competence, is whether any incompatibility is established. Both Horner J and the Court of Appeal held that the Commission had such competence. Having so held, Horner J went on to conclude that there was incompatibility, but only in so far as it is an offence to procure a miscarriage (a) at any stage during a pregnancy where the foetus has been diagnosed with a fatal foetal abnormality, or (b) up to the date when the foetus is capable of being born alive where a pregnancy arises as a result of rape or incest. The Court of Appeal, in three differently reasoned judgments, concluded that there was no incompatibility. The respondents, the Department of Justice and the Attorney General for Northern Ireland, appeal on the first issue, while the Commission appeals on the second issue. The Commissions competence to seek the relief claimed Logically, the issue of the Commissions competence should be taken first, and I propose to do so, although in the event it will also be appropriate to express views on the issue of incompatibility, which has been fully argued. The Commission is a body corporate created by section 68 of the NI Act 1998. It was accepted by the House of Lords in In re Northern Ireland Human Rights Commission [2002] NI 236 that it only has such powers as are conferred on it by statute, though these can clearly include such powers as may fairly be regarded as incidental to or consequential upon those things which the legislature has authorised: ibid, p 243C. The relevant statutory provisions in the current legislation define the Commissions functions as follows: 69. The Commissions functions. (1) The Commission shall keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights. (2) The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving its effectiveness; the adequacy and effectiveness of the functions (a) (b) conferred on it by this Part; and (c) of this Part relating to it. the adequacy and effectiveness of the provisions (3) The Commission shall advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights as soon as reasonably practicable after receipt of (a) a general or specific request for advice; and (b) on such other occasions as the Commission thinks appropriate. (4) The Commission shall advise the Assembly whether a Bill is compatible with human rights as soon as reasonably practicable after receipt of (a) a request for advice; and (b) on such other occasions as the Commission thinks appropriate. (5) The Commission may (a) give assistance to individuals in accordance with section 70; and (b) bring proceedings involving law or practice relating to the protection of human rights. (6) The Commission shall promote understanding and awareness of the importance of human rights in Northern Ireland; and for this purpose it may undertake, commission or provide financial or other assistance for (a) (b) research; and educational activities. (7) The Secretary of State shall request the Commission to provide advice of the kind referred to in para 4 of the Human Rights section of the Belfast Agreement (8A) The Commission shall publish a report of its findings on an investigation. (8) For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient (9) The Commission may decide to publish its advice and the outcome of its research (10) The Commission shall do all that it can to ensure the establishment of the committee referred to in paragraph 10 of that section of that Agreement. (11) In this section a reference to the Assembly includes a reference (a) to a committee of the Assembly; (b) human rights includes the Convention rights. Section 70 of the NI Act reads: 70. Assistance by Commission. (1) This section applies to (a) proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has commenced, or wishes to commence; or (b) proceedings in the course of which such a person relies, or wishes to rely, on such law or practice. (2) Where the person applies to the Northern Ireland Human Rights Commission for assistance in relation to proceedings to which this section applies, the Commission may grant the application on any of the following grounds (a) that the case raises a question of principle; (b) that it would be unreasonable to expect the person to deal with the case without assistance because of its complexity, or because of the persons position in relation to another person involved, or for some other reason; that there are other special circumstances which (c) make it appropriate for the Commission to provide assistance. (3) Where the Commission grants an application under subsection (2) it may (a) provide, or arrange for the provision of, legal advice; (b) arrange for the provision of legal representation; (c) provide any other assistance which it thinks appropriate. (4) Arrangements made by the Commission for the provision of assistance to a person may include provision for recovery of expenses from in certain circumstances. Section 71 reads as follows: the person 71. Restrictions on application of rights. (1) Nothing in section 6(2)(c) or 24(1)(a) shall enable a person to bring any proceedings in a court or tribunal on (a) the ground that any legislation or act is incompatible with the Convention rights; or (b) to rely on any of the Convention rights in any such proceedings unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights. (2) Subsection (1) does not apply to the Attorney General, the Advocate General for Northern Ireland, the Attorney General for Northern Ireland, the Advocate General for Scotland or the Lord Advocate. (2A) Subsection (1) does not apply to the Commission. (2B) In relation to the Commissions instituting, or intervening in, human rights proceedings (a) the Commission need not be a victim or potential victim of the unlawful act to which the proceedings relate, (b) section 7(3) and (4) of the Human Rights Act 1998 (c 42) (breach of Convention rights: sufficient interest, &c) shall not apply, (c) be one or more victims of the unlawful act, and (d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies). the Commission may act only if there is or would (2C) For the purposes of subsection (2B) human rights proceedings means proceedings (a) which rely (wholly or partly) on section 7(1)(b) of the Human Rights Act (i) 1998, or (ii) (b) an expression used in subsection (2B) and in section 7 of the Human Rights Act 1998 has the same meaning in subsection (2B) as in section 7. section 69(5)(b) of this Act, and (3) Section 6(2)(c) (a) does not apply to a provision of an Act of the Assembly if the passing of the Act is, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, not unlawful under subsection (1) of that section; and (b) does not enable a court or tribunal to award in respect of the passing of an Act of the Assembly any damages which it could not award on finding the passing of the Act unlawful under that subsection. (4) Section 24(1)(a) (a) does not apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section; and (b) does not enable a court or tribunal to award in respect of an act any damages which it could not award on finding the act unlawful under that subsection. In this section the Convention has the same meaning (5) as in the Human Rights Act 1998. 6. Legislative competence. (1) A provision of an Act is not law if it is outside the legislative competence of the Assembly. (2) A provision is outside that competence if any of the following paragraphs apply Sections 6(2)(c) and 24(1)(a), to which reference is made at the start of section 71 address the legislative competence of, respectively, the Northern Ireland Assembly and of Northern Irish Ministers and departments, as follows: (a) it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland; (b) it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters; (c) rights; it is incompatible with EU law; (d) (e) it discriminates against any person or class of person on the ground of religious belief or political opinion; (f) it is incompatible with any of the Convention it modifies an enactment in breach of section 7. (3) For the purposes of this Act, a provision is ancillary to other provisions if it is a provision (a) which provides for the enforcement of those other provisions or is otherwise necessary or expedient for making those other provisions effective; or (b) which is otherwise incidental to, or consequential on, those provisions; 24. EU law, Convention rights, etc. (1) A Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with EU law; is incompatible with any of the Convention (a) rights; (b) (c) discriminates against a person or class of person on the ground of religious belief or political opinion; (d) in the case of an act, aids or incites another person to discriminate against a person or class of person on that ground; or (e) in breach of section 7. in the case of legislation, modifies an enactment (2) Subsection (1)(c) and (d) does not apply in relation to any act which is unlawful by virtue of the Fair Employment and Treatment (Northern Ireland) Order 1998, or would be unlawful but for some exception made by virtue of Part VIII of that Order. Sections 6, 7 and 8 of the HRA provide as follows: It is unlawful for a public authority to act in a way which 6. Acts of public authorities. (1) is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention (3) rights, the authority was acting so as to give effect to or enforce those provisions. In this section public authority includes (a) (b) functions of a public nature; a court or tribunal, and any person certain of whose functions are but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) failure to (a) for legislation; or (b) make any primary legislation or remedial order. An act includes a failure to act but does not include a introduce in, or lay before, Parliament a proposal 7. Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely on the Convention right or rights concerned (b) in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (2) In subsection (1)(a) appropriate court or tribunal means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) (5) Proceedings under subsection (1)(a) must be brought before the end of the period of one year beginning with the date on (a) which the act complained of took place; or (b) considers equitable having regard circumstances, such longer period as the court or tribunal to all the but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (6) In subsection (1)(b) legal proceedings includes (a) proceedings brought by or at the instigation of a public authority; and (b) tribunal. an appeal against the decision of a court or (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. 8. Judicial remedies. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including any other relief or remedy granted, or order (a) made, in relation to the act in question (by that or any other court), and (b) other court) in respect of that act, the consequences of any decision (of that or any the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. The Commission relies on section 69(5)(b) of the NI Act 1998 for its power to bring these proceedings. But proceedings relying wholly or partly on section 69(5)(b) constitute, under section 71(2C)(a)(ii), human rights proceedings and are subject therefore to the restrictions (taking this word from the heading of section 71) in section 71(2B). Under section 71(2B)(a), the Commission need not itself be a victim or potential victim of the unlawful act to which the proceedings relates and, consistently with this, section 71(2B)(b) provides that sections 7(3) and (4) of the HRA do not apply. But section 71(2B) contains a number of pointers to the fact that the legislature contemplated that human rights proceedings, for the purposes of section 71(2B), are proceedings which relate to an unlawful act. That contemplation can be seen in the reference in section 71(2B)(a) to the unlawful act to which the proceedings relate. The provision in section 71(2B)(c) that the Commission may act only if there is or would be one or more victims of the unlawful act reflects the same contemplation. It is also consistent with the provision in section 71(2B)(d) that no award of damages may be made to the Commission, whatever the position would be under section 8(3) of the HRA, since section 8 addresses the possibility of an award of damages as a remedy available in relation to an act (or proposed act) which the court finds is (or would be) unlawful. The other type of proceedings which, under section 71(2C)(a)(i) constitute human rights proceedings for the purposes of section 71(2B) and (2C), consists of proceedings in which a person who is (or would be) a victim of the unlawful act pursuant to section 7(1)(b) of the HRA relies on a Convention right. Section 71(2C)(a)(i) does not refer to section 7(1)(a), which provides that a person who claims that a public authority has acted or proposes to act in a way made unlawful by section 6(1) of the HRA may bring proceedings against the authority. It does not follow that its reference to section 7(1)(b) covers only situations where a Convention right is relied on by way of defence, rather than as the basis of a claim. Section 7(1)(b) is wide enough to cover both. This type of proceedings will by definition involve the Commission intervening in, rather than instituting, the proceedings within the opening words of section 71(2B). In this context, section 71(2B) reflects and regulates the existence of the incidental or consequential power which the House of Lords held the Commission to possess in In re Northern Ireland Human Rights Commission: see para 66 below. The Commission will, in contrast, be acting pursuant to its power under section 69(5)(b) to bring proceedings involving law or practice relating to the protection of human rights, when it institutes human rights proceedings within the opening words of section 71(2B). The upshot under section 71(2B) and (2C) is that, where the Commission is intervening in human rights proceedings, the person instituting the proceedings must be an actual or potential victim of an unlawful act, and, where the Commission is itself instituting human rights proceedings, it need not be, but there must be an actual or potential victim of an unlawful act to which the proceedings relate. By section 71(2C)(b), an expression used in subsection (2B) and in section 7 of the HRA has the same meaning in the former as in the latter. Section 7(1) of the HRA refers to section 6(1) of the HRA for the concept of an unlawful act, and that subsection provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. But the subsection is expressly stated, by section 6(2), not to apply to (in summary) an authoritys act which was (a) compelled by a provision of primary legislation or which was (b) to give effect to or enforce one or more provisions of or made under primary legislation which cannot be read or given effect in a way which is compatible with Convention rights. Further, by section 6(6), an act does not include a failure to introduce, or lay before Parliament a proposal for legislation or make any primary legislation. It follows that the Commissions powers under sections 69 and 71 of the NI Act 1998 do not include either instituting or intervening in proceedings where the only complaint is that primary legislation, such as the 1861 Act, is incompatible with the Convention Rights. Neither the Westminster Parliaments enactment of, nor its or the Northern Irish legislatures failure to repeal or amend, the 1861 Act can constitute an unlawful act under sections 6 and 7 of the HRA: see the preceding paragraphs of this judgment. Such proceedings would not therefore involve any suggestion of an unlawful act within the meaning of section 7 of the HRA or, therefore, of section 71 of the NI Act. The Lord Chief Justice of Northern Ireland thought that this conclusion could be avoided by reading into section 71(2C)(a)(ii) the additional words in respect of unlawful acts after Act: para 42. This would leave section 69(5)(b) completely unconstrained and unregulated by section 71 as regards proceedings not relying on any unlawful act. That is by itself implausible. But, more fundamentally, there is neither a need nor any basis for any such words to be read into section 71. A reading of section 71 as a whole makes clear that it was envisaged as establishing a limited jurisdiction. Section 71(1) identifies the requirement of victimhood to be satisfied by any person challenging legislation of the devolved Assembly or subordinate legislation or other acts of the devolved administration which are unlawful in terms of sections 6 and 7 of the HRA. Further, sections 71(3) and (4) make express that section 71(1) is not intended to embrace proceedings challenging legislation of the devolved Assembly or subordinate legislation or an act of the devolved administration which is, by virtue of section 6(2) of the HRA, not unlawful for the purposes of sections 6(1) and 7 of the HRA. It is in other words clear that no one can claim to be an actual or potential victim in relation to any such devolved or subordinate legislation or devolved act if it was compelled by or done to give effect to or to enforce provisions of primary legislation. The exclusion of the Commission from section 71(1) is simply the prelude to the Commissions powers to institute or intervene in proceedings, but this is carefully limited to situations where there is or would be an unlawful act, of the kind identified in section 7 of the HRA. It is likewise clear that the Commission cannot either institute or intervene in proceedings where neither it nor anyone else can claim to be an actual or potential victim of an unlawful act, because the situation falls within section 6(2) of the HRA. In these circumstances, it is, as I have said, implausible to suppose that Parliament by the NI Act 1998 at the same time intended the Commission to be able to institute or intervene in proceedings where the complaint was that primary legislation of the United Kingdom Parliament was itself incompatible with the Convention rights, without either referring to this or imposing any restriction on the circumstances. It would amount to carte blanche to the Commission, without having to establish any standing or interest other than its general interest in promoting and protecting human rights, to bring any proceedings it thought fit to establish the interpretation and/or incompatibility of primary legislation under section 3 and/or 4 of the HRA. This would contrast incongruously with the express and careful delimitation by Parliament of its capacity to institute or intervene in proceedings where and only where a specific unlawful act is in question under sections 6 and 7. It is wrong to approach the present issue on the basis of an assumption that it would be anomalous if the Commission did not have the (apparently unlimited) capacity suggested to bring proceedings to establish the interpretation, or incompatibility with Convention rights, of any primary Westminster legislation it saw as requiring this for the better protection of human rights. The issue is one of statutory construction, not a priori preconception. It is in fact no surprise, in my view, that Parliament did not provide for the Commission to have capacity to pursue what would amount to an unconstrained actio popularis, or right to bring abstract proceedings, in relation to the interpretation of United Kingdom primary legislation in some way affecting Northern Ireland or its supposed incompatibility with any Convention right. On the contrary, it is natural that Parliament should have left it to claimants with a direct interest in establishing the interpretation or incompatibility of primary legislation to initiate proceedings to do so; and should have limited the Commissions role to giving assistance under sections 69(5)(a) and 70 and to instituting or intervening in proceedings involving an actual or potential victim of an unlawful act as defined in section 7 of the Human Rights Act 1998. True it is that sections 3 and 4 of the HRA are not made expressly subject to the victimhood requirement which affects sections 6 and 7: R (Rusbridger) v Attorney General [2004] 1 AC 357, para 21, per Lord Steyn; though they must undoubtedly be subject to the usual rules regarding standing in public law proceedings. However, a capacity to commence general proceedings to establish the interpretation or incompatibility of primary legislation is a much more far reaching power than one to take steps as or in aid of an actual or potential victim of an identifiable unlawful act. Further, Parliaments natural understanding would have reflected what has been and is the general or normal position in practice, namely that sections 3 and 4 would be and are resorted to in aid of or as a last resort by a person pursuing a claim or defence under sections 7 and 8: see Lancashire County Council v Taylor [2005] EWCA Civ 284; [2005] 1 WLR 2668, para 28, reciting counsels submission, and paras 37 44, concluding that, to exercise the courts discretion to grant a declaration to someone who had not been and could not be personally adversely affected would be to ignore section 7. This being the normal position, it is easy to understand why there is nothing in section 71 to confer (the apparently unlimited) capacity which the Commission now suggests that it has to pursue general proceedings to establish the interpretation or incompatibility of primary legislation under sections 3 and/or 4 of the HRA, in circumstances when its capacity in the less fundamental context of an unlawful act under sections 6 and 7 is expressly and carefully restricted. In instructive written submissions by the Equality and Human Rights Commission (EHRC) for England and Wales and Scotland as intervener, the EHRC invites comparison with the legislation which governs it, and suggests that it would be incongruous if there were a distinction between the position in England, Wales and Scotland on the one hand and Northern Ireland on the other. Sections 9 and 30 of the Equality Act 2006 provide as follows in relation to the EHRC: 9(1) Human rights The Commission shall, by exercising the powers conferred by this Part encourage good practice in relation to human (a) promote understanding of the importance of human rights, (b) rights, (c) promote awareness, understanding and protection of human rights, and (d) encourage public authorities to comply with section 6 of the Human Rights Act 1998 (c 42) (compliance with Convention rights). Judicial review and other legal proceedings 30. (1) The Commission shall have capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function. (2) The Commission shall be taken to have title and interest in relation to the subject matter of any legal proceedings in Scotland which it has capacity to institute, or in which it has capacity to intervene, by virtue of subsection (1). (3) The Commission may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c 42) (breach of Convention rights); and for that purpose the Commission may act only if there is or would the Commission need not be a victim or potential (a) victim of the unlawful act to which the proceedings relate, (b) be one or more victims of the unlawful act, (c) and (d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies); section 7(3) and (4) of that Act shall not apply, and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section. (4) Subsections (1) and (2) (a) do not create a cause of action, and (b) are, except as provided by subsection (3), subject to any limitation or restriction imposed by virtue of an enactment (including an enactment in or under an Act of the Scottish Parliament) or in accordance with the practice of a court. These provisions are different from those in the NI Act 1998, in both its original form and the form in which it was amended in 2007. It is open to argument under section 30(1) of the 2006 Act that the EHRC is given general capacity to initiate proceedings relevant to any matter in connection with which the Commission has a function, and that section 30(3) is merely regulating one particular kind of such proceedings. I need express no view on the correctness of this argument. Even if it were correct, the mere perception that it might be welcome and entirely sensible, as the EHRC put it, if both the Northern Ireland Commission and the EHRC had the same powers cannot help construe different statutory schemes enacted at different times in different terms and without reference to each other. For these reasons, I conclude that sections 69 and 71 are incapable of conferring on the Commission power to institute or intervene in proceedings in so far as the complaint relates to the suggested incompatibility of primary legislation of the United Kingdom Parliament, namely the 1861 Act, with one or more of the Convention rights scheduled to the HRA. This conclusion is in my opinion reinforced by consideration of the legislative history of the NI Act 1998. As originally enacted, section 71 contained only subsections (1), (2), (3), (4) and (5). Subsections (2A), (2B) and (2C) were only added in 2007 by the Justice and Security (Northern Ireland) Act 2007, and so in the light of In re Northern Ireland Human Rights Commission, decided in 2002. Importantly also, subsection (1) as originally enacted commenced with the words: Nothing in section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person Subject to the omission in 2007 of the reference in subsection (1) to section 69(5)(b) and the addition in 2007 of the reference to the Advocate General for Northern Ireland in 2007, subsections (1) and (2) remain otherwise as originally enacted. In In re Northern Ireland Human Rights Commission, the Commission had been refused permission by a coroner to intervene in an inquest into the Omagh bomb explosion in 1998, where in its view questions of human rights had arisen on which it would be appropriate for it to make submissions. By a majority, the House held that a power to intervene could be regarded as incidental to other powers expressly conferred by section 69, while noting that neither section 69(5)(a) nor section 69(5)(b) applied in terms, and that both could, under the then wording, only be invoked if the Commission could show that it was a victim for the purposes of the Convention. The Commission would, in reality, have been unable to do this. Firstly, it is a statutory public authority, listed as such in paragraph 1A of Schedule 2 to the Parliamentary Commissioner Act 1967, to which reference is made in section 75(3)(a) of the NI Act 1998. It is a core public authority within the scope of that concept as identified in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, para 8, per Lord Nicholls, and paras 43 47, per Lord Hope. As the House there acknowledged, core public authorities owe Convention duties, but cannot themselves be victims. Even if the Commission had been a hybrid public authority, this would only mean that it was not a public authority in respect of acts of a private nature: see Aston Cantlow, para 11 per Lord Nicholls. The present proceedings are indisputably of a public nature. Secondly and in any event, the Convention test of victimhood requires an individual applicant to have been actually affected by the alleged violation, and does not contemplate a kind of actio popularis relating to the interpretation or application of Convention rights: Klass v Germany (1978) 2 EHRR 214. The European Court of Human Rights reiterated this point with clarity in Stbing v Germany (2012) 55 EHRR 24, para 62: [I]n cases arising from individual applications it is not the Courts task to examine domestic legislation in the abstract. Rather, it must examine the manner in which the relevant legislation was applied to the applicant in the particular circumstances of the individual case In section 71(1) as originally enacted, it is clear that the reference to sections 6(2)(c), 24(1)(a) and 69(5)(b) covered all circumstances in which it was contemplated that these sections could be invoked. The legislature, for understandable reasons (see para 60 above), did not contemplate or provide that the Commission should have competence under section 69(5)(b) to bring abstract proceedings under sections 3 and 4 of the HRA. In this respect, it was following the general approach of the European Court of Human Rights itself: see Klass v Germany and Stbing v Germany (para 68 above). The need to focus on individual facts was also powerfully emphasised (in the context of article 8) by Judge Lpez Guerra, joined by Judge Casadevall, in their concurring judgment in A, B and C v Ireland (2010) 53 EHRR 13. The 2007 amendments to the NI Act 1998 confirm the legislatures approach in this regard. They removed the reference to section 69(5)(b) from section 71(1), and moved it to section 71(2C). The clear effect of section 71(2B) and (2C) is they also deal with all circumstances contemplated as falling within section 69(5)(c) and that such circumstances are to be limited to only one situation, viz where there is or would be one or more victims of an unlawful act within sections 6 and 7 of the HRA, in aid of whom the Commission initiates or intervenes in proceedings. It is, as I have said, implausible to suppose that Parliament intended at the same time to give the Commission tacit and unrestricted capacity to pursue the much more serious course of initiating proceedings to establish the interpretation or incompatibility of primary legislation, whenever it decided that this would promote or protect human rights. The combination of section 69(5)(b) and section 71 in my view therefore clearly excludes any power on the part of the Commission to institute proceedings to assert the alleged incompatibility of primary legislation of the United Kingdom Parliament with Convention rights. Any such challenge by the Commission is in my opinion outside the scope of section 71, both before and after its 2007 amendment. But, even if it were not so, it would not involve any identifiable unlawful act or any act of which any identifiable person could be said to be the actual or potential victim. The result may be seen, in some eyes, as inconvenient. However, I think it entirely comprehensible that Parliament should have left any such challenge made by reference to Convention rights to be raised in a specific context, by a victim. The Commission would be able under sections 69(5)(a) and 70 of the NI Act to give assistance to an individual commencing or wishing to commence proceedings raising a human rights issues or relying or wishing to rely on such an issue in current proceedings. That is however quite a different matter from the Commission initiating such proceedings in the abstract itself. Nothing in the Houses reasoning in In re Northern Ireland Human Rights Commission supports a suggestion that there has ever existed such a power on the part of the Commission to initiate legal proceedings. Any such suggestion would have been inconsistent with section 71 as originally enacted and would now be inconsistent with section 71 as amended with its careful definition and restriction of the circumstances in which the Commission may institute or intervene in proceedings. Those restrictions clearly exclude the claim to institute abstract proceedings for a declaration of incompatibility with primary United Kingdom legislation, which the Commission now advances. It is at this point appropriate to say something further about the 1945 Act, which the Commission appears to have treated as primary legislation for the purposes of the HRA: see para 45 above. As I have already indicated, that does not seem to me correct. It follows that it might have been open to the Commission to claim that the failure of the Northern Ireland Assembly to repeal or amend section 25 of the 1945 Act constituted itself an unlawful act within the meaning of sections 6 and 7 of the HRA. I do not see how such a claim could be directed to the first respondent, The Department of Justice, which is not a law making body (and, for good measure, would appear also to have been precluded from taking any initiative to amend the 1945 Act by virtue of section 28A of the Northern Ireland Act and paragraph 2.4 of the Ministerial Code, which assigns such matters to the Executive Committee of the Northern Ireland Assembly). The second respondent, the Attorney General, was not sued as representing the Northern Ireland Government and it may be could not have been (see section 17(3) of the Crown Proceedings Act 1947). But even assuming that a claim could have been made against him on that basis, the Commission would still be subject to the restriction under section 71(2B) that it could only institute the present proceedings if there is or would be one or more victims of the unlawful act. That restriction is not satisfied by a general assertion that the failure to abrogate or amend section 25 is likely to give rise to victims. Section 71(2B) contemplates the specific existence and identification of a victim who can say that he or she is or would be the victim of an unlawful act, in a way which satisfies section 7(1) of the HRA. Finally, however, I repeat the point made in para 45 above, that, even if the Commission could satisfy the restrictions of section 71(2B) and establish that the maintenance in force of section 25 constituted an unlawful act, the practical effect would appear to be either nothing or very little, having regard to the continuing effect of sections 58 and 59 of the 1861 Act. In summary, the present proceedings were not instituted by identifying any unlawful act or any actual or potential victim of it. First and fundamentally, as regards sections 58 and 59 of the 1861 Act, this is because they were brought to challenge the compatibility with the Convention rights of United Kingdom primary legislation, which by statutory definition is not a complaint about any act which is unlawful under the HRA or indeed otherwise. Secondly, although this would not have resolved the first objection if they had been, the proceedings were not, in fact, brought by reference to any particular alleged victim of any such incompatibility, and this remains the case although evidence has subsequently been adduced about a number of specific cases. In these circumstances, I would uphold the respondents objection to the Commissions pursuit of these proceedings, and answer the questions raised by the Attorney General of Northern Irelands reference in the negative. The alleged incompatibility The case advanced by the Commission, with the support of a number of the interveners (other interveners joining the respondents in opposition to it), involves different categories which can be identified as follows: (a) Cases of fatal foetal abnormality, (b) Cases of serious foetal abnormality, (c) Cases of pregnancy due to rape, (d) Cases of pregnancy due to incest. Clearly, there is room for argument at the margin about the precise definition and scope of these categories. There is however medical evidence to the effect that circumstances falling within category (a) can be reasonably clearly identified, whether they involve the inevitable or likely death of the foetus in the womb or within a fairly short period after birth. Cases within category (b) are on that basis cases where the foetus will live for a reasonable period after birth, but suffer from permanent abnormalities. As to category (c), the Commission initiated these proceedings with the narrow focus indicated in para 42 above. The circumstances of the JR76 interveners (see para 89 below), relating to a child of 13 or over but under 16, were not in the Commissions mind. Sexual activity with such a child is capable of constituting one of a number of sexual offences, not described as rape, set out in sections 16 to 22 of the Sexual Offences (Northern Ireland) Order 2008, (2008) No 1769 (NI 2), depending inter alia on the age of the person committing the offence. As the evidence regarding the JR76 interveners illustrates (para 89 below), a pregnancy in a case involving such an offence can well involve most distressing circumstances. However, since the question is whether current Northern legislation is bound to operate incompatibly with the Convention rights in a legally significant number of cases, it is unnecessary for us on this appeal to attempt to address every conceivable case. Bearing in mind the narrow focus of both the Commissions case as initiated and of the submissions which we heard in this area, I will focus on rape in the legal sense, and leave other cases to be considered separately, though in the light of course of any relevant assistance which this judgment may afford. Sections 58 and 59 of the 1861 Act provide as follows: 58. Administering drugs or using instruments to procure abortion. Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life . 59. Procuring drugs, &c to cause abortion. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude. Section 25 of the 1945 Act provides: 25. Punishment for child destruction. (1) Subject as hereafter in this sub section provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive. The word unlawfulness used in sections 58 and 59 of the 1861 Act was explained by Macnaghten J in directions given to the jury in the seminal case of R v Bourne [1939] 1 KB 687; [1938] 3 All ER 615. In order to understand its scope, he pointed to different wording used to define an associated offence in both the Infant Life (Preservation) Act 1929 in England and section 25 of the 1945 Act. Under both provisions, it is necessary to prove that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. Macnaghten J held that the same requirement was implied by the word unlawful in section 58 (and, it follows, section 59). He also considered that impairment of health might reach a stage where it was a danger to life, and that the words ought to be construed in a reasonable sense, and, if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor, who, in these circumstances, and in that honest belief, operates, is operating for the purpose of preserving the life of the mother: pp 693 694. further relaxed, in particular by the Abortion Act 1967, providing: In other parts of the United Kingdom, the prohibition of abortion has been 1. Medical termination of pregnancy. (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith that the pregnancy has not exceeded its twenty (a) fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or that the termination is necessary to prevent grave (b) permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this section, account may be taken of the pregnant womans actual or reasonably foreseeable environment In Northern Ireland, the law remains as stated in the 1861 and 1945 Acts and explained in R v Bourne. In Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 37, [2005] NI 188 (the FPANI case), the Association did not challenge that proposition, but by judicial review proceedings, claimed, successfully in the Court of Appeal, that it was incumbent on the defendant Minister to investigate how many women in Northern Ireland who had pregnancies terminated in other parts of the United Kingdom could have had their abortions terminated lawfully in Northern Ireland, to provide guidance to women in that position to reduce the number travelling abroad for abortions and to provide guidance to clinicians to enable them to ensure that those having abortions gave informed consent. The Court of Appeal also expressed views about the effect of the principles established in R v Bourne. The Court concluded that it was incumbent on the Minister or his department to investigate the need for and if necessary issue guidelines to clarify for the medical profession and the public the legal principles governing abortion, including the provision of aftercare for those having abortions in Northern Ireland as well as those returning from having an abortion in England. Its conclusions were to be expressed more precisely in declarations, which were not examined before the Supreme Court on the present appeal. Articles 2, 3, 8 and 14 of the Convention rights scheduled to the HRA provide as follows: 2. Right to life. 1. Everyones right to life shall be protected by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is not more than absolutely necessary: in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the (a) (b) escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection. 3. Prohibition of torture. No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 8. Right to respect for private and family life. 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Prohibition of discrimination. 14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The issue on this appeal is whether the existing law in Northern Ireland is compatible with these articles of the Convention in the categories of case identified in paras 42 and 67 above. During the submissions made by Ms Caoilfhionn Gallagher QC for Humanists UK as interveners, a submission was made that the existing law, interpreted in accordance with R v Bourne, was generally too imprecise to be in accordance with the law within article 8. That is a submission which lies outside the scope of the present appeal. It would require revisiting the territory covered in the FPANI case and, quite probably, considering what has occurred in the light of whatever declarations were made in that case. That is not what the present appeal has been or is about. Even if there proved to be force in the point made by Ms Gallagher, it could at best only lead to a conclusion that the legal principles should be further clarified, whether by the court or the department or by legislative amendment. The Abortion Act 1967 applicable in the rest of the United Kingdom demonstrates the feasibility of further legislative clarification. When considering the compatibility in the abstract of the current Northern Ireland legislation with any particular Convention right, it is not enough to show that, as a matter of practice or when applied in the light of administrative guidance, legislation has proved prone to give rise to unjustified infringement of a Convention right. The relevant question is whether the legislation itself is capable of being operated in a manner which is compatible with that right, or, putting the same point the other way around, whether it is bound in a legally significant number of cases to lead to unjustified infringement of the right. That is how Lady Hale DPSC expressed the test in The Christian Institute v The Lord Advocate [2016] SLT 805, para 88. She cited her own previous words in R (Ali) and R (Bibi) v Secretary of State for the Home Department [2015] 1 WLR 5055, para 2, where she rightly emphasised that the test sets a complainant a difficult task and at para 6 she also cited words of Lord Hodge at para 69, on which I wish to make this observation. Lord Hodge stated in para 69 that The court would not be entitled to strike down the Immigration Rule under consideration in that case unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases. In support, Lord Hodge cited a dictum of Aikens LJ, giving the only reasoned judgment in R (MM (Lebanon)) v Secretary of State for the Home Department [2014] EWCA Civ 985; [2015] 1 WLR 1073, para 134, to the effect that If the particular immigration rule is one which, being an interference with the relevant Convention right, is also incapable of being applied in a manner which is proportionate or justifiable or is disproportionate in all (or nearly all) cases, then it is unlawful. However, I myself see no basis for so high a numerical test. It cannot be necessary to establish incompatibility to show that a law or rule will operate incompatibly in all or most cases. It must be sufficient that it will inevitably operate incompatibility in a legally significant number of cases. That itself is, as Lady Hale observed, is a difficult hurdle to overcome. Very often the problem lies not in the law or rule itself, but in the way it has been understood or applied in practice, and, even in borderline cases, very often the solution can be found in a conforming interpretation, however bold, under section 3 of the Human Rights Act 1998. The latter course is not however possible in relation to the 1861 or 1945 Acts, in view of their unequivocal tenor and terms. Expert evidence Professor (or as he was then Dr) James Dornan, director of foetal medicine at the Royal Jubilee Maternity Service at the Royal Maternity Hospital, Belfast gave evidence to the court in the FPANI case and has given further evidence in the present proceedings. In the FPANI case (see paras 122 to 123), he explained how, after his appointment as a consultant with responsibility for foetal medicine in 1986, he had clarified with the Department of Health the implications of diagnosis of congenital deformities, and was, as he recorded in a letter dated 31 August 2001, informed that we should not change our clinical practice and that termination of pregnancy should be carried out for lethal abnormalities or abnormalities where there would be a major physical or mental problem for the foetus prior to the stage of viability. (At that time 28 weeks, now considered to be 24 weeks.) We were also informed that termination could be offered and performed on a pregnancy that could have a serious mental or physical effect on the mother. Therefore for the past decade, terminations of pregnancy for the above abnormalities have been offered to mothers and are carried out on mothers from throughout Northern Ireland in our unit. In the FPANI case (para 83), Nicholson LJ inferred that the Department of Health had not considered the legal position in relation to abnormal foetuses, and that It would appear that it has never been indicated to Dr Dornan or his colleagues that it might be necessary to obtain a psychiatric viewpoint on the mothers mental health, if that was the ground on which the abortion of a viable foetus was carried out or that the effect on the mothers health would have to be serious and long term. In the present proceedings, Professor Dornan has updated the position in a statement dated 17 October 2017, in which he records that the FPANI case made it clear that we could no longer offer a pregnant woman the option of an abortion on the grounds of fatal foetal abnormality alone, the focus had to be on the pregnant woman and a pregnancy could be lawfully terminated if its continuation threatened her life or would have a serious and long term effect on her physical or mental health (para 12). His statement endorses the Department of Healths and the Royal College of Midwiferys conclusions that foetal or serious foetal abnormalities can now be diagnosed with a high degree (Professor Dornan says extremely high degree) of accuracy. As to fatal or lethal abnormality, he summarises clinicians typical understanding of that term as applying where a foetus is diagnosed as liable to die during pregnancy, labour or within a short period of birth (para 17), and adds that clinicians are well able to accurately diagnose antenatally whether a foetus has a condition which is incompatible with life, whether in the sense that it is unlikely to be able to continue to term, to survive the birth process or to be able to maintain its vital functions independently for anything more than a few days (para 20). Professor Dornan also explains the risks of, in particular, sepsis to the physical health of a mother of an abnormal foetus, which may die and remain undetected in utero for a significant period (up to two weeks), as well as the significant risks to the mental health of a mother required to continue with a pregnancy knowing that her baby has a fatal abnormality and may die at any moment. Horner J accepted that The doctors know when the foetus has an FFA (a fatal foetal) abnormality. This is primarily a medical diagnosis not a legal judgment (para 160). Before the Supreme Court Christian Action and Research in Education (CARE), ADF International (UK) and Professor Patricia Casey as joint interveners suggested that other professional opinion differed but the evidence before the judge and his finding were clear. Factual cases put in evidence The Commissions case on the issue before the Court is supported by evidence relating to a selection of pregnant women. Their experiences are harrowing. Three cases concern foetal abnormality. In the first, Ashleigh Topley recounts her joy as a prospective mother in 2013, up to the point when a 20 week scan revealed her babys severe bone abnormality, with a fatal prognosis. A doctor explained that an abortion would be a possibility, only for that relatively hopeful outcome to be shattered by a consultants distressingly blunt statement the next day: Well, thats not going to happen, followed by another to the effect that, if Mrs Topley were to continue with the pregnancy, things would just proceed as normal. A later consultants appointment confirmed that the babys condition meant that it could survive through Mrs Topley in the womb, unless and until its heart ran out of room, but would not survive birth. At 35 weeks pregnant, her waters broke and she gave birth to a girl, whose appearance indicated that her heart had probably stopped beating two or so days earlier. During and after the pregnancy, Mrs Topley faced the ordeal of others congratulating her on her pregnancy or asking about the baby. A second sad case is that of Sarah Ewart, on whose behalf as an intervener the Supreme Court has received both written and oral submissions. In summer 2013, just prior to 20 weeks into her pregnancy, a scan revealed that her baby had anencephaly, the lack of a developed brain and skull. She was told that there was no risk to her health, and that the baby would be monitored fortnightly and labour induced if it was then discovered that it had died. She did not feel that she could say that her mental health was at risk (and a consultant psychiatrist later confirmed that he could not predict this either). She was horrified to discover that, without a skull, the baby could not travel down the birth canal, and decided that she could not face the prospect of a long and painful labour. Her mother contacted Assembly and Westminster representatives, with scant results. Her doctor explained the guidelines for abortion (presumably those developed after the FPANI case), and that nothing could be done for Ms Ewart in Northern Ireland, adding that she wasnt going to prison for anyone. The concerns of Ms Ewart, her husband and parents were increased by a departmental briefing to the effect that the courts in Northern Ireland have not ruled on whether it is lawful to encourage or arrange for someone to have a termination and that in the absence of current law on the subject, it remains a grey area and practitioners should be mindful of that fact. There were protesters outside the Family Planning Association in Belfast, who crowded round and abused them as they left. The Association had however by then arranged an appointment for an abortion in Streatham, where no one knew about anencephaly. Her Northern Ireland medical notes could not be transferred to the English clinic, where she felt criticised for having left an abortion so late and the process lacked dignity and was like a conveyor belt. There was, apparently because of a lack of clarity whether this would be permitted in Northern Ireland, no autopsy on the remains to provide an indication of the likelihood of recurrence of fatal foetal conditions. The whole experience was devastating and at times almost overwhelming. The third case is that of Denise Phelan, a qualified lawyer and teacher, who found herself having to carry until one month before her due date in summer 2016 a baby who she knew from an early stage could not live. Her evidence is that none of her professional training was of any assistance at all in dealing with the reality that in my most desperate time of need the law of Northern Ireland not only could not assist me but actually made things worse. She continued: The sadness I felt in learning that the foetus I was carrying had a fatal abnormality was completely overtaken by the horror of realising that I had to continue on with the pregnancy in the knowledge that the foetus could die at any moment and then there would be the awful experience of having to deliver it. After learning that her baby had Edwards Syndrome, Mrs Phelan and her husband were told that they would have to go to England if they decided to terminate the pregnancy, but that doctors in Northern Ireland could not because of the law give any information about that. She understood that there was a limit of 24 weeks for such a process, and was not informed to the contrary. When she and her husband asked further about English clinics, they were shocked not just at the cost which was over 1,400, but more so by how the abortion clinics acted like businesses and by the apparent absence of any NHS aftercare. She had a prior history of mental illness and chronic migraine, which reasserted itself with a vengeance, leaving her incredibly ill with grief, depression, and chronic migraine and vomiting. She records one psychiatrist saying on the telephone that if a mothers mental health was at risk, the symptoms would simply be treated with medication, while the psychiatrist who she saw assessed her as ineligible for an abortion under Northern Ireland law, saying the bar was set so high that an abortion on those grounds was impossible to obtain. With her husband she eventually made arrangements to attend an English abortion clinic in her 24th week, but she had chronic migraine and could not travel. She became even more depressed and ill as a result, and thought of committing suicide. She knew when her baby died, but it was five days before she was induced to give birth. During that period the dead baby released meconium which fills the womb and suffers decay, an experience for which no one had prepared her and her husband and which remains seared in her mind. As one example of a case involving rape, Dawn Purvis of Marie Stopes International Northern Ireland (MSNI) cites client B, who presented at MSNI pregnant after being raped by her partner, with whom she was enduring a domestically violent relationship and who had refused to allow her to use any contraception. Her GP had refused to refer her to any health care provider on the basis that abortion was illegal in Northern Ireland, and MSNI assessed her as ineligible for an abortion under Northern Ireland law. Client B was upset and distressed at being informed that she would have to travel to England for an abortion, this being compounded by her fear of her partner and of his reaction if he found out that she was pregnant and planning a termination. She underwent a termination outside Northern Ireland. Other examples of the distressing consequences of pregnancy following rape are given by Mara Clarke of Abortion Support Network (ASN). One is of a woman beaten and raped by a group of men including a close relative. Northern Ireland organisations and agencies knew of her circumstances, but none offered any assistance. She managed to raise 100 towards the costs of obtaining an abortion in England, including travel and accommodation, with ASN funding the remaining 1,200. She later told ASN that, without their help, she would be dead either by her own hand or by that of those who abused her. The case of two other interveners before the Supreme Court calls for mention. They are mother and daughter, identified as the JR76 interveners, referring to judicial review proceedings to which they are party in Northern Ireland. The daughter aged 15, and therefore legally unable to consent to sexual intercourse, became pregnant as a result of a relationship with a boy one year older. The boy was abusive, and threatened to kick the baby out of her and to stab it if born. The daughter wanted to continue her schooling and go to university. Discussing the situation with her supportive mother, the daughter decided that she could not go through with the pregnancy or a termination in England. She would have had to obtain travel documents and go with her mother. Instead, she asked her mother to obtain pills to put an end to the pregnancy, neither apparently realising this was unlawful. Taking the pills led to heavy bleeding, as a result of which the daughter saw her GP, but not to termination of the pregnancy. The GP referred her to Children and Adolescent Mental Health Services (CAMHS), who advised a referral to a local maternity/gynaecologist clinic and also contacted Social Services, who a month later contacted the Police Service of Northern Ireland (PSNI). The PSNI then, without notice, obtained her medical records from her GP and CAMHS, which led to her being questioned on child protection grounds in her mothers absence, and then to her mother being interviewed under caution and charged by the Public Prosecution Service for Northern Ireland. The pending judicial review proceedings relate to that decision to prosecute. As an example of pregnancy due to incest, Dawn Purvis identified client C, aged under 13, who presented at MSNI with a relative after becoming pregnant as a result of familial sexual abuse elsewhere within the family. Client C had, as is common in such cases, concealed the abuse and pregnancy beyond nine weeks and four days. MSNI only provide medical abortions within that period, and then not to girls under 16. MSNI initiated its safeguarding procedures and social services and the PSNI became involved. Client C became frightened and distressed when told that she would have to travel to England, but did so. Subsequently, the PSNI have asked to retain the products of conception, and have travelled to England to collect them. These are distressing cases. But they are not before the Court for resolution, in the way that they could have been if those directly involved in them had brought proceedings as victims. Had these cases been before the Court, the circumstances of each would have been the subject of individualised investigation and adjudication. Instead, they are deployed in support of a general challenge to Northern Ireland law as incompatible with the Convention rights. Further, the Court is invited to address this challenge in terms of risk. An analogy is suggested with cases such as Chahal v United Kingdom [1996] 23 EHRR 413 and Saadi v Italy [2008] 49 EHRR 30, where the European Court of Human Rights identified as the relevant test of the legitimacy of a deportation, whether there would be a real risk of torture or inhuman or degrading treatment in the country to which deportation was proposed. In my view, these points demonstrate the problem about treating the Commission as having a generalised competence to challenge legislation, and illustrate a likely reason why the NI Act 1998 was framed so as not to confer such a competence. When a challenge is made by a victim, the court focuses on the treatment which the victim has actually received or is actually receiving, and its cause may well prove not to have been the applicable legislation, but rather the way this was (mis)understood or (mal)administered. In contrast, where, as here, the claim is that the legislation itself presents a risk of treatment incompatible with the Convention, the focus is in one sense narrowed, in so far as it is now solely on the legislation and its effect, but in another sense broadened, in so far as it is submitted that compatibility must be judged not by reference to actual facts, but by reference to risk. That said, others among my colleagues consider that the Commission is competent to bring the present proceedings. In the circumstances I shall go on to express my own views on the generalised challenges which are made. The starting point is that an unborn foetus is not treated in domestic law as being already a person. In the context of abortion, a conclusion that a foetus is not a person appears to follow naturally from the interpretation of the 1861 and 1945 Acts, according to which the preservation both of the mothers life and of her long term mental health from serious damage prevail, without more, over any interests of the unborn foetus. The English law position was considered more generally in In re MB (Medical Treatment) [1997] EWCA Civ 3093; [1997] 2 FLR 426, 444. The issue there was whether the court had power to compel a woman of competent decision making power to have a caesarean in order to save her unborn child. The Court of Appeal rejected the existence of such a power, saying forcibly: The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though, as we have already stated, the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarian section operation. The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth. (italics added) In Attorney Generals Reference (No 3 of 1994) [1998] AC 245, the House concluded, as the headnote puts it, that a foetus is neither a distinct person separate from its mother, nor merely an adjunct of the mother, but was a unique organism to which existing principles could not necessarily be applied. This introduces a note of caution about any absolutist attempt of definition, and the italicised sentence in the quotation from In re MB (Medical Treatment) above may in that respect be too dogmatic. The European Court of Human Rights has also taken a somewhat more nuanced approach. Vo v France (2004) 40 EHRR 12 was concerned with a case where a doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks stage. The doctor had been acquitted of causing unintentional harm on the ground that the foetus was not at that stage a person. Complaint was made that this involved a breach of article 2. The European Court of Human Rights after considering the previous case law said that, in the circumstances examined to date, under various national laws on abortion, the unborn child is not regarded as a person, directly protected by article 2. However, it went on to leave open the possibility that in certain circumstances certain safeguards might be extended to the unborn child (para 80). In the context of the new situation before it, no single answer could be given to the question when life begins and who is a person. The question was within each states margin of appreciation (para 82). But, so far as there was a consensus, it was only that the foetus/embryo belonged to the human race and had the potential to develop into a full person (para 84). In A, B and C v Ireland (2010) 53 EHRR 13, the issue was whether the Irish prohibition on abortion was compatible with the Convention. The prohibition applied save where necessary to save the mothers life, so obliging pregnant mothers fearing for their health or well being if their pregnancy continued to travel to England for an abortion. The Court at para 213 referred to Vo v France in support of a dictum that the womans right to respect for her private life must be weighed against other competing rights and freedoms involved including those of the unborn child. That is a more open ended proposition, but at para 222 the Court repeated that it had been confirmed by the Courts finding in . Vo v France that it was neither desirable nor possible to answer the question of whether the unborn was a person for the purposes of article 2 of the Convention. In the light of this and of the Courts case law generally, the Court cannot in para 213 be read as equating the interests of an unborn child with those of the mother in the context of abortion. Article 3 The Commissions primary case is that the 1861 and 1925 Acts infringe article 3. Article 3 contains an unqualified or absolute prohibition of torture and of inhuman or degrading treatment or punishment. The European Court of Human Rights explained the concept in Gfgen v Germany (2010) 52 EHRR 1, para 88 in these terms: In order for ill treatment to fall within the scope of article 3, it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim. Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it, as well as its context, such as an atmosphere of heightened tension and emotions. Again, it is apparent that the exercise which the Commission invites of judging the general incompatibility of legislation with article 3 sits uneasily with the case by case and contextual approach with which both the European Court of Human Rights and domestic courts are more familiar under article 3. The European Court of Human Rights has considered article 3 in the context of abortion in a number of cases. A, B and C v Ireland is a useful starting point, although it did not concern foetal abnormality, rape or incest. The three applicants, all resident in Ireland, each travelled to England for an abortion, believing that they had no right to one in Ireland. Each had become pregnant unintentionally. The Court found that the first applicant had had an abortion for reasons of health and well being, namely her history of alcoholism, post natal depression and difficult family circumstances, the second applicant had had an abortion because she did not feel ready to be a mother, and the third applicant had had an abortion because of a fear (whether or not well founded) that her pregnancy constituted a risk to her life, because it might cause her cancer to recur and mean that she did not then receive cancer treatment in Ireland. The Court accepted that, although the psychological impact was not susceptible to clear proof, travelling abroad for an abortion constituted a significant psychological burden on each applicant (para 126), and said that an abortion in Ireland would have been a less arduous process, as well as less expensive. The third applicant made the additional complaint (which the Court upheld under article 8) that there had been no proper regulatory framework and system for considering and establishing whether she was entitled to an abortion in Ireland. The judgment is of interest for the Courts treatment of the complaints made in the above circumstances by all three applicants under article 3. The Court recited the effect of the first two sentences quoted above from Gfgen and went on simply to say that the facts alleged do not disclose a level of severity falling within the scope of article 3, with the result that it rejected the complaints under that article as manifestly ill founded (paras 164 165). I note in passing that, contrary to the Commissions submissions before the Supreme Court, I see no reason to exclude as a relevant factor in the connection that the foetuses in question would have been viable. The first and second applicants complaints under article 8 were rejected on the ground that the prohibition in Ireland of abortion for health and well being reasons, based as it is on the profound moral views of the Irish people as to the nature of life left open the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, and represented a choice which fell within the margin of appreciation accorded to the Irish state (para 241). The third applicant succeeded under article 8 on special grounds, as already mentioned. In two cases the European Court of Human Rights has held that article 3 was infringed by failures to give effect to rights to an abortion which domestic law in the circumstances conferred. It is well established in Strasbourg case law that a Convention breach may consist in failing to give effect to domestic law rights, even though there is no Convention obligation on domestic law to provide such rights: see eg RR v Poland (2011) 53 EHRR 31, para 200, Marckx v Belgium (1979) 2 EHRR 330, para 31, and Stec v United Kingdom (2005) 41 EHRR SE18, para 53. In RR v Poland the applicant learned of possible malformation of the foetus from an ultrasound at the 18 week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not until the 23rd week that, with the help of a sympathetic doctor, she was able to gain access to a hospital by subterfuge and have appropriate tests, the results of which were only available two weeks later. She was then told that the foetus had Edwards syndrome, but was refused an abortion on the basis that it was now too late, after the 24 week stage. As a result, she had to carry the baby to term, and deliver it. The legislation providing for abortion expressly, and unequivocally entitled a pregnant woman to unimpeded access to prenatal information and testing (para 156). The applicant was in a situation of great vulnerability and deeply distressed by the information that the foetus could be malformed (para 159). The services not provided to her had been available, and she had been shabbily treated and, as the Polish Supreme Court had also found, humiliated (para 160). In P and S v Poland [2012] 129 BMLR 120, P aged 14 became pregnant due to rape, evidenced by bruises. Polish law permitted an abortion in such circumstances, but the reality of its practical implementation was in striking discordance with the theoretical right. P was given contradictory information and was subject to religious pressure, medical procrastination, combined with the release by a hospital of information to the national press, exposing P to public comments, unwanted and intrusive text messages from unknown persons and harassment by anti abortion activists. The Lublin Family Court even removed P from the custody of her mother (S), on the (unfounded) basis that her mother was pressurising her to have an abortion contrary to her wishes, and put her in a juvenile shelter. Eventually, after S complained to the Ministry of Justice, she was informed that P could have an abortion in Gdansk, 500 kilometres away. S and P drove there clandestinely and the abortion was carried out on 17 June 2008. Nonetheless, in July 2008 criminal proceedings were begun against P on suspicion of unlawful sexual intercourse with a minor under 15. These proceedings were only dismissed in November 2008 on the basis that P was the victim, not the perpetrator. In these circumstances, the Court focused on Ps great vulnerability, her young age, the extent to which she had been pressurised and exposed to unwanted public attention, the misguided criminal proceedings commenced against her, and (echoing a phrase from RR v Poland) procrastination, confusion and lack of proper and objective counselling and information throughout; and on that basis found a breach of article 3. In contrast, in Tysiac v Poland (2007) 45 EHRR 42, the Court rejected the applicants complaint under article 3, while accepting it under article 8. She had complained about the failure to afford her an abortion in circumstances where she had an understandable fear that giving birth would lead to her losing her already poor sight, leading to a further six months of pregnancy and a caesarean birth, after which her sight did in fact deteriorate significantly (although the causation of this was in issue), causing her immense personal hardship and psychological distress. The Court held that there was no adequate system in Poland for deciding whether an abortion was lawful and appropriate, for resolving issues arising in this connection and for enabling the applicant to know her position, thereby exposing her to prolonged uncertainty, severe distress and anguish. Nonetheless, the Court only held there to have been a breach of article 8. The case made under article 3 was rejected, evidently on the ground that the ill treatment did not reach the requisite level of severity, since the Court referred in this connection to Ilhan v Turkey (2000) 34 EHRR 36, para 87, which proceeded on that basis. These three cases are all instances of careful consideration of particular facts, to decide whether the relevant threshold of severity has been crossed. They were decided on an assessment of the actual circumstances of the conduct relied on as contrary to article 3. They were not decided by reference to an assessment of the risk that the State might commit an actual breach of article 3. They lend no support to a general conclusion that the current Northern Irish legislative position necessarily involves a breach of article 3 in respect of any pregnant woman faced with a choice between carrying her foetus to term or travelling abroad for an abortion. Even when one takes into account that the present case concerns pregnancies where the foetus is diagnosed as fatally or seriously abnormal or is the result of rape or incest, it remains the case that the pregnant woman may, and it seems likely in most cases can if she chooses, travel elsewhere from Northern Ireland for an abortion. It is clear that this can be a distressing and expensive experience, even taking into account that it has now been accepted that the NHS should bear the costs of such an abortion in England. Nevertheless, this is the result of current Northern Irish legislative policy, which itself no doubt originates in moral beliefs about the need to value and protect an unborn foetus. In these circumstances, I do not see that current Northern Ireland law can be regarded as giving rise either generally or necessarily in any case to distress of such severity as to infringe article 3, any more than the European Court of Human Rights considered it to be in A, B and C v Ireland. Instead, the focus should be on individual cases, in a way which the Commissions actio popularis does not permit. The appellant submits that it is wrong to look solely in this connection to article 3 of the Human Rights Convention. International legal material under other instruments, to which the European Court of Human Rights would itself have regard, can and in their submission should inform the view taken of article 3: see eg Opuz v Turkey (2009) 50 EHRR 28, para 185. In the present context, the Commission invites attention to decisions of the United Nations Human Rights Committee (UNHRC) in relation to article 7 of the International Covenant on Civil and Political Rights, the first sentence of which is, with the addition of the further alternative cruel before inhuman or degrading, in identical terms to the first sentence of article 3 of the Human Rights Convention. In Mellet v Ireland (9 June 2016) and Whelan v Ireland (17 March 2017), substantially overlapping groups of distinguished international lawyers have recently considered specific complaints by two Irish women about the circumstances in which they were denied abortions in respect of fatally abnormal foetuses in Ireland, and were compelled to travel abroad to obtain them. In each case, the UNHRC concluded that the prohibition on abortion in Ireland, the shame and stigma associated with the criminalisation of abortion of a fatally ill foetus, the compulsion in such a case to travel abroad from the familiar home environment to have an abortion, the lack of information and assistance in Ireland, before and after such abortion, the fact of having to leave the babys remains behind and then in Whelan having them unexpectedly delivered by courier, were all factors combining to lead to a conclusion that article 7 was breached. In each case, the UNHRC also concluded that there was arbitrary or unlawful interference with the complainants privacy contrary to article 17 of the Covenant. Mellet and Whelan represent the conclusions of distinguished lawyers under a different international treaty to the Human Rights Convention. In both cases, the UNHRC received and recorded submissions from the Irish government on A, B and C v Ireland. The UNHRC did not, however, specifically address the requirement under the case law of the European Court of Human Rights for treatment to have a significant severity before it falls to be treated under article 3, compared for example with article 8 of the Convention, or consider the (perhaps more restrictively worded) equivalent of article 8 to be found in article 7 of the Covenant. Further, in both decisions, the UNHRC was at pains to note that, according to General Comment No 20 on the Covenant, its text was not limited, and no justification or extenuating circumstances may be invoked to excuse a violation for any reason: Whelan at para 7.7. While it also true that article 3 of the Human Rights Convention is in terms unqualified, the contextual application which the European Court of Human Rights adopts (para 94 above) militates against too absolutist an approach. It is not clear that the UNHRC takes the same approach. Even so, both UNHRC decisions adopt the same approach as the European Court of Human Rights, in that they focus intensely on the particular facts. Although the UNHRC decisions do so in the context of fatal foetal abnormality, which is now in issue before the Supreme Court, they are not authorities as to the position under the Human Rights Convention and, even if they were, they could not stand for a general proposition that the Northern Ireland legislation with which the present appeal is concerned must itself be condemned as generally incompatible with article 3. For these reasons, therefore, I would reject the Commissions general case that the 1861 and 1945 Acts are of themselves incompatible with article 3 of the Human Rights Convention. That does not mean that the Northern Ireland authorities treatment of a pregnant woman, with a foetus with a fatal abnormality or the result of rape or incest (or, indeed, in other cases) may not on particular facts achieve that level of severity that justifies a conclusion of breach of article 3. It means only that the legislation by itself cannot axiomatically be regarded as involving such a breach. Article 8 It is common ground that the prohibition of abortion in the circumstances in issue on this appeal constitutes an interference coming within the scope of, or engaging, article 8 in the case of persons affected by that prohibition: see also A, B and C v Ireland, para 214. But article 8 is, in contrast to article 3, qualified by reference to the interests identified in its para 2 and set out in para 80 above. In A, B and C v Ireland the questions arising were addressed under three heads: (i) Was the interference in accordance with the law? (ii) Did it pursue a legitimate aim? (iii) Was it necessary in a democratic society? In domestic authority a more detailed, overlapping schema is commonly identified: (i) Was the aim or objective of the interference sufficiently important to justify the limitation of a fundamental right? (ii) Was the interference rationally connected to such aim or objective? (iii) Could a less intrusive measure have been used? (iv) Having regard to these matters and to the severity of the interference, was a fair balance struck between the rights of the individual and of the community? See Bank Mellat v Her Majestys Treasury (No 2) [2014] AC 700, per Lord Sumption at para 20 and, in slightly greater detail, Lord Reed at para 74. Taking head (i), in the present context, the interference was prescribed by law the 1861 and 1945 Acts. I have already noted that this appeal is not about whether those Acts define sufficiently clearly the circumstances in which abortion is permitted. It is clear at least since the FPANI case that they exclude, as such and without more, abortion in the circumstances of foetal abnormality and of pregnancy due to rape or incest, with which this appeal is concerned. The next step, taking head (ii), is to identify and consider the legitimacy of the aim or objective of the legislative prohibition. In terms of article 8(2), the potentially relevant interests are the protection of health or morals, and, perhaps, if a foetus is treated as or equated with an other, the protection of the rights and freedoms of others. It is clear that there exists in Northern Ireland a considerable body of religious or moral opinion that places great weight on the interests of the unborn child and believes that, even in the situations in issue on this appeal, those interests deserve such protection as the present legislative prohibition affords. How much protection is actually achieved, when the possibility exists and is clearly taken up by many pregnant women of travelling abroad for an abortion, is however very doubtful. The likelihood is that it is only a few women who are not sufficiently informed or sufficiently funded and organised who miss out on this possibility. With regard to the moral or religious case made against abortion, in A, B and C v Ireland (para 222) the European Court of Human Rights recalled that it had in Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 244: found that the protection afforded under Irish law to the right to life of the unborn was based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum. The impugned restriction in that case was found to pursue the legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn was one aspect. The position in Ireland was that, pursuant to the 1983 referendum, the Eighth Amendment to the Irish Constitution was passed to the effect that Ireland acknowledges the right to life of the unborn and with due respect to the equal right to life of the mother, guarantees in its laws to regard and, as far as practicable, by its laws to defend and vindicate that right. A, B and C v Ireland shows that a constitutional choice in such terms is well capable of constituting the pursuit of a legitimate aim, even though it is not one which is shared by, or reflects any sort of consensus in, other Council of Europe States. In A, B and C v Ireland, the Court was not persuaded that limited opinion polls put before it by the applicants were sufficiently indicative of a change in the views of the Irish people, concerning the grounds for lawful abortion in Ireland, as to displace the states opinion to the Court on the exact content of the requirements of morals in Ireland (para 226). The position in Northern Ireland is very different. The retention in Northern Ireland of the 1861 and 1925 Acts, without qualification, is not the result of, and has not been endorsed by, any referendum. It reflects without much doubt a deliberate moral choice or choices in the past on an issue which is still controversial. But the extent of the protection given to the foetus is less extensive than in Ireland. There is no express recognition of a right, still less an equal right, to life on the part of the unborn, and the Northern Ireland legislation permits abortion to protect not only the life of the pregnant woman, but also her mental health from serious long term injury. Further, Mr McGleenan for the Department of Justice does not argue that a foetus has a free standing right to life, but for an analysis along the lines adopted by the European Court of Human Rights in Vo v France, whereby the foetus has a potential and intrinsic value. The issue is currently controversial for at least two reasons. First, the Commission has been pressing the Northern Ireland Department of Justice since 2013 to present proposals for amending the law in all the areas before the Supreme Court. The Department eventually concluded that the law should be reconsidered as a matter of policy, not, Mr McGleenan stressed, because it considered that the Convention required such reconsideration. But it confined its October 2014 consultation paper, as well as its June 2015 paper seeking approval to draft a bill, to fatal foetal abnormality. In February 2016 the Northern Ireland Assembly voted by 59 votes to 40 against amendments to the Justice (No 2) Bill which would have legalised abortion in cases of fatal foetal abnormality and by 64 votes to 32 against amendments legalising abortion in cases of rape, incest or indecent assault. The opposition to these amendments was presented on the basis that the Justice Bill was the wrong vehicle for consideration of an issue which was best dealt with in a more measured way, and was accompanied by a proposal for a working group. Such a group was set up, and it is anticipated that it will recommend reform. But, in the absence of any Northern Ireland government since early 2017, no progress has been possible. Nonetheless, Mr McGleenan submits, the ordinary legislative process should be followed, even though it is, at least for the time being, at an impasse. On the other hand, the Commission now submits that there is strong public support for changes in the law. A poll commissioned by Amnesty International in 2014 found that respectively 69%, 68% and 60% of those polled people considered that abortion should be permitted in cases of respectively rape, incest and fatal foetal abnormality. In 2017 the Northern Ireland Life and Times Survey, a joint project of Queens University, Belfast and the Ulster University, reported on the results of a survey undertaken in 2016, which showed the following percentages definitely or probably in favour of permitting abortion in the following situations: Probably Foetus 23 has fatal abnormality and will not survive birth Foetus has serious abnormality and may not survive birth Pregnancy due to rape or incest A woman has a serious health condition and a doctor says she will die if she continues with the pregnancy A doctor says there is a serious threat to the womans physical or mental health if she continues with the pregnancy Definitely 58 24 27 54 56 30 28 46 45 17 44 31 17 A doctor says there is more risk to the life of a pregnant woman if she continues with the pregnancy than if she were to have an abortion A woman wants an abortion because she does not want to have children Neither Horner J nor Weatherup LJ in the Court of Appeal was prepared to put much weight on opinion polls in the present context. Weatherup LJ noted that a referendum had not been held and could not be expected in Northern Ireland where the use of a referendum is usually reserved for constitutional issues (para 145). Accordingly, he said, support for a measure must be gauged by the votes of members of Parliament and in respect of devolved matters that means the votes of the members of the Northern Ireland Assembly. Weatherup LJs observations address an important point. The paradigm, at both the Westminster and devolved levels, is one of representative democracy. It is integral to representative democracy that a Parliament or other legislative Assembly may reach and maintain decisions which would not be shared by a majority if put to a popular vote. A classic instance is the abolition in most cases of the death penalty in the UK in 1965, in circumstances where public opinion overwhelmingly supported its retention at that date, and appears to have remained on balance in favour of such a penalty until 50 years later. Where deployed as an exception to this paradigm, a referendum can certainly have a potent effect. But there are no rules as to when referenda take place, and none is likely on the subject of abortion in Northern Ireland. And opinion polls can never equate to a referendum. Views elicited by opinion polls cannot by themselves prevail over the decision to date by the Northern Ireland Assembly to maintain, at least for the present, the existing policy and law. As a matter of general principle, the paradigm must apply, when it comes to deciding whether the present prohibition pursues a legitimate aim or objective. The one qualification that may be made relates to the nature of the Assemblys most recent vote on 10 February 2016 to reject amendments to the Justice (No 2) Bill: para 109 above. Out of a total of 108 potential votes, I understand that most of the Ulster Unionist members (with 16 votes between them) and Alliance members (with 8 votes between them) were in favour of the amendments, while the Democratic Union Party (the DUP), the largest party (38 votes) does not appear to have rejected the amendments for reasons of inflexible moral principle, but rather because the issues demanded careful consideration from the medical professionals, practitioners, families and ethics and legal experts to ensure that sufficient and proper clarity and guidance are the hallmarks of the way forward. It was the DUP which in these circumstances proposed the establishing of a working party as the key to a sensible, informed and appropriate way forward, with a view to its reporting in six months. Since January 2017, any such solution has been precluded by the cessation of the Assemblys activity, and over two years have now elapsed since the vote on 10 February 2016 without any step towards a real resolution of this pressing issue. Taking the approach of the European Court of Human Rights in A, B and C v Ireland, the focus moves to question (iii): was the interference necessary in a democratic society? Taking the more detailed approach indicated in Bank Mellat, the interference can be seen to be rationally connected with the fulfilment of the relevant aim or objective, in so far as the aim or objective is a moral one. On the other hand, if the connection is viewed by reference to the success of the current legislation in preserving births and lives of babies who would otherwise be aborted, the connection is less readily sustained, bearing in mind the lack of up to date evidence on this point. In August 2017 the Advertising Standards Authority rejected a complaint that a poster issued by the pro life campaign group BothLivesMatter was misleading, when it estimated at 100,000 the total number of people alive in Northern Ireland today, who would not be had the Abortion Act 1967 been extended to Northern Ireland. That figure does not however bear or help in any way in relation to the situations of abnormality, rape and incest in issue on this appeal. The real issue on this appeal is, on that basis, whether the interference was necessary in a democratic society, in the sense that, having regard to all the relevant matters, it struck a fair balance. In the present context, that means a fair balance between the rights of the pregnant woman and the interests of the foetus which the community has by maintaining the 1861 and 1925 Acts determined to merit protection. In relation to this central issue, the Supreme Court faces a fundamental question about its role in relation to that of the Northern Ireland Assembly, which has until now determined to maintain the 1861 and 1925 Acts unamended in an area where devolution has conferred on it legislative competence to amend the law. Looked at from the perspective of the European Court of Human Rights, there is no doubt that this is a situation where that Court would afford the United Kingdom, represented in this context by the Northern Ireland Assembly, a large margin of appreciation. That is evidenced by A, B and C v Ireland, although as pointed out in the concurring judgment of Judge Lpez Guerra, joined by Judge Casadevall in that case, the margin is not unlimited at the Strasbourg level. Here, however, the Convention rights have been domesticated, and the position in that context is on any view different. As Lord Hoffmann put it in In re G [2009] 1 AC 173, para 37: In such a case, it is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch. See also my judgment, at paras 128 130, where I pointed out that Sections 3, 4 and 6 of the Human Rights Act 1998 define the courts role in relation to the new domestic Convention rights. Courts must act compatibly with them (unless primary legislation precludes this, when all that courts can do is make a declaration of incompatibility). But I added this important note of caution: In performing their duties under sections 3 and 6, courts must of course give appropriate weight to considerations of relative institutional competence, that is to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies: see Brown v Stott [2003] 1 AC 681, 703, though the precise weight will depend on inter alia the nature of the right and whether it falls within an area in which the legislature, executive or judiciary can claim particular expertise: see R v Department of Public Prosecution, Ex p Kebilene [2000] 2 AC 326, 381 per Lord Hope of Craighead. The Supreme Court has quite recently had again to consider its role in relation to the United Kingdom Parliament in a context which can be seen as having both similarities to and differences from the present. R (Nicklinson) v Ministry of Justice [2015] AC 657 involved the question whether primary legislation which prevented assistance being given to persons with locked in syndrome who wished to commit suicide was compatible with Convention rights. The Supreme Court by a majority reiterated the applicability in this context of the approach taken in In re G. But, by a different majority, it also held that it would be inappropriate to make a declaration of incompatibility. One reason given by some of the members of the majority in this connection was that proportionality is sensitive to considerations of institutional competence and legitimacy and that a further opportunity should be given for both ministerial and Parliamentary reconsideration (see paras 115 116 per Lord Neuberger, paras 166 170 per Lord Mance and para 197(d) per Lord Wilson) without prejudging the position if Parliament chose to maintain the blanket prohibition on assisting suicide. On the present appeal, the Department of Justice and the Attorney General for Northern Ireland are able to rely on Nicklinson, when submitting that the Northern Ireland Assembly should be given the opportunity of completing its unfinished work of examination of the present law. The obvious difficulty about this has already been identified. There is no assurance as to when or even that the Northern Ireland Assembly will resume its activity or address an issue on which it had wished to receive the working party report some 20 months ago. Nicklinson was also a different case from the present in significant respects. First, it centred on a difficult balancing exercise between the interests of different adult persons: on the one hand, the sufferer with locked in syndrome, unable to act autonomously, but unable to receive assistance to commit suicide; on the other hand, the others, elderly or infirm, who might feel pressured by others or by themselves to commit suicide, if assistance were permissible. The balancing of autonomy and suffering against the risks to others was and is a particularly sensitive matter. The legislature had chosen an absolute protection against the latter risks, with which the courts should not, at least at that juncture, interfere. On the present appeal, there is in law no question of a balance being struck between the interests of two different living persons. The unborn foetus is not in law a person, although its potential must be respected. In addition, the current legislation already recognises important limitations on the interests and protection of the unborn foetus. It permits abortion of a healthy foetus in circumstances where the mothers life would be at risk or where she would suffer serious long term damage to her physical or psychological health. There is therefore no question of any absolute protection of even a healthy foetus. The Northern Ireland position is in that respect also more nuanced than the Irish position considered in A, B and C v Ireland, where the profound moral views identified by the European Court of Human Rights subordinated the interests of the unborn foetus in only one situation, namely where the pregnant womans life would otherwise be compromised. A further difference is that Nicklinson was decided against a background where the attitude maintained by the United Kingdom Parliament reflected a similar attitude across almost the whole of the rest of Europe. Northern Ireland is, in contrast, almost alone in the strictness of its current law, with Irelands even stricter regime having been reconsidered in the referendum held on 25 May 2018, in which the people of that country voted by a large majority (66.4%) to replace the Eighth Amendment of the Irish Constitution, effected in 1983 (which had, as already stated, affirmed the right to life of the unborn, and guaranteed, with due regard to the equal right to life of the mother, to respect and, as far as practicable, but its laws to defend and vindicate that right, by the simple words: Provision may be made by law for the regulation of termination of pregnancy. Under the Eighth Amendment, prior to such replacement, and in the light of Irish Supreme Court decision in Attorney General v X [1992] IESC 1 (a case of pregnancy following rape) and the Protection of Life during Pregnancy Act 2013, abortions were only permissible where there was a real and substantial risk to the womans life (including by suicide). None of this of course means axiomatically that the Northern Irish position may not be justifiable. The margin of appreciation has its domestic homologue in the respect due to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies, which I mentioned in In re G (para 130). But the close ties between the different parts and peoples of the United Kingdom make it appropriate to examine the justification for the differences in this area with care. One might think that this would also apply as between peoples living and able freely to interchange with each other on the same island. In the light of the above, it is, I think, appropriate to examine the substantive position in relation to the present prohibition before returning to the question whether the Supreme Court should express its own view on the proportionality of the prohibition, rather than leaving it to the Northern Ireland Assembly to complete its consideration of the matter, when and if it resumes operations. I start with cases of fatal foetal abnormality, and identify in this context a number of considerations. Fatal foetal abnormality First, the present position in Northern Ireland is, as I have pointed out, not an absolutist, but a qualified, one. The interests of even the entirely viable foetus are already subordinated not simply to the life, but also to the maintenance, in substance, of the long term physical and psychological health, of the pregnant woman. Second, and in contrast, a pregnant woman is in Northern Ireland refused an abortion of a foetus which can be and has been diagnosed definitively as suffering a fatal abnormality which will cause it either to die in the womb or shortly after birth. In the case of a foetus with a fatal abnormality, Horner J said there was nothing to weigh in the balance (para 160). That may perhaps put the point too high, but, even if it does, I agree with his view that the present law cannot be regarded as proportionate. It is difficult to see what can be said to justify inflicting on the woman the appalling prospect of having to carry a fatally doomed foetus to term, irrespective of such associated physical risk as that may on the evidence involve. Third, the moral beliefs or policy views at the origin of the present law, or relied on now to justify it, cannot in my opinion explain the contrast in the treatment of these two situations. Even viewing the latter situation by itself, they cannot justify the infliction of such suffering on women who, by definition, do not share such beliefs or views. Fourth, the present law treats the pregnant woman as a vehicle who must (as far as Northern Ireland is concerned) be expected to carry a foetus to birth, whatever the other circumstances, and whatever her wishes, as long as this experience does not end her life or ruin her health. As Ms Dinah Rose QC for the Family Planning Association and other interveners submitted, and as I would accept, that approach fails to attach any weight whatsoever to personal autonomy and the freedom to control ones own life: values which underpin article 8 of the Convention. Fifth, whatever view may be taken on the first four points, the actual effect of the present law in achieving its aims appears negligible as well as haphazard, in so far it appears probable that all it does is put the large majority of women affected to the stress, indignity and expense of arranging for a mechanical process of abortion away from their familiar home surroundings and sources of local support, while meaning that a minority of women, less well informed, funded or organised, miss out on an abortion altogether (witness the experiences of Mrs Topley and Mrs Phelan). Even for the majority who do travel abroad, the potential stress and trauma is clearly substantial and potentially long term, even though not sufficiently serious to justify an abortion under current Northern Ireland law. The European Court of Human Rights in A, B and C v Ireland relied on the possibility of travelling abroad to have an abortion as a reason for not condemning Irish law. To my mind, however, the fact that the present Northern Ireland law does not achieve its identifiable aims, in most cases, but merely outsources the issue, by imposing on the great majority of women within the categories in issue on this appeal the considerable stress and the cost of travelling abroad, away from their familiar home environment and local care, to undergo the humiliating conveyor belt experience described in evidence, is a potent indication that the present law is disproportionate. In so far as it does achieve such aims, it in effect victimises unfortunates who miss this humiliating opportunity, because of stress, confusion or lack of funding or organisation in the situation in which they find themselves. I cannot therefore regard the present law as striking a proportionate balance between the interests of women and girls in the cases of fatal foetal abnormality, when it fails to achieve its objective in the case of those who are well informed and well supported, merely imposing on them harrowing stress and inconvenience as well as expense, while it imposes severe and sometimes life time suffering on the most vulnerable, who, commonly because of lack of information or support, are forced to carry their pregnancy to term. A number of the considerations identified in relation to fatal foetal abnormality apply with equal force in relation to rape. This is so in particular in relation to the considerations identified in paras 122, 125 and 126. As to the considerations identified in paras 123 and 124, pregnancy following rape must be considered on the assumption that the foetus is perfectly viable. The moral beliefs or policy relied on to justify the current law focus on that point. But pregnancy following rape presents anguish of a different nature, certainly comparable in severity with that imposed on a woman who is expected to carry a foetus with a fatal abnormality to term. In the case of a pregnancy resulting from rape, a woman is not just expected to carry the foetus to birth, as long as the experience does not end her life or ruin her health (the consideration identified in para 125). She is also potentially responsible for the child once born, under a relationship which may continue as long as both live. Causing a woman to become pregnant and bear a child against her will (as by a negligently performed vasectomy of a partner in McFarlane v Tayside Health Board [2000] 2 AC 59) was described in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266, para 58 as an invasion of that fundamental right to bodily integrity. Hale LJ went on there to describe the profound physical and psychological changes involved in pregnancy, as well as the continuing responsibilities, legal and practical, of a mother after giving birth, of which, short of adoption, she cannot rid herself. The additional burden and torment of being expected to carry to birth and thereafter to live with a baby who is the product of a rape can only be imagined. Sexual crime is, as Horner J said at para 161 the grossest intrusion on a womans autonomy in the vilest of circumstances. This is a situation where the law should protect the abused woman, not perpetuate her suffering. That this trauma will not by definition amount to serious and long term psychological injury seems to me quite insufficient to outweigh this consideration. Again, there is the possibility, very probably taken up by most in these categories, of travelling abroad for an abortion (the consideration identified in para 126). Again, I am unable to regard this as any justification of the law. On the contrary and for reasons already given in para 126, I regard it rather as a factor confirming its disproportionality. The current law in Northern Ireland does not significantly achieve its object. It stresses and humiliates the majority and victimises the minority. I therefore conclude that the current law is disproportionate in relation to cases of pregnancy due to rape. Incest It is clear from the legislation itself, briefly outlined in para 44 above, that there are differences between cases which fall, colloquially though no longer in law, under the head of incest. Cases of pregnancy resulting from sexual activity with a child, falling within article 32 of the 2008 Order, are clearly at one end of a scale. But Professor Jennifer Temkin LLD of Sussex University, an expert in the field, also records (citing in support D E H Russells Sexual Exploitation (1984), p 114) that: The general view is, however, that incest rarely commences above the age of 20 but having started at a younger age may continue into adulthood. (Do we need the Crime of Incest? (1991) Current Legal Problems 185, 187.) Further, the Home Office White Paper Protecting the Public Strengthening Protection Against Sex Offenders and Reforming the Law on Sexual Offences, (2002), Cm 5668, which preceded the Sexual Offences Act 2003 in England and Wales stated (para 59) that there is evidence that some adult familial relationships are the result of long term grooming by an older family member and the criminal law needs to protect adults from abuse in such circumstances. Professor Temkins answer to the question in her title was affirmative. She refers to innumerable studies showing that incest in all its forms is frequently harmful or extremely harmful to victims (p 186). She cites D Glaser and S Froshs Child Sexual Abuse (1988), p 17, as recording that sexually abused children commonly show depression, guilt or lowered self esteem, and D Finkelhors study Sexually Victimised Children (1979), p 101, as indicating that father/daughter incest is particularly traumatic and as finding that the girls suffering most trauma were those abused between the ages of 16 and 18 (p 100). Professor Temkin also points out that rape is hard to prove and that Many coercive and exploitative incestuous acts will not fall within the narrow legal definition of rape (p 193). Incest is also destructive both to those who participate in it and to those who are indirectly involved (p 187). It crosses a boundary, which is necessary to protect the family and the individual from the family (p 188). It is, in short, potentially destructive of wider family relationships, even though it also witnesses a prior breakdown of ordinary behaviour. These factors exist quite apart from a slight, though noticeable, risk of foetal and post natal abnormalities: surveys referred to in a Max Planck Institut report put before the German Constitutional Court in the case of Herrn S (2 BvR 392/07 of 26 February 2008) identify a 1.7 to 2.8% increased risk of genetic abnormalities in a child of an incestuous relationship and a 7 to 30% increased risk of disease in the first year of life. In the present context, that risk, which is a further factor relied on by Professor Temkin in favour of the current criminalisation of incest, can be put on one side. Most of the points made above with regard to incest are underlined in the German Federal Constitutional Courts judgment of 26 February 2008 in the case of Herrn S (2 BvR 392/07 of 26 February 2008). This judgment, when examined by the European Court of Human Rights in Stbing v Germany (2012) 55 EHRR 24 was held not to involve any violation of article 8 of the Convention. Stbing was in fact one of the cases, to which Professor Temkin refers as having so much exercised the romantic imagination of some writers (and, she might have added, at least one composer), but which are statistically irrelevant (p 188). It was a case of a brother brought up from the age of three separate from his birth family, to which he only returned aged about 24, to discover that he had a seven years younger sister, with whom he very soon commenced consensual sexual relations, and over the next five years had four children. Perhaps with such rare cases in mind, it has been suggested that the prohibition on consensual sexual relations between adults falling within the presently prohibited degrees of affinity should be reconsidered (see eg Incest Should Incest between Consenting Adults be a Crime? by H H Peter Bowsher QC [2015] Crim LR 208, and other material there cited). But it is clear that, when pregnancy due to incest is under consideration, the focus cannot and should not be on the rare situation exemplified in Stbing. Rather, it must be on the sort of picture found by the Scottish Law Commission in its 1980 Memorandum No: 44, The Law of Incest in Scotland. Examining some 16 cases where pregnancies were alleged to have occurred, the Scottish Law Commission found that two involved step fathers and step daughters, and that, of the remaining 14, 11 concerned father daughter incest, two concerned brother sister incest, and one uncle niece incest. The present issue is whether a blanket prohibition of abortion in cases of incest is proportionate. In the light of the factors I have identified, I have no doubt that the only answer is that it is not. The most typical cases of abortion involve exploitative relationships with young or younger female relatives. The agony of having to carry a child to birth, and to have a potential responsibility for, and lifelong relationship with, the child thereafter, against the mothers will, cannot be justified. The same considerations that I have identified in paras 122, 125 and 126 above apply. Similar considerations to those which I have identified in relation to rape in para 127 above also apply. There can be exceptional cases, such as perhaps Stbing, where such considerations do not apply with the same force, but they cannot justify a law which is clearly disproportionate in many, indeed typical, instances of incest. Serious foetal abnormality I have up to this point left on one side cases of serious foetal abnormality, in respect of which the Commission also seeks relief, by way of a declaration of incompatibility. Like Horner J (para 166), I see the position here as different. The foetus has the potential to develop into a child though it will have to cope with a mental and/or physical disability. There can also be additional stresses and strains which may have serious effects upon the whole family, as Hale LJ said in Parkinson (para 90). The law is, as she also said at para 91, able to distinguish between the needs of ordinary children and the special needs of a disabled child, and to cater for the latter in terms of care and facilities or, in an appropriate case, by way of damages. But in principle a disabled child should be treated as having exactly the same worth in human terms as a non disabled child, save to the extent that additional costs due to the disability may be identified and recovered in damages from someone negligently responsible for causing the disability: Parkinson, para 90. This is also the consistent theme of the United Nations Committee on the Rights of Persons with Disabilities, expressing concerns about the stigmatising of persons with disabilities as living a life of less value than that of others, and about the termination of pregnancy at any stage on the basis of foetal abnormality, and recommending States to amend their abortion laws accordingly (CRPD/C/GBR/CO/1). If this embraces fatal foetal abnormality, I cannot go so far. But, in relation to disability, I consider that the Committee has a powerful point. Further, although the Abortion Act 1967 itself distinguishes children who would be seriously handicapped from others, this is in the context of a law which entrusts that judgment to the opinion of two registered medical practitioners formed in good faith: section 1. In the result, I share Horner Js view that it is not possible to impugn, as disproportionate and so incompatible with article 8, legislation which prohibits abortion of a foetus diagnosed as likely to be seriously disabled. Article 14 We were addressed separately on the question whether the present Northern Irish law involves discrimination against women. The case made was that the prohibition of abortion necessarily or at least primarily affects women, not men, that it is not necessary to find any comparator and that gender based discrimination is a suspect ground, carrying a heavy burden to justify. In view of the conclusions which I have come to on article 8, I do not find it necessary or propose to address this topic. Conclusion I return to the question whether a positive conclusion of incompatibility is appropriate in relation to cases where there is a diagnosis of fatal foetal abnormality or where the pregnancy is due to rape or incest. Should this Court leave the position in relation to these categories to be considered further whenever the Northern Ireland Assembly resumes operation and receives whatever report or recommendations the working group presents? First, there is the consideration that it is unclear what will happen in Northern Ireland, in particular whether and when the Assembly will resume its operations. But this is not itself decisive. What is clear is that the issue has been under discussion for some five years, since it was first raised by the Commission, without any definite upshot. Further, if we were to refrain now from any conclusion on it, or were to defer to the Assembly for the time being, in order for it to reach and express its own definitive position, we would have in my opinion to do so on the basis that it would then still be open to a person affected to return to court to have the matter finally resolved, if the legislature did not amend the existing law in the three areas identified. In my opinion, that is not an appropriate course, as the need for such amendment is evident and the outcome of any further litigation would in that respect be inevitable. I am in short satisfied that the present legislative position in Northern Ireland is untenable and intrinsically disproportionate in excluding from any possibility of abortion pregnancies involving fatal foetal abnormality or due to rape or incest. My conclusions about the Commissions lack of competence to bring these proceedings means that there is however no question of making any declaration of incompatibility. But the present law clearly needs radical reconsideration. Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act. LORD KERR: (with whom Lord Wilson agrees) Introduction (a) Fatal foetal abnormality Ashleigh Topley married in September 2012. She and her husband had been together for seven years before they married. They wanted to have children and they stopped using contraception shortly after their wedding. In October 2013, to her great joy, Mrs Topley discovered that she was pregnant. Her baby was due to be born in July 2014. On 14 February, she attended hospital for a 20 week scan. It was diagnosed that the foetus was suffering from a fatal form of skeletal dysplasia. Mr and Mrs Topley were told that their baby would die either in the womb or within a short time of birth. As it happens, their daughter, Katy, died before her birth on 26 May 2014, when Mrs Topley was 35 weeks pregnant. A post mortem examination revealed that she had suffered from osteogenesis imperfecta, type 2, a form of skeletal dysplasia. Mrs Topley has provided a moving account of the harrowing ordeal that she and her husband faced after they learned that their baby would not survive. They received conflicting advice as to whether a termination of her pregnancy would be possible. She had to endure the experience of receiving congratulations from well intentioned individuals about the impending birth, while she was trying to come to terms with the awful reality that her baby would not survive. The three months between February and May 2014 were deeply traumatic for her. She summarised her plight in this passage of her witness statement: It was clear to me that the current 1egal framework takes no account of the circumstances that we found ourselves in. In the normal course of events, an abortion is not something that would have occurred to me. However, the serious condition that my daughter suffered from thrust us into a situation that no one could predict. My daughter was bound to die before, or close to, her birth. If she had survived, even for a short period, she may have suffered. This tragic situation was compounded for me by the apparent inability of the medical profession to offer me a termination even in these circumstances. If this had been available, I believe it would have diminished our suffering. Being forced to continue with this pregnancy added to the tragedy. We were not able to grieve for our daughter even at the time of her actual death or to start to deal with our emotions. This was further compounded by the fact that the medical professionals could not even agree amongst themselves whether a termination was permitted. Sarah Jane Ewart found out that she was pregnant on 15 July 2013. On 26 September 2013, it was discovered that her baby had anencephaly. This meant that the foetus did not have a skull; there was no bone above the eye sockets and jaw line. There was no possibility of survival beyond birth. Mrs Ewart asked if she could have a caesarean section. She was told that this would not happen. Like Mrs Topley she had to endure the ordeal of being congratulated by well wishers. She felt unable to tell them of what she described as the awfulness of the truth. Mrs Ewarts gynaecologist was so concerned about the possibility that, if she gave Mrs Ewart advice as to where she might go to seek help in relation to the termination of her pregnancy, she (the gynaecologist) would be exposed to the risk of prosecution, it was impossible for her to offer that advice. Mrs Ewarts general medical practitioner was similarly reluctant to advise. Mrs Ewarts experience of the worry associated with her condition; the indignity she felt in having to travel to England to have her pregnancy terminated; the traumatic experience of the termination; and her dependence on her mother and husband throughout this ordeal are all movingly and graphically described in her witness statement. The prolonged torment that she had to suffer is pitifully recounted by her. Her fear of becoming pregnant with another anencephalic baby, and having to undergo a similar tribulation to that which she suffered in 2013, is entirely understandable and incontestably obvious. Denise Phelan and her husband discovered in November 2015 that they were expecting their first child. The pregnancy was planned and the baby was, in Mrs Phelans words, very much wanted. In her affidavit she has described the horror of her experience during her pregnancy; the nightmare of discovering that her baby suffered from the most grievous condition; the suffering that she had to endure while waiting for the birth of the child, doomed to die (in fact her baby girl died five days before birth); the frustration and dismay at her and her husbands inability to access medical assistance for their plight; and the dreadful torment that they both had to bear after the baby was delivered stillborn. The courage of these women in giving unsparing accounts of their experiences is wholly admirable. It is impossible not to feel profound sympathy for their plight and for the ordeal that each of them has had to endure. Admiration and sympathy do not provide an answer to the complex questions which arise on this appeal, however. A dispassionate analysis of those questions is required. But the nature of their suffering and the trauma of their experiences are by no means irrelevant to the unravelling and resolution of the issues to which this appeal gives rise. (b) Pregnancy because of rape or incest Dawn Purvis is the programme director of Marie Stopes International in Northern Ireland (MSNI). This is a non profit making organisation which works in about forty countries providing sexual and reproductive health services. MSNI opened a clinic in Belfast in October 2012. It offers a range of services including advice on methods of contraception, information and support for women dealing with an unplanned pregnancy, as well as access to safe and legal abortion services and post abortion care. In an affidavit made for the purposes of these proceedings, Ms Purvis described the case of a woman who had consulted MSNI after having been raped by her partner. He refused to allow her to use any form of contraception. She was fearful that he would react violently if he discovered that she was pregnant and was seeking an abortion. Her general medical practitioner refused to refer her to any health care provider, observing simply that abortion was illegal in Northern Ireland. When this woman sought help from MSNI, it was decided that she could not qualify for an abortion under the current law. She was therefore obliged to leave Northern Ireland in order to obtain an abortion elsewhere. Ms Purvis described another case: that of a child less than 13 years old, who came to MSNI, having become pregnant as a result of sexual abuse by a member of her family. The girl and the relative who accompanied her to MSNI believed that she could be treated in Northern Ireland. She had never been outside that country before and, unsurprisingly, was frightened and distressed when told that she would have to travel to England. MSNI provided support and the child had a termination of her pregnancy carried out away from Northern Ireland. Fortunately, she was accompanied by an adult to the place where that procedure occurred but it is not difficult to imagine how traumatic the experience must have been for her. Mara Clarke is the director of the Abortion Support Network (ASN) in Coventry. Her organisation has helped a number of women and girls from Northern Ireland who have sought their assistance after becoming pregnant as a result of rape. In an affidavit of 2 February 2015, she described the distressing circumstances of four women who had been sexually assaulted and had been made pregnant. The accounts of the suffering of these women and, in some cases, the privations which their families had to endure are distressing in the extreme. I will refer only to one. The victim had been beaten and raped by a group of men. She discovered that she was pregnant. Despite the fact that a number of organisations in Northern Ireland became aware of her predicament, she was offered no support or help. She was able to raise only 100 towards the cost of travelling to England to obtain an abortion. ASN made her a grant of 1,200 to meet the additional costs of travelling, having the procedure performed and hotel accommodation. Some considerable time later, having seen a television programme about their work, she wrote to ASN to thank them for their help, adding, poignantly, that, without it, she would be dead, either by her own hand, or by the hands of those who had raped and beaten her. The Northern Ireland Human Rights Commission (described hereafter as NIHRC or the Commission), the appellant in these proceedings, has claimed that the experiences of these individuals are typical of those that many women and girls in Northern Ireland have been forced to undergo. NIHRC also claims that the reaction of medical practitioners and their reluctance to offer any assistance for fear of prosecution under the current law are also entirely typical. Those claims have not been disputed by the respondents or any of the interveners in the appeal. Again, this is not surprising in light of the current state of the law in relation to abortion in Northern Ireland. The current law Section 58 of the Offences Against the Person Act 1861, as amended, provides that: Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life. Section 59 of the 1861 Act, again as amended, provides that: Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude. The Criminal Justice Act (Northern Ireland) 1945 was an Act of the Northern Ireland Parliament made by virtue of powers vested in that body by section 20 of the Government of Ireland Act 1920. Section 25 of the 1945 Act extended to Northern Ireland the effect of the materially identical section 1 of the Infant Life (Preservation) Act 1929. Section 25 of the 1945 Act provides that: (1) Subject as hereafter in this sub section provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive. Sections 58 and 59 of the 1861 Act have been considered with section 1 of the 1929 Act in England and Wales in R v Bourne [1939] KB 687 and with section 25 of the 1945 Act in Northern Ireland in Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 39; [2005] NI 188 (the FPANI case). The latter case also dealt with section 25 of the 1945 Act. In Bourne a surgeon performed an abortion on a young girl of 14 years who had become pregnant as a result of rape. He was charged under section 58 of the 1861 Act with unlawfully procuring an abortion. The jury was directed that it was for the prosecution to prove that the operation was not performed in good faith for the purpose of preserving the life of the girl. The surgeon was not obliged to wait until the patient was in peril of immediate death. As to the words of the 1929 Act, that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother, Macnaghten J (the trial judge) said to the jury that, although those words did not appear in section 58 of the 1861 Act, they were implied by the word unlawful in that section. Those words ought to be construed in a reasonable sense said Macnaghten J, and it was, therefore, the surgeons duty to perform the operation if he was of the reasonable opinion that the probable consequence of the pregnancy continuing would be to make the patient a physical and mental wreck. In the Court of Appeal in the present case ([2017] NICA 42, Morgan LCJ, Gillen and Weatherup LJJ), the Lord Chief Justice, Sir Declan Morgan, suggested that it was possible to construe the words, for the purpose only of preserving the life of the mother so as to include circumstances where the mothers life was significantly adversely affected para 49. Developing this theme, he said at para 79: I accept that the grain of the 1861 Act and the 1945 Act was intended to provide substantial protection for the foetus but in my view the phrase for the purpose of preserving the life of the mother cannot in present circumstances be interpreted reasonably as confining protection for the mother by way of abortion to those circumstances where it is likely that she will be a physical or mental wreck. I have had the benefit of affidavits sworn in these proceedings by Sarah Ewart and AT [Ashleigh Topley]. Some aspects of the effect on these women of the prohibition of abortion in this jurisdiction in their circumstances have been described in [earlier paras of the judgment]. The present law prioritises the need to protect to a reasonable extent the life that women in these emotionally devastating situations can enjoy. In my opinion that requires the court to determine what is reasonably tolerable in todays society. That is not to be defined by the values of the 1930s. I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus. Gillen LJ expressed disagreement with these statements in para 91 of his judgment. He considered that it was institutionally inappropriate for the court to change the effect of the legislation and its interpretation in R v Bourne. Weatherup LJ also disagreed with the Lord Chief Justices view that contemporary standards could serve to enlarge the scope of the Bourne exception. He pointed out that the law as expressed by Macnaghten J had been applied by the Court of Appeal in Northern Ireland in the FPANI case where Nicholson LJ said at para 75: Procurement of a miscarriage (or abortion) is a criminal offence [in Northern Ireland] punishable by a maximum sentence of life imprisonment if the prosecution proves beyond any reasonable doubt to the satisfaction of a jury: (1) that the person who procured the miscarriage did not believe that there was a risk that the mother might die if the pregnancy was continued; or (2) did not believe that the mother would probably suffer serious long term harm to her physical or mental health; or (3) did not believe that the mother would probably suffer serious long term harm to her physical or mental health if she gave birth to an abnormal child ; (4) a person who is a secondary party to the commission of the criminal offence referred to above is liable on conviction to the same penalty as the principal; (5) it follows that an abortion will be lawful if a jury considers that the continuance of the pregnancy would have created a risk to the life of the mother or would have caused serious and long term harm to her physical or mental health. Campbell LJ in the FPANI case said in para 140 that the law in Northern Ireland permits a termination where there is a serious and long term risk to the mothers mental or physical health or well being. Sheil LJ, in accepting the principles which were said by counsel for the Minister for Health to encapsulate the law in Northern Ireland, reached essentially the same conclusion. Among those principles were that a termination of pregnancy was unlawful unless performed to preserve the life of the mother; that life included mental and physical life; that a termination would be lawful where there was a real and serious adverse effect on health but that this had to be permanent or long term. This, therefore, was the law of Northern Ireland, as pronounced by a unanimous Court of Appeal in that jurisdiction in October 2004. The Lord Chief Justices judgment in the present case would have brought about a significant change in that law in two respects. In the first place, it would shift the emphasis towards the need to protect to a reasonable extent the life that women [in cases such as those of Mrs Topley and Mrs Ewart] would enjoy (emphasis supplied). Secondly it would eliminate the requirement that there be a real, serious, long term or permanent effect on the womans physical or mental health. This would be a radical departure from not only the law as Macnaghten J declared it to be in Bourne but also as the Court of Appeal in Northern Ireland held it to be in 2004. The fundamental nature of the alteration of the law that this would bring about is perhaps best illustrated by the Lord Chief Justices statement that the court was required to determine what was reasonably tolerable in todays society. I do not consider that such a change in statutory law can be achieved by judicial decision. The 1861 and 1945 Acts are the foundation of the law on abortion in Northern Ireland. They forbid the termination of pregnancy unless it is required to preserve the mothers life. That has been interpreted to mean that abortion is permitted in order to save the mother from a condition of physical or mental devastation. That condition has been held to equiparate to long term or permanent effect on the mothers health which is both real and serious. I do not consider that it is possible to stretch the concept of preservation of life beyond these notions. The proceedings On 2 February 2015, NIHRC was given permission to apply for judicial review. Three declarations were sought: (i) A declaration pursuant to section 6 and section 4 of HRA, that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with articles 3, 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms [hereafter ECHR or the Convention] as they relate to access to termination of pregnancy services for women with pregnancies involving a serious malformation of the foetus or pregnancy as a result of rape or incest. (ii) A declaration that, notwithstanding the provisions of sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act, women in Northern Ireland may lawfully access termination of pregnancy services within Northern Ireland in cases of serious malformation of the foetus or rape or incest. (iii) Further and in the alternative, a declaration that the rights of women in Northern Ireland, with a diagnosis of serious malformation of the foetus or who are pregnant as a result of rape or incest, under articles 3, 8 and 14 of ECHR are breached by sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act. Following the grant of leave to apply for judicial review, a number of organisations sought to intervene in the proceedings. They were given permission to intervene and have been represented in the proceedings before this court, although the number of interveners has increased from those who participated in the hearing before the High Court and the Court of Appeal. On 17 February 2015, the High Court issued a Notice of Incompatibility under section 4 of HRA and Order 121 of the Rules of the Court of Judicature (the rules), notifying the Attorney General and the Department of Justice that they might enter an appearance to the proceedings. The court also issued a devolution notice under paragraph 5 of Schedule 10 to the Northern Ireland Act 1998 (NIA) and Order 120 of the Rules. The case was heard at first instance by Horner J on 15 17 June 2015. NIHRC argued that where there was a serious malformation of the foetus or where the pregnancy was the result of rape or incest, the prohibition on abortion in Northern Ireland breached the rights of women and girls under article 3, article 8 and article 14 (read together with article 8) of ECHR. The Attorney General and the Department of Justice disputed these claims, arguing that there was no violation of ECHR and that, in any event, the Commission did not have standing to bring proceedings for judicial review. Horner J held that the application for judicial review should succeed in part. He held that the Commission had standing to apply for the relief that it sought. He also found that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with article 8 in cases of fatal foetal abnormality, rape and incest, but not in cases of serious malformation of the foetus para 184 of his judgment. He dismissed that part of the application that depended on article 3. The Attorney General and the Department of Justice appealed Horner Js judgment. They argued that a declaration of incompatibility could not be granted in the absence of an identified unlawful act and that the Commissions failure to identify someone who was or would be a victim of the asserted breaches of the Convention was fatal to the success of the application for judicial review because it did not allow for an examination of the particular facts said to constitute the breach. NIHRC did not have standing, therefore, it was submitted. They challenged the judges findings in relation to article 8 and they claimed that he had erred in holding that the life of an unborn foetus was not protected by the common law of Northern Ireland. NIHRC cross appealed, arguing that the relevant statutory provisions were incompatible with article 3 of ECHR and article 14 (read with article 8). It also argued that appropriate declarations should have been made in the case of serious as well as fatal foetal abnormality. All three members of the Court of Appeal agreed that the Commission had standing to bring the judicial review challenge para 46 of Morgan LCJs judgment. The Lord Chief Justice held that it was within the margin of appreciation of the contracting states of the Council of Europe to determine the nature of the protection to be afforded a foetus paras 50 52 of his judgment. Gillen LJ agreed with this conclusion. Weatherup LJ held that, although the foetus was not entitled to protection under article 2 of ECHR, it was possible that some recognition of a foetuss rights might arise under article 8 paras 126 131. Gillen and Weatherup LJJ agreed with the Lord Chief Justices conclusions that article 3 was not engaged paras 52 60 of his judgment. In relation to article 8, Morgan LCJ, after reviewing European authorities, particularly A, B and C v Ireland [2010] 53 EHRR 13, concluded that the article 8 claim did not succeed, although, as observed above, he considered that the principles in Bourne could be applied to the cases of Mrs Topley and Mrs Ewart. The Lord Chief Justice conducted a close examination of the A, B and C case and concluded that it did not lend decisive weight to the arguments advanced by the Attorney General and the Department of Justice para 74. Gillen LJ disagreed. He considered that the A, B and C case established that a broad margin of appreciation should be accorded to the contracting states of the Council of Europe on the question of the legal requirements for lawful abortion paras 103 105. Weatherup LJ expressed what he described as a provisional view that the restriction on the termination of pregnancy in cases of fatal foetal abnormality and as a result of rape and incest would amount to a breach of the right to respect for private life under article 8. He considered, however, that it would not be institutionally appropriate for the court to intervene see para 178 of his judgment. Standing The discussion about the standing of the Commission to bring these proceedings begins with the Belfast Agreement and the influence which it had on the NIA. That Act was introduced to implement the agreement made in Belfast between various political parties in Northern Ireland on 10 April of that year (1998). Paragraph 5 of Strand One of the agreement stated that safeguards would be put in place to ensure that all sections of the community were protected. Those safeguards were to include the rights guaranteed by ECHR. By para 5 of Strand Three, dealing with new institutions, it was provided that NIHRC would be established. Its task would be to keep under review the adequacy and effectiveness of laws and practices, making recommendations to Government as necessary; providing information and promoting awareness of human rights; considering draft legislation referred to them by the new Assembly; and, in appropriate cases, bringing court proceedings or providing assistance to individuals doing so. This aspiration found expression in section 69 of NIA. It deals with the Commissions functions. Subsection (1) reflects para 5 of Strand Three and provides that NIHRC should keep under review the adequacy and effectiveness in Northern Ireland of laws and practice relating to the protection of human rights. Subsection (3) enjoins the Commission to advise the Secretary of State and the Executive Committee of the Northern Ireland Assembly of legislative and other measures which ought to be taken into account to protect human rights and subsection (4) requires NIHRC to advise the Assembly whether a Bill which it proposes to pass is compatible with human rights. Subsection (6) emphasises the broad scope of the Commissions remit in relation to the protection of human rights. It is required to promote understanding and awareness of the importance of human rights in Northern Ireland and for this purpose it may undertake or commission research and educational activities. The provision in section 69 which is most directly relevant to the issue of NIHRCs standing to bring the present proceedings is subsection (5). It provides: The Commission may (a) give assistance to individuals in accordance with section 70; and (b) bring proceedings involving law or practice relating to the protection of human rights. The approach to the interpretation of these provisions should start with the general proposition that it would be anomalous if NIHRC did not have the power to challenge the compatibility of legislation with the provisions of ECHR, given its principal stated function (in section 69(1)) see para 169 above. An obvious way in which that function can be fulfilled is that the Commission should have the opportunity to present a legal challenge to potentially incompatible legislation. It is in the nature of things that not every item of legislation which is inconsistent with ECHR rights will be subject to challenge by individuals affected by it. To cater for that circumstance, it is appropriate that NIHRC should perform a supervisory function, monitoring legislation, both proposed and historic, for its conformity with contemporary human rights standards. To deny it the legal capacity to challenge legislation would deprive the Commission of an important means of carrying out its fundamental role. Moreover, the power to challenge incompatible legislation is a natural complement to the duty to advise the Secretary of State and the Executive Committee of the Northern Ireland Assembly about legislative and other measures necessary to protect human rights. The respondents argue that neither NIA nor the Human Rights Act 1998 (HRA) confers on NIHRC a freestanding right to challenge legislation on the basis of its avowed incompatibility with ECHR. It is claimed that the Commission may only contest the legislations consistency with the Convention in proceedings brought to challenge an act of a public authority which is said to be incompatible with an ECHR right and where there is an identified victim of the alleged unlawful act. The requirement that there be a victim is derived from section 7 of HRA and section 71(1) of NIA. Section 7 of HRA provides in subsection (1): Section 71(1) of NIA originally provided that: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) in any legal proceedings, rely on the Convention right or rights concerned but only if he is (or would be) a victim of the unlawful act. (1) Nothing in section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person (a) to bring any proceedings in a court or tribunal on the ground that any legislation or act is incompatible with the Convention rights; or (b) such proceedings, to rely on any of the Convention rights in any unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights. (the reference to section 69(5)(b) was deleted in the amended version) In In re Northern Ireland Human Rights Commission [2002] NI 236, the House of Lords held that the Commission had the power to apply to intervene in court proceedings where a human rights issue arose. In para 11 of his speech, however, Lord Slynn of Hadley observed that section 69(5)(b) did not enable the Commission to bring proceedings on the ground that legislation was incompatible with a Convention right unless it was a victim for the purpose of proceedings brought in the European Court of Human Rights (referred to hereafter as ECtHR or the Strasbourg court). And at para 23 he said that: in respect of proceedings in which it is sought to contend that legislation is incompatible with the European Human Rights Convention they can only be brought, it seems, if the Commission can show that it is a victim for the purposes of the Convention. These observations prompted the amendment of section 71. As originally enacted section 71(2) had provided that subsection (1) did not apply to the Attorney General, the Advocate General for Northern Ireland, the Attorney General for Northern Ireland, the Advocate General for Scotland or the Lord Advocate. Section 14 of the Justice and Security (Northern Ireland) Act 2007 inserted the following provisions, among others, to section 71: (2A) Subsection (1) does not apply to the Commission. (2B) In relation to the Commissions instituting, or intervening in, human rights proceedings (a) the Commission need not be a victim or potential victim of the unlawful act to which the proceedings relate, section 7(3) and (4) of the Human Rights Act (b) 1998 (c 42) (breach of Convention rights: sufficient interest, &c) shall not apply, (c) be one or more victims of the unlawful act, and (d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies). the Commission may act only if there is or would In circumstances in which the requirement that NIHRC be a victim was removed by this new provision, it would be surprising that the Commission should continue to be obliged to identify a particular victim before it could bring proceedings concerning the incompatibility of an item of legislation with ECHR. I shall deal with this argument in more detail below but, first, it should be noted that the Attorney General for Northern Ireland also argues that, even if section 4 of HRA were to be regarded as creating a new cause of action, NIHRC is explicitly prevented by section 71(2B) and (2C) (as to which see para 179 below) from challenging primary legislation in the absence of a specific unlawful act. Thus, not only must there be a specific victim, an identified unlawful act must have been perpetrated. I am of the clear view that section 71(2B) does not confine the Commissions opportunity to act to circumstances where a specific act directed to a particular individual is identified. Although that is, arguably, a possible theoretical interpretation of the provision, its adoption would run directly counter to the spirit of the amendment. Its purpose must surely have been to ensure that the Commission could challenge legislation which it perceived to be incompatible with the Convention. That conclusion is reinforced by a consideration of section 71(2B)(c). Section 71(2B)(c) provides that the Commission may only act if there is or would be one or more victims. The Commissions power to act on behalf of potential victims and, importantly, to act pre emptively would be robbed of its essence if unlawful act was interpreted in the narrow, literal sense. The amendment to the NIA was made in order to make it easier for NIHRC to institute HRA proceedings. In light of the clear intention to widen NIHRCs powers, it would be illogical that these would be restricted by the imposition of a requirement that there be a particular, identified unlawful act. Section 71(2C) provides: (2C) For the purposes of subsection (2B) human rights proceedings means proceedings (a) which rely (wholly or partly) on section 7(1)(b) of the Human Rights Act (i) 1998, or (ii) an expression used in subsection (2B) and in (b) section 7 of the Human Rights Act 1998 has the same meaning in subsection (2B) as in section 7. section 69(5)(b) of this Act, and Paragraph 8 of the Explanatory Notes to the 2007 Act (although the Notes do not form part of the Act and were not endorsed by Parliament) is illuminating on the question of whether a victim needs to be identified. In material part, it reads: This Act makes provision to extend the powers of the Northern Ireland Human Rights Commission It amends the Northern Ireland Act 1998 by granting powers to the Commission to institute judicial proceedings in the Commissions own right, and when doing so to rely upon the European Convention on Human Rights. This will mean that the Commission can bring test cases without the need for a victim to do so personally. I reject the arguments that the Commission is obliged to identify a victim and that it must demonstrate that an unlawful act has actually taken place before it may bring proceedings to challenge the compatibility of legislation with ECHR. HRA contemplates two distinct and complementary mechanisms for the protection of Convention rights challenges to legislation under sections 3 5 of the Act and challenges to the acts of public authorities under sections 6 9 per Lord Rodger in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, para 206. The title to sections 3 5 of the Act is legislation, and to sections 6 9 public authorities. There is every reason to conclude that the availability of two different species of challenge was in the contemplation of the legislature. True, of course, it is that a challenge to a decision of a public authority may prompt a declaration of incompatibility in relation to the legislation under which the act of the authority has taken place. But that circumstance does not preclude the making of a declaration of incompatibility where a freestanding challenge to the legislation is made and its intrinsic nature (as opposed to its impact on a particular individuals rights under ECHR), is deemed to be inconsistent with the Convention. This, I consider, is clear from the terms of section 4(1) (4) of HRA. They state: (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied that the provision is incompatible with a Convention right, and that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. Section 69(5)(b) empowers NIHRC to bring proceedings. The only restriction on that right is that the proceedings must involve law or practice relating to human rights claims. A claim under section 4 of the HRA meets that requirement. The respondents objection resolves to the claim that an application for a declaration of incompatibility must be parasitic on or ancillary to a claim that an individuals right has been violated. But there is nothing in the text of section 4 which warrants that view. There is no reason why the court should not entertain proceedings in which NIHRC claims that the 1861 and 1945 Acts contain provisions which are generally incompatible with ECHR. Proceedings for a declaration of incompatibility are still proceedings. Nothing in section 4 of HRA suggests that an application for such a declaration must be an adjunct to some other claim. Cases which challenge primary legislation without claiming that a public authority has acted unlawfully do not engage section 6. They are actions under sections 3 or 4, and the victim requirement in section 7 need not be satisfied. In R (Rusbridger) v Attorney General [2004] 1 AC 357, journalists sought to challenge section 3 of the Treason Felony Act 1848 which, at least arguably, criminalised the publication of articles advocating abolition of the monarchy. An article to that effect was published in the Guardian newspaper and both before and after its publication, the claimant journalists sought an assurance that its publication would not lead to their being prosecuted. The Attorney General refused to give that assurance. The claimants original complaint was that the Attorney General had acted contrary to section 6(1) HRA by refusing to confirm that no prosecution would be brought if articles advocating republicanism were published in the Guardian. They launched judicial review proceedings under section 7(1)(a) of HRA, complaining of a breach of section 6(1) of HRA (which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right), and in the alternative seeking a declaration pursuant to section 3 of HRA as to the scope of application of section 3 of the 1848 Act, or a declaration of incompatibility pursuant to section 4 HRA. The section 6(1) HRA complaint failed at first instance but the Court of Appeal permitted the case to proceed as an amended claim for a declaration that section 3 of the 1848 Act should be read down by the insertion of words expressly limiting its application to situations where there were acts of force or constraint or other unlawful means: [2002] EWCA Civ 397, paras 16 17, 25 and 28. When, therefore, the case came before the House of Lords it was for a declaration under section 3 of HRA (which requires courts to read and give effect to legislation in a way that is compatible with Convention rights, in so far as that is possible) and, alternatively for a declaration of incompatibility under section 4. There was no challenge to any act of a public authority as being contrary to section 6 of HRA. The case did not proceed under section 7 of HRA, therefore. Lord Steyn made it clear that, in those circumstances, the requirement in section 7, that there be a victim, did not have to be satisfied para 21. Lord Scott and Lord Walker agreed with this analysis. In the event, the House of Lords in Rusbridger refused to grant the relief sought but that was because the litigation served no practical purpose and had been unnecessary para 28. The important point to take from that case, however, in so far as the present appeal is concerned, is that it recognised a distinct form of proceeding under sections 3 and 4 of HRA which did not require victim status to be established. It was a principal feature of the respondents case in the present appeal that section 4 of HRA created no new or freestanding cause of action and that it was merely a remedies provision. That submission is clearly wrong. It fails to recognise the two distinct mechanisms for enforcing Convention rights and is inconsistent with Rusbridger. In Ghaidan v Godin Mendoza [2004] 2 AC 557 a claim for possession of a flat owned by Mr Ghaidan was made. It was resisted on the basis that the defendant had succeeded to a secure tenancy as the surviving spouse of the original tenant. The House of Lords applied section 3(1) HRA to interpret the relevant provisions of the Rent Act 1977 so that they benefited same sex as well as opposite sex couples. Lord Millett, dissenting on the application of section 3(1), would nevertheless have considered making a declaration of incompatibility pursuant to section 4 HRA (para 55). In this case, again, there was no section 6(1) challenge to an act of a public authority. The relevant obligation was either section 3 (in the case of the majority) or section 4 (according to Lord Millett). It was not deemed necessary that there be a victim. Likewise, in Wilson v First County Trust (No 2) Lord Hope noted that no claim had been made by a victim that a public authority had acted in a way that was unlawful under section 6(1) of HRA para 91. None of these three cases was brought in reliance on section 7(1) of HRA. In none of them was the lack of a victim considered to render the claims unfeasible. The cases exemplify the first of the two mechanisms adumbrated by Lord Rodger in Wilson v First County Trust (No 2), namely a challenge to the compatibility of legislation which is not associated with a challenge to an act of a public authority said to be in violation of a Convention right. In extremely helpful submissions prepared by Mr Coppel QC on behalf of the equivalent body in Great Britain, the Equality and Human Rights Commission (EHRC), it has been argued that the Equality Act 2006 (EA) invests EHRC with the power to institute proceedings which challenge the compatibility of legislation with ECHR. By virtue of section 30(1) of EA, EHRC has the capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function. As with section 71A of NIA, EHRC is exempted from the victim requirement in relation to proceedings under section 7(1)(b) of HRA section 30(3) of EA. Mr Coppel QC argues that, given the enforcement mechanisms contained in the HRA, such proceedings may be constituted as section 7 HRA proceedings which challenge the act of a public authority as being contrary to section 6(1) HRA, or they may be founded on sections 3 and 4 HRA so as to seek a compatible interpretation of primary legislation, or challenge that legislation as incompatible, without there being any allegation of breach of section 6(1) HRA. Proceedings brought by the EHRC in the latter category would, he says, unquestionably be relevant to the EHRCs functions (for example) to promote protection of human rights and, in certain cases, to encourage compliance with section 6 HRA. This can be achieved by establishing a Convention compliant interpretation of legislation or by the remedying of incompatible legislation following a declaration of incompatibility. Either outcome will constrain public authorities to act compatibly with Convention rights. I accept Mr Coppels submissions. They have not been challenged by the respondents to this appeal. It would be wholly anomalous that NIHRC should not be competent to institute proceedings challenging the compatibility of legislation with ECHR unless it identified a victim and a specific unlawful act, when EHRC had been relieved of those requirements. This is especially so given that the insertions into the NIA by the Justice and Security (Northern Ireland) Act were made in the year following the EA. The Attorney General has argued that the reason for requiring an actual unlawful act and a specifically identified victim is to avoid challenges to the law in the abstract it is not sufficient, he contends, to claim that the mere existence of a law violates Convention rights. This argument is misconceived for two reasons. First, such a restriction would only be appropriate to prevent individuals from bringing challenges which serve no practical purpose. It should not operate to inhibit the bringing of proceedings by statutory bodies which have been specifically empowered to do so in order to address violations of Convention rights. Secondly, this is not in any sense an actio popularis. It is not an academic challenge brought against obsolete legislation. The 1861 and the 1945 Acts have a direct impact on individuals, as the cases discussed in the first part of this judgment amply demonstrate. It is notable that section 71(2B)(c) provides that the Commission may act only if there is or would be one or more victims of the unlawful act. If, as I consider to be the case, the implementation of the provisions of the 1861 and 1945 Acts involves the violation of Convention rights, it is clear that there have been and will be victims of such violations. The Attorney Generals suggestion that, in order to satisfy the requirement that there would be victims of the unlawful act, NIHRC must bring its case by reference to a specific potential victim and a concrete set of facts, is plainly incorrect. The natural meaning of a power to act where there would be victims clearly indicates an intention that the Commission should be able pre emptively to prevent human rights violations rather than merely bring post hoc proceedings relating to actual violations. Quite apart from this, the Attorney Generals submission (in para 53 of his reference) that the Commission has not identified any individual who is or would be a victim of any unlawful act (nor has any intervener) cannot be accepted. If these legislative provisions are found to be incompatible with ECHR, clearly there are actual and potential victims. The cases described above amply demonstrate this. And, as NIHRC notes at para 64 of its reply to the reference, neither of the respondents has ever disputed that there are women and girls in the three categories instanced, fatal foetal abnormality, serious foetal abnormality and pregnancy as the result of rape or incest. The practical effects of a finding that NIHRC does not have standing should not be shied away from. These can be considered at a general and at a particular level. The first is to deny the body instituted for the precise purpose of defending and promoting human rights protection in Northern Ireland of one of the most obvious means of securing that protection. It introduces a perplexing and unaccountable discrepancy between the powers available to EHRC and NIHRC. Most importantly, as this case vividly illustrates, it makes a significant inroad into the practicality and effectiveness of the article 3 and 8 rights of pregnant girls and women in Northern Ireland. Women suffering from the ill effects of a pregnancy where there is a fatal foetal abnormality or who are pregnant because of rape or incest do not have the luxury of time within which to seek vindication of their rights. This is pre eminently a situation where an independent body such as NIHRC should be invested with the power to mount a challenge to legislation which violates, and will violate if it continues in force, the rights of some members of the female population of Northern Ireland. Article 13 of ECHR provides for the right to an effective remedy. It is in these terms: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. This article was not included in the schedule to the HRA 1998 because it was thought that the HRA 1998 itself provided an effective remedy. A requirement that there must be a specific unlawful act affecting a particular individual before breach of article 3 or article 8 can be canvassed throws into substantial question whether an effective remedy is possible for that section of the female population of Northern Ireland whose foetus has a fatal abnormality or who are pregnant as a result of rape or incest. Fatal foetal abnormality is frequently not detected until the 20 week scan. If, for instance, the end point at which a woman may seek an abortion is 24 weeks (as under the Abortion Act 1967), this provides an impossibly short time within which vindication of the womans rights could be achieved. Moreover, the number of women who have had to endure the trauma of a fatal foetal abnormality pregnancy or a pregnancy which is the consequence of rape or incest and who would be prepared, after the event, to assert a violation of their rights cannot be presumed to be significant. If NIHRC is unable, by reason of a lack of standing, to bring proceedings to protect such womens rights, I consider that they will be deprived of the practical and effective remedy which article 13 guarantees. I consider, therefore, that NIHRC has standing to bring the present proceedings. The decision of the majority that the appellant does not have standing appears to me, with respect, to depart from a well established line of authority that an interpretation of a statute which gives effect to the ascertainable will of Parliament should be preferred to a literal construction which will frustrate the legislations true purpose. In R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, Lord Bingham said at para 8: The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The courts task, within the permissible bounds of interpretation, is to give effect to Parliaments purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment. A similar approach was taken by Lord Carswell in R v Z (Attorney General for Irelands reference) [2005] 2 AC 645, where, having cited Lord Binghams statements in Quintavalle, he said at para 49: My Lords, this appeal serves as a very good example of the principle of statutory construction that in seeking to ascertain the mischief towards which a statute is directed it can be of prime importance to have regard to the historical context. If the words of a statutory provision, when construed in a literalist fashion, produce a meaning which is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief, then it is not merely legitimate but desirable that they should be construed in the light of the purpose of the legislature in enacting the provision: cf Karpavicius v The Queen [2003] 1 WLR 169, 175 176, paras 15 16, per Lord Steyn. In Attorney Generals Reference (No 5 of 2002) [2005] 1 AC 167, Lord Steyn said at para 31: No explanation for resorting to a purposive construction is necessary. One can confidently assume that Parliament intends its legislation to be interpreted not in the way of a black letter lawyer, but in a meaningful and purposive way giving effect to the basic objectives of the legislation. A more recent example of the same approach is found in Littlewoods Ltd v Revenue and Customs Comrs [2017] 3 WLR 1401, where Lord Reed and Lord Hodge said: the literal reading fatally compromises the statutory scheme created by Parliament. It cannot therefore be the construction of the critical words which Parliament intended. (para 37) and that and that: It is not a literal construction, but a departure from a literal construction is justified where it is necessary to enable the provision to have the effect which Parliament must have intended. (para 39) Bennion on Statutory Interpretation, 7th ed (2017), states at section 11.1 that: General judicial adoption of the term purposive construction is relatively recent, but the concept is not new the idea that the courts should pay regard to the purpose of a provision led to the resolution in Heydons case [which was reported in 1584]. when judges speak of purposive construction, they are often referring to a strained construction However, a purposive construction in the true sense (that is, construing an enactment with the aim of giving effect to the legislative purpose) does not necessarily require the statutory language to be strained. Most often, a purposive construction in this sense will also be a grammatical construction, as the purpose and wording of an enactment will usually align with one another. The conclusion that the Commission has standing to institute proceedings does not require a strained construction of the legislation. The statement in section 71(2B)(c) that the Commission may bring proceedings only where there is or would be victims of an unlawful act can reasonably be interpreted to mean that the Commission may act where it is clear that there have been and will be victims of the implementations of the provisions of the 1861 and 1945 Acts (as noted in para 58 above). Indeed, to interpret these words as meaning that a case must be brought in relation to a specific potential victim and a specific unlawful act constitutes a much more obviously strained construction. Section 11.1 of Bennion also cites the American case of Cabell v Markham (1945) 148 F 2d 737, in which Justice Learned Hand explained the merits of purposive interpretation: Of course, it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. Whether the interpretation of the relevant provisions is considered in terms of giving effect to the overall purpose of the legislation or curing a mischief or in its historical context, the permissible and plainly proper construction to be given to those provisions is that the Commission has standing to bring the present proceedings. The decision in this case sweeps away a vital protection for the people of Northern Ireland which, I am convinced, Parliament intended that they should have. It is my hope that Parliament will swiftly restore that protection in legislation which permits no debate as to its purpose. There is another consideration. It relates to the constitutional character of the NIA. In Robinson v Secretary of State for Northern Ireland [2002] NI 390, Lord Bingham made the following statement at para 11 in relation to that Act: The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody. To like effect, in R v Director of Public Prosecutions, Ex p Kebeline [2000] 2 AC 326, 375, Lord Hope said: In Attorney General of Hong Kong v Lee Kwong kut [1993] AC 951, 966 Lord Woolf referred to the general approach to the interpretations of constitutions and bills of rights indicated in previous decisions of the Board, which he said were equally applicable to the Hong Kong Bill of Rights Ordinance 1991. He mentioned Lord Wilberforces observation in Minister of Home Affairs v Fisher [1980] AC 319, 328 that instruments of this nature call for a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms referred to, and Lord Diplocks comment in Attorney General of The Gambia v Momodou Jobe [1984] AC 689, 700 that a generous and purposive construction is to be given to that part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled. The same approach will now have to be applied in this country when issues are raised under the 1998 Act about the compatibility of domestic legislation and of acts of public authorities with the fundamental rights and freedoms which are enshrined in the Convention. I consider that these strong statements as to the approach to be taken to constitutional provisions provide a powerful indication that the standing of NIHRC to take these proceedings should be recognised. Article 3 of ECHR Article 3 provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. The first thing to notice about this provision is its absolute nature. It unequivocally forbids torture or treatment which can properly be regarded as inhuman or degrading. If that threshold is passed, there is no question of mitigation or justification of the action which constitutes the offending behaviour. The focus is directly on the behaviour said to constitute torture or inhuman or degrading treatment rather than on the circumstances in which it occurred or the avowed reasons for it. If the treatment to which an individual is subjected can properly be regarded as torture or inhuman or degrading, it does not matter a whit what the person or agency which is responsible for the perpetration of that treatment considers to be the justification for it. Nor does it matter that it is believed to be necessary to inflict the treatment to protect the interests of others. Torture and inhuman or degrading treatment are forbidden. That is an end of it. But the anterior question, whether the threshold has been passed; whether the complained of behaviour is torture or inhuman or degrading treatment, does not, in every instance, leave out of account the purpose of the conduct. In Gfgen v Germany (2010) 52 EHRR 1, para 88 the Strasbourg court said: In order for ill treatment to fall within the scope of article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it, as well as its context, such as an atmosphere of heightened tension and emotions. It is necessary to treat this statement with some care, however. The three cases referred to in footnote 38 to the paragraph and which are said to support the proposition that the purpose or motivation of the persons inflicting the treatment was relevant and whether it had occurred at a time of heightened tension was material were Aksoy v Turkey (1996) 23 EHRR 553 (at para 64); Egmez v Cyprus (2000) 34 EHRR 29 (at para 78); and Krastanov v Bulgaria (2004) 41 EHRR 50 (at para 53). These cases were concerned with, inter alia, the question whether the deliberate assault of the victim constituted torture or what might be regarded as the lesser wrongdoing of meting out inhuman or degrading ill treatment. The decisions of the Strasbourg court in those cases linked the issue of torture (or the absence of it) to the question whether police officers were seeking to extract a confession. This confines the issue of motivation or purpose to a relatively narrow compass. It is understandable that ill treatment designed to extract information might be regarded as torture because it has that purpose, while the same treatment with no particular motivation would not qualify. It is important to note, however, that the treatment complained of in all three cases was considered to be in breach of article 3. It was inhuman or degrading. So, the decisions in those cases are a far cry from saying that the motivation of the inflictor of the ill treatment will always be relevant to, much less determinative of, the question of whether that ill treatment crosses the threshold which article 3 prescribes. It appears to me, therefore, that examination of the purpose of the offending behaviour or of the motivation of the person or the state which perpetrates it is principally, if not exclusively, concerned with an assessment of whether treatment which might otherwise not meet the standard set by article 3 crosses the threshold by reason of that motivation or purpose. One can readily understand why this should be so. Conduct which is offensive but, examined out of context lacking in the necessary level of severity to amount to a breach of article 3, can be converted to that condition where there are base motives for its infliction because this can contribute to its degrading or inhuman qualities. It is more difficult to see how the motivation of the inflictor of the treatment or the purpose of its being inflicted, can convert behaviour which would otherwise meet article 3 standards to a condition where it does not. In this connection, what ECtHR had to say in para 151 of RR v Poland (2011) 53 EHRR 31 is relevant: Although the purpose of [alleged ill treatment] is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of article 3. To bring these considerations home to the present case, I do not accept that the purpose of preserving the impugned provisions of the 1861 and 1945 Acts is relevant to the question whether their effect constitutes torture or inhuman or degrading treatment. That effect must be independently examined for its potential to qualify as treatment forbidden by article 3. If it is found to reach that standard, it cannot be diminished or rescued from the status of article 3 ill treatment by what might be said to be laudable motives or objectives. If I am wrong in that conclusion and it is relevant to take into account the purpose of preserving the impugned legislative provisions and the motivation of those responsible for their preservation, I consider that no great weight should be accorded to those factors in the present case. One begins with the premise that the primary focus of article 3 is on its effect on the victim. Where that effect is, by any objective standard, plainly degrading or inhumane, very considerable and provable benefits would surely be required to displace the primary position. It has been claimed that some 100,000 people in Northern Ireland are alive today because of the law in relation to abortion in that province. That claim featured in a poster issued by the pro life campaign group, Both Lives Matter, in January 2017. The poster was the subject of a complaint to the Advertising Standards Agency (ASA). It was suggested that the poster was misleading and that the claim, that 100,000 people were alive because of the law on abortion in Northern Ireland, could not be substantiated. ASA did not uphold the complaint. It considered that, contrary to the complaint that the advertisement had made an absolute, objective claim, it was a large, round figure that readers would typically associate with estimates and that, furthermore, readers would appreciate that it was not possible to calculate the precise number of abortions that would have theoretically occurred in Northern Ireland if abortion had been legal over the past 50 years. The joint written submissions of the interveners, CARE, ADF International and Professor Patricia Casey, cited this figure and it was relied on in the oral submissions by Mr Mark Hill QC on their behalf, to support their claim that the abortion law in Northern Ireland had a positive, beneficial effect. I do not consider that that claim is sustained by the material on which it purports to rely. I say that for two reasons. Firstly, although ASA dismissed the complaint, it is clear from its report that while it endorsed the methodologies employed by the campaign group, it did not vouch for the accuracy of the figure. It is in the nature of such an exercise that, at best, only a broad estimate could be made. Secondly, even if the accuracy of the figure could be established, it cannot be taken as a given that this outweighs the interests of women required to carry foetuses to term against their will. In this context, it is to be remembered that the clear jurisprudence of Strasbourg (which will be discussed later in this judgment) is that a foetus does not enjoy rights, whereas the expectant mother does. It is therefore misconceived to assert that, because a number of children have been born who would not otherwise have been, this trumps the essential case of the appellant on article 3. This case is that a law requiring mothers to carry babies with fatal abnormalities to term or where their pregnancy is the result of rape or incest, carries an inevitable risk that a number of them will have suffered inhuman or degrading treatment, contrary to the article. It is, in my opinion, beyond question that many women in Northern Ireland who have had to continue with a pregnancy against their will, or who have had to travel to England to obtain an abortion, have had to undergo treatment forbidden by article 3. I will give my reasons for that conclusion later in this judgment. In as much as the motivation of those responsible for the preservation of the laws bears on the question of whether an article 3 breach has been established, it can be said that it is difficult to ascertain what that motivation is, much less that it is soundly based. The respondents point to the fact that on 10 February 2016, members of the Northern Ireland Assembly voted, by 59 votes to 40, against legalising abortion in cases of fatal foetal abnormality, after an amendment was tabled by a Member of the Legislative Assembly (MLA) to the Justice (No 2) Bill. A further amendment legalising it in cases of sexual crimes tabled by another MLA was also unsuccessful. Since that date, the issue of the law on termination of pregnancy has not been further debated by the Assembly, nor has the Northern Ireland Executive considered outstanding proposals from the Department of Justice to change the law to cover cases of fatal foetal abnormality. It would be quite wrong, in my view, to conclude from this that those MLAs who voted against the amendments shared the same stance on why the law should not be amended, much less that this vote is indicative of the will of the majority of the population in Northern Ireland that the law on abortion should be maintained. As NIHRC has submitted, there is no necessary correlation between the votes cast in the Assembly on such issues and the moral views of the people of Northern Ireland. This aspect will be discussed in detail in the sections of this judgment dealing with article 8 and institutional competence and I say nothing more about it here. On the question of the reasons that MLAs voted as they did, the Hansard report of the debate in the Assembly is illuminating. Mrs Pengelly spoke on behalf of the Democratic Unionist party (DUP). She urged MLAs to vote against the amendment in relation to fatal foetal abnormality. She did so, however, on the basis that further investigation and consultation were required. She did not suggest that the DUP (then the largest party in the Assembly) was unalterably opposed to amendment of the abortion law. To the contrary, although she said that the DUP was opposed to the extension of the 1967 Abortion Act to Northern Ireland, in the following passages she made clear that the DUP had not shut its mind to possible reform: The issue before us requires it demands careful consideration from the medical professionals, practitioners, families and ethics and legal experts to ensure that sufficient and proper clarity and guidance are the hallmarks of the way forward. That is absolutely essential to ensure that the arrangements are fully grounded in compassion, good law, support and the protection of our integrity and to ensure that our societal values and rights are properly and carefully balanced and maintained Tread carefully. That is why the DUP is rejecting the amendment but outlining a road map to a sensible, informed and appropriate way forward. The Minister of Health has been asked to establish, by the end of February, a working group that will include clinicians in this field and legally qualified persons to make recommendations on how this issue can be addressed, including, if necessary, bringing forward draft legislation. We have asked that all interested parties should be consulted and that the group will be tasked to report within six months. We all need to hear more fully the views of the Royal College and others. We all need the opportunity to ask those vital questions to get the appropriate advice. That is why the working group is the best and most appropriate way forward I urge members to vote against the amendment and for the proposed way forward that we are outlining a sensible way that is based on expertise, evidence and careful, thoughtful consideration. Support a way forward that is based on love, compassion and hope. Mrs Dolores Kelly, speaking on behalf of the Social Democratic and Labour Party declared that her party was a pro life party. But the opposition of her party to the amendment was not based solely on that position. She considered that greater clarity was required about the guidelines issued by the Department of Health as to when termination could legally take place. She welcomed the decision of the First Minister to set up a working group to consider the question of abortion law in Northern Ireland. Again, it is clear that this party did not have an implacable opposition to amendment of the law. At the time of the vote on the amendment, the make up of the Assembly was DUP 38; Sinn Fin 29; Ulster Unionist Party 16; Social Democratic and Labour Party 14; Alliance Party of Northern Ireland 8; Traditional Unionist Voice 1; Green Party 1; Independent 1. It is clear from the voting record that the bulk of the opposition came from DUP but members of other parties, notably, the Social Democratic and Labour party, also joined the no lobby while members of the Ulster Unionist party and the Alliance party supported the amendment. It is inescapably clear, therefore, that there was no single, cohesive view among those who voted against the amendment as to the reasons for doing so. The motivation for preserving the law in its current state cannot begin to qualify as a basis for treating what would otherwise be inhuman or degrading treatment as something less than that. The applicability of article 3 to cases of fatal foetal abnormality and rape or incest I have already referred (in para 215 above) to the absolute nature of article 3. That characteristic was recognised by ECtHR in Pretty v United Kingdom [2002] 35 EHRR 1. At paras 50 52, the court said: 50. An examination of the Courts case law indicates that article 3 has been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities. It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in light of the fundamental importance of article 3, the Court has reserved to itself sufficient flexibility to address the application of that article in other situations that might arise. 51. In. particular, the Court has held that the obligation on the High Contracting Parties under article 1 of the Convention to secure to everyone within the jurisdiction the rights and freedoms defined in the Convention, taken together with article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals. A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases: see, for example the above cited A v United Kingdom where the child had been caned by his stepfather and Z v United Kingdom where four child applicants were severely abused and neglected by their parents. It also imposes requirements on State authorities to protect the health of persons deprived of liberty. 52. As regards the types of treatment which fall within the scope of article 3 of the Convention, the Courts case law refers to ill treatment that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, or inferiority capable of breaking an individuals moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible. The Attorney General argued that those who wished to have an abortion in Northern Ireland but were forbidden by the law from obtaining one had not been ill treated within the meaning of article 3 in that they had not been treated at all by the state. I do not accept that argument. At present, a girl or woman who obtains an abortion in circumstances other than those narrowly prescribed by the 1861 and 1945 Acts commits a criminal offence and is liable to prosecution. That constitutes ill treatment in so far as imposing that sanction on women amounts to a breach of article 3. Likewise, requiring a woman to carry to term a foetus who is doomed to die, or a foetus who is the consequence of rape or incest, when the impact on the mother is inhuman or degrading is, in every sense, treatment to which the woman is subjected by the state. It is, moreover, treatment which because of its inhumanity or degrading effect, is in violation of article 3. Moreover, the threat of prosecution of a doctor whose assistance in the termination of a pregnancy is sought has a direct impact on a girls or womans experience of pregnancy where, for instance, she has been told that the foetus she is carrying has a fatal abnormality. In this connection, the evidence of Professor Dornan is highly pertinent. He is a distinguished obstetrician and gynaecologist whose appointments include Emeritus Professor in Maternal and Foetal Medicine at the Queens University of Belfast and the Professor of Health and Life Sciences at Ulster University. He is also a member of the external advisory group to Centre for Maternal and Newborn Health (CMNH). CMNH is a World Health Organisation collaborating Centre for Research and Training on Maternal and Newborn Health whose work includes emergency obstetric care in Africa and Asia. Professor Dornan has explained that before the decision in the FPANI case, it was the clinical practice in the unit in which he was a consultant to carry out terminations of pregnancy where lethal abnormalities of the foetus were detected on screening and where abnormalities were discovered prior to the stage of viability (at that time 28 weeks, now considered to be 24 weeks) which indicated that there would be a major physical or mental problem for the foetus. After the judgments of the Court of Appeal were handed down in FPANI, that practice changed radically, as Professor Dornan explained in para 12 of his affidavit: The FPANI case, which was finally decided in 2004, made it clear that we could no longer offer a pregnant woman the option of an abortion on the grounds of fatal foetal abnormality alone. Rather the focus was to be solely on the pregnant woman. Therefore, a pregnancy could be lawfully terminated if its continuation threatened her life or would have a serious and long term effect on her physical or mental health. Hence a diagnosis of fatal foetal abnormality would only be relevant to offering a termination if the continuation with that pregnancy would have such an impact. Unless, therefore, a doctor could advise with confidence that there would be a serious and long term effect on a mothers physical or mental health, it was legally forbidden to carry out a termination of pregnancy in the case of a fatal abnormality of the foetus. And this, as Professor Dornans affidavit convincingly shows, despite the high level of accuracy in such diagnoses. In sum, a doctor treating a pregnant mother is able to tell her with confidence that her baby has a fatal condition but is not be able to offer her a termination of her pregnancy unless a prognosis of serious and long term mental or physical ill health for the mother (an inherently difficult prognosis to make) is possible. It is small wonder that the doctors in the examples given at the beginning of this judgment felt unable to assist their patients. Not all mothers who are told that the baby they are carrying has a fatal abnormality will suffer the trauma that was endured by the women whose experiences have been described earlier. Likewise, not all girls or women who become pregnant as a result of rape or incest will suffer to the same extent. Some may have uncommon reserves of stoicism and fortitude. But it is undeniable that some will suffer profound psychological trauma. That circumstance is sufficient to give rise to a violation of article 3 where proper safeguards to mitigate the risk of such trauma are not put in place. Obligations owed by the state under article 3 extend to protecting individuals from the risk of a breach of its provisions as well as a positive duty to provide appropriate healthcare treatment where the denial of that treatment would expose victims to ill treatment contrary to article 3. The positive obligation to protect citizens from ill treatment is stated in A v United Kingdom (1998) 27 EHRR 611: Article 1 taken together with article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment (para 22). In RR v Poland (2011) 53 EHRR 31, the court stated that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under article 3 by reason of their failure to provide appropriate medical treatment (para 152). In Chahal v United Kingdom (1996) 23 EHRR 413 the ECtHR held that the risk of the applicant being subjected to torture, inhuman or degrading treatment if he was returned to India was sufficient to give rise to a breach of article 3 where the British authorities had evinced an intention to deport him there. So also in Saadi v Italy [2008] 49 EHRR 30, the Strasbourg court held that since there were substantial grounds for believing that, in the event of his deportation to Tunisia, the applicant would face a real risk of ill treatment, contrary to article 3, to return him there, as the Italian authorities proposed to do, would violate his article 3 rights. In Sufi and Elmi v United Kingdom [2011] 54 EHRR 9 it was held that the risk of the applicants being subjected to treatment which would violate article 3 if returned to Somalia meant that the British authorities would be in breach of the article if they carried through their intention to deport them to that country. The risk of women and girls being subject to ill treatment contrary to article 3 is therefore sufficient to trigger the states positive obligations to take measures to prevent that happening. That such a risk exists while the impugned legislative provisions remain in force is beyond dispute, in my opinion. Article 3 prohibits torture and inhuman or degrading treatment. Degrading treatment means subjecting someone to humiliation or debasement see RR v Poland at para 150. In my view, it is plainly humiliating to require a girl or woman to continue a pregnancy when she knows that the foetus she carries will die or where she finds that pregnancy abhorrent because it is the consequence of rape or incest. It has been suggested that since a woman from Northern Ireland who wishes to have an abortion can obtain one by travelling to England or Scotland, she can avoid inhuman or degrading treatment. I do not accept this. Termination of pregnancy is one of lifes most traumatic and fraught experiences. To be required to travel away from home and to undergo an abortion in unfamiliar surroundings without the normal support network that a woman would expect and hope to have is in itself deeply upsetting. A girl or woman who has become pregnant as a result of rape or incest is already in a vulnerable position and liable to suffer extreme distress. So too a mother who has been told that the child she carries will not survive. That distress can only be increased and compounded by forcing the woman to seek termination of her pregnancy in a different country, away from her family and friends and without the support of her own doctor. The fact of being required to do so is in itself sufficient to expose her to the risk of inhuman and degrading treatment. The Court of Appeals treatment of the article 3 issue Sir Declan Morgan LCJ rejected the Commissions article 3 case on the ground that the standard of severity of impact required for its engagement in this field was so high see para 60 of his judgment. In reaching that conclusion, the Lord Chief Justice examined four decisions of the Strasbourg court Tysiac v Poland (2007) 45 EHRR 42; A, B and C v Ireland (2010) 53 EHRR 13; RR v Poland; and P and S v Poland (2013) 129 BMLR 120. Before examining those decisions, it is to be noted that, as Sir Declan observed in para 53 of his judgment, the threshold level for the engagement of article 3 is relative. In other words, whether the treatment complained of is to be regarded as torture or inhuman or degrading depends on a close examination of the individual circumstances of any case in which breach of article 3 is claimed. Those individual circumstances must comprehend not only the nature of the behaviour but also its effect on those affected by it and a number of other factors. As the ECtHR said in Ireland v United Kingdom (1978) 2 EHRR 25: It depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. It is not appropriate, therefore, to categorise those wishing to have a termination of pregnancy as inhabiting a single class of persons and to theorise that a high level of severity is required before article 3 is engaged for any member of that group. The same law may affect different women in different ways. The fact that some feel able to face an ordeal with stoicism or even equanimity, does not mean that others, who do not react in the same way, and who suffer severe trauma when confronted with the same prospect as those who can contemplate it equably, cannot be the victims of an article 3 breach. That is not to say, however, that those women and girls who become pregnant as a result of rape or incest, or who have been found to be bearing foetuses with serious or fatal abnormality do not share certain characteristics. Rape or incest victims are in a highly vulnerable group para 162 of P and S v Poland. Being required to give birth to a child which is the result of sexual abuse or assault carries at least the risk of having to endure treatment which is forbidden by article 3. Likewise, a woman who is obliged to carry to term a foetus who is fatally malformed is placed in a position of similar peril see RR v Poland at para 159. A law which forbids a woman, impregnated as a result of sexual assault, from avoiding its consequence, when the continuation of the pregnancy is utterly abhorrent to her and when it will prolong and intensify her suffering, faces a formidable hurdle in its defence to a claim that it violates her article 3 rights. So does a law which demands that a woman, who has been told that the foetus she carries cannot survive, but must nevertheless be sustained by her until his or her inevitable demise, with all the horrible effects that will be visited on the mother during the period, must live with that knowledge. The cases which NIHRC have cited exemplify the agony of such women. In Tysiac v Poland a pregnant woman was denied an abortion, notwithstanding her general medical practitioners opinion that her already significant myopia would deteriorate if she was to give birth. Ophthalmic specialists disagreed. ECtHR found that she had been the victim of a breach of article 8 of ECHR. The court dealt perfunctorily with her claim under article 3, stating in para 68 that the facts did not disclose a breach of the article. The judgment did not elaborate on the reasons for this conclusion. I do not consider that this case assists in the present appeal, at least not on the issue of article 3. A, B and C v Ireland was a case in which three women had been required to travel from Ireland to the United Kingdom to obtain an abortion. It will be necessary to consider the case in some detail in relation to article 8 and the margin of appreciation but, for present purposes, I focus on what the ECtHR had to say about article 3. In paras 124 127, the court set out its findings as to the circumstances in which each of the applicants travelled to England to obtain an abortion. Although the Irish government had not accepted the versions of events given by the applicants and asserted that these were not substantiated, the court considered that the essential facts as related by the women should be regarded as proved. In particular, at para 126 the court said: The Court considers it reasonable to find that each applicant felt the weight of a considerable stigma prior to, during and after their abortions: they travelled abroad to do something which, on the Governments own submissions, went against the profound moral values of the majority of the Irish people and which was, or (in the case of the third applicant) could have been, a serious criminal offence in their own country punishable by penal servitude for life. Moreover, obtaining an abortion abroad, rather than in the security of their own country and medical system, undoubtedly constituted a significant source of added anxiety. The Court considers it evident that travelling abroad for an abortion constituted a significant psychological burden on each applicant. As regards the physical effects of having to travel abroad to obtain an abortion, the court, at para 127, said: As to the physical impact of travelling for an abortion abroad, it is evident that an abortion would have been physically a less arduous process without the need to travel, notably after the procedure. However, the Court does not find it established that the present applicants lacked access to necessary medical treatment in Ireland before or after their abortions. The Court notes the professional requirements on doctors to provide medical treatment to women post abortion. Finally, the court accepted that in the case of the first applicant, having to travel to England cast a significant financial burden on her and that the second and third applicants were put to considerable expense. These effects, physical, psychological and financial, did not, in the courts estimation, constitute a breach of article 3. The reason for that conclusion is pithily expressed in para 164: the Court reiterates its case law to the effect that ill treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. In the above described factual circumstances and whether or not such treatment would be entirely attributable to the state, the Court considers that the facts alleged do not disclose a level of severity falling within the scope of article 3 of the Convention. Two important points should be made about this passage. The first is that the court was careful to reiterate the well established formula that the assessment of whether the minimum standard of severity has been met depends on all relevant circumstances. The second, and related, point is that the courts rejection of the applicants claims under article 3 rested squarely on its evaluation of the particular facts of those cases. Apart from its restatement of the requirement to examine all material circumstances, the court expressed no general principle that might be considered applicable to cases where the facts were significantly different. Plainly, cases of serious or fatal abnormality of the foetus or cases where pregnancy is the consequence of sexual assault or incest are markedly different from the A, B and C case. In my opinion, the judgment in that case does not assist in the decision as to whether there is an article 3 breach in the three categories involved in these proceedings. In RR v Poland it was discovered at the 18 week scan of the applicant in February 2002 that the foetus she was carrying might have a malformation. Two subsequent scans confirmed the possibility that the foetus was malformed. Throughout March 2002 the applicant sought, without success, to obtain genetic tests or an abortion. Eventually, on 21 March 2002 a scan confirmed that the foetus was malformed. The applicant had an amniocentesis on 26 March 2002. She was then 23 weeks pregnant. She did not receive the results until 9 April. It was revealed that the foetus had Turner syndrome. The applicant thereafter requested an abortion, but that request was refused because under the applicable domestic law, the last point at which an abortion could be undertaken on the basis of foetal abnormality was 24 weeks, and that time limit had expired. ECtHR held that there had been a violation of article 3. In para 150, the court gave a useful definition of degrading treatment: Treatment has been considered degrading when it was such as to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them [Iwanczuk v Poland (2004) 38 EHRR 8 at para 51; and Wikiorko v Poland (14612/02) March 31, 2009 at para 45]. It is, of course, the case that RR was entitled to seek an abortion under the law of Poland on the basis that the child she was carrying had a serious malformation. And it is plainly relevant that the failure of the medical authorities to act promptly denied her the opportunity to vindicate that legal entitlement. But what ECtHR had to say about the nature of the effect on her in being required to carry the baby to term is clearly relevant to an evaluation of the impact that the imposition of such a requirement has on a woman who does not enjoy equivalent rights in the domestic laws of the country of which she is a citizen. At para 159 the court said: The Court notes that the applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation. It was therefore natural that she wanted to obtain as much information as possible so as to find out whether the initial diagnosis was correct, and if so, what was the exact nature of the ailment. She also wanted to find out about the options available to her. As a result of the procrastination of the health professionals as described above, she had to endure weeks of painful uncertainty concerning the health of the foetus, her own and her familys future and the prospect of raising a child suffering from an incurable ailment She suffered acute anguish through having to think about how she and her family would be able to ensure the childs welfare, happiness and appropriate long term medical care. (Emphasis supplied) In RR the applicants distress was rooted in her uncertainty about the prospects for her unborn child and the impact that her condition would have on her family. It was also due to the lack of information provided by the medical authorities. But, where a woman is presented with a definite diagnosis as to the future for the foetus she carries and the certainty that nothing can be done in Northern Ireland to alleviate her plight, can it be said that her anguish is less acute than that suffered by RR? If a lack of certainty about prognosis and the options available is sufficient to constitute a violation of article 3, is not a definite prognosis and the complete shutting down of all options an a fortiori case of breach of that article? It cannot be correct, as the Attorney General and Mr McGleenan QC for the Department of Justice argued, that the breach of article 3 in RRs case depended on the existence of her right to an abortion. The focus of article 3 is on the impact on the person affected by the ill treatment alleged, not on the reasons which underlie it. In Gfgen v Germany (quoted at para 216 above) the ECtHR stated that the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (para 87) and the prohibition on ill treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of a nation. (para 107) In the case of Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2006) 46 EHRR 23, which concerned a five year old child detained by the Belgian authorities in an immigration centre, the court assessed the impact of the treatment on the applicant, stating that her position was: characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicants status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian state owed a duty to take adequate measures to provide care and protection as part of its positive obligations under article 3 of the Convention. (para 55) Those who come within a highly vulnerable class (such, I suggest, as girls or women who have become pregnant as the result of rape or incest, or those who are at risk of significant suffering because they are carrying babies with a fatal foetal abnormality) are owed duties by the state under article 3 of the Convention. The nature of that duty to those within the vulnerable class is, as this case illustrates, to take adequate measures for their care and protection. In other words, it is incumbent on the state to recognise the vulnerability of girls and women in those categories and to take steps to ensure that they are appropriately protected. The states duty does not depend on or require the onset of actual suffering by an individual within the class. It is triggered by recognition of the likelihood that such suffering will occur to at least some members of the vulnerable group. P and S v Poland was a case in which the applicants were daughter and mother. In 2008, at the age of 14, P became pregnant as a result of rape. In order to have an abortion, in accordance with the 1993 Polish Law on Family Planning, she obtained a certificate from the public prosecutor on 20 May 2008 to the effect that her pregnancy had resulted from unlawful sexual intercourse. Thereafter, the applicants encountered substantial difficulties in obtaining an abortion for P. She came under pressure to have the baby from the head gynaecologist of one of the hospitals to which she had been brought; similar pressure was exerted by a Catholic priest who had been brought to see her, although she did not ask for him; she was induced to sign a statement that she wished to carry the baby to term; her mother was required to sign a statement that the carrying out of the abortion would put Ps life at risk; details of the case were released to the media and P was subject to intrusive and distressing messages and a press campaign renewing the pressure on her to keep the baby; she was unlawfully separated from her mother; when she sought police protection from harassment by anti abortion protesters, she was arrested on suspicion of having had unlawful sexual intercourse; she and her mother received contradictory information from two public hospitals as to whether they needed a referral from the regional consultant for gynaecology and obstetrics in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with; finally, mother and daughter were compelled to travel a considerable distance in clandestine conditions in order for the abortion to be carried out. The Strasbourg court, in considering whether a breach of article 3 had been made out, placed considerable emphasis on the first applicants vulnerability. At paras 161 and 162 of its judgment, the court said this: 161. For the courts assessment of this complaint it is of a cardinal importance that the first applicant was at the material time only 14 years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse. The court cannot overlook the fact that the medical certificate issued immediately afterwards confirmed bruises on her body and concluded that physical force had been used to overcome her resistance. 162. In the light of the above, the court has no choice but to conclude that the first applicant was in a situation of great vulnerability. The court concluded that Ps treatment at the hands of the authorities was deplorable and so it undoubtedly was. The Lord Chief Justice in the present case said that the P and S judgment demonstrates the high level of severity required in this context para 59. If by that, Sir Declan meant that, in every instance, an ordeal akin to that suffered by P was required to establish a breach of article 3, I do not agree. The Strasbourg court in its judgment in P and S was careful to repeat the definition of degrading treatment offered in RR v Poland; Iwanczuk v Poland (2004) 38 EHRR 148; and Wikiorko v Poland (Application No 14612/02 unreported 31 March 2009) see para 159. Feelings of fear, anguish and inferiority capable of humiliating and debasing those affected by ill treatment can be aroused by conduct of a different stripe from that endured by P and her mother in the P and S case. Could it be said, for instance, that the child whose case was described by Ms Purvis and which is detailed in para 10 above, did not suffer such feelings and did not feel humiliated and debased as a consequence? We need to be clear about what the current law requires of women in this context. It is not less than that they cede control of their bodies to the edict of legislation passed (in the case of the 1861 Act) more than 150 years ago and (in the case of the 1945 Act) almost 75 years ago. Binding the girls and women of Northern Ireland to that edict means that they may not assert their autonomy in their own country. They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire. If, as well as the curtailment on their autonomy which this involves, they are carrying a foetus with a fatal abnormality or have been the victims of rape or incest, they are condemned, because legislation enacted in another era has decreed it, to endure untold suffering and desolation. What is that, if it is not humiliation and debasement? Conclusions on article 3 I consider that the law on abortion in Northern Ireland is incompatible with the article 3 rights of the girls and women of that country who are pregnant with foetuses which have a fatal abnormality or who are pregnant as a result of rape or incest. I would make a declaration of incompatibility under section 4 HRA to that effect. Article 8 Article 8 of ECHR provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. It is accepted that the Acts of 1861 and 1945 interfere with womens rights under article 8. The single issue on this aspect of the case is whether that interference is justified. It is also accepted that it is for the state to establish that justification. The first question to be asked is whether the interference is in accordance with the law. If it is, as is now well established, examination of whether the interference with a qualified Convention right is justified requires a court to follow a four stage process. Those four stages were set out by Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, para 45. They are (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; (d) do they strike a fair balance between the rights of the individual and the interests of the community? (See also Lord Reed at para 75 of Bank Mellat v HM Treasury (No 2) [2014] AC 700 and Lord Sumption in the same case at para 20) In accordance with the law Following the hearing of this case before the Court of Appeal, it appears that the Lord Chief Justice sought further submissions on the meaning to be given to the word unlawfully in section 58 of the 1861 Act. In NIHRCs printed case, at para 116, it is said that the Department, in its reply to that request, stated at para 20 that the Bourne test does not afford sufficient clarity or certainty of interpretation. NIHRC states that, if this is correct, it must follow that the lack of clarity and certainty means that the criminalisation of abortion in these circumstances is not in accordance with the law as required by article 8(2): Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49. Ms Gallagher QC, on behalf of the intervener, Humanists UK, has suggested that the limited qualification to the prohibitions in sections 58 and 59 of the 1861 Act provided under section 25 of the 1945 Act, as interpreted in Bourne and affirmed in the FPANI case, is insufficiently precise and accessible for Northern Irish women with fatal foetal abnormality pregnancies. Nor was it, she suggested, sufficiently clear to allow medical professionals to decide whether they might be able provide a lawful abortion in their own jurisdiction. She claimed that the lack of clarity was underscored by the Lord Chief Justices proposed extension of the Bourne defence. It is to be remembered, of course, that both Gillen and Weatherup LJJ disagreed with the Lord Chief Justices analysis on this point and none of the parties to the appeal has sought to advance it. Nor did they apparently make submissions to that effect before the Court of Appeal. For the reasons that I have given, I do not consider that the proposed extension to Bourne is feasible and I would therefore not be prepared to hold that a lack of certainty has been introduced by the Lord Chief Justices proposal. One might observe, however, that the formula used by Macnaghten J does not lend itself to ready, confident definition. What is meant by a physical and mental wreck? Would contemporary thinking on that term accord with what it was understood to mean in 1938? There must be some question, at least, therefore, as to whether the law is sufficiently clear and accessible to women seeking abortion in Northern Ireland and to those medical practitioners from whom abortions are sought. Since this issue was not widely canvassed on the hearing of the appeal and since it is unnecessary for me to reach a final view on it in order to decide the appellants claim that the 1861 and 1945 Acts are in breach of article 8, I say nothing more on the subject. Legitimate aim Both the Department of Justice and the Attorney General have expressed in terms of some generality what the legitimate aim is that the relevant sections of the 1861 and 1945 Acts are designed to achieve. They have said that that aim is the protection of the unborn child. This was refined somewhat in the printed case of the Attorney General which, when challenging Weatherup LJs judgment on the point, suggested that the legitimate aim was the protection of the unborn childs life to the extent possible without significant and enduring damage to the life or health of the mother para 79. Horner J accepted that the protection of the unborn child was a legitimate aim so long as the foetus was viable. Even if there was a prospect that the child would suffer disability after birth, it was still a legitimate aim to afford him or her protection. The judge considered, however, that prohibition on the termination of a pregnancy where the foetus [was] doomed to die because a fatal abnormality [rendered him or her] incapable of an existence independent of the mothers womb was not a legitimate aim para 148 of his judgment. Morgan LCJ did not expressly articulate the legitimate aim at stake in this case but referred to that identified by the ECtHR in A, B and C v Ireland which he stated was the protection of morals of which the protection in Ireland of the right to life of the unborn was one aspect para 67 of the Lord Chief Justices judgment. Gillen LJ considered that this statement encapsulated the legitimate aim in the present case. The legitimate aim was, he said, the protection of morals in this jurisdiction of which the protection of the right to life of the unborn child is one aspect para 102. Weatherup LJ stated that the avowed legitimate aim was the protection of the unborn child, based on the moral view that the unborn child requires protection para 144. The Lord Chief Justice and Gillen LJ considered that the protection of the unborn child as an aspect of the protection of morals was a legitimate aim. As I discuss in the next paras, Weatherup LJ was, at least, doubtful about that proposition. Weatherup LJ pointed out that, where the existing law permits the termination of a pregnancy where the foetus is healthy, provided there is sufficient threat to the long term health of the mother, the rationale for forbidding the abortion of a foetus which has no prospect of survival is not easy to find para 167 where he said: The evidence submitted on behalf of the respondent does not address the particular character of the legitimate aim of the restrictions by reference to the precise nature of the moral view that the unborn child should be protected in such circumstances. The evidence submitted concerns the materials circulated in the consultation process about the scope of proposals for amendment of the present law. The focus is on the practicalities of amendments and the nature of conditions that might apply, all entirely legitimate matters for discussion. What is absent is the underlying rationale for the exclusion of fatal foetal abnormality by reference to the moral view on the protection of the unborn child when that protection is not afforded in those cases where termination of pregnancy is permitted under present arrangements in the case of a healthy unborn child by recognising a preference for the quality of life of the mother. (original emphasis) In other words, where a firm medical diagnosis has been made that the foetus will not survive, what is the moral value in insisting that the mother carry the unborn child to term? In this context, it is important to recognise that all three members of the Court of Appeal identified the legitimate aim as being the protection of the unborn child as an element of the moral values or views of society rather than having any intrinsic worth. The case made by the Attorney General appears to depart from the Court of Appeals understanding of the legitimate aim and to assign an inherent and fundamental value to the life of the unborn child. At para 81 of his printed case, the Attorney makes this claim: the balance struck by the current law of Northern Ireland does not purport to afford absolute protection to the unborn child. The balance is struck, instead, in favour of the mothers life and health, with the public interest in the protection of life before birth giving way when (and only when) the impact on the mother reaches the level where a threat to the life of the mother or serious and long term threat to her health can be established. Where that impact is not serious or not long term, the unborn child is absolutely protected, whether or not he/she came into being as a result of rape or incest and whether or not his/her life is likely to be short lived. On this argument, the legitimate aim of the legislation must be taken to be that, absent serious and long term threat to the mothers health, the foetus must be afforded complete and unconditional protection. Much of the argument surrounding this issue is also (and more directly) relevant to the third and fourth stages identified by Lord Wilson in Quila. As Lord Sumption said in Bank Mellat, the four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them (para 20). But I do not accept that the aim identified by the Attorney General in such absolute terms can be regarded as legitimate. How can it be said to be legitimate to force a woman to carry a baby to term, when there is conclusive evidence that it will not survive? Although he does not say so explicitly, Weatherup LJ appeared at least to doubt that restrictions on abortion in cases of fatal foetal abnormality could be a legitimate aim see the passage from para 167 of his judgment quoted at para 273 above. It should be noted, however, that at para 145 he stated that he was satisfied that the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last Assembly on the protection of the unborn child. If expressed in general terms such as the protection of the unborn child, I have no quarrel with the proposition that restriction on the termination of pregnancy pursues a legitimate aim. It is when one begins to examine the nature of the restriction that difficulties with the legitimacy of the aim emerge. But this debate finds a more natural home in consideration of the third and fourth stages of Quila and I will return to it when dealing with those aspects. Rational connection If one posits that the legitimate aim is the protection of the unborn child, there is an obvious and rational connection between the aim and the restriction on termination of pregnancy. If, however, the legitimate aim is the protection of foetuses with a reasonable prospect of survival and is attended by a blanket ban on abortion in all cases where there is not a serious and long term threat to the health of the mother, a rational connection between the aim and the means employed is less easily forged. This subject is better dealt with under the third and fourth requirements of the proportionality analysis, however. The least intrusive means The third stage in Quila, are the measures no more than is necessary to achieve the aim? is sometimes expressed as, are they the least intrusive means of accomplishing the objective?. The starting point of the discussion on this question must be the recognition of the fundamental nature of the right in question. A womans right to respect for her private life, her right to exercise autonomy over her own body, her entitlement to make decisions as to her own welfare and happiness lie at the very centre of her existence. Interference with that right, to be proportionate, must be no more than is necessary to achieve the aim that it is designed to fulfil. In Mouvement Raelien Suisse v Switzerland (2012) 56 EHRR 14, para 75, in the course of considering the proportionality of the measure under challenge, ECtHR said, the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question. And in Nada v Switzerland (2012) 56 EHRR 18, para 183, the Strasbourg court employed a similar formula: The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim must be ruled out. The exercise involved in deciding whether the measure is the least intrusive throws the focus back on the question of the legitimacy of the aim. In relation to cases involving fatal foetal abnormality, is it the protection of every foetus whose continued existence does not present a threat of serious, long term harm to the health of the mother, irrespective of the chances of his or her survival, as the Attorney General argues, or is it, as Horner J suggests, the protection of unborn children who enjoy a prospect of viable life? Viewed through the prism of the fundamental nature of the mothers right under article 8, I have no hesitation in concluding that it is the latter. The question of the protection of morals or moral values adds nothing to this debate, in my opinion. As Weatherup LJ implicitly suggested, how can it be moral to allow the abortion of a healthy foetus where there is a serious threat to the long term health of the mother but to forbid it when the foetus will not survive? If, therefore, the legitimate aim in restricting abortion in these cases is the protection of unborn children who have a reasonable chance of survival after birth, the reasonableness of imposing a blanket ban on the termination of pregnancy in every case where its continuation does not present a serious, long term threat to the health of the mother is obviously difficult. Put in stark terms, if the foetus has little hope of survival, can it be said that requiring the mother to carry it to term is the least intrusive means of achieving the aim of protecting the unborn child who does have a hope of survival? Clearly not. Different considerations arise in the case of victims of rape and incest. As I have said, all three members of the Court of Appeal considered that the protection of the unborn child was an aspect of the moral values of the people of Northern Ireland, whereas the Attorney General in the appeal before this court appears to have espoused a legitimate aim which asserts the protection of the unborn child as an intrinsic value. If the legitimate aim is as the Court of Appeal expressed it to be, like Weatherup LJ, I have difficulty in understanding how the moral values of the population of Northern Ireland permit abortion to take place when there is a threat of serious, long term ill health to the mother but forbid it where that cannot be said to be present but the mother finds the pregnancy repugnant and a constant reminder of the sexual abuse to which she has been subjected. As Weatherup LJ said (at para 172), the underlying rationale for the exclusion of pregnancy arising from rape or incest by reference to the moral view on the protection of the unborn child is absent from the case presented on behalf of the respondents. If the Attorney General is right and the protection of the unborn child has an intrinsic value, freestanding of considerations of morality, it may well be that there is no less intrusive means of securing that value than by forbidding abortion in all cases save where there is a serious long term risk to the health of the mother. The Attorney General has not explained why the protection of the unborn child should be segregated from the moral values of the people of Northern Ireland, however. Moreover, the majority in A, B and C v Ireland, on which both respondents so crucially rely, identified the moral values of the population of Ireland as a critical feature in the justification for the restriction on abortion in that country. Since, however, the respondents avowed justification for interference with the rights of girls and women made pregnant as the result of rape or incest fails at the fourth stage of the proportionality exercise, I do not propose to discuss this issue further. A fair balance? As with the least intrusive means stage, so the discussion as to whether a fair balance is struck between the rights of the mother (whose foetus has a fatal abnormality or is the result of rape or incest) and the interests of the community, must begin with a clear sighted appreciation of the fundamental nature of the right involved. A woman who knows that the foetus will not survive or one who has been impregnated as a result of rape or incest and who wishes to have her pregnancy terminated is, under the current law of Northern Ireland, coerced to carry her baby to term, or to leave her country and travel abroad to have that wish fulfilled. For the reasons that I have given, I consider that requiring such a woman to do so amounts to exposing her to a breach of her article 3 rights. It follows that placing her under such duress cannot be said to strike a fair balance between her fundamental right under article 8 and the interests of the community. Even if I had decided that no breach of article 3 was involved, however, I would have concluded that a fair balance is not struck between the competing interests and I now give my reasons for that conclusion. Much has been made by the respondents about the margin of appreciation that Strasbourg has accorded to the contracting states of the Council of Europe in the field of social policy. It has been suggested in particular that, in relation to abortion in Ireland, a wide margin of freedom in decision making must be afforded to the state because of the sensitivity which attends this difficult and delicate subject. Before examining the ECtHR jurisprudence in this area, it is necessary to remember that the margin of appreciation principle is one which is not relevant in the domestic setting, at least not in the sense that the expression has been used by the Strasbourg court. The margin of appreciation principle applied on the pan European plane by the supra national court in Strasbourg recognises that in the field of social policy, there may be different views among the individual contracting states, reflecting, among other things, differing moral standards and cultural values of the various societies of the states which comprise the Council of Europe. Where those differences are marked, ECtHR evinces a reticence in imposing a universal prescription applicable to all contracting states and leaves it to the institutions of those states to make the choice which best suits the concerns and values of its citizens. When it comes to the domestic superintendence by one institution (the judiciary) of another institutions (the executives or the legislatures) decision in the field of human rights, there is no place for reticence on the basis of a margin of appreciation. There may be a case for the courts to defer to the decision of one of the other organs of the state either because of what is sometimes described as institutional competence or, relatedly, because it is considered that the decision maker is more fully equipped to take a decision than is the court. But that is not, in the strict sense, a question of the domestic courts according a margin of appreciation to those institutions. Horner J dealt with this subject admirably in the section of his judgment entitled Margin of Appreciation between paras 35 and 56. I agree with all that he had to say there and need not repeat it, beyond recalling his apt quotation of the celebrated passage from the speech of Lord Bingham of Cornhill in A v Secretary of State for the Home Department [2005] 2 AC 68, para 42: I do not accept the distinction which [the Attorney General] drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic State, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required the courts, as far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it, The courts are charged by Parliament with delineating the boundaries of a rights based democracy. (Judicial deference: servility, civility or institutional capacity? [2003] PL 592, 597). The institutional competence factor has sometimes been expressed as the discretionary area of judgment see R v Director of Public Prosecutions, Ex p Kebeline [2000] 2 AC 326, 381, per Lord Hope, where he said: In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. The notion of deference to the elected institutions has not been without criticism. In R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 Lord Sumption at para 22 said: As a tool for assessing the practice by which the courts accord greater weight to the executives judgment in some cases than in others, the whole concept of deference has been subjected to powerful academic criticism: see, notably, TSR Allan, Human Rights and Judicial Review: a Critique of Due Deference [2006] CLJ 671; J Jowell, Judicial Deference: Servility, Civility or Institutional Capacity? [2003] PL 592. At least part of the difficulty arises from the word, with its overtones of cringing abstention in the face of superior status. In some circumstances, deference is no more than a recognition that a Court of review does not usurp the function of the decision maker, even when Convention rights are engaged. Beyond that elementary principle, the assignment of weight to the decision makers judgment has nothing to do with deference in the ordinary sense of the term. It has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject matter. On the question of the usurpation of the function of the decision maker, in the circumstances of the present case, this simply does not arise. The Northern Ireland Assembly has not made a decision. Its largest party, at the time of the debate in February 2016, declared that further consultation and consideration were required. Other parties, such as the SDLP, who voted against the measure, were not irreversibly opposed to reform. Likewise, the evidential value of judgments of the executive holds no sway here because none has been made. The courts should feel no sense of inhibition in relation to the question of whether the current law offends article 8 of the Convention, in the light of the absence of any firmly expressed view of the democratic institutions of Northern Ireland. Substantial reliance was placed by the respondents on the decision of this court in R (Nicklinson) v Secretary of State for Justice [2015] AC 657. In that case the claimants, although suffering from irreversible physical disabilities rendering them immobile, were of sound mind and aware of their predicament. They wished to die at a time of their choosing but were not physically capable of ending their own lives unaided. They had a settled and considered wish that their death should be hastened by the requisite assistance. They sought judicial review on the basis that, under both common law and ECHR, those who provided them with assistance to bring about their death ought not to be subject to any criminal consequences. In particular, they applied for declarations that the law of murder, or of assisted suicide forbidden by section 2(1) of the Suicide Act 1961, was incompatible with the right to respect for private life under article 8 of ECHR. At para 116, Lord Neuberger said: There is a number of reasons which, when taken together, persuade me that it would be institutionally inappropriate at this juncture for a court to declare that section 2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration. First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts. Secondly, this is not a case like In re G (Adoption: Unmarried Couple) where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly. Thirdly, section 2 has, as mentioned above, been considered on a number of occasions in Parliament, and it is currently due to be debated in the House of Lords in the near future; so this is a case where the legislature is and has been actively considering the issue. Fourthly, less than 13 years ago, the House of Lords in R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 gave Parliament to understand that a declaration of incompatibility in relation to section 2 would be inappropriate, a view reinforced by the conclusions reached by the Divisional Court and the Court of Appeal in this case: a declaration of incompatibility on this appeal would represent an unheralded volte face. Several obvious points of distinction between the situation encountered in the Nicklinson case and this appeal are immediately apparent. True it may be that this case, like Nicklinson, gives rise to a difficult, controversial and sensitive issue, with moral and religious dimensions, but I would not accept that, in this instance, the incompatibility is difficult to identify or that it is difficult to cure. To the contrary, denial of a womans right to autonomy, which must surely be an indispensable aspect of her right to respect for a private life, gives rise to a readily identifiable incompatibility in cases of fatal foetal abnormality, rape or incest. And, the remedy for that incompatibility is easy to find. A simple amendment to the 1861 and 1945 Acts, permitting termination of pregnancy in those cases would achieve that aim. The other obvious point of distinction is that, unlike the position of Parliament in the Nicklinson case, the Northern Ireland Assembly is not about to actively [consider] the issue. The fourth factor identified by Lord Neuberger in Nicklinson (that a declaration of incompatibility would be a volte face) does not arise in this instance. It is to be remembered that a declaration of incompatibility does no more than indicate to the appropriate legislative body that a particular statutory provision has been deemed to be inconsistent with citizens Convention rights. As was said in paras 343 and 344 of Nicklinson: 343. An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the courts conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, This particular piece of legislation is incompatible, now it is for you to decide what to do about it. And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing. 344. What the courts do in making a declaration of incompatibility is to remit the issue to Parliament for a political decision, informed by the courts view of the law. The remission of the issue to Parliament does not involve the courts making a moral choice which is properly within the province of the democratically elected legislature. In advancing the case that the interests of the unborn child should be balanced against the article 8 rights of the mother, the respondents relied heavily on the decision of ECtHR in the case of Vo v France (2004) 40 EHRR 12. In that case, because of negligence on the part of her doctor, the applicant suffered injury to her amniotic sac, which necessitated the termination of her pregnancy. The foetus was between 20 and 24 weeks at termination. The doctor was charged with causing unintentional injury but was acquitted on the basis that the foetus was not, at that stage, a human person. The Strasbourg court observed that article 2 (which guarantees the right to life) was silent as to when life began and on the issue of who came within its protection. The court had not previously considered whether an unborn child had article 2 rights. Such case law as there was indicated that, at least in the context of abortion, an unborn child did not have a right to life and was not a person within the meaning of article 2. It had not been ruled out, however, that, in certain circumstances, the Convention might be applicable paras 76 80. It was legally difficult, indeed inappropriate, to impose one exclusive answer to the question of when life began on all the contracting states of the Council of Europe. This came within the margin of appreciation enjoyed by the various states para 82. It is, of course, important to note that Vo was a case where there was no conflict between the rights of the mother and the interests of the foetus. The mothers complaint was that her doctor had wrongly made it necessary to terminate her pregnancy. There was no occasion for the court to consider what weight should be given to the position of the foetus in circumstances where the womans article 8 rights were being interfered with. The Department of Justice has drawn attention to the observations of the Grand Chamber in Vo to the effect that there was no consensus among European states as to when life begins and suggests that, in effect, this is what NIHRC invites this court to recognise. Mr McGleenan also argues that since the Strasbourg court has not moved to exclude prenatal life, this court should find that article 2 extends to protect the human rights of the most vulnerable. He claims that a finding that article 2 did not extend protections to prenatal life would go against the very grain of the Convention. I do not accept these arguments. In the first place, the Grand Chamber in Vo had the opportunity to say that article 2 protected the life of the unborn child and explicitly refrained from so holding. More fundamentally, however, if article 2 were held to apply to unborn life, no abortion could ever be legal. In the context of abortion the right enshrined in article 2 would be absolute. In my view, the proper construction to be placed on Vo is that contracting states enjoy a margin of appreciation in deciding when human life begins but that this does not afford protection to the foetus under article 2. As NIHRC has submitted, no case in Strasbourg has recognised an article 2 entitlement for a foetus. Indeed, such a finding would run directly counter to the consensus across the vast majority of contracting states as to the right to abortion in cases of rape, incest and fatal foetal abnormality. While the laws of those states vary in terms of gestational limits, all apart from Ireland, Liechtenstein, Malta, San Marino and Andorra are unanimous in permitting abortion in those circumstances. Domestic law does not recognise rights vested in the unborn child. The courts of this country have consistently stated that the foetus has no separate rights in UK law, see In re MB [1997] 2 FLR 426; and Attorney Generals Reference (No 3 of 1994) [1998] AC 245. This line of jurisprudence mirrors that in the Canadian Supreme court in Winnipeg Child and Family Services (Northwest Area) v G (1997) 3 BHRC 611. In A, B and C v Ireland, ECtHR portrayed the balancing exercise between the first and second applicants article 8 rights and the interests of society in para 230 of its judgment thus: the Court must examine whether the prohibition of abortion in Ireland for health and/or well being reasons struck a fair balance between, on the one hand, the first and second applicants right to respect for their private lives under article 8 and, on the other, profound moral values of the Irish people as to the nature of life and consequently as to the need to protect the life of the unborn. The first applicant had become pregnant unintentionally. She was unmarried, unemployed and already had had four young children. They had been taken into care because of As inability to cope with them. She had a history of depression during all of her pregnancies. She travelled to England for an abortion, believing that she would not be able to obtain one in Ireland. Her case on article 8 was, therefore, firmly rooted in the claim that her rights under the article had been unjustifiably interfered with. The second applicant also became pregnant unintentionally. She had been advised by two different doctors that there was a substantial risk of an ectopic pregnancy but was aware by the time that she decided to travel to England for an abortion that the pregnancy was not ectopic. She did not feel able to care for a child at this time in her life and the case was principally concerned with whether an abortion should be available on well being grounds. In the case of the third applicant, C, she had been treated for three years with chemotherapy for a rare form of cancer. She had been advised that it was not possible to predict the effect of pregnancy on her cancer and that if she did become pregnant it would be dangerous for the foetus if she were to have chemotherapy during the first trimester. Her cancer went into remission and she became pregnant unintentionally. She had been unaware of this when she underwent a series of tests for cancer which were contraindicated during pregnancy. She consulted her general medical practitioner and several medical consultants. She claimed that she did not receive sufficient information as to the impact of the pregnancy on her health and life and the consequences of her prior tests for cancer on the well being of the foetus. At para 233, the court dealt with the margin of appreciation available to the Irish state in defence of its position that abortion should not be available to the states citizens: There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish state in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under article 8 of the Convention. At para 234, the court made the conventional point that a margin of appreciation would be narrowed where there was a relevant consensus among contracting states as to the circumstances in which abortion should be available. Rejecting the governments submission to the contrary, at para 235, the court said that there was indeed a consensus among a substantial majority of the contracting states of the Council of Europe towards allowing abortion on broader grounds than that accorded under Irish law. The first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such states. The first applicant could have obtained an abortion justified on health and well being grounds in approximately 40 contracting states and the second applicant could have obtained an abortion justified on well being grounds in some 35 contracting states. Despite this significant consensus, the court concluded that the margin of appreciation had not been decisively narrowed. It is of critical importance that one should focus precisely on why the court arrived at that (which would at first sight appear to be an) anomalous result. The essential reasoning of the court on this issue is given at para 237: Of central importance is the finding in the above cited Vo case that the question of when the right to life begins came within the states margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected, the margin of appreciation accorded to a states protection of the unborn necessarily translates into a margin of appreciation for that state as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most contracting parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Courts examination of whether the impugned prohibition on abortion in Ireland for health and well being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive Convention. interpretation of Two themes emerge from this passage. The first is that there is no consensus as to when life begins. The second is that the rights claimed on behalf of the foetus and those of the mother are interconnected. As to the first of these, as I have pointed out, full article 2 protection cannot be afforded the foetus otherwise no termination of pregnancy would be lawful. (Indeed, as will become clear, the ECtHR acknowledged this in para 238). The courts reference to article 2 is only explicable on the basis that some lesser form of protection for the interests of the unborn child can be recognised by an individual contracting state. The majority in A, B and C did not explain how that might work in practice. As to the interconnectedness of the interests of the mother and her unborn child, it is not made clear what, if any impact, this should have on the balancing exercise. The majority certainly found that there was an interference with the applicants rights, and with it came the obligation on the part of the state to justify that interference. What is not clear from the judgment is whether an adjustment to the way in which the interests of the mother and those of the community generally is required because the interests of the foetus and the mother are interconnected. The matter becomes even less clear, in my opinion, when one considers para 238 of the majoritys judgment: It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a states Convention obligations and, given the Courts responsibility under article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved. A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre natal life or on the basis that the expectant mothers right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the contracting states, as the Government maintained relying on certain international declarations. However, and as explained above, the Court must decide on the compatibility with article 8 of the Convention of the Irish states prohibition of abortion on health and well being grounds on the basis of the above described fair balance test to which a broad margin of appreciation is applicable. This constitutes a reassertion of the need for a balancing of the competing interests. The passage does not explain how this is to be carried out, however, other than by referring again to the broad margin of appreciation, which, apparently, derives from the lack of consensus as to when life begins. Quite why a lack of consensus on that matter should prompt a broad margin of appreciation on the circumstances in which abortion should be permitted, and how it affects the balancing exercise in practice, remain unexplained. Some insight into the courts reasoning is to be gleaned from the first passage of para 239: From the lengthy, complex and sensitive debate in Ireland as regards the content of its abortion laws, a choice has emerged. Irish law prohibits abortion in Ireland for health and well being reasons but allows women, in the first and second applicants position who wish to have an abortion for those reasons, the option of lawfully travelling to another state to do so (Emphasis supplied) The background to the restriction of abortion in Ireland was that a referendum had been held in 1983, resulting in the adoption of a provision which became article 40.3.3 of the Irish Constitution which was in the following terms: The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. In the referendum 53.67% of the electorate had voted, with 841,233 votes in favour of this amendment and 416,136 against. Although proposals in subsequent referenda which sought to restrict further the circumstances in which abortion might be available in Ireland were defeated, ECtHR in the A, B and C case plainly laid great store by the result of the 1983 poll. At para 126 of its judgment, for instance, it said that the applicants, in travelling abroad to obtain abortions, were conscious that they were going against the profound moral values of the majority of the Irish people. The government had submitted to the Strasbourg court that the protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate. At para 222 the court said of this argument: The Court recalls that, in the Open Door case [(1992) 15 EHRR 244], it found that the protection afforded under Irish law to the right to life of the unborn was based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum Clearly, therefore, the Strasbourg court in A, B and C considered that it should continue to deal with the question of justification of the restrictions on abortion in Ireland on the basis that they reflected the profound moral values of a majority of the Irish population. Whether that was justified on the basis of a referendum held 28 years before in which only 53.67% of the population voted is at least questionable but, in any event, no such assumption may be made in respect of the population of Northern Ireland. For the reasons that I have given, the vote in 2016 in the Assembly cannot be taken as an indication that the majority of the elected representatives opposed reform. To the contrary, it is evident that a majority was prepared to contemplate an amendment of the current law. For that reason alone, A, B and C v Ireland cannot be regarded as a significant decision in the present case. Quite apart from that consideration, however, such evidence as is available about the current views of the Northern Ireland population points clearly away from the conclusion that a majority of that countrys population wishes to maintain the law on abortion in its present form. In 2016 the Northern Ireland Life and Times Survey (NILT Survey) asked the Northern Ireland public for their views on a range of issues relating to abortion and abortion law. 1,208 respondents took part in the survey. These were chosen as representative of the various social groups in Northern Ireland. 58% of those surveyed considered that where the foetus had a fatal abnormality and would not survive beyond birth, abortion should definitely be legal. 23% felt that abortion in those circumstances should probably be legal, while 6% thought that it should probably be illegal and 10% believed that it should definitely be illegal. 4% were undecided. The respondents to the survey were also asked for their views on whether abortion should be legal in cases where a woman had become pregnant as a result of rape or incest. 54% said that abortion in those circumstances should definitely be legal. 24% believed that it should probably be legal. 8% considered that it should probably be illegal and 11% were of the view that it should definitely be illegal. 4% were undecided. At para 141 of his judgment, Horner J said that little weight can be attached to opinion polls as they are dependent on the nature of the questions asked, the circumstances in which they were asked and the nature of the persons sampled. Weatherup LJ agreed with that view see para 145 of his judgment. Both Horner J and Weatherup LJ considered that the only reliable indicator of the true nature of public opinion would be a referendum and, as Weatherup LJ observed, this was unlikely to take place in Northern Ireland since referenda were generally reserved for constitutional issues para 145. It is unquestionably correct that one should be wary of treating opinion polls, however well conducted, as an infallible guide to the views of the people on any particular issue. That is not to say, however, that they have no usefulness in counteracting a claim as to what the public mood or opinion might be. I, like Horner J and Weatherup LJ, am not disposed to accept the results of the NILT survey as providing positive evidence of the preponderant view of the people of Northern Ireland on the question of when abortion should be available. But I am not prepared wholly to discount the NILT survey. At the least, it serves to cast substantial doubt on the claim made by the respondents that opposition to the change in the law is firmly embedded in the minds and attitudes of the people of Northern Ireland. I have concluded, therefore, that when the balancing exercise is conducted in this case, the scales fall firmly in favour of a breach of article 8. Under the current law, no account is taken of a womans right to autonomy. Severe criminal sanctions are applied to those who obtain an abortion in Northern Ireland save in the narrowly circumscribed circumstances permitted by the 1861 and 1945 Acts. These undoubtedly have a significant chilling effect both on women who wish to obtain an abortion and doctors who might assist them. Abortion in cases where there is a fatal foetal abnormality or the pregnancy is the result of rape or incest is available throughout the vast majority of countries in Europe. The counterweight which the ECtHR found to exist in the A, B and C case (the profound moral values embedded in the fabric of Irish society) is not present in this much more limited instance. I am satisfied, therefore that the maintenance of sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act in their present form constitutes a breach of article 8 of ECHR and would make a declaration of incompatibility in respect of those provisions in cases involving fatal foetal abnormality or where pregnancy has resulted from rape or incest. International law and standards In the High Court and the Court of Appeal NIHRC relied on a number of international treaties and judgments, decisions and general statements of treaty bodies. Horner J dealt with these in a section of his judgment entitled International Law and Obligations between paras 59 and 71. Again, I find myself in agreement with the judge in his observations and I do not repeat them. The Court of Appeal did not deal with these arguments. Although the traditional and orthodox view is that courts do not apply unincorporated international treaties (JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, per Lord Oliver at 499 and R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61), as Lord Hughes stated in R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] 1 WLR 1449, para 137, such treaties may be relevant in a number of ways. NIHRC relies on the third of these, namely, where the court is applying ECHR via the HRA. As Lord Hughes observed, the ECtHR has accepted that, in appropriate cases, the Convention should be interpreted in the light of generally accepted international law in the same field. Similar propositions are to be found in Convention jurisprudence, most notably, Demir v Turkey (2008) 48 EHRR 1272, para 69; Neulinger v Switzerland (2010) 54 EHRR 31, para 131. The international conventions on which the Commission principally relied were the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (UNCAT), the Council of Europe (CoE) European Social Charter (ESC) and Resolution 1607 (2008) and the United Nations Convention on the Rights of the Child (UNCRC). The Commission has cited a number of authorities in which ECtHR has relied on conclusions of the CEDAW committee, the ICCPR committee, UNCAT, ESC and UNCRC. It is unnecessary for me to discuss those decisions, in light of the view that I have formed on the compatibility of the impugned legislative provisions. It is sufficient to record that the conclusion that the current law in Northern Ireland on abortion, as it affects fatal foetal abnormality and pregnancy as a result of rape and incest is incompatible with the Convention, is in harmony with many of those decisions. I express no view (because it is not necessary to do so) on the recent decisions of the United Nations Human Rights Committee in Mellet v Ireland (9 June 2016) and Whelan v Ireland (17 March 2017). The status of those decisions and their relevance in domestic proceedings such as these are far from straightforward subjects. I consider it prudent to defer consideration of those matters to a case where they are more directly in issue. Serious malformation of the foetus In para 64 et seq of his judgment, Horner J gave a number of reasons for refusing to hold that the unavailability in Northern Ireland of abortion in cases of serious malformation of a foetus was not incompatible with the Convention rights of women in that country. I agree with his reasoning and conclusions. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is one of the treaties specified as an EU treaty under the EC (Definition of Treaties) (UNCRPD) Order 2009. Section 6(2)(d) of the NIA forbids the Northern Ireland Assembly from making laws contrary to UNCRPD. That circumstance alone would not, of course, preclude a finding of incompatibility but, as Horner J pointed out, UNCRPD is based on the premise that if abortion is permissible, there should be no discrimination on the basis that the foetus, because of a defect, will result in a child being born with a physical or mental disability. That is a weighty factor to place in the balance, and one which is not present in cases of fatal foetal abnormality or rape and incest. This is particularly so in the light of UNCRPD Committees consistent criticism of any measure which provides for abortion in a way which distinguishes between the unborn on the basis of a physical or mental disability, relying on general principles and obligations (articles 1 4) and equality and non discrimination (article 5) see Horner J at para 65. As Horner J pointed out, many children born with disabilities, even grave disabilities, lead happy, fulfilled lives. In many instances they enrich and bring joy to their families and those who come into contact with them. Finally, the difficulty in devising a confident and reliable definition of serious malformation is a potent factor against the finding of incompatibility. For these and the other reasons given by the judge, I would refuse to make a declaration of incompatibility in the case of serious malformation of the foetus. LORD REED: (with whom Lord Lloyd Jones agrees) I respectfully agree with Lord Mance, for the reasons which he gives, that the Commission has no power to bring the present proceedings. The questions referred by the Attorney General for Northern Ireland should be answered in the negative and the appeal of the Commission should be dismissed. Given that conclusion, it would ordinarily follow that the court should express no view on whether the laws challenged by the Commission are or are not compatible with Convention rights. Since Parliament has not conferred on the Commission the power to bring proceedings challenging in the abstract the compatibility of legislation with Convention rights, it follows that it cannot have intended that the courts should determine that issue in proceedings of that nature. That conclusion is supported by the practical difficulties involved in attempting to carry out an abstract assessment of compatibility, unanchored to the facts of any particular case. Those members of the court who take a different view of the Commissions standing to bring these proceedings are however expressing their opinion on the question which it has placed before the court; and Lord Mance also considers it appropriate to do so for the reasons which he has explained. In those circumstances, it is as well that I should explain my own view. General observations It is difficult to envisage a more controversial issue than the proper limits of the law governing abortion. Diametrically opposed views, and every shade of opinion in between, are held with equal sincerity and conviction. Each side of the debate appeals to moral or religious values which are held with passionate intensity. In a democracy on the British model, the natural place for that debate to be resolved is in the legislature. The laws involvement in the question is strictly limited. Parliament has enacted the Human Rights Act 1998, which requires the courts to give effect to the Convention rights of individuals so far as that can be done compatibly with primary legislation, and, where primary legislation is incompatible with Convention rights, enables the courts to make a declaration to that effect. It has also enacted provisions in the devolution statutes under which legislation is outside the legislative competence of the devolved legislatures if it is incompatible with Convention rights, and the devolved administrations have no power to do any act which is incompatible with Convention rights: see, in relation to Northern Ireland, sections 6(2)(c) and 24(1)(a) of the Northern Ireland Act 1998. The Convention rights include the right not to be subjected to torture or to inhuman or degrading treatment, under article 3 of the European Convention on Human Rights and Fundamental Freedoms, and the right to respect for private and family life, under article 8. The article 3 right, like the right to life under article 2, and the prohibition on slavery under article 4, is expressed in absolute terms. The article 8 right, like the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to freedom of assembly and association, and the right to freedom to marry, under articles 9 to 12 respectively, is expressed in terms which allow for restrictions: it is subject to such interferences as are in accordance with the law and are necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Like a number of other Convention rights, it thus allows scope for contention as to how it is to be balanced with other competing interests. The distinction between absolute and qualified rights is fundamental to the operation of the Convention. The absolute rights reflect unconditional moral imperatives which are owed to individuals simply as human beings: not to kill them other than in certain specific situations, not to torture them, not to subject them to inhuman or degrading treatment, and not to hold them in slavery. Although the content of these rights is nuanced, and they might even be said to be subject, in substance, to certain qualifications, they are not in principle amenable to balancing against other interests. There is no scope for their being restricted by democratic policy choices. They are not issues on which the Convention accepts that there is scope for democratic debate. The courts task is not to assess the proportionality of murder, torture or enslavement, but to secure that the right to be protected against such treatment is respected. There is therefore, in principle, no room for the European Court of Human Rights to defer to the judgement of national authorities on the question whether conduct is in breach of the substantive, negative, obligations imposed by an absolute provision such as article 3: the question falls outside the scope of the principle of subsidiarity. The threshold for finding a breach of article 3 is correspondingly high: the court has repeatedly emphasised that ill treatment has to attain a minimum level of severity before it can be regarded as falling within the ambit of the article. The same high threshold applies when article 3 is applied by national courts. Thus, under article 3, there is in principle no scope for constitutional deference to the judgement of democratic institutions, but it is only where the stringent requirements of the article are satisfied that the courts will adopt such an uncompromising approach. The qualified rights are essentially different. They belong to individuals as social beings, and are subject to such limitations as are justifiable in the society in which they live. The Conventions acceptance that they are subject to restrictions that are necessary in a democratic society not just in any democratic society, but specifically in the particular society in question opens the door to democratic policy choices. The Convention accepts that there is room for reasonable minds to differ as to the policy which should be adopted. The role of the court is to determine whether the restrictions imposed in a particular case are justifiable on one of the permissible grounds, generally by applying a test of proportionality. The European Court of Human Rights can thus recognise the legitimacy of decision making at the national level, when applying a qualified provision such as article 8, and acknowledge that a judgement as to the restrictions which can appropriately be imposed in a given society is in principle best made by the authorities of that country. National courts can equally respect the judgements made by the democratic institutions of their society, applying the principle of proportionality in a manner which reflects the constitutional principle of the separation of powers. It follows that the extent, in practice, to which elements of social and ethical policy are taken out of the hands of national democratic processes and determined by judges depends on how stringently absolute provisions of the Convention, such as article 3, are applied by both the European and national courts, and on how much respect they pay to the judgement of national democratic institutions when applying a proportionality analysis to restrictions of qualified rights such as that recognised in article 8. At the European level, increasing emphasis has been placed on the critical role of national legislatures in defining human rights protection within the scope of the qualified rights. Increasing attention has therefore been paid to the question whether a legislative measure has been based on considered debate, including consideration of the impact of the measure on the Convention right in question, and of the necessity of the interference: see, for example, Donald and Leach, Parliaments and the European Court of Human Rights (2016), and Spano, The European Court of Human Rights: Subsidiarity, Process Based Review and Rule of Law (2018) HRLR 1. Parliamentary processes are regarded as especially important where the question involves the assessment of moral or ethical issues falling squarely within the scope of democratic debate, or where the legislative policy adopted reflects a historical tradition of giving legal effect to a particular conception of social or moral life. At national level, it is equally important that the courts should respect the importance of political accountability for decisions on controversial questions of social and ethical policy. The Human Rights Act and the devolution statutes have altered the powers of the courts, but they have not altered the inherent limitations of court proceedings as a means of determining issues of social and ethical policy. Nor have they diminished the inappropriateness, and the dangers for the courts themselves, of highly contentious issues in social and ethical policy being determined by judges, who have neither any special insight into such questions nor any political accountability for their decisions. Abortion law and Convention rights In interpreting the Convention in cases concerned with abortion, the European Court of Human Rights has demonstrated its awareness of the sensitivity of this topic and the extent to which it is better suited to determination by national authorities. It has never interpreted the Convention as requiring contracting states to introduce laws permitting abortion, either generally or in relation to particular categories of pregnancy. In its most recent consideration of the issue, in the case of A, B and C v Ireland (2010) 53 EHRR 13, the Grand Chamber rejected complaints by two Irish women that the prohibition on abortion in Ireland (a more restrictive prohibition than in Northern Ireland), by effectively compelling them to travel elsewhere if they wished to terminate their pregnancy, with similar consequences to those described in the present case, had violated their rights under articles 3 and 8 (the third applicant raised somewhat different issues relating to her specific situation). The court accepted that travelling abroad for an abortion was both psychologically and physically arduous for each of the applicants, and that it was also financially burdensome. Nevertheless, it pointed out that ill treatment must attain a minimum level of severity if it was to fall within the scope of article 3, and concluded that the facts alleged did not disclose a level of severity falling within the scope of the article. The complaint under article 3 was found to be manifestly ill founded. In relation to article 8, it was argued on behalf of the first and second applicants, as in the present case, that it had not been shown that the restrictions were effective in achieving the aim pursued: the abortion rate for women in Ireland was similar to states where abortion was legal since Irish women chose to travel abroad for abortions in any event. Even if the restrictions were effective, the first and second applicants questioned how the Irish state could maintain the legitimacy of their aim given the opposite moral viewpoint espoused by human rights bodies worldwide. They also suggested that the current prohibition on abortion in Ireland no longer reflected the views of the Irish people, arguing that there was evidence of greater support for broader access to legal abortion. It was pointed out that the financial burden of travel impacted particularly on poor women and their families. It was also emphasised that women experienced the stigma and psychological burden of doing something abroad which was a serious criminal offence in their own country. The extent of the prohibition on abortion in Ireland also stood in stark contrast to the more flexible regimes for which there was a clear European and international consensus. Reliance was placed, in that regard, on a range of international materials, including material produced by CEDAW. There was in addition said to be a lack of assistance by doctors, due to the chilling effect of a lack of clear legal procedures combined with the risk of serious criminal and professional sanctions. In response, the European Court of Human Rights referred to its previous case law finding that the protection afforded under Irish law to the right to life of the unborn was based on profound moral values concerning the nature of life. It referred to its finding in Vo v France (2004) 40 EHRR 12 that it was neither desirable nor possible to answer the question of whether the unborn was a person for the purposes of article 2 of the Convention, so that it would be equally legitimate for a state to choose to consider the unborn to be such a person and to aim to protect that life. In relation to the balancing exercise required by article 8, the court observed that the state authorities are, in principle, in a better position than the international judge to give an opinion, not only on the exact content of the requirements of morals in their country, but also on the necessity of a restriction intended to meet them (para 232). It continued: There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish state in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under article 8 of the Convention. (para 233) This broad margin of appreciation was not decisively narrowed by the consensus among other contracting states towards allowing abortion on broader grounds than under Irish law (a consensus which, the court said, made it unnecessary to look further to international trends and views): Of central importance is the finding in the above cited Vo case, referred to above, that the question of when the right to life begins came within the states margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected, the margin of appreciation accorded to a states protection of the unborn necessarily translates into a margin of appreciation for that state as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most contracting parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor. (para 237) The court noted that the states margin of appreciation was not unlimited. It emphasised, however, that the law in Ireland was the product of considered democratic debate: From the lengthy, complex and sensitive debate in Ireland as regards the content of its abortion laws, a choice has emerged. Irish law prohibits abortion in Ireland for health and well being reasons but allows women, in the first and second applicants position who wish to have an abortion for those reasons, the option of lawfully travelling to another state to do so. (para 239) The court also placed some emphasis on the fact that the prohibition of abortion in Ireland was accompanied by measures designed to assist certain categories of women in obtaining access to abortion facilities elsewhere: On the one hand, the Thirteenth and Fourteenth Amendments to the Constitution removed any legal impediment to adult women travelling abroad for an abortion and to obtaining information in Ireland in that respect. Legislative measures were then adopted to ensure the provision of information and counselling about, inter alia, the options available including abortions services abroad, and to ensure any necessary medical treatment before, and more particularly after, an abortion. The importance of the role of doctors in providing information on all options available, including abortion abroad, and their obligation to provide all appropriate medical care, notably post abortion, is emphasised in CPA [Crisis Pregnancy Agency] work and documents and in professional medical guidelines. (ibid) In those circumstances, although the court accepted that the process of travelling abroad for an abortion was psychologically and physically arduous, especially for women in impoverished circumstances, and also accepted that it might be the case that the prohibition on abortion was to a large extent ineffective in protecting the unborn, in the sense that a substantial number of women took the option of travelling abroad for an abortion, nevertheless the first and second applicants complaints under article 8 were rejected. Having regard to the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, the court did not consider that the prohibition in Ireland of abortion for health and well being reasons, based as it was on the profound moral views of the Irish people as to the nature of life and as to the consequent protection to be accorded to the right to life of the unborn, exceeded the margin of appreciation accorded to the Irish state. The prohibition consequently struck a fair balance between the womens right to respect for their private lives and the rights invoked on behalf of the unborn. The third applicants complaint under article 8, which succeeded, concerned a different issue (the absence of a procedure by which she could have established whether she qualified for a lawful abortion in Ireland on grounds of the risk to her life of her pregnancy), and is of no relevance to the present case. The present case In the light of the European courts relatively recent judgment in A, B and C, it appears to me to be impossible to hold that the legislation in force in Northern Ireland is incompatible with article 3. In that regard, I again agree with the reasoning of Lord Mance. As he states, even when one takes into account that the present case focuses on pregnancies where the foetus is abnormal or has been conceived as the result of a sexual offence, it is apparent that the great majority of Northern Irish women wishing to terminate their pregnancy in such circumstances are able to do so by travelling elsewhere. The consequences are similar to those with which A, B and C was concerned, and do not meet the threshold for a violation of article 3. Some individual cases have been put forward in which it is said that the women in question were unable to travel abroad as a result of the failure of health professionals to provide them with appropriate assistance and advice, and endured harrowing experiences as a consequence. It may be that such cases, if established in individual applications, would be found to involve a violation of article 3. But, disturbing though those cases are, the possibility that there might be a violation of article 3 in an individual case cannot warrant a declaration that the legislation, as such, is incompatible with article 3. If a breach of article 3 were established in an individual case, the court might grant declaratory relief, but the terms of the relief would reflect the circumstances which had led to the violation. Whether it was appropriate to grant a declaration that the legislation itself was incompatible, because it could not be given effect in a manner which was compliant with article 3, would depend on a close examination of the facts of the case, and of the role which the legislation had played in bringing about the violation. In relation to article 8, I agree with Lord Mance that no declaration of incompatibility should be made, but I have reached that conclusion for somewhat different reasons. I would emphasise at the outset a point which this court has made on several occasions, namely that an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights: Christian Institute v Lord Advocate [2017] HRLR 19, para 88. As in relation to article 3, the judgment in A, B and C appears to me to provide valuable guidance. The practical effect of the law in Northern Ireland, as in Ireland, is to require women to travel elsewhere if they wish to terminate their pregnancy. The general prohibition on termination for reasons other than a danger to life, or a danger of serious injury to health, is accompanied by guidance to doctors and other professionals on the information and advice which should be provided to women who wish to obtain a termination (Department of Health, Social Services and Public Safety, Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016). That guidance advises health professionals that they can provide women who cannot lawfully obtain an abortion in Northern Ireland with information about abortion services lawfully available in other jurisdictions, and about their freedom to travel there. It also advises health professionals about their responsibility to provide aftercare, counselling and other support services to women who have had a termination of pregnancy carried out outside Northern Ireland. In those circumstances, I am not persuaded that the issues arising under article 8 in relation to the law in Northern Ireland are in general materially different from those considered in A, B and C, even if one confines ones attention to women undergoing a pregnancy where the foetus is abnormal or has been conceived as the result of a sexual offence. They are free to travel to England or Scotland, where they can have their pregnancy terminated free of charge in an NHS hospital, provided that the termination is lawful under the law in force there. They should be able to obtain advice about termination from health professionals in Northern Ireland, and they should receive whatever care they may require in Northern Ireland after the termination has been carried out. Most of the arguments relied on by those who would hold the law in Northern Ireland to be incompatible with article 8 are the same as those rejected by the European court in A, B and C. Of course, to the extent that the law places restrictions on the availability of abortion, it treats the moral value of protecting the life of the unborn as outweighing the womans personal autonomy and freedom to control her own life. That is true of any restriction on abortion. Of course, the law applies even to those who do not share the ethical perspective which underpins it. That is the nature of law: it applies to everyone, whether they agree with it or not. It may be that the law is largely ineffective to protect the unborn, because the great majority of women who wish to have abortions do so anyway, travelling to England for that purpose. Nevertheless, a society cannot be bound under the Convention to permit behaviour which it considers morally repugnant, merely because a prohibition can be obviated. On the contrary, the fact that a prohibition imposed for moral reasons can be obviated may tend to support its proportionality, since it imposes less of a restriction in reality on those who do not share the moral values which underpin it. As in relation to article 3, the court has been provided with accounts of individual cases which, if they were established in individual applications, would almost certainly demonstrate violations of article 8, due principally, it would appear, to shortcomings in the provision of advice and support by health care professionals. But the possibility that there might be violations of article 8 in some individual cases does not warrant a bald declaration that the legislation, as such, is incompatible with article 8. The principal difference between this case and A, B and C is that it raises the question whether it is proportionate to treat the moral value of protecting the life of the unborn as outweighing the womans personal autonomy in situations where the foetus is abnormal or was conceived as the result of a sexual offence: an issue which arises in a particularly acute form in cases where the foetus suffers from a fatal abnormality. There is no doubt that such situations can result in emotional anguish for the women involved, and that there can be circumstances in which, if the woman is unable to obtain a termination of the pregnancy, its continuation may pose a serious risk to her health and well being. Nevertheless, the difficulty in the form of the present appeal is that it does not invite the court to investigate the facts of individual cases where Northern Irish women undergoing particular categories of pregnancy have been unable to obtain an abortion, and to decide whether they justify the conclusion that the legislation itself is incompatible with article 8. Instead, the court is invited, as an abstract exercise, to define categories of pregnancy in respect of which a termination must be legally available if the legislation is to be compatible with article 8. That approach requires the court to address a number of difficult issues: for example, whether to treat some categories of pregnancy differently from other pregnancies at all; whether, if so, to draw the line at foetuses with fatal abnormalities which will prevent their surviving until birth or for more than a short time after birth, or to include foetuses with serious but non fatal abnormalities; whether to differentiate between healthy foetuses conceived as the result of sexual offences and other healthy foetuses; and whether, if so, to draw the line at foetuses conceived as the result of offences which were non consensual, or to include those conceived as the result of consensual offences. These are highly sensitive and contentious questions of moral judgement, on which views will vary from person to person, and from judge to judge, as is illustrated by the different views expressed in the present case. They are pre eminently matters to be settled by democratically elected and accountable institutions, albeit, in the case of the devolved institutions, within limits which are set by the Convention rights as given effect in our domestic law. A process of democratic consideration of these issues has begun in Northern Ireland and has not yet been completed, as a result of the breakdown of devolved government in January 2017. It is important that a review of these issues should be completed. It appears from the accounts of individual cases put forward in these proceedings that there is every reason to fear that violations of the Convention rights will occur, if the arrangements in place in Northern Ireland remain as they are. In those circumstances, these issues need to be discussed and determined in a democratic forum, which is where they pre eminently belong. In the meantime, the courts will have to deal with any individual cases which may come before them. But, in the present proceedings, there is no need for this court to pre empt democratic debate on changes to the law or to the arrangements for the provision of health services, or, by determining the requirements of the Convention in advance of that debate, to take the matter out of the hands of democratically accountable institutions. LADY BLACK: The Commissions competence to seek the relief claimed I agree with Lord Mance that, for the reasons he gives, the Commission has no power to bring the present proceedings. From that it would follow that the questions referred by the Attorney General for Northern Ireland should be answered in the negative and the Commissions appeal dismissed. Despite this conclusion, I feel I should express my view as to the substance of the Commissions appeal, as other members of the court have done. Article 3 I agree with Lord Mances view that, for the reasons that he sets out in paras 94 to 103 of his judgment, the Commissions argument that the legislation in Northern Ireland is incompatible with article 3 of the ECHR must be rejected. Article 8: Generally I also agree with what Lord Mance says about article 8 in the passage of his judgment commencing at para 104 and concluding at para 121, but I do not entirely share his view in relation to the compatibility of the legislation with article 8. He considers the law incompatible in cases where the pregnancy has resulted from rape or certain other sexual crimes, and in cases of fatal foetal abnormality, that is to say where the foetus cannot survive at all after birth or will die very shortly after delivery. I would only wish to express the view that the law is incompatible in cases of fatal foetal abnormality. Article 8: Cases other than fatal foetal abnormality As to cases which do not concern fatal foetal abnormality, I find myself in agreement with Lord Reeds reasoning in relation to article 8. He has pointed out the similarity between the arguments advanced unsuccessfully in A, B and C v Ireland, and those relied upon in the present case. Although it is important to note that A, B and C did not concern the particular categories of pregnancy with which we are concerned, it persuades me that, in relation to pregnancies where the foetus has a non fatal abnormality or has been conceived as the result of a sexual offence, I must bring myself to accept two related propositions. First, notwithstanding the widespread consensus (in Europe and internationally) in favour of more flexible abortion regimes, it must be accepted that there may be room for different moral viewpoints. Secondly, it must be accepted that the balance between the protection of the life of the unborn child, the interests of society, and the rights of the pregnant woman may be struck in different ways. In these circumstances, and given the difficulty identified by Lord Reed as to where to draw the line in accommodating the categories of case with which we have been concerned, as well as the current lack of certainty about what moral views are presently held by the population of Northern Ireland, I do not feel that it would be appropriate at this stage to express a positive conclusion that the legislation itself is incompatible with article 8. In so saying, I also have in mind that, as Lord Mance says at para 92 of his judgment, other factors can play a part, in addition to the legislation itself, in producing adverse treatment of which complaint may be made. He points out that where one is able to examine the specific circumstances that have arisen, the cause of the impugned treatment may, in some cases, prove to have been not the applicable legislation itself, but rather the way that it was (mis)understood or (mal)administered. That is one of the reasons why an abstract challenge to legislation presents such a difficulty. In such circumstances, alleviating the hardship of women in the categories of case that we have been asked to consider, may involve a combination of amending the law and taking practical steps to ensure that proper information and support is available to the women concerned, countering what Lord Kerr has described (para 176) as the significant chilling effect on women who wish to obtain an abortion and doctors who might assist them. Given the diverse circumstances covered by the categories upon which we have been asked to focus (as to which, see for example Lord Mances discussion of the position in relation to sexual crimes, commencing at para 127 of his judgment), the solutions require democratic debate. However, Lord Reed has made observations about the worrying situation disclosed in the accounts placed before us, and about the need for the review that had been begun in Northern Ireland to be resumed and completed. I share his view about the importance of this and about the fact that there is every reason to fear that violations of the Convention rights of women in Northern Ireland will occur if arrangements there remain as they are. Article 8: Fatal foetal abnormality In relation to foetuses with fatal abnormalities, I would go further than Lord Reed does. I do not consider the present law in Northern Ireland to be compatible with article 8 of the ECHR in relation to this category of case. Where the unborn child cannot survive, in contrast to the other categories of pregnancy with which we are concerned, there is no life outside the womb to protect. In those circumstances, even if allowance is made for the intrinsic value of the life of the foetus, the moral and ethical views of society cannot, it seems to me, be sufficient to outweigh the intrusion upon the autonomy of the pregnant woman, and her suffering, if she is obliged to carry to term a pregnancy which she does not wish to continue. Furthermore, as Lady Hale points out, and as can be seen from the experiences of some of those whose circumstances were placed before the court, a problem such as this is often diagnosed comparatively late in the pregnancy. This is likely to make the process of termination more demanding for the woman than it would be at an earlier stage in the pregnancy, and to compound the problems that exist for any woman who has to travel abroad for the procedure, including by significantly restricting the time available for making arrangements to have the termination carried out in Great Britain so as to avoid it having to be carried out at an advanced stage of the pregnancy. |
These appeals are concerned with a dispute over the preliminary question of the jurisdiction of the High Court of England and Wales in proceedings which commenced in December 2016. As I explain more fully below, the underwriters, Aspen Underwriting Ltd and others (the Insurers), insured the Atlantik Confidence (the Vessel) under a hull and machinery risks insurance policy (the Policy) on the Vessel. Credit Europe NV (the Bank), a bank which is domiciled in The Netherlands, funded the re financing of two vessels, including the Vessel, and took mortgages over the Vessel and assignments of the Policy, which identified the Bank as mortgagee, assignee and loss payee. The Policy had an exclusive jurisdiction clause by which each party submitted to the exclusive jurisdiction of the courts of England and Wales. After the Vessel sank, the Insurers entered into a settlement agreement with the owners and managers of the Vessel (the Owners and Managers) and paid out under the Policy. That payment was made to the insurance brokers, Willis Ltd, at the Banks direction. Thereafter, the Admiralty Court ([2016] EWHC 2412 (Admlty); [2016] 2 Lloyds Rep 525) held after the trial in a limitation action that the Owners and Managers had procured the scuttling of the Vessel. The Insurers commenced legal proceedings in the High Court against the Owners, the Managers and the Bank to recover the sums paid under the settlement agreement by seeking to avoid the settlement agreement on the grounds of the Owners and Managers misrepresentation or the Insurers mistake, and by seeking damages or restitution. The Bank challenges the jurisdiction of the High Court in respect of the Insurers claims against it. The appeals raise four issues which concern the interpretation of the Brussels Regulation Recast (Regulation (EU) 1215/2012) (the Regulation). The issues are: (i) Does the High Court have jurisdiction pursuant to the exclusive jurisdiction clause contained in the Policy? (ii) Are the Insurers claims against the Bank matters relating to insurance within Chapter II, section 3 of the Regulation? (iii) If the answer to (ii) is yes, is the Bank entitled to rely on section 3 by virtue of it falling within a class of persons who are entitled to the protection afforded by that section? (iv) Are the Insurers claims for restitution matters relating to tort, delict or quasi delict under article 7(2) of the Regulation? it is not necessary to address the fourth issue. In this judgment I address the first three issues. For reasons explained below, The background facts By a loan agreement dated 9 March 2010 (which was subsequently amended) the Bank lent $38.2m to the Owners and to an associated company, Capella Shipping Ltd, the owners of the Atlantik Glory, to re finance the purchase of the Vessel and the Atlantik Glory. The loan was secured by a first mortgage on both vessels and by a deed of assignment which included an assignment of the insurances on the vessels. In 2011 the Bank lent a further $3.5m to the Owners which was secured by a second mortgage and a second deed of assignment. choice of law and exclusive jurisdiction clause in these terms: The Policy: The Policy gives the value of the Vessel as $22m. It contains a This insurance shall be governed by and construed in accordance with the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales. The Policy includes a schedule of owners and mortgagees. A contract endorsement dated 8 February 2013 records that the Vessel was mortgaged in favour of the Bank as per Notices of Assignment and Loss Payable Clauses attached. The Notice of Assignment dated 11 February 2013 (the Notice of Assignment), provides that the Owners: GIVE NOTICE that, by assignment in writing dated 11 February 2013, we assigned to [the Bank] , a company incorporated under the laws of the Netherlands acting through its Malta branch all our right, title and interest in and to all insurances effected or to be effected in respect of the Vessel, including the insurances constituted by the policy on which this notice is endorsed, and including all money payable and to become payable thereunder or in connection therewith The Loss Payable Clause notes the assignment and provides (as far as relevant): Claims payable under this policy in respect of a total or constructive total or an arranged or agreed or compromised total loss or unrepaired damage and all claims which (in the opinion of the Mortgagee) are analogous thereto shall be payable to the Mortgagee up to the Mortgagees mortgage interest. The Banks Letter of Authority: After the Vessel sank off the coast of Oman on 3 April 2013, discussions took place between the Owners and the Bank about the payment of the Owners operational costs and other matters. The Owners informed the Bank that the insured value ($22m) rather than the Vessels then market value would be paid out under the Policy and there was some debate as to how the insurance proceeds would be applied. On 4 April 2013, the Owners asked the Bank for a letter formally authorising the Insurers to pay the proceeds of the insurance claim to the brokers, Willis Ltd. The Bank issued a Letter of Authority dated 5 April 2013 relating to the loss of the Vessel and addressed to the Underwriters concerned in these terms: We hereby authorise you to pay to Willis Ltd all claims of whatsoever nature arising from the above mentioned casualty provided that (i) there are no amounts due under the policy and (ii) [the Bank] is the sole loss payee of the policy. We agree that settlement of such amounts in account or otherwise with Willis Ltd shall be your absolute discharge in respect of such amounts paid. The negotiation of the Settlement Agreement: On 18 April 2013, the Bank asked the Owners for the current status of the claim. The Owners replied that they would ask their lawyer for a weekly report but that the correspondence could not be shared because it was private and confidential. The settlement was negotiated between the Owners, the Managers and the Insurers. The Bank was not involved in the negotiations or in the settlement of the insurance claim. Willis Ltd in an email dated 29 July 2013 stated its understanding that the Settlement Agreement would be signed by solicitors on Owners/Banks behalf but that understanding was mistaken because the Settlement Agreement, dated 6 August 2013, was signed by Clyde & Co LLP as agents only for and on behalf of the Assureds (defined as being the Owners and the Managers) and by Norton Rose Fulbright LLP as agents only for and on behalf of Underwriters. The Settlement Agreement was between the Underwriters on the one hand and Kairos Shipping Ltd of Malta (as the Owners) and Zigana Gemi Isletmeleri AS of Turkey (as the Managers) and their associated companies on the other. In its recitals it narrated the purchase of the Policy, the Banks status as mortgagee and loss payee under the Policy and the Banks consent to the payment of the insurance proceeds to Willis Ltd. The recitals also narrated the loss of the Vessel and the wish of the parties to resolve all claims in relation to the Vessel and the casualty. In the operative clauses, the Underwriters agreed to pay $22m to the Assureds in full and final settlement and the Assureds agreed to discharge and release the Underwriters upon payment of the sum to Willis Ltd. The Assureds warranted that, subject to the interests of the Bank, they were the only parties entitled to the settlement sum. Clause 4 of the Settlement Agreement confirmed that (subject to an irrelevant exception) the parties did not intend to confer any benefit on third parties which could be enforced by third parties under the Contracts (Rights of Third Parties) Act 1999. Clause 5 provided that English law was the governing law of the contract and that the parties submitted to the exclusive jurisdiction of the English High Court in respect of any claims arising in connection with the agreement. The insurance proceeds were paid to Willis Ltd in London on or around 16 August 2013. Thereafter, Willis Ltd paid US$21,970,272.74 to the Bank in Malta. Of that sum US$20,294,143.56 was transferred into an account held by Kairos Shipping Ltd to discharge various debts and US$1,676,129.18 was transferred into the account of Capella Shipping Ltd as part repayment of the debt against the Atlantik Glory. After the Admiralty Court held, in Kairos Shipping Ltd v Enka & Co LLC (The Atlantik Confidence) [2016] 2 Lloyds Rep 525, a limitation action raised by Kairos Shipping Ltd, that the master and chief engineer of the Vessel had sunk the Vessel at the request of Mr Agaoglu, the alter ego of the Owners, the Insurers raised the legal proceedings to which I now turn. The legal proceedings The Insurers alleged that, in presenting a claim under the Policy, the Owners and Managers on their own behalf and on behalf of the Bank) made express or implied representations which included that the Vessel had been lost by an insured peril, that the loss was accidental, that the Owners and Managers had not been guilty of misconduct in procuring the loss of the Vessel and that the Owners, Managers and Bank were entitled to an indemnity in respect of that loss. The Insurers also contended that the Bank had independently made such representations or was vicariously liable for the Owners and Managers representations. They averred that the representations, which were untrue and material, had induced them to enter into the Settlement Agreement. The Insurers therefore asked the court (i) to avoid or rescind the Settlement Agreement on grounds of misrepresentation or mistake; (ii) because of that avoidance or rescission to order restitution of the sums paid; (iii) to award damages in deceit, for negligent misrepresentation and/or pursuant to sections 2(1) and 2(2) of the Misrepresentation Act 1967; and (iv) to order restitution of the sums paid by mistake. In response the Bank challenged the jurisdiction of the High Court. On 27 July 2017 Teare J in his first judgment ([2018] 1 All ER (Comm) 228; [2017] 2 Lloyds Rep 295; [2017] EWHC 1904 (Comm)) held that the High Court had jurisdiction in respect of the claims for damages for misrepresentation under article 7(2) of the Regulation but not in respect of the claims for restitution. He also held that the court did not have jurisdiction based on the exclusive jurisdiction clauses in the Settlement Agreement and the Policy. In a second judgment dated 1 December 2017 ([2017] EWHC 3107 (Comm)) Teare J held that the court had jurisdiction in respect of the Insurers claim for damages for misrepresentation pursuant to the Misrepresentation Act 1967. Both the Insurers and the Bank appealed to the Court of Appeal with Teare Js permission. The Court of Appeal (Gross, Moylan and Coulson LJJ) in a judgment dated 21 November 2018 ([2018] EWCA Civ 2590; [2019] 1 Lloyds Rep 221) affirmed Teare Js decisions. In the judgment given by Gross LJ, with whom the other Lord Justices agreed, the Court of Appeal held, first, that the Bank was not bound by the exclusive jurisdiction clause in the Settlement Agreement and that the Insurers did not have a good arguable case that the Bank was a party to that agreement. That finding is not in issue in the appeals to this court. Secondly, the Bank was not bound by the exclusive jurisdiction clause in the Policy by asserting its right to payment under the Policy as loss payee and assignee. The Bank would not be so bound unless and until it commenced legal proceedings against the Insurers. In any event the Bank did not assert its rights against the Insurers by issuing the Letter of Authority. Those findings are the subject of issue 1 in these appeals. Thirdly, the Bank was not entitled to rely on section 3 of the Regulation because its business of ship finance involved it in the settlement of insurance claims and was analogous to that of an insurance professional and the Bank fell within a class of persons not deemed to be a weaker party. These findings are the subject of issues 2 and 3 in these appeals. Fourthly, the Insurers claims against the Bank for damages for misrepresentation were matters relating to tort, delict or quasi delict under article 7(2) of the Regulation with the harmful event occurring in England. The validity of this finding depends on this courts answers to issues 1, 2 and 3. Finally, the Insurers claims against the Bank for restitution were not matters relating to tort, delict or quasi delict within article 7(2) of the Regulation. That is issue 4 in these appeals. Discussion The Regulation: Before discussing the issues raised in these appeals it may be helpful to say something about the structure of the Regulation. I discuss the relevant provisions of the Regulation more fully below. In order to promote the free circulation of judgments within member states, the Regulation seeks to set out rules which are highly predictable and are founded on the principle that jurisdiction is generally based on the defendants domicile. Thus article 4 provides that: (1) Subject to this Regulation, persons domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state. And article 5(1) provides: Persons domiciled in a member state may be sued in the courts of another member state only by virtue of the rules set out in sections 2 to 7 of this Chapter. It is only in well defined circumstances that jurisdiction based on domicile is replaced by a different connecting factor based on the subject matter of the dispute or the autonomy of the parties (recital (15)). The Court of Justice of the European Union (CJEU) has repeatedly held, as I will show below, that articles which provide for the exclusion of jurisdiction based on domicile are to be narrowly interpreted. There are also articles which provide for alternative grounds of jurisdiction in addition to the defendants domicile. The alternative grounds, which include matters relating to contract and matters relating to tort, delict or quasi delict (article 7(1) and (2)), are based on a close connection between the court and the action or are in order to facilitate the sound administration of justice. The requirement of the close connection is to promote legal certainty (recital (16)). Subject to certain exclusive grounds of jurisdiction, the Regulation also respects the autonomy of parties to a contract to determine the courts to have jurisdiction but it restricts that autonomy in insurance, consumer and employment contracts (recital (19)). It appears to me that when a court comes to interpret an article in the Regulation it must consider whether on the one hand the rule contained in the article supports the general rule of jurisdiction based on the defendants domicile or on the other hand purports to exclude or provide an alternative to that general rule. The relevant test: Although there was a challenge in the Court of Appeal, there is now no disagreement between the parties that in relation to the preliminary question of the jurisdiction of the English courts it is for the Insurers to show that they have a good arguable case in the sense that they have the better of the argument. Issue 1: Does the High Court have jurisdiction pursuant to the exclusive English jurisdiction clause contained in the Policy? Mr MacDonald Eggers QC for the Insurers contends in summary that the Bank is bound by the exclusive jurisdiction clause in the Policy because in issuing the Letter of Authority it asserted a claim under the Policy for payment of the insured sums as assignee and loss payee. It was not disputed by the parties that the Bank would be bound by the clause if it had sued the Insurers. But the obligation to submit to the jurisdiction of the English courts went further than the commencement of legal proceedings and covered any assertion of, or indeed reliance on, its rights in relation to the Policy by the Bank. For, on its proper construction, the exclusive jurisdiction clause extends to an obligation on an assignee to submit to the jurisdiction of the English courts if there were a dispute or claim relating to the Policy, as for example if the Bank received the Policy proceeds without any dispute at the time and without having initiated legal proceedings but there was later a dispute about its entitlement to those funds. Further, the Insurers would be entitled to sue the Bank in the English courts for negative declaratory relief and such a claim would be the same cause of action as a claim by the Bank for payment. The Insurers submit that it would be incoherent for the law to apply the exclusive jurisdiction clause only when the assignee initiated a formal legal claim. I am satisfied that these arguments should not be accepted and that Teare J and the Court of Appeal did not err on this issue. I begin by examining EU law in the jurisprudence of the CJEU before turning to domestic law. Under EU law a jurisdiction agreement in a contract will bind a defendant only if there is actual consensus between the parties which is clearly and precisely demonstrated: Coreck Maritime GmbH v Handelsveem BV (Case C 387/98) [2000] ECR I 9337, paras 13 15 (a case concerning article 17 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, as amended); Profit Investment Sim SpA v Ossi (Case C 366/13) [2016] 1 WLR 3832 (CJEU), para 27 (a case on article 23 of the earlier Brussels Regulation, Regulation (EC) No 44/2001). Thus a jurisdiction agreement in an insurance contract does not bind a third party beneficiary of insurance who is domiciled in a different contracting state and who has not expressly subscribed to the clause: Socit financire et industrielle du Peloux v Axa Belgium (Case C 112/03) [2006] QB 251, para 43 (a case on article 12 of the 1968 Brussels Convention as amended). Nor does such an agreement bind a victim of insured damage who wishes to bring an action directly against the insurer: Assens Havn v Navigators Management (UK) Ltd (Case C 368/16) [2018] QB 463 (CJEU), para 40 (a case on article 13(5) of Regulation No 44/2001). EU law however recognises that a person who is not a party to a jurisdiction agreement may be taken to have consented to it if, under the applicable national law, it became the successor to the rights and obligations under the contract: Partenreederei M/S Tilly Russ v Haven & Vervoerbedrijf Nova NV (Case 71/83) [1985] QB 931, paras 24 26. That case concerned a bill of lading, which, under the relevant national law, vested in a third party holder all the rights of the shipper under the bill of lading and subjected it to all of the shippers obligations mentioned in the bill of lading, including the agreement on jurisdiction. Thus, in Coreck Maritime (above) the CJEU stated (para 27): a jurisdiction clause agreed between a carrier and a shipper which appears in a bill of lading is enforceable against a third party bearer of the bill of lading if he succeeded to the rights and obligations of the shipper under the applicable national law when he acquired the bill of lading. If he did not, it must be ascertained whether he accepted that clause having regard to the requirements laid down in the first paragraph of article 17 of the Convention. The first paragraph of article 17 (as article 25 of the Regulation now does) required that an agreement on jurisdiction had to be in writing or evidenced in writing, or in a form which accorded with practices which the parties had established between themselves, or in international trade or commerce in a form which conformed with an established trade usage of which the parties were or ought to have been aware. In this case it is not suggested that there was an agreement in any of those forms. The court must therefore look to national law to determine whether the Bank can be seen in EU law as the successor of the Owners and Managers who are subject to the jurisdiction clause. The Banks entitlement to receive the proceeds of the Policy in the event that there was an insured casualty rests on its status as an equitable assignee. It is trite law that an assignment transfers rights under a contract but, absent the consent of the party to whom contractual obligations are owed, cannot transfer those obligations: Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660, 668 670 per Collins MR. An assignment of contractual rights does not make the assignee a party to the contract. It is nonetheless well established that a contractual right may be conditional or qualified. If so, its assignment does not allow the assignee to exercise the right without being subject to the conditions or qualifications in question. As Sir Robert Megarry V C stated in Tito v Waddell (No 2) [1977] Ch 106, 290, you take the right as it stands, and you cannot pick out the good and reject the bad. This concept, which has often been described as conditional benefit, is to the effect that an assignee cannot assert its claim under a contract in a way which is inconsistent with the terms of the contract. Several examples of its application or consideration were cited to the court. See, for example, Montedipe SpA v JTP RO Jugotanker (The Jordan Nicolov) [1990] 2 Lloyds Rep 11, 15 16 per Hobhouse J; Pan Ocean Shipping Co Ltd v Creditcorp Ltd (The Trident Beauty) [1994] 1 WLR 161, 171 per Lord Woolf; Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (The Jay Bola) [1997] 2 Lloyds Rep 279, 286 per Hobhouse LJ; Youell v Kara Mara Shipping Co Ltd [2000] 2 Lloyds Rep 102, paras 58 62 per Aikens LJ; Shipowners Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat Ve Ticaret AS (The Yusuf Cepnioglu) [2016] 1 Lloyds Rep 641; [2016] Bus LR 755, paras 23 25 per Longmore LJ; and Aline Tramp SA v Jordan International Insurance Co (The Flag Evi) [2017] 1 Lloyds Rep 467, para 40 per Sara Cockerill QC, sitting as a Deputy High Court Judge. In my view, the formulation of the principle by Hobhouse LJ in The Jay Bola, which the Court of Appeal approved in The Yusuf Cepnioglu, is the best encapsulation. In The Jay Bola the insurers of cargo for the voyage charterer asserted rights, which had been assigned to them by the voyage charterer by subrogation under foreign law, by raising court proceedings in Brazil against the owners and the time charterer. On the application of the time charterers, Morison J granted an anti suit injunction against the insurers because the arbitration clause in the voyage charter regulated the means by which the transferred right could be enforced. The Court of Appeal upheld his order. Hobhouse LJ stated ([1997] 2 Lloyds Rep 279, p 286): the insurance company is not entitled to assert its claim inconsistently with the terms of the contract. One of the terms of the contract is that, in the event of dispute, the claim must be referred to arbitration. The insurance company is not entitled to enforce its right without also recognizing the obligation to arbitrate. This formulation emphasises the constraint on the assertion of a right as being the requirement to avoid inconsistency and, whether the clause is an arbitration clause, as in The Jay Bola, or an exclusive jurisdiction clause, as in Youell (above), it is the assertion of the right through legal proceedings which is in conflict with the contractual provision that gives rise to the inconsistency. In Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA [2016] 5 SLR 455, para 55, the Singapore Court of Appeal, commenting on The Jay Bola and the proposition that an assignee does not become a party to the contract but would not be entitled to enforce its rights against the other party without also recognising the obligation to arbitrate, stated: This approach of entitlement rather than obligation may be more easily reconcilable with the consensual nature of arbitration. This is because the assignee is only taken to submit to arbitration at the point it elects to exercise its assigned right. In the present case the Bank did not commence legal proceedings to enforce its claim. Indeed, it did not even assert its claim but left it to the Owners and the Managers to agree with the Insurers the arrangements for the release of the proceeds of the insurance policy by entering into the Settlement Agreement. It is not disputed that the Bank was not a party to the Settlement Agreement and the Bank derived no rights from that agreement. The Letter of Authority, which the Bank produced at the request of the Owners and the Managers, enabled both the Insurers and Willis Ltd to obtain discharges of their obligations and to that end it was attached to the Settlement Agreement. The Letter of Authority facilitated the settlement between the Insurers and the Owners and provided the Owners/Managers with a mechanism by which the Bank as mortgagee, assignee and loss payee could receive its entitlement. At the time of payment of the proceeds of the Policy there was no dispute as to the Banks entitlement and no need for legal proceedings. There was therefore no inconsistency between the Banks actions and the exclusive jurisdiction clause. The Bank therefore is not bound by an agreement as to jurisdiction under article 15 or article 25 of the Regulation. The Insurers argue that, if they had refused to pay the proceeds of the Policy to the Bank and had commenced proceedings against the Bank in England seeking negative declaratory relief, the Bank would have been bound by the exclusive jurisdiction clause. They submit that it makes no sense to distinguish a claim for negative declaratory relief from the Banks claim. This is because the Banks right to sue for an indemnity under the Policy and the Insurers right to sue for a declaration that it is not liable to the Bank are the same cause of action: Gubisch Maschinenfabrik KG v Palumbo (Case 144/86) [1987] ECR 4861, paras 15 19. This incoherence, it is submitted, militates against the Banks analysis. I disagree. The Bank is not a party to the contract contained in the Policy. The Bank is not bound by that contract to submit to the jurisdiction of the English courts if the Insurers raise an action in England. If the Insurers claims fall within section 3 of the Regulation, the Insurers may bring proceedings against the Bank only in the courts of the member state of the Banks domicile, that is The Netherlands. I turn then to that question. Issues 2 and 3: Are the Insurers claims against the Bank matters relating to insurance within section 3 of the Regulation and if so, is the Bank entitled to rely on that section? Section 3 of chapter II of the Regulation is entitled Jurisdiction in matters relating to insurance. The section sets out rules which govern jurisdiction in matters relating to insurance. The relevant article in this appeal is article 14(1) which provides (so far as relevant): an insurer may bring proceedings only in the courts of the member state in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary. (Emphasis added) It is noteworthy that the article, unlike many articles in the Regulation, is not creating an alternative ground of jurisdiction in addition to domicile of the defendant nor is it purporting to exclude the domicile of the defendant as an available ground. On the contrary, it makes that ground of jurisdiction, which is the same as the principal ground of jurisdiction under article 4, the exclusive ground in those circumstances in which article 14 applies. Teare J held that the nature of the Insurers claim against the Bank was so closely connected with the question of the Insurers liability to indemnify for the loss of the Vessel under the Policy that the subject matter of the claim can fairly be said to relate to insurance. The Court of Appeal, agreeing with Teare J, stated ([2019] 1 Lloyds Rep 221, para 78): [A]s a matter of reality and substance, the foundation of the Underwriters claims lies in the Policy. The crucial (if not the only) question is whether the Vessel was lost by reason of a peril insured against under the Policy or whether the loss arose by reason of wilful misconduct on the part of the Owners. On this footing, there is the most material nexus between the Underwriters claims and the Policy. But in spite of this success the Bank did not obtain the protection of article 14 of the Regulation because (although their reasoning diverged) both Teare J and the Court of Appeal held that that protection was available only to the weaker party in circumstances of economic imbalance between the claimant insurer and the defendant. Mr Steven Berry QC for the Bank appeals against the finding that article 14 did not apply to the claim because of the absence of economic imbalance between the Insurers and the Bank. Mr MacDonald Eggers argues against the finding that the subject matter of the claim relates to insurance and defends the exclusion of article 14 on the ground that the Bank was not the weaker party. On issue 2 Mr MacDonald Eggers submits that a claim can be regarded as a matter relating to insurance only if the subject matter of the claim is, at least in substance, a breach of an obligation contained in, and required to be performed by, an insurance contract. He submits that this proposition is supported by the CJEU case of Brogsitter v Fabrication de Montes Normandes EURL (Case C 548/12) [2014] QB 753 (Brogsitter), which is a case concerning matters relating to a contract under article 7(1) of the Regulation. The heading of section 3, Matters relating to insurance should be read as matters relating to insurance contracts and he refers to recitals (18) and (19) and articles 15(5), 26(2), 31(4) and 45(1)(e)(i) in support of that contention. Secondly, there is no logical reason for the test for the link between the contract and the claim to be wider for the particular contracts covered by sections 3 (insurance), 4 (consumer contracts) and 5 (employment contracts) of the Regulation than it is for general contracts under article 7(1). Thirdly, the application of the Brogsitter test to the meaning of the title of section 3 promotes legal certainty and predictability. Fourthly, the Brogsitter test has been applied by courts outside the context of article 7(1). He refers to Bosworth v Arcadia Petroleum Ltd [2016] EWCA Civ 818; [2016] 2 CLC 387, para 66, Granarolo SpA v Ambrosi Emmi France SA (Case C 196/15) [2016] IL Pr 32, paras 21 22, and Committeri v Club Mditerrane SA [2018] EWCA Civ 1889; [2019] IL Pr 19, para 52. Fifthly, he submits that there is support for the Insurers approach in the Court of Appeals judgment in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No 2) [2000] 1 WLR 603; [2000] 1 Lloyds Rep 129. While Mr MacDonald Eggers presented these submissions clearly and attractively, I am not persuaded that Teare J or the Court of Appeal erred in their approach. I have reached this view for the following reasons. First, it is to my mind important to note that the title to section 3 Jurisdiction in matters relating to insurance is broader than the words of article 7(1) matters relating to a contract (emphasis added). Similarly, it is wider than the titles of section 4 Jurisdiction over consumer contracts and section 5 Jurisdiction over individual contracts of employment. The difference in wording is significant as it would require to be glossed if it were to be read as Matters relating to an insurance contract. Such a gloss would not be consistent with the requirement of a high level of predictability of which recital (15) speaks. Secondly, the scheme of section 3 is concerned with the rights not only of parties to an insurance contract, who are the insurer and the policyholder, but also beneficiaries of insurance and, in the context of liability insurance, the injured party, who will generally not be parties to the insurance contract. Thirdly, the recitals on which the Insurers found do not carry their case any distance. Recital (18), to which I will return below, sets out a policy of protecting the weaker party to certain contracts including insurance contracts. Recital (19) which calls for respect for the autonomy of parties to certain contracts to select the jurisdiction in which to settle their claims does not assist. Neither does article 15(5), which provides that in contracts of insurance which cover the risks set out in article 16 (such as damage to sea going ships and aircraft) the parties may agree to contract out of section 3. The references to the policyholder, the insured, and the beneficiary of the insurance contract in the other recitals to which the court was referred cast no light on the meaning of the title to section 3. Fourthly, as I will show below (para 57) the CJEU has often held that articles, such as article 7(1), which derogate from the general rule of jurisdiction under article 4 should be interpreted strictly. Article 14 by contrast reinforces article 4. The Ikarian Reefer (No 2) also does not assist the Insurers. The dispute in that case involved an action by the owners of the vessel against her hull and machinery underwriters which were represented by Prudential, and the Court of Appeal held that the vessel had been deliberately run aground and deliberately set on fire on the authority of her owners. Prudential recovered much of their costs from the owners and then applied under section 51 of the Supreme Court Act 1981 to recover the balance of their costs from a non party, Mr Comninos, who was the principal behind the owners, and who it was said had directed and financed the litigation. The Court of Appeal held that, if the claim for costs constituted proceedings, those proceedings were not proceedings relating to insurance matters. If the claims were ancillary to the action by the owners against the underwriters that action related to insurance matters and had properly been raised in England. The underwriters were not seeking to raise claims relating to insurance matters against Mr Comninos. Rather they were seeking to recover unpaid costs incurred in a litigation relating to insurance matters in which they had been successful. Fifthly, and in any event, as Mr Berry submits, if the Brogsitter test is as Mr MacDonald Eggers characterises it and is applicable in relation to section 3, that test is met in the circumstances of this case. The Insurers claim is that there has been an insurance fraud by the Owners and the Managers for which the Bank is vicariously liable. Such a fraud would inevitably entail a breach of the insurance contract as the obligation of utmost good faith applies not only in the making of the contract but in the course of its performance: Versloot Dredging BV v HDI Gerling Industrie Versicherung AG (The DC Merwestone) [2016] UKSC 45; [2017] AC 1, para 8 per Lord Sumption. It is therefore not necessary for this Court to analyse the proper application of the jurisprudence in Brogsitter. I therefore conclude that, subject to issue 3, which concerns the recitals and case law which refer to the protection of the weaker party, the Insurers claims against the Bank are matters relating to insurance within section 3 of the Regulation. Teare J ([2017] EWHC 1904 (Comm)), in holding that the Bank could not take the benefit of article 14, relied on recital (18) of the Regulation, which provides: In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules. Teare J also referred to the judgment of the CJEU in Vorarlberger Gebietskrankenkasse v WGV Schwbische Allgemeine Versicherungs AG (Case C 347/08) [2009] ECR I 8661; [2010] Lloyds Rep IR 77 (Vorarlberger), paras 40 45 in support of the proposition that the section 3 protections should not be extended to persons for whom that protection was not justified. In the Court of Appeal, Gross LJ ([2019] 1 Lloyds Rep 221, paras 81 123) elaborated on the judges reasoning, referred to several cases, which post dated the judgment at first instance and which I discuss below, and upheld the judges decision on this issue. I respectfully disagree with that conclusion. There is no weaker party exception which removes a policyholder, an insured or a beneficiary from the protection of article 14. I have come to this view for the following six reasons, which I will vouch when I discuss the case law below. First, the reason why article 14 protects the policyholder, the insured and the beneficiary of an insurance policy is because they are generally the weaker party in a commercial negotiation with an insurance company and are as a matter of course presented with a standard form contract. Secondly, while recital (18) explains the policy behind, among others, section 3 of the Regulation, it is the words of the relevant articles which have legal effect and the recitals are simply an aid to interpretation of those articles. Thirdly, derogations from the jurisdictional rules in matters of insurance must be interpreted strictly. Fourthly, the CJEU in its jurisprudence has set its face against a case by case analysis of the relative strength or weakness of contracting parties as that would militate against legal certainty. Instead, it has treated everyone within the categories of the policyholder, the insured or the beneficiary as protected unless the Regulation explicitly provides otherwise. Fifthly, the CJEU looks to recital (18) not to decide whether a particular policyholder, insured or beneficiary is to be protected by section 3 but in the context of reaching a decision whether by analogy those protections are to be extended to other persons who do not fall within the list of expressly protected persons. Sixthly, the policy which underlies the jurisprudence of the CJEU when it decides whether to extend the protection to persons not expressly mentioned in section 3 is that the court seeks to uphold the general rule in article 4 that defendants should be sued in the courts of the member state of their domicile and allows extensions to the protection of section 3 only where such an extension is consistent with the policy of protecting the weaker party. The CJEUs justification for the protection conferred on the policyholder, the insured and the beneficiary is to be seen in Gerling Konzern Speziale Kreditversicherungs AG v Amministrazione del Tesoro dello Stato (Case 201/82) [1983] ECR 2503 (Gerling), which concerned the validity of a jurisdiction clause under the predecessor of article 25 of the Regulation. The CJEU stated: 15. the insurer, if his original consent has been made clear in the provisions of the contract, cannot object to such an exclusion of jurisdiction on the sole ground that the party benefiting from the requirement imposed on others, not being a party to the contract, has not himself satisfied the requirement of writing prescribed by article 17 of the Convention. 16. Consideration of the provisions of section 3 of the Convention relating to jurisdiction in matters relating to insurance confirms this view. 17. It is apparent from a consideration of the provisions of that section in the light of the documents leading to their enactment that in affording the insured a wider range of jurisdiction than that available to the insurer and in excluding any possibility of a clause conferring jurisdiction for the benefit of the insurer their purpose was to protect the insured who is most frequently faced with a predetermined contract the clauses of which are no longer negotiable and who is in a weaker economic position. (Emphasis added) This is consistent with the statement by Advocate General Mancini in Gerling that the policyholder, the insured and the beneficiary were given protection because they were the persons regarded as weaker. Turning to the second reason which I have set out in para 43 above, it is clear that the recitals of the Regulation are a useful tool in interpreting the operative provisions contained in the articles of the Regulation. But a distinction falls to be made between the justification or rationale of a ground of jurisdiction and the ground itself. See the judgment of the CJEU in Folien Fischer AG v Ritrama SpA (Case C 133/11) [2013] QB 523, paras 30 40 and the judgment of this court in AMT Futures Ltd v Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft mbH [2017] UKSC 13; [2018] AC 439, paras 14 and 29. It is noteworthy that article 14 of the Regulation speaks of the policyholder, the insured and the beneficiary without further qualification. Thirdly, in Socit financire et industrielle du Peloux v Axa Belgium (Case C 112/03) [2006] QB 251 (Peloux), a case which concerned what are now articles 15 and 23 of the Regulation and the ability of a party by agreement to depart from the provisions of what is now section 3 of the Regulation, the CJEU treated the Convention (now the Regulation) as establishing a system in which derogations from the jurisdictional rules in matters of insurance must be interpreted strictly (para 31). The existence of an unexpressed exception to the protection given to the policyholder, the insured and the beneficiary is scarcely consistent with this approach. Fourthly, it is clear that the CJEU does not enquire into relative strengths and weaknesses of particular parties in applying the provisions of section 3 of the Regulation. Such an exercise would risk giving rise to legal uncertainty and would prevent the rules of jurisdiction from being highly predictable. Instead the in to protection. Thus, Regulation defines Landeskrankenanstalten Betriebsgesellschaft KABEG v Mutuelles du Mans Assurances MMA IARD SA (Case C 340/16) [2017] IL Pr 31 (KABEG), Advocate General Bobek (para AG47) stated: those who are entitled in contrast to matters relating to employees and consumers, the notion of the weaker party in insurance related matters is defined rather broadly. It includes four categories of persons: the policyholder, the insured, the beneficiary and the injured party. As a matter of fact, these parties may be economically and legally rather strong entities. That flows from the broad language of the insurance related provisions of Regulation No 44/2001 as well as from the types of insurance described therein. (Emphasis added) The reference to the injured party is a reference to the provision relating to liability insurance which is now article 11 of the Regulation. The breadth of the protection given in section 3 was acknowledged by the CJEU in its judgment in KABEG in which the court stated (para 32): As the Advocate General observed in [AG47] of his Opinion, the notion of the weaker party has a wider acceptance in matters relating to insurance than those relating to consumer contracts or individual employment contracts. The CJEU went on to state (para 34): a case by case assessment of the question whether an employer which continues to pay the salary may be regarded as the economically weaker party in order to be covered by the definition of injured party within the meaning of article 11(2) of Regulation No 44/2001 [now article 13(2) of the Regulation], would give rise to the risk of legal uncertainty and would be contrary to the objective of that Regulation, laid down in recital (11) thereof [now recital (15) of the Regulation], according to which the rules of jurisdiction must be highly predictable. In Peloux (para 46 above) the CJEU observed (para 31) that what is now article 15 of the Regulation lists exhaustively the cases in which the parties may derogate by agreement from the rules laid down in section 3. It is article 15(5) which is relevant in this case as it provides that the provisions of section 3 may be departed from by an agreement which relates to a contract of insurance in so far as it covers one or more of the risks set out in article 16. Those risks include perils covered by marine insurance and by the insurance of aircraft and offshore installations. The exceptions which articles 15(5) and 16 establish are the result of a request by the United Kingdom on its accession to the Brussels Convention in 1968 that the protections given to policyholders in articles 7 12 of that Convention be restricted to exclude among other things the insurance of large risks. The solution which was adopted in line with the recommendations of the Report on the Convention by Professor Dr Peter Schlosser (OJEC, 5 March 1979) was to introduce the list of certain types of policy in what are now articles 15(5) and 16 of the Regulation. The Schlosser Report explains the thinking behind those provisions. It states (para 140): The problem was one of finding a suitable demarcation line. Discussions on the second Directive on insurance had already revealed the impossibility of taking as criteria abstract, general factors like company capital or turnover. The only solution was to examine which types of insurance contracts were in general concluded only by policyholders who did not require social protection. It is in my view clear that the protections afforded to the policyholder, the insured and the beneficiary are given because such classes of person generally are the weaker party and that the Regulation has identified specific types of insurance contracts and allowed the parties to those types of insurance contract to exclude by agreement the protections which otherwise would be in place. Fifthly, the case law of the CJEU, to which the Court of Appeal referred for support of the view that the Bank should be excluded from the protection of article 14 of the Regulation because there was not an economic imbalance between it and the Insurers, does not support that conclusion. Instead it shows that the CJEU has regard to recital (18) and the concept of the party in the weaker economic position when it is asked to extend the protection of section 3 beyond the policyholder, the insured, the beneficiary and the injured party. In Universal General Insurance Co (UGIC) v Group Josi Reinsurance Co SA (Case C 412/98) [2001] QB 68 (Group Josi) the CJEU had to consider whether the rules on jurisdiction specific to matters relating to insurance were to be applied to a dispute between a reinsured and a reinsurer under an insurance contract. The court held that a reinsurance contract could not be equated with an insurance contract and the protections afforded to policyholders could not be extended to a reinsured. The CJEU stated (para 65): The role of protecting the party deemed to be economically weaker and less experienced in legal matters than the other party to the contract which is fulfilled by [the provisions of section 3] implies, however, that the application of the rules of special jurisdiction laid down to that end should not be extended to persons for whom that protection is not justified (Emphasis added) It is of note that the CJEU interpreted section 3 as deeming the named parties, the policyholder, the insured, the beneficiary and (under liability insurance) the injured party to be economically weaker and applied the economic weakness criterion to prevent an extension of the protection from those persons to a reinsured. The CJEU adopted the same approach in Groupement dintrt conomique (GIE) Runion Europenne v Zurich Espaa Socit Pyrenenene de Transit dAutomobiles (Case C 77/04) [2005] ECR I 4509; [2006] Lloyds Law Rep 215 (GIE) which concerned an attempt by an insurer, which had been sued by its insured, to bring Zurich Espaa into the action as a third party on the basis that it also had covered the loss as the insurer of the claimant which had sued the insured. The dispute was as to whether Zurich could invoke the protection of what is now article 14 of the Regulation requiring it to be sued in the courts of its domicile or whether the insurer could invoke the third party jurisdiction in what is now article 8(2) of the Regulation. The CJEU repeated the formula in para 65 of Group Josi, which I have quoted above, and (para 22) spoke of the authors of the Convention having taken as their premise that the provisions of section 3 applied only to relations characterised by an imbalance between the parties. It referred to the express exclusion by what are now articles 15(5) and 16 of the Regulation of the insurance contracts specified therein (see para 48 above) which was justified because the insured in those types of insurance contracts enjoyed considerable economic power. It concluded that it was consistent with the letter, spirit and purpose of the provisions in section 3 to hold that they were not applicable to relations between insurers in the context of third party proceedings (para 23). Thus again, the CJEU invoked the policy of protecting the weaker party not to look behind the categories of persons expressly protected by section 3 but to ascertain whether that protection should be extended by analogy to persons who were not expressly protected. In Vorarlberger (para 42 above) a social security institution had provided benefits for the victim of a road traffic accident while she was unfit for work and, using its statutory rights of assignment of the victims claim, sought indemnification from the liability insurers of the driver who was allegedly responsible for the accident. The social security institution sought to invoke what are now articles 11(1)(b) and 13(2) of the Regulation to raise legal proceedings in the courts of its own domicile as assignee of the injured party against the insurers of the alleged wrongdoer. The CJEU rejected this attempt to extend the rules on jurisdiction derogating from the general principle that jurisdiction is generally based on the defendants domicile beyond the situations expressly envisaged in the Regulation ([2009] ECR I 8661, paras 36 39). It invoked the weaker party rationale of the section 3 protections as a reason for not extending the protections to persons who did not need to be protected, recognising that the heirs of an injured party ought to be able to benefit from the section 3 rules but holding that a social security institution could not (paras 40 44). In KABEG (para 47 above) an Austrian public law establishment (KABEG), which ran private hospitals, paid the salary of an employee while he was off work as a result of injuries incurred in a road traffic accident. Under Austrian law the employees compensation claim passed to his employers. Relying on what are now articles 11(1)(b) and 13(2) of the Regulation, KABEG raised legal proceedings in Austria, the member state of its domicile, against the French insurers of the driver of the car involved in the accident. KABEG in substance argued that it was the injured party which, under article 13(2), was allowed to raise proceedings in the courts of the member state of its domicile against a liability insurer. The defendants argued that the Austrian court did not have jurisdiction because section 3 did not apply to the employers which were not the weaker party. Again, it is clear that the claimant was seeking an extension of the protections of section 3 of the Regulation by including the employer, with a claim for reimbursement of the salary paid to the injured party, within the concept of injured party. That claim succeeded. Having rejected a case by case assessment (as I have shown), the CJEU held that pursuant to article 13(2) of the Regulation (para 35), employers to which the rights of their employees to compensation have passed may, as persons which have suffered damage and whatever their size and legal form, rely on the rules of special jurisdiction laid down in articles [10 12] of that Regulation. Finally, in Hofsoe v LVM Landwirtschaftlicher Versicherungsverein Mnster AG (Case C 106/17) [2018] IL Pr 184 (Hofsoe) Mr Hofsoe, whose professional activity inter alia consisted in recovering claims for damages from insurers and who took assignments of the claims of victims of road traffic accidents, sought unsuccessfully to extend the concept of injured party so as to invoke the jurisdiction of injured partys domicile under articles 11(1)(b) and 13(2) of the Regulation. In paras 37 42 the CJEU referred among others to KABEG, Vorarlberger, Group Josi and GIE, and acknowledged that the jurisdiction of the forum actoris had been extended under articles 11(1)(b) and 13(2) to include the heirs of an injured party and also the employer who continues to pay the salary of the injured party while he was on sick leave. But reasserting that the derogations from the principle of the defendants domicile must be exceptional in nature and be interpreted strictly, the CJEU held that the special rules of jurisdiction should not be extended to persons for whom the protection is not justified, such as professionals in the insurance sector. The CJEU (para 45) attached no significance to the fact that Mr Hofsoe carried on business on a small scale and reaffirmed its rejection of a case by case assessment because that risked legal uncertainty. In none of these cases where the CJEU has relied on the weaker party criterion to rule on applications to extend the scope of the section 3 protections beyond those parties who were clearly the policyholder, the insured, the beneficiary or the injured party, did the court call into question the entitlement of those expressly named persons to that protection by reason of their economic power. On the contrary, the CJEU has treated the exceptions to the entitlement of those persons as confined to the exceptions expressly stated in articles 15(5) and 16 of the Regulation. As I have said, the CJEU has repeatedly stated that derogations from the principle of the jurisdiction of the defendants domicile must be exceptional in nature and be interpreted strictly: Group Josi, paras 36, 49 50; Vorarlberger paras 36 39; Hofsoe, para 40. The jurisdiction of the forum actoris, which articles 11(1)(b) and 13(2) of the Regulation confer, is a derogation from the general principle of the jurisdiction of the defendants domicile. Article 14, which requires the insurer to bring proceedings only in the courts of the member state of the domicile of the insured, involves no such derogation but on the contrary supports the general principle. It is correct, as Gross LJ observed in para 111 of his judgment ([2019] 1 Lloyds Rep 221), that the present case concerns a marine insurance risk, and that the policyholder and the Insurers would have been able to enter into a jurisdiction agreement under articles 15(5) and 16. But that does not exclude the protections of section 3 in the absence of such an agreement which is binding on the policyholder, the insured or the beneficiary. It is important to recall the opening words of article 15: The provisions of this section may be departed from only by an agreement. The clear implication is that in the absence of such an agreement, the policyholder, insured or beneficiary of an insurance contract falling within article 16 would come within the section 3 protections unless it contracted out of those provisions. There is no such agreement binding on the Bank in this case. In my view under the test laid down in CILFIT Srl v Ministero della Sanita (Case 283/81) [1982] ECR 3415, para 21, it is acte clair that a person which is correctly categorised as a policyholder, insured or beneficiary is entitled to the protection of section 3 of the Regulation, whatever its economic power relative to the insurer. It is not necessary to refer a question to the CJEU on this issue. The Bank as the named loss payee under the Policy is the beneficiary of the Policy. It is entitled to benefit from the protections of section 3, including the requirement under article 14 that it must be sued in the courts of the member state of its domicile. It follows that the Insurers cannot assert jurisdiction under article 7(2) of the Regulation in respect of the claims for misrepresentation. Further, issue 4, the question whether claims in unjust enrichment fall within article 7(2) does not arise. As a result, the Insurers fail in their appeal and the Bank succeeds in its appeal because the courts of England and Wales have no jurisdiction in respect of the Insurers claims against the Bank. Conclusion I would dismiss the Insurers appeal, allow the Banks appeal and declare that the High Court does not have jurisdiction over the Insurers claims against the Bank. |
This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland (the Board) adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. Mr McCann suffers from a mental disorder. After committing a number of offences which were prosecuted on summary complaint, he was detained without limit of time in the State Hospital under orders made originally under the Criminal Procedure (Scotland) Act 1975 (and more recently under the Criminal Procedure (Scotland) Act 1995 (the 1995 Act)) in December 1995. He remained in detention in the State Hospital until March 2014. He was then transferred to a medium secure unit in Glasgow, called the Rowanbank Clinic, where he remains in the care of NHS Greater Glasgow (NHSGG). NHSGG has decided to introduce a comprehensive smoking ban at the Rowanbank Clinic. Mr McCann has challenged that decision in separate proceedings for judicial review but his application remains sisted (stayed), pending the outcome of this appeal. Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act) (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty. After setting out the factual background and the relevant legislation and summarising the proceedings in the courts below, I will address each challenge in turn. The factual background For many years public authorities in Scotland and elsewhere in the United Kingdom have sought to discourage smoking because of concerns about its effects on the health of the smokers and of those exposed to second hand smoke, by so called passive smoking. Section 4 of the Smoking, Health and Social Care (Scotland) Act 2005 empowered the Scottish Ministers to make regulations prescribing classes of premises in which smoking would be prohibited and also the premises to be excluded from that ban. Among the premises which the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 (SSI 2006/90) prescribed as no smoking premises were hospitals, hospices, psychiatric hospitals, psychiatric units and healthcare premises. Open areas, such as hospital grounds, were not so specified. Among the premises exempted from the smoking ban were designated rooms in psychiatric hospitals and psychiatric units. Over time, public authorities have sought to extend the smoking ban. Between 2007 and 2011 the buildings at the State Hospital were redeveloped and modernised. The business case for the redevelopment, which the Scottish Government approved, proposed that the State Hospital would be a smoke free environment and that there would be no provision for smoking either indoors or in the gardens and grounds. In accordance with that policy, the new buildings contain no indoor smoking rooms or facilities which would allow patients to take advantage of the exemption in the Regulations. The Board then had to consider whether, and if so for how long, it would continue to allow smoking in the grounds of the State Hospital. The process by which the Board came to take the impugned decision is set out in a document published by NHS Scotland in February 2012 called Working towards a smoke free environment: an account of the journey undertaken at the State Hospital. Mr McCann founded on this document in his written pleadings (statement 5) as the factual background to the impugned decision. In summary, on 28 October 2010 the Board considered a report by its medical director and resolved to work towards a comprehensive smoking ban with effect from May 2011. After the judgment of the Court of Session in L v Board of State Hospital 2011 SLT 233, in which Lady Dorrian held that the Board had failed to consult with patients (as it had conceded it was required to do by section 1 of the 2003 Act) on its decision to ban visitors from bringing food parcels into the State Hospital and to ban patients from ordering in food, the Board reconsidered its policy concerning smoking at a meeting on 17 February 2011. It agreed to allow smoking to continue in the existing smoking rooms and to conduct a consultation on the options of a partial or comprehensive smoking ban. The Board conducted the consultation between 1 March and 31 May 2011. It presented two options: a partial ban which permitted smoking only in designated open air areas within the grounds or a complete ban both internally and within the grounds. 86% of the patients who responded favoured the partial ban. The Board met again on 23 June to consider a report on the consultation which recommended that smoking be permitted in designated external areas in the grounds. The Board accepted that proposal subject to further consideration of how the partial ban would work in practice. The Board also confirmed its commitment to working towards a smoke free hospital. At a further meeting on 5 July 2011 the Board confirmed that position. Because the patients were soon to move to the new building, the Board decided to close the smoking rooms in the existing buildings and to prohibit smoking in the ward gardens as from 1 August 2011, leaving only the designated external areas for smoking. The Board agreed to review its decision in November 2011. The Board conducted a further consultation in mid August 2011 in which it asked for responses to the same options of a partial ban or a comprehensive ban. 64% of patients favoured a partial ban and 36% a comprehensive ban. The Boards chief executive prepared a report on the operation of the partial ban which the Board considered at a meeting on 25 August 2011. At that meeting the Board made the impugned decision to implement a comprehensive smoking ban in December 2011. The patients moved into the new buildings on 21 September 2011. On 5 December 2011 the comprehensive smoking ban came into force. In his petition for judicial review Mr McCann initially called for the Board to produce the minute of the meeting of 25 August 2011 in order to disclose the reasons for the impugned decision. After the minute was produced, he founded on it to challenge the impugned decision for its failure to apply the principles set out in section 1 of the 2003 Act. The minute of the meeting of the Board on 25 August 2011 recorded the reasons for the decision in these terms: [The Boards Chief Executive] outlined the activity following the Boards decision and the considerable problems experienced in operationalising the process, eg increasing numbers of higher risk patients had been referred for consideration of grounds access. The Senior Team had discussed a draft operational policy at their meeting on 27 July 2011 and agreed that from a practical point of view, patients would be permitted to smoke in existing ward gardens at eight set points during each day. The clinical team would agree the set points during each day. Members were asked to consider: (i) The feedback received over the first month of the restrictions on the appendix received (ii) To allow smoking to continue in the grounds, with further limitations, until 30 November 2011 (iii) A full non smoking environment as of 1 December 2011 Members noted that the decision taken in June 2011 was to be reviewed in November 2011. The documented feedback which had been received over the course of August 2011 from staff, as well as smoking and non smoking patients was reviewed. The discussion that followed centred around the difficulties encountered with the partial cessation of smoking at the Hospital in relation to issues of safety and security, operational and clinical disruption, time demands on staff, fairness of the partial restrictions, and the inconsistencies around the set points in the day when smoking was permitted. In light of the difficulties discussed and the importance of the operational managements view, Members agreed that the partial cessation of smoking at the Hospital had proved to be unworkable despite the best efforts of staff involved. It was agreed that the State Hospital would be a full non smoking environment as of 1 December 2011. Support to patients in their smoking cessation attempts would continue and be accelerated. The document, Working towards a smoke free environment , to which I referred in para 7 above contains more details of the problems that became apparent in August and September 2011. Patients tended to power smoke in the few opportunities they had to smoke and some reverted back to previous institutionalised behaviour such as clock watching. Staff who attended them complained about daily exposure to passive smoking. The document also spoke of significant operational and security risks. After the move to the new buildings, concerns were expressed about patients congregating outside in breach of grounds access rules. The impugned decision had several elements. It prohibited a detained patient from smoking or possessing tobacco products in the State Hospital, including in its grounds, and from smoking on home visits. It also prohibited visitors from bringing tobacco products and tobacco related products (such as electronic cigarettes or lighters) into the hospital. Search and screening procedures were established to search both patients and visitors for such products. Tobacco products which the patients possessed on 1 December 2011 had to be posted to an external address. The impugned decision was taken against the backdrop of a developing policy of the Scottish Government to control the use of tobacco and to prevent smoking at NHS facilities. The Scottish Ministers have continued to pursue that policy. In March 2013 they published a document entitled Creating a Tobacco free Generation: A Tobacco Control Strategy for Scotland. In that publication Ministers proposed (pp 26 27) (a) that mental health services should make sure that indoor facilities were smoke free by 2015 and (b) that all NHS Boards would implement and enforce smoke free hospital grounds by March 2015, by removing any designated smoking areas in NHS buildings or grounds. Ministers excluded mental health facilities from the latter policy. But since then some health boards have extended the comprehensive ban to such facilities. The relevant legislation (i) National Health Service (Scotland) Act 1978 Under section 102(1) of the National Health Service (Scotland) Act 1978, the Scottish Ministers are charged with the duty of providing such hospitals as appear to [them] to be necessary for persons subject to detention under the 1995 Act or the 2003 Act, which hospitals are described in subsection (2) as state hospitals. Under subsection (4) the Scottish Ministers are empowered to provide for the management of a state hospital to be undertaken on their behalf by among others a special health board. Under that provision the Board acts as the delegate of the Scottish Ministers in managing the State Hospital. The Board contends that, in deciding upon and implementing the comprehensive smoking ban and measures to enforce that ban, it has acted solely under its power of management in this section. (ii) Mental Health (Care and Treatment) (Scotland) Act 2003 Until the enactment of the 2003 Act, the care and treatment of mental health patients were governed by the Mental Health (Scotland) Act 1984. Over time, concerns emerged that the legislation did not adequately protect the rights of patients who were subjected to compulsory detention. One of the factors which led to these concerns was the increased emphasis on personal autonomy which resulted from the influence of the ECHR and the incorporation of the ECHR in our domestic law, first by the Scotland Act 1998 and then by the Human Rights Act 1998. In 1999 the Scottish Ministers commissioned a review of mental health legislation by a committee under the chairmanship of the Rt Hon Bruce Millan, who had formerly been the Secretary of State for Scotland. In January 2001 the Scottish Ministers laid the report, New Directions: Report on the review of the Mental Health (Scotland) Act 1984, before the Scottish Parliament. The report sought to promote greater awareness of the need to respect human rights and the adoption of the least restrictive alternative in the compulsion of mental health patients. It also sought to make sure that any compulsory intervention was tailored to the particular needs and circumstances of the individual (Introduction, paras 1 and 4). It recommended that a new Act should be based on principles which were stated on the face of the Act itself (Introduction, para 2; Chapter 3). This gave rise to section 1 of the 2003 Act, which I set out in para 22 below. In chapter 11 of the report the committee addressed, among other things, the searching of patients, an issue which lies at the heart of the first ground on this appeal. It observed that the 1984 Act contained no specific framework for searches. The report (para 44) referred to the judgment of Potts J in R v Broadmoor Hospital Authority, Ex p S The Times, 5 November 1997, in which he held that a general power to conduct random searches must necessarily be implied as part of the Broadmoor Hospital Authoritys duty to create and maintain a safe and therapeutic environment. The committee recommended that a Code of Practice should set out the parameters of search policies as it was important that the rights of patients were clear in relation to this (para 46). The Scottish Executive did not accept all of the recommendations of the Millan Committee. In its White Paper, Renewing Mental Health Law Policy Statement, the Executive accepted the committees recommendation as the framework for a future Bill while modifying some of its recommendations in relation to offenders with mental disorders. It accepted both the inclusion of a statement of principles (p 5) and a Code of Practice to give guidance on the operation of the new statutory powers, including the regulation of searches (p 69). The 2003 Act includes in section 1 a statement of principles for the discharge of functions under the Act; and it also contains in section 286 a provision for the making of regulations for safety and security in hospitals, including the searching of detained patients and the placing of restrictions on what detained persons and visitors may have with them. The Policy Memorandum to the Bill in discussing the relevant clause which became section 286 stated: 255. The Bill makes provision to regulate any interference by hospitals of certain civil rights of detained patients, including withholding correspondence, monitoring or restricting other forms of communication, searching patients or their belongings, and restricting access to visitors. 259. The Bill also sets up a framework for regulations authorising measures in connection with the use of telephones, searches, surveillance and restrictions on patients or visitors. The intention is that hospitals be required to develop policies setting out how any such security measures will be applied, recorded and monitored, and that the Executive and the Mental Welfare Commission will monitor the terms of these policies and their operation. (1) Subsections (2) to (4) below apply whenever a person is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years. (2) In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged. (3) The matters referred to in subsection (2) above are Section 1 of the 2003 Act, which is headed Principles for discharging certain functions, provides, so far as relevant: (a) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (b) the views of (i) the patients named person; (ii) any carer of the patient; (iii) any guardian of the patient; and (iv) any welfare attorney of the patient, which are relevant to the discharge of the function; (c) the importance of the patient participating as fully as possible in the discharge of the function; the importance of providing such information (d) and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (c) above; (e) case; (f) benefit to the patient; the need to ensure that, unless it can be shown (g) that it is justified in the circumstances, the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation; the importance of providing the maximum the range of options available in the patients (h) the patients abilities, background and characteristics, including, without prejudice to that generality, the patients age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group. (4) After having regard to the matters mentioned in subsection (3) above; such other matters as are relevant in the (a) and (c) circumstances, the person shall discharge the function in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. (9) The person need not have regard to the views of a person mentioned in subsection (3)(b) above in so far as it is unreasonable or impracticable to do so. Unsurprisingly, the 2003 Act does not define the functions which a person discharges by virtue of the Act. But I would interpret subsection (1) as meaning that a person discharges such a function when he or she exercises a power conferred by the 2003 Act or by subordinate legislation made under the Act. Section 286 of the 2003 Act, which is headed Safety and security in hospitals, provides, so far as relevant: (1) Regulations may authorise (a) the search of such persons detained in hospital by virtue of this Act or the 1995 Act as may be specified in the regulations and of anything they have with them in the hospital in which they are detained; (c) the placing of restrictions on the kinds of things which those persons may have with them in the hospitals in which they are detained and the removal from them of articles kept in breach of such restrictions; (d) the placing of prohibitions and restrictions on the entry into and the conduct while in those hospitals of persons (visitors) visiting those persons or otherwise entering or seeking to enter those hospitals and on the kinds of things which visitors may bring with them into those hospitals; (f) with them into those hospitals, the search of visitors and of anything they bring and make that which is authorised subject to conditions specified in the regulations. The Scottish Ministers prepared regulations to give effect to section 286, which the Scottish Parliament approved by affirmative resolution: the Mental Health (Safety and Security) (Scotland) Regulations 2005 (SSI 2005/464) (the 2005 Regulations). In their consultation on the draft regulations in 2004 the Scottish Ministers explained (paras 54 55) that hospitals had policies prohibiting certain articles and substances being brought into or retained in hospital and on searching patients and visitors. The Ministers stated (para 56): [t]he aim of these regulations is to put these policies on a firm legislative footing, to ensure that there is proper recording and monitoring of decisions to use powers to search patients or visitors and to prevent certain substances and articles being brought into hospitals. The 2005 Regulations (regulation 4) authorise measures such as the placing of restrictions on the kind of things that specified persons may have with them in hospitals and the removal from them of articles kept in breach of those restrictions. Regulation 4 authorises similar restrictions on visitors, and the search of both specified persons and visitors. Regulation 2 provides that a person detained in, among others, the State Hospital and the Rowanbank Clinic is a specified person if the hospital managers have (a) informed the patient and his or her named person and the Mental Welfare Commission for Scotland that he or she is a specified person and (b) informed the patient and his or her named person that he or she is subject to the regulation 4 measures and also that the specified person has a right of re assessment under regulation 5(b). Consistently with the philosophy of the least restrictive alternative, regulation 5 sets out general conditions for the measures. Condition (a) is that measures may only be applied to a specified person if the persons responsible medical officer (RMO) is of the opinion that not to apply them would pose a significant risk to the health, safety or welfare of any person in the hospital or the security or good order of the hospital. Condition (b) requires the RMO to re assess the risk mentioned in condition (a) at the specified persons request and empowers the RMO to reverse the decision to apply the measure. Condition (c) requires that the reasons for and outcome of applying a measure shall be recorded in the specified persons medical records and that the hospital managers make a separate record; and condition (d) requires, as a general rule, that the named person shall be given notice of the entry in the medical records. Regulations 6 and 10 set out specific conditions for the searching of specified persons and visitors. Regulation 8, which again is consistent with the philosophy of the least restrictive alternative, imposes a condition that restrictions shall be placed on having any article so as to minimise the impact on the freedom of the specified person compatible with the general condition in regulation 5(a) (ie condition (a) above). Section 274 of the 2003 Act requires the Scottish Ministers to publish a code of practice giving guidance to any person discharging functions by virtue of the Act. Subsection (4) requires any person discharging functions by virtue of the 2003 Act to have regard (so far as they are applicable to the discharge of those functions by that person) to the provisions of any code of practice published under subsection (1) above for the time being in force. Chapter 12 of the Code of Practice, which the Scottish Ministers published under section 274 of the 2003 Act, gave guidance on procedures for restrictions on patients correspondence and use of telephones and also for measures to ensure the safety and security of hospitals, staff, patients and visitors. It advised that the restrictions and measures must be applied in a way which respects patients rights and dignity and is commensurate with any perceived risk to the health, safety or welfare of the patient or any other person. Para 50 of that chapter repeated the requirement of regulation 8 of the 2005 Regulations (above) to minimise the impact of the restriction on the patient. As I discuss below, in relation to the application of the 2003 Act, central questions in this part of the appeal include (a) whether the Board, in imposing the comprehensive smoking ban, was exercising a function under the 2003 Act so as to bring into play the section 1 principles and (b) whether the prohibition of possession of tobacco products and the power of search and confiscation, which were components of the impugned decision, fall within the 2005 Regulations or are excluded on the basis that they do not relate to safety and security. The legal proceedings Mr McCann raised judicial review proceedings in which he sought the reduction (annulment) of the decision, a declarator of the breach of his Convention rights and also damages as just satisfaction. As I have stated in para 7 above, he founded on the document, Working towards a smoke free environment in pleading the factual background to the impugned decision. He initially complained about the Boards failure to disclose the minute which recorded the decision, but, having received the minute in the course of the proceedings, founded on it to amend his written pleadings in order to plead a case (statement 15 of his petition) that the Board had failed to take account of relevant factors, and in particular to apply the principles set out in section 1 of the 2003 Act (the 2003 Act principles). At the First Hearing the Lord Ordinary, Lord Stewart, heard oral submissions on both the facts and the law. Counsel presented their cases by referring to the documents for the factual background. No affidavits were produced, no oral evidence was led and accordingly no challenge was made to the contents of the documents in cross examination. As Mr McCann based his challenge on those documents, the absence of other evidence is not surprising. The parties should have complied with good practice by entering into a joint minute agreeing the documents and dispensing with probation; but that was implicitly what they did. The Lord Ordinary in his opinion narrated the events which the documents disclosed and which gave rise to the impugned decision. In his interlocutor dated 27 August 2013 the Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not taken in accordance with the 2003 Act principles and also because it breached his Convention rights under articles 8 and 14 of the ECHR. The Lord Ordinary did not award damages but ruled that the finding of the breach of those articles was just satisfaction in terms of article 41 of the ECHR. The Board appealed that decision by a reclaiming motion which was heard by the Second Division of the Inner House (the Lord Justice Clerk (Lord Carloway), Lady Paton and Lord Brodie). The Board submitted that the 2003 Act principles did not apply to the impugned decision, that Mr McCanns article 8 right to respect for his private life was not engaged, or, if it was, the impugned decision was a proportionate one which did not infringe his article 8 right. The Lord Justice Clerk gave the leading opinion, with which Lord Brodie agreed, in which he allowed the appeal and refused the prayer of the petition. He held that the Board was exercising its powers of management under the 1978 Act when it made the impugned decision. The 2003 Act was concerned with the care and treatment of the individual patient and the impugned decision did not involve the discharge of a function under that Act. Accordingly, the 2003 Act principles had no application to the decision. In relation to the article 8 challenge, the Lord Justice Clerk referred to the decision of the Strasbourg court (the ECtHR) in Munjaz v United Kingdom [2012] MHLR 351; [2012] ECHR 1704, which (a) emphasised the principle of personal autonomy in article 8, (b) ruled that detained persons were presumed to enjoy all the fundamental rights and freedoms guaranteed by the ECHR, except the right to liberty, where the detention was lawfully imposed in accordance with article 5 of the ECHR and (c) required any restriction of those rights to be justified in each individual case. He sought to apply those principles in this case. In agreement with the Divisional Court and the majority of the Court of Appeal of England and Wales in the case concerning the statutory ban on smoking at Rampton Hospital, R (N) v Secretary of State for Health [2008] HRLR 42 and [2009] HRLR 31 (also reported as R (G) v Nottingham Healthcare NHS Trust [2009] PTSR 218 and [2010] PTSR 674) (the Rampton Hospital case), he held that a comprehensive smoking ban on persons detained in an institution did not have a sufficiently adverse effect on a detainees integrity and autonomy as to merit protection under article 8. He ruled (para 93) that the comprehensive smoking ban did not engage article 8. If article 8 were engaged, he held that the impugned decision was justified under article 8(2) as the comprehensive ban was proportionate to the legitimate aim of promoting the health of both the detained patients and staff. On the same hypothesis, he rejected the article 14 challenge (a) as prisons could not be compared with the therapeutic environment of the State Hospital and (b) as the Scottish Government was proposing to introduce a comprehensive prohibition against smoking in all hospitals in the relatively short term. Lady Paton agreed with the opinion of the Lord Justice Clerk except in one respect. She opined that article 8 was engaged. She drew support from Keene LJs dissenting judgment in the Rampton Hospital case and expressed the view that smoking was an addictive activity which was very much part of an individuals personal autonomy. But she agreed that the impugned decision was justified under article 8(2) and that there had been no discrimination under article 14. Discussion of the challenges the 2003 Act i) The impugned decision involves not only a comprehensive ban on smoking, which extends to smoking in the grounds of the State Hospital and on visits to a detained persons home, but also a policy of searching both detained patients and visitors for and confiscating tobacco. While the power to search for and confiscate tobacco is a necessary component of the decision as it is the means by which the comprehensive ban can be enforced, I am not persuaded that the comprehensive ban itself falls within the scope of the 2003 Act. In my view the Board is correct in its submission that the comprehensive ban, viewed on its own, involves the exercise of a power of management under the 1978 Act. But, for the reasons which I set out below, I have come to the view that the supporting prohibition on possession of tobacco products and the power to search for and confiscate such products fall within the scope of the 2003 Act and the 2005 Regulations. First, I do not accept the submission that the 2003 Act is concerned only with the treatment of individual patients and that it does not impinge on more general management policies. That Act, which replaced the 1984 Act, provides, among other things, for the detention of and the giving of care and treatment to mental health patients. Many sections of the 2003 Act relate to the making of such provision to the individual patient. But the discharge of functions under the 2003 Act is not confined to individual care and treatment. In Part 18 of the Act (which is headed Miscellaneous) there are a series of sections (sections 281 286) which provide either directly or through regulations for the withholding of correspondence and the regulation of the use of telephones, as well as for the functions with which this appeal is concerned, namely the placing of restrictions on the kinds of things which specified persons may have in a hospital, searches and confiscation. The regulations made in support of those provisions, namely the 2005 Regulations to which I have referred in paras 24 and 25 above and also the Mental Health (Definition of Specified Person: Correspondence) (Scotland) Regulations 2005 (SSI 2005/466) and the Mental Health (Use of Telephones) (Scotland) Regulations 2005 (SSI 2005/468), are subject to conditions (a) as a general rule that the detained patient, his or her named person and the Mental Welfare Commission for Scotland are informed that he or she is a specified person and (b) that the detained person is informed of the restriction. Thus interested parties must be informed of measures which affect individual patients, whether as a result of general management policies or of individual targeting of patients. The relevant regulations also require records to be kept of any decisions to search a specified person and to prohibit or restrict the use of telephones by such a person. While the further requirement in the 2005 Regulations (regulation 5(c)) to record a measure in an individual patients medical records may seem unnecessary where a measure is of general application, that is not, in my view, a sufficient indication of an intention to confine section 286 and the 2005 Regulations to individually targeted measures. The requirements in each of the sets of regulations mentioned in para 35 above are consistent with the policy underlying section 286 of the 2003 Act that the Scottish Government and the Mental Welfare Commission should monitor the terms of policies for such measures and their operation: para 21 above. I can see no rationale for excluding measures of general application from this supervision, nor did counsel suggest any. I recognise that some of the matters mentioned in section 1(3) of the 2003 Act are not relevant to the discharge of these functions, especially when the measures are not targeted at individual detained patients; but section 1(2) and (9) provide for that. Secondly, the 2005 Regulations do not set limits on the things, the possession of which may be prohibited or restricted, and for which specified persons or visitors may be searched. Both the heading of section 286 of the 2003 Act and the title of the 2005 Regulations refer to safety and security, but there is no provision in either the section or the 2005 Regulations which confines the things to items such as weapons which might threaten the safety of others. Section 286 also provides for the taking of samples from persons, including swabs and blood (subsection (1)(b)) and the surveillance of specified persons or visitors (subsection (1)(e)). Thirdly, the focus of the section and the regulations made under it is on the regulation of activities which impinge on the autonomy of individuals. That focus on the detained patients autonomy is consistent with the Millan reports emphasis on the need to respect human rights. It manifests itself in greater transparency by legislative provision for such policies, and through the informing of interested parties of the regulated measures, the maintenance of records of such measures, and the supervision by the Scottish government and the Mental Welfare Commission. The devising of policies and the carrying out of such measures have thus become functions under the 2003 Act. The principles in section 1 of that Act apply to such measures in so far as they are relevant. One principle which is clearly relevant is the obligation in section 1(4) to discharge the function in the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances an obligation to which the Code of Practice draws attention. The Board did not purport to act under the 2003 Act in instituting the policy of prohibiting the possession of tobacco products, searching for such products and confiscating them. It may be the case that the consultation exercises which the Board carried out during 2011 were sufficient to comply with the obligations in section 1(2) and (3) of the 2003 Act. But there appears to have been no consideration of the obligation under section 1(4) nor compliance with the obligations to inform and record in the 2005 Regulations. This is not surprising as the Board considered that it was acting under the 1978 Act. As a result, the prohibition on having tobacco products and the related powers to search and confiscate are in my view illegal and fall to be annulled. Although Mr McCanns counsel argued that the component parts of the impugned decision were not severable and counsel for the Board made no submissions to the contrary, I would prefer to invite submissions on the form of order which this court should make before making such an order. ii) Article 8 of the ECHR As is well known, article 8 of the ECHR protects the right to respect for private and family life and provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In my view, the prohibition against having tobacco products, and the power to search patients in and visitors to the State Hospital for such products and confiscate them, infringe Mr McCanns right under article 8 of the ECHR because I consider (a) for the reasons discussed below, that they interfere with his article 8 right, and (b) for the reasons discussed above, that they do not comply with the 2003 Act and thus cannot meet the requirement of article 8(2) that they are in accordance with the law. As it is likely that the problem of compliance with the 2003 Act is remediable, I set out why, contrary to the view of the majority of the Second Division, I have concluded that the comprehensive ban itself amounts to such interference, which has therefore to be justified. I also set out my view as to why, but for the problem of the domestic legal basis of part of the decision (which I have discussed above), I consider that the impugned decision (comprising both the comprehensive ban on smoking and the supportive measures of the prohibition of possession and powers of search and confiscation) would have been a proportionate response to the legitimate aim of the protection of health, which is recognised in article 8(2), through its promotion and safeguarding of the health of both patients and staff at the State Hospital. The scope of article 8: I adopt as a general statement Lord Binghams description of the purpose of article 8: It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose: R (Countryside Alliance) v Attorney General [2008] AC 719, para 10 (Countryside Alliance). But it is notoriously difficult and may be impossible to determine the boundaries of the personal sphere and thus of the article 8 right to respect for private life. The ECtHR has identified values which the article protects but has rejected the possibility or necessity of attempting an exhaustive definition of the notion of private life: Niemietz v Germany (1992) 16 EHRR 97, para 29. Judicial formulations of the values are inevitably influenced by the facts of the particular case and, in particular, by the nature of the states intervention or failure to intervene in the life of the claimant. The House of Lords, when examining the boundaries of such values in Countryside Alliance in the context of the hunting ban, expressed differing and inconsistent views. The concept encompasses securing a sphere within which an individual can freely pursue the development and fulfilment of his personality and to a certain degree the right to establish and develop relationships with other people: Brggemann and Scheuten v Federal Republic of Germany (1977) 3 EHRR 244 (the Human Rights Commission) paras 55 57. More recently, emphasis has been placed on personal autonomy. Thus in Pretty v United Kingdom (2002) 35 EHRR 1, which concerned the statutory ban on assisted suicide, the ECtHR summarised its jurisprudence (para 61): [T]he concept of private life is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individuals physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self determination as being contained in article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees. The ECtHR recognised that a persons autonomy could extend to the pursuit of activities which caused him or her harm. In para 62 it stated: The court would observe that the ability to conduct ones life in a manner of ones own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. The idea of personal autonomy can also be seen in von Hannover v Germany (2004) 40 EHRR 1, para 50 (in the context of press intrusion into private life) and Munjaz v United Kingdom (above), para 78 (in the context of solitary confinement). Also relevant to this appeal is the protection which article 8 gives to the home as Mr McCann submits that as a result of his long term detention the State Hospital had become his home. In article 8 home is an autonomous concept. In Giacomelli v Italy (2007) 45 EHRR 38 (a case concerning environmental pollution) the ECtHR stated that a home will usually be the place, the physically defined area, where private and family life develops. It continued: The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area (para 76). Similarly, in Harrow London Borough Council v Qazi [2004] 1 AC 983 Lord Hope cited the opinion of Sir Gerald Fitzmaurice on the scope of article 8 in Marckx v Belgium (1979) 2 EHRR 330 and stated (para 50): The emphasis is on the persons home as a place where he is entitled to be free from arbitrary interference by the public authorities. This court is not bound by the judgments of the ECtHR; section 2 of the Human Rights Act 1998 requires us to do no more than to take account of such decisions. But in Countryside Alliance (above) the majority of the speeches in the House of Lords appear to have accepted the relevance of the concept of personal autonomy at least in certain contexts: Lord Bingham (para 10), Lord Hope (para 54), and Lord Brown (paras 138 139). The concept is also consistent with Lady Hales identification of one of the values reflected in article 8, being the inviolability of the personal and psychological space within which each individual develops his or her own sense of self and relationships with other people (para 116). She continued in the same paragraph by stating that article 8 protected that private space but opined that that falls some way short of protecting everything they might want to do even in that private space. Lord Brown (para 139) expressed the wish that jurisprudence would extend to encompass a broad philosophy of live and let live, allowing people to engage in whatever pursuits they wish that were central to their well being unless there was a good and sufficient reason to forbid them. But he also recognised that article 8 had not been interpreted as going that far. So how should one apply article 8 to a detained patient in the State Hospital? Does a detained patient such as Mr McCann have a private space, in which his wish to smoke is protected? The majority of the Second Division held he did not and reasoned as follows (paras 89 93). First, they said that a detainees right to respect for private life extended only to protection against interference beyond the concomitants of lawful detention. They then considered that institutions such as the State Hospital would be unmanageable without some restriction of the scope of the right to respect for private life of detained persons to that beyond the ordinary restrictions pursuant to lawful detention. Thirdly, they agreed with the majority of the Court of Appeal in the Rampton Hospital case (para 32 above) that a comprehensive smoking ban in such an institution did not have a sufficiently adverse effect on a persons physical or psychological integrity or his right to personal development as to merit protection. I respectfully disagree with the third stage of that analysis. Lawful deprivation of liberty involving long term detention in an institution inevitably curtails a detainees private sphere and constraints which are a necessary part of the detention would not fall within the ambit of article 8. But it seems to me that the degree of constraint which lawful detention imposes on the detained patients private sphere works in the opposite direction from the third stage of that analysis because it requires the court assiduously to uphold the right to respect for what little remains of that sphere. My starting point is the recognition in our domestic law that a person who is compulsorily detained by the state enjoys all the civil rights which are not taken away expressly or by implication as a result of that detention. The House of Lords so held in the English case of Raymond v Honey [1983] 1 AC 1, 10 per Lord Wilberforce, and both Lord Glennie and the First Division of the Inner House have affirmed the same principle in Scots law: Potter v Scottish Prison Service 2007 SLT 1019, para 25. The Grand Chamber of the ECtHR has taken a similar approach in relation to fundamental rights in Hirst v United Kingdom (No 2) (2006) 42 EHRR 41, in which it stated (para 69): prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of article 5 of the Convention. See also Munjaz v United Kingdom (above) para 79, in which the Fourth Section repeated this analysis and added: Any restriction on those rights must be justified in each individual case. The detained patients ability to conduct his or her life as he or she chooses is inevitably severely curtailed by compulsory detention in the State Hospital. For sound therapeutic reasons, many things which are available to a person at liberty in his or her private home cannot be made available to a detained patient. The circumstances of therapeutic detention may require the control of things which the detained patient may possess, including things that might be used as weapons against others or to self harm; the possession and consumption of alcohol may be prohibited; and many social activities, such as eating meals in the company of other patients, may have to be conducted only under close supervision. Routine and random searches may be an incident of therapeutic detention and treatment: the Court of Appeal treated them as such in R v Broadmoor Hospital Authority, Ex p S [1998] COD 199. In these ways and others, the loss of liberty entailed in therapeutic detention restricts the scope of the private sphere and therefore the protections available under article 8, as the Second Division held. Further, I agree with Lady Hale (in Countryside Alliance para 116) that article 8 does not protect everything that people may want to do in their private space. But where therapeutic detention has severely curtailed a detained patients private space in the institution in which he or she must reside, the limited areas in which a patient has freedom of choice become all the more precious to him or her and more readily form a core part of his or her life, as Lord Rodger used the phrase in Countryside Alliance (paras 95 106). In L v Board of State Hospital (above) Lady Dorrian stated (para 26) that for people detained in the State Hospital the freedom to receive food parcels from visitors and to make purchases from an external source are some of the few areas in which they may exercise some sort of personal autonomy or choice. She concluded that article 8 was engaged by an interference with that choice and that such interference had to be justified. Because restrictions on food parcels and external purchases of food are not inherent in the loss of liberty occasioned by therapeutic detention, I agree; and I see an analogy in the comprehensive smoking ban. It is not necessary to decide whether a comprehensive ban on smoking by people at liberty, or at least a ban outside their homes, would so interfere with their private lives as to require justification under article 8. Such people can exercise personal autonomy in many other ways. But there is a need to protect the residual autonomy of a person who has been subjected to long term therapeutic detention by requiring this further intrusion into his private life to be justified. In this regard I agree with Keene LJ in his dissenting judgment in the Rampton Hospital case (para 101) and Lady Paton in this case (para 106). I do not consider the addictive nature of smoking, which Lady Paton emphasises, is a decisive factor, not least because it militates against the persons autonomy. But it may be said to reinforce the role that smoking can play in some peoples lives. I also do not find it necessary to decide whether the State Hospital falls to be treated as Mr McCanns home for the purposes of article 8. If it were, my analysis would essentially be the same as the one which I have adopted based on the concept of personal autonomy. I therefore conclude that a comprehensive ban on smoking is within the ambit of article 8 of the ECHR, that it interferes with Mr McCanns right to respect for his private life and therefore that the Board must justify it. Justification: As is well known, justification under article 8(2) requires that the measure which interferes with the right (i) is in accordance with the law, (ii) pursues a legitimate objective, (iii) is rationally connected to the legitimate objective and (iv) is proportionate. I have already discussed the requirement that the interference be in accordance with the law and have concluded that the part of the impugned decision relating to the prohibition of possession, searches for and confiscation of tobacco products, did not meet that requirement because of the failure of the Board to address the requirements of section 1(4), and the regulations made under section 286, of the 2003 Act. But because the Board may seek to introduce such measures in accordance with the 2003 Act, I address the other tests. I address first the tests of legitimate objective and rational connection. In the Rampton Hospital case both the Divisional Court and the Court of Appeal cited public documents which recorded (a) that in 1998 it was estimated that smoking in the United Kingdom caused each year 46,500 deaths from cancer and 40,300 deaths from circulatory diseases, (b) that those who smoke regularly and then die of smoking related disease lose on average 16 years from their life expectancy when compared with non smokers and (c) that in 2005 second hand smoking caused at least 12,000 deaths a year in the United Kingdom. Having regard to the adverse effects that smoking can have on the health of smokers and others exposed to tobacco smoke, I have no difficulty in agreeing with the Second Division that the comprehensive smoking ban pursued the legitimate aim of the protection of health which is recognised in article 8(2). The aim is to protect the detained patient from the health risks of his smoking and other people from the health risks of second hand smoke. The comprehensive smoking ban clearly has a rational connection with the pursuit of that desirable goal. Finally, in order to be necessary in a democratic society in the interests of public health the interference must be proportionate. Again, as is well known, the tests for proportionality (in addition to the tests of the importance of the legitimate objective and the rational connection of the measure to that objective) are (i) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective and (ii) whether a fair balance has been struck between the rights of the individual and the interests of the community having regard to (a) the severity of the impact of the measure on the individuals rights and (b) the contribution of the measure to the achievement of the objective: Bank Mellat v HM Treasury (No 2) [2014] AC 700, para 20 per Lord Sumption, para 74 per Lord Reed. No challenge is made to the ban on smoking indoors, where the danger of exposing other patients and supervising staff in designated smoking areas is obvious. The minute (para 12 above) and the document discussed in para 7 above both record that the impugned decision which led to the comprehensive ban resulted from the operational difficulties which the Board faced in operating the partial ban which allowed supervised smoking within the hospital grounds. Those problems threatened to compromise the health of the supervising staff, the welfare of the patients and the security of both. Mr McCann did not challenge the account of events in those documents, which, in my view, this court must treat as the accepted factual background to the impugned decision. Faced with such difficulties, I am satisfied that the Board did not act disproportionately in imposing the comprehensive smoking ban when it did. If there is to be a comprehensive smoking ban, it is likely that the managers of the Board will need to prohibit the possession of tobacco products and also have powers to search for and confiscate such products. As counsel for Mr McCann does not dispute that the introduction of such measures in accordance with the 2003 Act, the Code of Practice, and the 2005 Regulations would comply with the ECHR, it is not necessary further to consider the justification of those measures if they are introduced in that way. Accordingly, but for the illegality under our domestic law of the prohibition of possession of tobacco products, the searches and the confiscation of tobacco products which are part of the impugned decision, I would have held that the decision was not contrary to Mr McCanns article 8 right to respect for his private life. Article 14 of the ECHR Because the impugned decision fell within the ambit of article 8, it is necessary to address briefly the challenge under article 14 of the ECHR that the Board has treated Mr McCann in a discriminatory manner which cannot be justified. I am satisfied that this challenge fails for three principal reasons. First, the Scottish Government is committed to extending the ban on smoking to all NHS facilities over time and also to extending the ban to prisons. As a result, secondly, the differences in treatment between detained patients in the State Hospital on the one hand and patients in other NHS facilities or prisoners detained in prison are a matter of timing rather than policy. The circumstances of individual public institutions will vary and each enjoys an area of discretion on how and at what speed it implements its anti smoking policy. Thirdly, the explanation for the timing of the impugned decision is the documented difficulties of the partial smoking ban in the State Hospital which justified the introduction of the comprehensive smoking ban when it occurred. It is therefore unnecessary to consider the differences between the circumstances of Mr McCann on the one hand and the circumstances of these groups of people on the other. Further, I am not persuaded that there is any unjustified discrimination when detained patients are compared with the general public at liberty. The circumstances of such members of the public are radically different as (i) they have opportunities to smoke in places which do not expose others to second hand smoke, and (ii) the public authorities do not have any legal duty of care to create a safe therapeutic environment for them or to protect their own staff from injury to health when they are in the public sphere and not acting in the course of their employment. The documents to which I referred in paras 7 and 12 above reveal the problems of allowing smoking out of doors in a secure hospital. Such problems do not occur among the general public. The differences between the anti smoking policies applied to them and the comprehensive ban in the State Hospital can readily be justified. It may be that the effects of smoking on patients with certain mental illnesses provide a further ground of distinction between mental health patients and those with whom Mr McCann wishes to be compared. The Board referred in its written case to the strong association between poor mental health and smoking (which was also discussed in the evidential findings in the Rampton Hospital case) and there was a suggestion in the documents which suggested that smoking reduced the efficacy of clozapine, a drug for treating schizophrenia. This was not explored in any detail in this appeal but I do not need to rely on it in reaching my view. The article 14 challenge therefore fails. Conclusion I would allow the appeal but only to the extent that the prohibition on having tobacco products and the search and confiscation regime in the impugned decision are unlawful under our domestic law because they do not comply with the 2003 Act and the 2005 Regulations (paras 40 and 41 above). In consequence, the impugned decision infringes Mr McCanns article 8 rights but only because the decision is not in accordance with our domestic law (para 62 above). Otherwise I would dismiss the appeal. I would invite parties to provide written submissions on the appropriate form of order within 21 days of the handing down of this judgment. |
The issue in this case concerns the true meaning and ambit of the additional right of appeal specific to asylum claims which was given by section 83 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). That section has now been repealed by section 15(3) of the Immigration Act 2014 and replaced by a wider right of appeal. It remains, however, in force for the present appellant, and perhaps for some others. The Court of Appeal gave permission, before the Immigration Act 2014 had been passed, for the present appeal to be brought to this court: [2014] 1 WLR 2766. The principal right of appeal against immigration decisions made by the Home Secretary was, in NIAA 2002, given by section 82. Stripped of inessentials, a right of appeal to an immigration judge was given by that section in respect of a variety of listed immigration decisions. Importantly for present purposes, those included the principal decisions which will lead to removal from this country, such as a decision to remove, or a refusal to vary leave to remain which will leave the claimant without it. A claim for asylum, that is to say a claim to be a refugee entitled to the benefit of the Refugee Convention, was not amongst the list of immigration decisions and did not therefore attract the section 82 right of appeal. However, if an appeal under section 82 existed because there was also an immigration decision of one of the kinds listed, the claimant was expressly entitled by section 84(1)(g) to raise the argument that his removal would put this country in breach of its obligations under the Refugee Convention. By this somewhat circuitous but effective route a right of appeal against refusal of asylum in practice existed under the NIAA 2002, as under previous legislation, if there was an immigration decision to appeal under section 82. Generally, there was. But it might happen that there was not if, for example, when the asylum claim was refused by the Home Secretary, leave to remain was granted. In that event, the continued presence of the claimant would be lawful and there would be no occasion for an appeal under section 82, under which the question of refugee status could be determined. The issue of refugee status is significant, because some legal consequences flow from it if it is held to exist. It was not that uncommon for those whose asylum claims failed nevertheless to be granted limited leave to remain; a simple example was unaccompanied minors who were and are very often granted leave to remain until they reach the age of majority, in order to avoid removing children who have no sufficient family or other support: see TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40; [2015] 1 WLR 3083. an asylum claim, in specified circumstances. It said: Section 83, however, provided a specific right of appeal against a refusal of 83. Appeal: asylum claim (1) This section applies where a person has made an asylum claim and (a) his claim has been rejected by the Secretary of State, but (b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate). (2) The person may appeal to the Tribunal against the rejection of his asylum claim. The appellant is a citizen of Uganda. On 27 September 2010 he was granted limited leave to remain in the United Kingdom as a student until 30 April 2012. Before that time had expired, he applied for a variation of his leave to remain on the grounds that he should be accepted as a refugee. The basis of that claim was that his brother was suspected of being involved in terrorist activities directed against the Ugandan Government, and he claimed that by reason of his relationship and the suspicion that he might be involved with his brother, he faced a real risk of persecution if he were to be returned. On 7 February 2012 the Secretary of State rejected the claim and refused to vary the limited leave to remain, but she did not curtail it. Thus the appellant had, at the time that his asylum claim was refused, about 11 weeks or so left of his limited student leave to remain. The appellant appealed to the First tier Tribunal, where his claim to refugee status was refused on the merits without any question of jurisdiction being raised and apparently on the unspoken assumption that the appeal was brought under section 82. When, however, he pursued his case to the Upper Tribunal, contending that the First tier decision was perverse, the jurisdiction point was taken before Upper Tribunal Judge Clive Lane. He held that there had never been any right of appeal, and for that reason declined to investigate the case further. On further appeal, the Court of Appeal came to the same conclusion. The question is a shortly stated one of statutory construction. The rival arguments were developed on both sides with exemplary elegance and concision. As often happens, the brevity with which the issue can be identified does not reflect the intrinsic difficulty of resolving it. The appellants case runs as follows. Section 83 gives a general right of appeal to those whose claim to i) refugee status has been refused. ii) The limitation upon that right of appeal constituted by subsection (1)(b) should be broadly rather than narrowly construed, since refugee status is a matter of significance and engages this countrys international obligations to permit a properly qualified claimant to exercise the rights secured by the Convention. Nor should a construction be adopted which restricts the appellants right of access to the tribunal. iii) The natural meaning of section 83 is that any grant(s) of leave to remain totalling more than 12 months bring the claimant within the section and afford him the right of appeal. It matters not whether the grant of leave to remain came before or after the refusal of the asylum claim. Indeed, a grant or grants which had expired before the asylum claim was made would also do so. iv) The alternative construction advanced by the Secretary of State and upheld by the Court of Appeal, namely that subsection (1)(b) applies only to grant(s) of leave to remain made after the refusal of the asylum claim would be tantamount to making the right of appeal hinge on the leave to remain decision rather than, as it is clearly designed to do, on the decision to refuse asylum. The Secretary of State supports the conclusion of both the Upper Tribunal and the Court of Appeal that the true construction of section 83 requires the grant(s) of leave to remain to be either contemporaneous with or to post date the refusal of the asylum claim. That, she contends, is also consistent with the purpose of the statute which she asserts is to provide an appeal to those who have no section 82 appeal and will not have such in the reasonably near future. She also suggests that the wider structure of the NIAA supports this construction, in particular sections 78, 94 and 83A, which are considered below. As the submissions were developed in oral argument it became apparent that there are four possible constructions of section 83: (i) any grant(s) of leave to remain totalling more than 12 months bring the claimant within the section, whenever they occurred and whether or not they had expired before the asylum claim was made and determined; this was the appellants primary case; (ii) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section providing such leave is still current at the time of the determination of the asylum claim; this was the appellants alternative position; (iii) grant(s) of leave to remain bring the claimant within the section providing that such leave totalled more than 12 months counting from the date of refusal or later grant, and whether the grant(s) were made before or after refusal; this was the alternative contention of the Secretary of State if her principal one ((iv) below) failed; (iv) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section if but only if they (and all of them if more than one) are either contemporaneous with or post date the determination of the asylum claim; this was the Secretary of States primary case and was adopted by the Upper Tribunal and the Court of Appeal. At one time in the past the Secretary of State contended in cases concerning section 83 that the wording used demanded that there be a nexus between the refusal of the asylum claim and the grant of more than 12 months limited leave. In other words, it was contended that the one must be logically connected to the other. That contention was rejected by Beatson J, as he then was, at first instance in AS (Somalia) v Secretary of State for the Home Department [2011] EWHC 627 (Admin). In that case, AS had arrived as an unaccompanied minor. He had made two asylum claims. The first had been rejected in November 2006 but he had been granted limited leave to remain for approximately four months until he was 18. Subsequently, he applied to extend that leave, and in addition made a second claim to be adjudged a refugee. The second asylum claim was never determined but the claimant was, three years after it was made, granted indefinite leave to remain. Thus there was no more than 12 months leave associated with the first refusal of asylum, and no refusal of asylum associated with the much later grant of indefinite leave. The judge held that AS was within section 83 and on appeal the Secretary of State abandoned the argument to the contrary. The Court of Appeal [2011] EWCA Civ 1319; [2012] INLR 332 (per Sullivan LJ) rightly recorded at para 17 that this was plainly correct. The fact that section 83 brings within its provisions the case of multiple grants of leave totalling 12 months shows that there does not have to be a nexus between the refusal of asylum and the grant(s). In the present case, Mr Eadie QC for the Secretary of State correctly disclaimed the argument for nexus. To the extent that the Upper Tribunal in the present case, giving judgment without sight of AS (Somalia), founded in part on the need for nexus, it was wrong. It was common ground before us that there are three differences to record between section 82 appeals and those under section 83. They were succinctly summarised by Elias LJ at para 14 in the Court of Appeal as follows: First, the Secretary of State may certify a claim [under section 82] as clearly unfounded under section 94, and where she does this it precludes any in country right of appeal. This does not apply to an asylum rejection under section 83. Second, section 96 allows the Secretary of State to prevent repetitious appeals if the grounds advanced ought to have been made in response to an earlier decision. Again, this power can only be exercised with respect to section 82 appeals and does not apply to section 83 appeals. Third, by section 78, where an appeal is lodged under section 82, the appellant may not be removed until it is determined. That benefit does not extend to appeals under section 83. It is convenient also to note the adjacent section 83A, which was added into NIAA 2002 by section 1 of the Immigration, Asylum and Nationality Act 2006. Section 83A provides for the related case of a person who was originally granted asylum as a refugee but has subsequently been held to have ceased to be such, for example because conditions have changed in his home country. Section 83A reads as follows: (1) This section applies where a person has made an asylum claim, (a) (b) he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention, (c) a decision is made that he is not a refugee, and (d) following the decision specified in para (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee. It is true that section 83 can, as a matter of language, be read in a number of different ways. It is, however, not the most natural reading of it to construe subsection (1)(b) as if it read he has been granted at any time, now or in the past, leave to enter or remain , as construction (i) would entail. Nor to my mind is it the most natural reading of the words that subsection (1)(b) must be taken as if it said he has subsequently been granted leave to enter or remain , as construction (iv) would require. Section 83 appears to focus on the time when the asylum claim has been rejected, for it is concerned with appeals against this decision, and then to ask whether, when a claimant wishes to appeal, the condition in subsection (1)(b) is met. This characteristic of section 83 suggests that it is concerned with grants of leave to remain which are operative after the refusal of asylum, but not with those which have existed in the past but which are spent before any question of asylum arises. On its face, however, the section (1)(b) condition of having been granted more than 12 months leave might be met by a grant or grants which came before the refusal of asylum, as well as by ones which came afterwards. The principal difficulty in the way of the appellants foundation argument for his alternative submissions arises from the form and content of section 83. That section does not, as is suggested, first create a general right of appeal against refusal of asylum, and then make that right subject to a limitation contained in subsection (1)(b). Subsection (1)(b) is not a limitation of the right of appeal. Rather, it is a condition for the right of appeal arising. It is a key to admission, not a partial barrier to entry. It cannot sensibly be read as if it said that there exists a right of appeal unless there has been a grant or grants of limited leave to appeal totalling 12 months or less. In particular it clearly does not apply where there is no grant of leave at all. The appellants second difficulty is that his primary case would mean that a past and expired grant of limited leave opened the door to this appeal against refusal of asylum when there is no conceivable reason why it should. On construction (i) a claimant would be within section 83 if, 20 years ago, he had been a student in the UK, enjoying a grant of limited leave to remain for something over a year, had then left this country and had returned only recently, on whatever basis (or none) but without more than 12 months leave to remain, whereupon he had made an asylum claim. There would be no possible reason why his historical experience of lawful residence for over 12 months should have any bearing at all on whether he had a separate right of appeal under section 83, as distinct from having only the same right that most asylum claimants have, namely to raise his refugee claim in a section 82 appeal. Mr Biggs realistically did not advance the argument which has been ventilated at earlier stages in this or other cases, namely that the history of previous lawful residence is meant to bring such a claimant within section 83 on the grounds that it demonstrates some connection with the UK and a consequent claim on a preferential procedure. There appears no conceivable reason why Parliament should have meant to provide a claimant in this position with a separate section 83 right of appeal. An expired grant of leave fell to be considered in R (Omondi) v Secretary of State for the Home Department [2009] EWHC 827 (Admin) and Judge Ockelton, sitting as a deputy judge of the High Court, drawing on marked experience of immigration practicalities, reached the same conclusion. Construction (ii) suffers from the same difficulty, albeit less acutely. There appears to be no sensible reason why historic grant(s) of leave to remain totalling more than 12 months should import the right to appeal under section 83 if they are largely spent by the time of the refusal of asylum, and thus, as at that time, the 12 month condition is not met. Conversely, the difficulty with construction (iv) is that it would treat differently two people whose cases are materially the same. A claimant whose asylum claim was rejected but who, a week or so later, was granted 18 months leave to remain, would be within section 83 and have its right of appeal against the asylum decision. A second claimant, who had been granted two years leave to remain six months before his asylum claim was rejected, would not. But as at the refusal of asylum their positions in relation to leave to remain would be effectively identical. There appears no reason why Parliament should have intended this result. Mr Biggs suggested another case in which, if construction (iv) were correct, section 83 would, undesirably, cease to afford a right of appeal. That is the case of indefinite leave to remain granted before the refusal of asylum. In such a case, on construction (iv) there would never be an opportunity to take the refusal of asylum to appeal and to establish refugee status. How likely that case is may possibly be open to enquiry, but it would indeed fail construction (iv). On the other hand, a grant of indefinite leave to remain made after the refusal of asylum would bring the section 83 right of appeal, because plainly indefinite leave is for a period exceeding one year. There is no obvious reason for the difference between the two cases. The purpose of section 83 is tolerably clear. It is to provide an additional and more targeted right of appeal beyond the ordinary one created by section 82. It is to provide a vehicle for the determination by the tribunal of refugee status, when that status is asserted but rejected by the Secretary of State, in those cases where no such vehicle otherwise exists, nor will exist within a reasonable time. In the straightforward case of an asylum claim which is rejected and no other basis for remaining in the UK exists, there will follow a removal decision which generates a right of appeal under section 82, and on that appeal the claimant will succeed if he shows that he is entitled to refugee status. In the case of a person, such as an unaccompanied minor, whose asylum claim is refused, but who is granted a short period of leave to remain, there will in the relatively near future either be a further grant of leave to remain or there will be a refusal of it and a decision to remove. At that foreseeably proximate stage, there will, unless leave is extended, again arise a right of appeal under section 82 in which refugee status, if established, will guarantee success. Section 83 is designed to create an extra right of appeal for those who have a longer period of leave to remain and who would otherwise have no section 82 vehicle which they could use. As Upper Tribunal Judge Clive Lane concisely put it in the Upper Tribunal, section 83 is aimed at this class of applicant, so that he should not be deprived of his right to challenge the refusal of his asylum claim where that refusal is not accompanied by a decision to remove him. In FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696; [2010] 1 WLR 2545, paras 13 and 30 both Longmore and Pill LJJ expressed the same idea when they observed that section 83 was aimed at people in whose cases the Secretary of State would not be reconsidering the immigration position in the near future. In TN (Afghanistan) at para 32, Lord Toulson referred to the additional consideration that where conditions in the home country may be fluctuating rapidly, it makes good sense for tribunals not to become clogged with cases which are due to be reviewed before long in any event. Once that is understood, it is clear that the construction which most nearly serves the purpose of the statute is construction (iii). That focuses on identifying those claimants in whose cases there will not be a section 82 vehicle for an appeal on refugee status for longer than the 12 month period which Parliament has set as the relevant one. Thus the claimant may avail himself of section 83 if he has limited leave totalling more than 12 months counting from the date of refusal or, if later, the date of grant (or, a fortiori, if he has been granted indefinite leave). That is so whether or not his leave started before the refusal, and whether his leave is the result of a single grant or of more than one. If, however, when he seeks to appeal, any current leave has 12 months or less to run from the date of refusal of the asylum claim, or from a later grant, then he is left to his section 82 appeal in due course. Conversely, neither construction (i) nor (ii) serves the purpose of the provision at all. Both would bring within section 83 those who do not need it, because there will, within a relatively short time, be a further decision of the kind which, if it involves an end to leave to remain, will bring with it a right to appeal under section 82, whilst if it extends leave to more than 12 months from refusal the claimant can take advantage of section 83. Construction (iv) would serve this statutory purpose, but would, as explained above, leave out some whose case falls within that purpose. Likewise, once this purpose is understood, the statutory structure under which sections 78 and 94 do not apply to appeals under section 83 falls into place. There is no need for the suspensive rule of section 78 because the claimant is lawfully in the UK. There is no adverse decision, under which he becomes unlawfully present, which calls for suspension. Nor, for the same reason, is there the same need for certification of claims as unfounded. True, the view might have been taken that a manifestly unfounded asylum claim could be certifiable to avoid time and expense on an appeal to the tribunal, but there would not be the same prolongation of unlawful residence which appears to be the basis of the power to certify, and it makes perfectly good sense for the determination of the asylum appeal to be left to the tribunal, even if it has no merit. On the other hand, as the Secretary of State contended, these provisions would be necessary if section 83 brought within its terms a person whose grant(s) of leave to remain were historic and either spent or soon to be spent, for he would indeed be (or about to be) unlawfully present in this country. To that extent, the structure of the Act outside the precise terms of section 83 provides some further support for saying that constructions (i) and (ii) are not correct. The fact that the provisions of section 96 for prevention of repetitious appeals do not apply to an appeal within section 83 is no indication to the contrary. As was pointed out in both the Administrative Court and the Court of Appeal in AS (Somalia), where one of the claimants had previously made an unsuccessful asylum claim, the making of an unmeritorious second claim by a claimant who is lawfully here, whilst it is to be discouraged, is not to be equated with the kind of desperate application which is likely to be made by those who are under threat of removal, and it does not stand in the same need of active measures to prevent it. Moreover, since a tribunal considering a second asylum claim will, in accordance with Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702; [2003] Imm AR 1, begin by assuming the correctness of the first decision and thus look for fresh or different considerations not previously assessed, an undeserving second claim need not detain the appellate system for an unacceptable time. That was Mr Ockeltons view in Abiyat (rights of appeal) Iran [2011] UKUT 00314 (IAC); [2012] INLR 131, a view endorsed by Sullivan LJ in AS (Somalia) at para 40. Next, the absence of any need for a nexus between refusal of asylum and the grant(s) of leave to remain (as confirmed in AS (Somalia)) tends somewhat to support construction (iii) and to counter construction (iv). That is because it demonstrates that it is the existence of leave of the prescribed length, at the relevant time, rather than the date on which it was granted, which matters. The Court of Appeal in the present case also drew attention to the conjunctive but which links subparagraph (a) to subparagraph (b), distinguishing it from the and which might have been used. The Secretary of State supported this argument, contending that the use of but indicated a requirement that the grant(s) of leave must come at the same time or after the refusal of asylum, and thus supported construction (iv). Whilst it is true that and would not be so open to this argument, as a matter of syntax but does not necessarily mean subsequent to; it may simply be used to mean however, or although and thus to be neutral on the timing of the grant(s). Nor, to my mind, do the terms of section 83A provide support to the Secretary of States argument for construction (iv). First, it is not in any event safe to use a subsequently drafted section to construe a statutory provision which was written some years earlier. That is different from considering adjacent sections produced by the same author contemporaneously. Second, the use of the word following in subparagraph (d) does not necessarily connote a subsequent grant. Section 83A requires that following the refusal, the claimant shall be the beneficiary of leave to remain. It focuses, as does section 83, on what his position is as at the refusal of leave and thereafter, but not on when the grant was made. The use in subparagraph (d) of the words has leave, rather than is granted leave tends to confirm this and to point away from insistence on subsequent grant. These several additional reasons all support what is both a natural reading of section 83 and most consistent with its purpose, namely that the proper construction is (iii), as explained in para 22 above. Since the remaining period of leave which the present appellant enjoyed was well short of the period of more than 12 months from refusal of his asylum claim required by section 83, he did not fall within the section. It follows that the appeal must be dismissed, although not quite for the reasons given by the Court of Appeal. It, like the Upper Tribunal in Win (section 83 order of events) [2012] UKUT 00365 (IAC); [2013] Imm AR 154 went further than it should have done by adopting construction (iv); it is not clear that construction (iii) was put before either court, and the appellants in both cases failed to meet the test whichever was adopted. |
This appeal raises two issues of contractual construction in documents relating to the letting of commercial premises at 1 and 3 South Wardpark Place, Wardpark South Industrial Estate, Cumbernauld, Scotland. The appellant (Batley) is the mid landlord of sub let premises and the respondent (the Council) is the sub tenant. Batley and the Council disagree on whether the Council was obliged to remove its alterations and reinstate the sub let premises on the expiry of the sub lease when the request to do so was made orally by Batleys surveyor and not put in writing in a schedule of dilapidations or otherwise before the sub lease expired. The two issues are: (a) whether under a minute of agreement that authorised alterations to the sub let premises Batley was obliged to give written notification that it required the Council to remove the alterations and reinstate the sublet premises; and (b) whether under the repairing obligation in the head lease, which was applied to the sub lease, Batley had to give a written notification that it required the Council to carry out the repairs before the expiry of the sub lease. As the repairing obligation in the head lease is in terms which are commonly used in commercial leases, the appeal from the decision of the Extra Division of the Inner House of the Court of Session raises an issue of law of general importance. The relevant contracts The head lease, which is dated 18 and 25 October 1995, granted the tenant a lease of the premises for 25 years until 8 October 2020. Batley acquired the tenants interest in the head lease in 2007. Clause 3 of the head lease imposed obligations on the tenant, including obligations to repair, maintain and renew the premises (cl 12), to maintain the landscaped areas (cl 3.13) and to decorate the exterior and interior of the premises (cls 3.14 & 3.15). As the first of those obligations is in issue, I set out the relevant parts of cl 3.12: At all times throughout the Period of this Lease at the Tenants expense well and substantially to repair, maintain and where necessary to renew, rebuild and reinstate and generally in all respects keep in good and tenantable condition the Premises and every part thereof with all necessary maintenance, cleansing and rebuilding and renewal works and amendments whatsoever regardless of the age or state of dilapidation of the buildings for the time being comprised in the Premises and irrespective of the cause or extent of the damage necessitating such repair, maintenance, renewal, rebuilding or others and including any which may be rendered necessary by any latent or inherent defects in the Premises The tenant also had to permit the landlord to inspect the premises (cl 3.18) and was obliged to comply with any notices in writing by the landlord identifying a failure to comply with its obligations to repair (cl 3.19). 3. The tenant had to obtain the landlords prior written consent to alterations to the premises (cl 3.25(a) & (b)). Although various clauses of the lease generally required written notices, written consents and written approvals, clause 5.8 stated Any notice, request, demand or consent shall be in writing and specified what amounted to sufficient service. The sub lease to the Council of part of the premises was dated 26 February and 19 March 1998. Its date of expiry was 19 February 2008 but Batley and the Council varied the sub lease to extend it to 18 February 2009. Clause 5 of the sub lease provided: The Sub tenant also undertakes with the Mid Landlord and binds and obliges its successors and assignees whomsoever throughout the Period of the Sub Lease as follows: 1 Fulfilment of Mid Landlords obligations Save in so far as inconsistent with the express terms of the Sub Lease to fulfil, perform and observe to the relief of the Mid Landlord the obligations and restrictions of a non monetary nature undertaken by or imposed upon the Mid Landlord under the Lease so far as they relate to the Premises and as if references in the Lease to the Premises were references to the Premises as defined in the Sub Lease and that in accordance with the terms of the Lease. 5.3 Expenses to reimburse to the Mid Landlord all proper and reasonable costs and expenses incurred by the Mid Landlord: 5.3.1 incidental to the preparation and service of all notices and schedules relating to deficiencies in repair or requiring the Sub Tenant to remedy the breach of any of its obligations under the Sub Lease whether the same be served before or after the Date of Expiry; 5.3.2 in the preparation and service of a schedule of dilapidations at any time before or after the Date of Expiry; 5.3.3 in procuring the remedy of any breach of any obligation on the part of the Sub Tenant under the Sub Lease. 5. Clause 5.7 of the sub lease provided that alterations of the sub let subjects required the prior written consent of the mid Landlord. Clause 8 contained an irritancy (forfeiture) clause in the event of any breach of any of the undertakings of the sub tenant under the sub lease. Clause 13, on which the Council founds, provided: The provisions for notices contained in Clause 5.8 of the Lease shall apply also under the Sub Lease as if the Mid Landlord had been substituted for the Landlord and the Sub tenant had been substituted for the Tenant. Thus, under the sub lease any notice, request, demand or consent had to be in writing. The third agreement is the Minute of Agreement dated 7 and 17 April 1998 by which the then mid landlord licensed the Council to make alterations to the sub let premises subject to conditions. Clause 2 of the Minute of Agreement imposed obligations on the sub tenant to obtain the needed planning and other permissions (cl 2.1), to notify the mid landlord of the commencement and completion of the works (cl 2.2), to indemnify the mid landlord (cl 2.3) and to permit the mid landlord and its surveyors to inspect the progress of the works (cl 2.4). The obligation at the heart of the present dispute is clause 2.5 which provided: By the expiration and sooner determination of the period of the Sub Lease (or as soon as the licence hereby granted shall become void) if so required by the Mid Landlord and at the cost of the Sub tenant to dismantle and remove the Works and to reinstate and make good the Premises and to restore it to its appearance at the date of entry under the Sub Lease, such reinstatement to be carried out in the same terms (mutatis mutandis) as are stipulated in this Licence with respect to the carrying out of the Works in the first place (including as to consents, the manner of carrying out works, reinstatement, inspection, indemnity, costs and otherwise). Counsel agreed that the word and (which I have underlined) should be read as or. The issue between the parties on that clause is whether the mid landlord had to put in writing before the expiration of the sub lease its requirement for the sub tenant to dismantle and remove the alterations and to reinstate the premises. This is because clause 5 of the Minute of Agreement stated: Obligations of Tenant incorporated into Lease That during the execution of the Works and when the same shall have been completed all the undertakings and obligations on the part of the Sub Tenant herein contained shall be deemed to be incorporated in the Sub Lease and the power of irritancy contained in the Sub Lease shall be construed and have effect accordingly. Finally, clause 7 provided that [e]xcept in so far as amended hereby the parties ratified and confirmed the whole terms of the sub lease. Counsel did not know whether and on what terms the head landlord had consented to the sub tenants alterations. Batleys claim and the decisions below Batley presented its claim on alternative bases: (a) Under the Minute of Agreement it claimed 253,766.44 for both the removal of the alterations and the repair of the sub let premises; and in the alternative (b) under clause 5 of the sublease, which imposed on the Council the obligations of clause 3.12 of the lease, it claimed 189,692.30 for repair of the sub let premises (excluding the removal of the alterations). The Council challenged the legal relevancy of Batleys case. Temporary Judge Wise QC concluded that Batley had pleaded a relevant case because she construed clause 2.5 of the Minute of Agreement as allowing Batley to communicate orally that it required the reinstatement of the sub let premises. She allowed the parties a proof before answer of their averments. Per incuriam in her interlocutor of 20 December 2011 she repelled the Councils plea to the relevancy (plea in law 1). The Extra Division (Lord Clarke, Lord Hardie and Lord Bonomy) in an opinion dated 7 November 2012 granted the Councils reclaiming motion and dismissed Batleys action. They held that absent a written notice before the expiry of the sub lease, the Council was not obliged under clause 2.5 of the Minute of Agreement to dismantle and remove the works and reinstate the sub let premises. They also held that Batley had not averred a relevant basis for its alternative claim. They referred to the Councils submission that Batley had not pleaded that they had given the Council any indication before the expiry of the sub lease that any work was required under clause 3.12 of the head lease. They concluded that Batley had no sufficient averments of the obligations for which it sought relief. Batley appeals to this court. This appeal I address the second basis ((b) in para 9 above) before I turn to Batleys primary case because it has a bearing on the construction of the provisions that are relevant to that case. I recognise that Batleys pleadings are not detailed but they refer to the Councils obligations under clause 5.1 of the sub lease in relation to the obligation to repair and quote the relevant part of clause 3.12 of the head lease, specifying the tenants obligation to repair and maintain the premises at all times throughout the period of [the] lease. Batley also avers that the necessary repair works were specified in the column described as costs ex strip out in the revised schedule of dilapidations. In my view the pleadings give notice of both the contractual basis of the claim and also, by reference to the revised schedule, the works which Batley asserts were required at the expiry of the sub lease to meet the obligation to repair. The question whether the identified works relate to the condition of the sub let premises within the period of the sub lease is a matter for proof. Before us, Mr Lindsay sought to defend the Extra Divisions dismissal of Batleys second basis on the grounds (i) that the claim arose under clause 2.5 of the Minute of Agreement which prevailed over the sub lease and required written notice, (ii) that Batleys claim was under clause 5.3 of the sub lease and it had not carried out the repair works which entitled it to reimbursement, (iii) that Batley had not averred that the defects occurred during the currency of the sub lease and (iv) that Batley had not given written notice to the Council of the requirement to repair and reinstate before the expiry of the sub lease. I can deal with the first three points shortly. First, clause 2.5 of the Minute of Agreement is focused on the removal of the licensed works. An overlap of the clause 2.5 obligations with the obligations under clause 5.1 of the sub lease does not impose a requirement of written notice as a trigger for the latter if none otherwise existed. Mr Lindsays submission drew on Batleys argument that there was a hierarchy of contractual documents with the Minute of Agreement at its peak. I do not accept that such a hierarchy exists; the Minute of Agreement is simply a means of giving consent under clause 5.7 of the sub lease. It is separate from rather than superior to the lease and the sub lease. Secondly, Batleys claim is under clause 5.1 of the sub lease (para 4 above) which obliges the Council to perform the mid landlords non monetary obligations in relation to the sub let premises. A claim for damages is available for breach of that obligation and exists alongside the mid landlords right to reimbursement under clause 5.3. If Batley has not carried out the works, a claim based on the estimated cost of those works may be a legitimate measure of its loss: Duke of Portland v Woods Trustees 1926 SC 640, per Lord President Clyde at 650 651. Thirdly, it is implicit in Batleys claim under clause 5.1 that it is asserting that the sums listed in the costs ex strip out column of the schedule of dilapidations relate to Batleys obligations under clause 5.1. The fourth point is important, because the Extra Division, in accepting the Councils submission, appear (in para 18 of their opinion) to have imposed on a landlord a hurdle that is not there. Clause 3.12 of the head lease, which obliges the tenant to repair, maintain and where necessary reinstate the premises in order to keep them in a tenantable condition at all times during the period of the lease, is an obligation to keep premises in (and put them into) a good condition. It imposes a continuing obligation on the tenant which does not require any notice from the landlord to activate it. It is well established that clauses of that nature have this effect. In Credit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803, Lindsay J stated (at 821g h) Whilst I accept the inevitability of the conclusion of the Court of Appeal in Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055 that one cannot have an existing obligation to repair unless and until there is disrepair, that reasoning does not apply to a covenant to keep (and put) into good and tenantable condition. One cannot sensibly proceed from no disrepair, ergo no need to repair to no disrepair, ergo no need to put or keep in the required condition. Leaving aside cases, such as this, where there is special provision for there to have been prior knowledge or notice in the covenantor, all that is needed, in general terms, to trigger a need for activity under an obligation to keep in (and put into) a given condition is that the subject matter is out of that condition. There are two first instance decisions by Lord Penrose that Scots law is to the same effect: Taylor Woodrow Property Co v Strathclyde Regional Council unreported, 15 December 1995, and Lowe v Quayle Munro Ltd 1997 SC 346, at 351. In my view they are correct. There is no requirement of notice from the landlord, in writing or otherwise, during the currency of a lease to trigger this obligation. I am satisfied therefore that Batley has pleaded a case on basis (b) that is relevant to go to proof before answer. Issues of fact, such as whether Batley has carried out the needed repairs, and, if it has, the legal consequences to its claim (which is based on estimated costs) can be addressed at that hearing. Batleys principal claim (basis (a) in para 9 above) depends on the correct construction of the Minute of Agreement. The question is whether Batley had to give written notice before the expiry of the sub lease of its requirement that the Council remove the licensed works. It is not straightforward as the document can bear more than one interpretation, but I conclude that no written notice was required. Mr Lindsay argued, first, that the Minute of Agreement should be read in the context of the lease and the sub lease, which each provided for notices, requests, demands and consents to be in writing: clause 5.8 of the head lease and clause 13 of the sub lease. Secondly, he submitted that it made commercial sense to have the requirement in writing so that the parties could be certain whether and to what extent the mid landlord required the sub tenant to remove the licensed works. The requirement for written notice was not burdensome and it would be anomalous if, in the context of the three contracts, written notification was not needed to impose this requirement. Accordingly, the Council argued that clauses 5 and 7 of the Minute of Agreement should be construed as incorporating the notice provisions of clause 5.8 of the head lease into the Minute of Agreement. Attractively presented though those submissions were, I am not persuaded. In Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, Lord Clarke of Stone cum Ebony stated (at para 21): [T]he exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. The starting point is the words the parties have chosen to use. See also Multi Link Leisure Developments Ltd v North Lanarkshire Council 2011 SC (UKSC) 53, Lord Hope at para 21. The words must be construed in the context of the Minute of Agreement as a whole and having regard to the admissible background knowledge, which is often called the factual matrix. Starting with the words of the Minute of Agreement, I note that the disputed words in clause 2.5 (if so required by the Mid Landlord) contrast with two provisions in the Minute of Agreement which expressly require written forms. First, there was the requirement in clause 2.1.2 that the sub tenant produce all needed permissions for alteration to the mid landlord and obtain the mid landlords written acknowledgement that it was satisfied with the permissions. Secondly, clause 3 empowered the mid landlord to nullify the licence if the sub tenant did not complete the works within the time limit of 16 weeks or breached its undertakings and obligations and failed to remedy such breaches within a reasonable period following a notice by the Mid landlord to the Sub tenant specifying the breach complained of (my emphasis). Other provisions in the Minute of Agreement did not expressly require writing. Thus in clause 2.1.3 the sub tenant was to give such information as might be reasonably required by the mid landlord that it had complied with its undertakings and obligations before commencing the licensed works. Clause 2.2.2 obliged the sub tenant to notify the mid landlord after the commencement and the completion of those works. The concluding words of clause 2.5, which deal with the reinstatement works, incorporated the provisions of clause 2 (including 2.1 and 2.2). It appears that in this document the parties stated expressly when a communication had to be in writing and when more informal communication was permitted. Further, contrary to the Councils submission, nothing was incorporated into the Minute of Agreement. Clause 5 (para 7 above) deemed the undertakings and obligations on the part of the Sub Tenant herein contained to be incorporated into the sub Lease. The purpose of that deemed incorporation is clear in the concluding words of clause 5: it was to give the mid landlord the power of irritancy (forfeiture) of the sub lease if the sub tenant breached its obligations under the Minute of Agreement. In my view the Councils case depends on a rather convoluted argument that clause 5 of the Minute of Agreement subjected clause 2.5 to the requirement of writing (in clause 5.8 of the head lease) because the sub tenants obligation in that clause was conditional upon the mid landlord requiring the sub tenant to remove the licensed works. I strongly prefer the simpler construction of clause 5 of the Minute of Agreement. Clause 7 of the Minute of Agreement is in my view neutral on the issue that divides the parties. The Minute of Agreement was not a deed of variation of the sub lease and I do not construe it as having amended the sub lease at all. But if I am wrong and the sub lease was amended, clause 7, which is a saving provision, limits the amendment to the deemed incorporation. It does not tell what was so incorporated. It is also relevant to see the Minute of Agreement in its context as a document required by clause 5.7 of the sub lease: the mid landlords consent to the sub tenants works. The Minute of Agreement exists in the context of the head lease and the sub lease, both of which are part of the factual matrix. But it is a separate contract and, as I have said, the starting point is the words which it contains. Those words point towards the conclusion that writing was not required for communications in all circumstances. The fact that the communications in the head lease and the sub lease that fell within the scope of clause 5.8 of the former had to be in writing does not overturn that conclusion. I do not think that the construction which I favour lacks business common sense. On the contrary. First, as I have said, clause 5 of the Minute of Agreement states the commercial purpose of the deemed incorporation of the obligations into the sub lease: to give the mid landlord the power of irritancy. Secondly, the context is important; the landlord would require the removal of the licensed works only at the end of the sub lease, when the sub tenant would have to address its separate and continuing obligation to keep the property in repair. See para 14 above. Intimation by or on behalf of the mid landlord that it required the removal of the licensed works required no formality. A sub tenant that conscientiously addressed its mind to its obligations under clause 5.1 of the sub lease to keep the sub let premises in repair could readily respond to an intimation by the mid landlord or its surveyor that it include the removal of the licensed works in the works it carried out at the end of the sub lease. If in doubt, it could ask the mid landlord. The benefits of certainty, which Mr Lindsay emphasised, do not make the Councils interpretation of the Minute the only commercially sensible construction. I am therefore satisfied that the Minute of Agreement did not require the mid landlord to give written notice of its requirement that the licensed works be removed at the end of the sub lease. Batley avers that it instructed a named firm of chartered surveyors to produce a schedule of dilapidations and that on 22 December 2008 a named surveyor from that firm informed a named official of the Council that the mid landlord would be requiring the reinstatement of the premises to their original condition. Those averments meet the well known test of relevancy in Jamieson v Jamieson 1952 SC (HL) 44, Lord Normand at 49 50. The appellant is not to plead evidence; and as the Council can not only enquire of its official but also take steps to recover from Batley and the surveyor any documents relevant to those averments, there is no unfair lack of notice of the case Batley seeks to prove. I would allow the appeal. I would also reinstate defenders plea to the relevancy (plea in law 1) as the parties agreed that the appropriate disposal is proof before answer. |
This appeal concerns the permissibility and in particular compatibility with European Union law and Human Rights Convention rights, of a procedure (conveniently described as a closed material procedure) whereby an applicant and his representatives may be excluded from certain aspects of employment tribunal proceedings on grounds of national security, and a special advocate may represent his interests so far as possible in relation to the aspects closed to him and his representatives. In the relevant employment tribunal proceedings, the appellant, Mr Kashif Tariq, complains that his security clearance as an immigration officer was withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion, and that this was contrary to the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660). The Home Offices case is that there was no such discrimination, that the decisions taken in relation to Mr Tariq were taken for the purposes of safeguarding national security, and that the order for a closed material procedure made by the Employment Tribunal (on the Home Offices application) on 15 February 2008 was made justifiably and for the same protective purposes. Mr Tariqs challenge to the Employment Tribunals order for a closed material procedure was dismissed by the Employment Appeal Tribunal on 16 October 2009, UKEAT 168/09, [2010] ICR 223 and the Court of Appeal on 4 May 2010 [2010] EWCA Civ 462, [2010] ICR 1034, but it was declared (by the Employment Appeal Tribunals order dated 24 November 2009, upheld in the Court of Appeal) that article 6 of the European Convention on Human Rights requires [Mr Tariq] to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively (a requirement which can conveniently be described as gisting), even if this put the Home Office in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended: [2010] ICR 1034, para 50, per Maurice Kay LJ. The Home Office appeals to the Supreme Court against the latter conclusion, while Mr Tariq cross appeals against the conclusion that a closed material procedure was permissible. The factual background in more detail Mr Tariq started employment with the Home Office as an immigration officer on 21 April 2003, having received the necessary security clearance on 18 February 2003. On 19 August 2006 he was suspended from duty on basic pay, while consideration was given to the withdrawal of his security clearance, and on 20 December 2006 his clearance was withdrawn. His internal appeal against this decision was dismissed on 9 August 2007, and his further appeal to the Security Vetting Appeals Panel (SVAP) was unsuccessful in January 2011. The background to the Home Offices decisions to suspend and withdraw Mr Tariqs security clearance consists in the arrest of his brother and cousin on 10 August 2006 during a major counter terrorism investigation into a suspected plot to mount a terrorist attack on transatlantic flights. Mr Tariq's brother was subsequently released without charge. Mr Tariq's cousin, Tanvir Hussain, was convicted on 8 September 2008 of conspiracy to murder, having previously also pleaded guilty to two counts of conspiracy to cause explosions and to commit a public nuisance. He is now serving a sentence of life imprisonment. Inquiries were made at the time of the arrests to establish whether or not Mr Tariq was involved in any way with the plot or could be affected by it. No information suggested that Mr Tariq had himself been involved in any terrorism plot, but the Home Office (in grounds of resistance served in the Employment Tribunal proceedings on 6 August 2007 and amplified on 20 December 2007) states that it was concerned in August 2006 that [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside and that its decision to withdraw security clearance in December 2006 was based on [his] close association with individuals suspected of involvement in plans to mount terrorist attacks and on its view that association with such individuals might make him vulnerable to attempts to exert undue influence on [him] to abuse his position. Mr Tariq commenced the employment tribunal proceedings claiming direct or indirect discrimination on grounds of race and/or religion on 15 March 2007. He stated at the outset that he had been advised that his suspension and the withdrawal of his security clearance were because of his perceived association with certain relatives or associates of relatives suspected of association with terrorist activities and the risk of their attempting to exert influence on him to abuse his position. He denied any such association or risk. On 10 July 2007 he provided what he said were (considering, he said, the extremely limited information as to the grounds for his treatment to that date given) the best further particulars possible to give pending disclosure by the Home Office. These particulars alleged, inter alia, that the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or individuals of Pakistani origin such as susceptibility to undue influence, coercion or brainwashing and had indirectly discriminatory security policies, procedures and methods of investigation. The Home Office in its grounds of resistance denied this and maintains, as stated, that it acted throughout to protect national security. The legislation The Race Relations Act 1976 provides: 1 Racial discrimination (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; . (lA) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (lB), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, (b) which puts or would put that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim. 42 Acts safeguarding national security Nothing in Parts II to IV shall render unlawful an act done for the purpose of safeguarding national security if the doing of the act was justified by that purpose. The Race Relations Act 1976 is the means by which the United Kingdom gives effect to its obligations under Council Directive 2000/43/EC of 29 June 2000 (the Race Directive) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. On 27 November 2000 Council Directive 2000/78/EC (the Employment Equality Directive) established a general framework for equal treatment in employment and occupation. This led to the making, under section 2 of the European Communities Act 1972, of the Employment Equality (Religion or Belief) Regulations 2003 (the Employment Equality Regulations), prohibiting discrimination on grounds of religion or belief and providing: 3.(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but (i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim. Exception for national security 24. Nothing in Part II or III shall render unlawful an act done for the purpose of safeguarding national security, if the doing of the act was justified by that purpose. The issues regarding closed material procedure in more detail Employment Tribunals are established under the Employment Tribunals Act 1996. Section 7 entitles the Secretary of State to make by regulations (employment tribunal procedure regulations) . such provision as appears to him to be necessary or expedient with respect to proceedings before employment tribunals. Section 10, which I set out in the annex to this judgment, specifically authorises the making in the interests of national security of regulations providing for a closed material procedure, either by direction of a minister or by order of the employment tribunal or judge, and for the appointment by the Attorney General in that context of a special advocate. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) contain in Schedules 1 and 2 provisions made under sections 7 and 10 of the Act. Schedule 1, headed the Employment Tribunals Rules of Procedure (the ET Procedure Rules), contains rule 54, set out in the annex, providing specifically for a closed material procedure where a minister so directs (rule 54(1)) or where the tribunal or employment judge concludes that such a procedure is appropriate and so orders (rule 54(2)). Schedule 2, headed the Employment Tribunals (National Security) Rules of Procedure (the ET National Security Rules), contains rules 8 and 10, also set out in the annex, providing for special advocates and reasons in national security proceedings. Regulation 16 provides that the rules in Schedule 1 apply to employment tribunal proceedings generally, but that such rules shall be modified in accordance with Schedule 2 wherever any power conferred on the minister, the tribunal or an employment judge by rule 54 of Schedule 1 is exercised. Regulation 2 of the 2004 Regulations contains definitions, again set out in the annex. Mr Tariqs cross appeal (a) general The power to give directions conferred on the minister by rule 54(1) has not been exercised in this case. The Supreme Court was told that it has never been exercised in any case. The probable reasons are not difficult to discern, bearing in mind the scope for challenge both by judicial review and, more fundamentally, under the Human Rights Act 1998 or, Mr Robin Allen QC also submits for Mr Tariq, European Union law. While the conferral of the power is expressly authorised by the 1996 Act, it is hard to see how it could be compatible with article 6 of the European Convention on Human Rights for a minister to have power to make such a direction to a judicial tribunal. Instead of giving any direction, the minister made an application to the tribunal, asking it to order a closed material procedure with a special advocate under the discretionary power conferred by rule 54(2). On 15 February 2008, the tribunal held that it was expedient in the interest of national security to make orders under rule 54 that the whole of the proceedings be in private, and directed that Mr Tariq and his representative should be excluded from part of the proceedings when closed evidence and/or documents were being considered, that the Tribunal would consider both open and closed documents and that the Home Office would make available the appropriate closed material to any special advocate appointed. It further stated that the terms so ordered would be reviewed at a later case management discussion. At a case management discussion held on 30 May 2008, in the presence of representatives of the parties and of Ms J Farbey of counsel nominated by the Attorney General to act as special advocate, the judge ordered that her role as special advocate should take effect and that she should proceed in discussions with Mr Tariq. Meanwhile, reasons for the tribunals decision on 15 February 2008 were outstanding. The minister, to whom the tribunal was required by rule 10 of the ET National Security Rules to submit such reasons in the first instance, directed that one paragraph be abridged and another omitted. As a result, an edited version, identifying the positions of the amendment and abridgement, was initially issued to Mr Tariq and his representatives on 15 October 2008. However, on 9 December 2008 the full reasons were released. One may speculate that this resulted from submissions made by the special advocate. The paragraphs amended and omitted do not, on their face, seem likely to impact on national security. This course of events offers therefore a cautionary message, but, quite possibly also, an indication of at least one purpose which a special advocate may serve. In the upshot, there is not now any ministerial order in effect under rule 10. Whatever objections may be made to a rule giving the executive power to direct the judiciary with regard to reasons do not therefore arise for consideration on this appeal. This appeal concerns an exercise by the Tribunal of its power under rule 54(2) of the ET Procedure Rules, read with rule 8 of the ET National Security Rules. (b) The European Union Directives On behalf of Mr Tariq, Mr Allen submits that rule 54(2) and rule 8 are contrary to European Union law and/or the European Human Rights Convention. These rules were made pursuant to the express statutory authority to make such rules conferred by section 10 of the Employment Tribunals Act 1996. Mr Allens first submission is that they are, none the less, in conflict with European legal principles governing discrimination, contained in the European Treaties and in the Race and Employment Equality Directives, to which the 1996 Act, the Race Relations Act 1976 and the Employment Equality Regulations must all be read, at least as far as possible, as being subject. Mr Allen notes in this connection a contrast between the two Directives. The Employment Equality Directive makes express reference to national security, providing in article 2(5): 5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others. There is no equivalent provision in the Race Directive. Mr Allen suggests that this may be because the Race Directive does not preclude discrimination on grounds of nationality: article 3(2). Mr Allen further notes that neither Directive makes express provision for closed hearings, and that the Court of Justice has on more than one occasion made clear that the European Treaties contain no general power for states to derogate from European law and the rights it confers on grounds of public safety or national defence, outside specific situations identified in Treaty articles, none of which applies here: Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1987] QB 129; Case C 337/05 Commission of the European Communities v Italian Republic [2008] ECR I 2173. None of these points is, in my view, relevant in the present context. I agree with the reasoning and conclusions of Maurice Kay LJ in paras 12 to 22 of his judgment in the Court of Appeal: [2010] ICR 1034. The authorities cited by Mr Allen deal with derogation from principles of substantive law, here the rights not to be discriminated against conferred by the Directives. The legitimacy of closed hearings and of the use of a special advocate are matters of procedural law. Procedure is primarily a matter for national law. It is, however, a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensure respect for the relevant right: Case C 312/93 Peterbroeck v Belgian State [1995] ECR I 4599; Case C 432/05 Unibet (London) Ltd v Justitie Kanslern [2007] ECR I 2271. In that respect, European Union law directs attention primarily to principles established under articles 5 and 6 of the European Convention on Human Rights as a guide to what constitutes effective legal protection. Mr Allen points out that the Directives both contain provisions (article 7(1) of the Race Directive and article 9 of the Employment Equality Directive), whereby: Member states shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended. Further, by articles 8 and 10 respectively of these Directives: Member states shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. Again, and as this wording contemplates, it is for each national judicial system to ensure an effective system of legal procedures enabling a claimant to establish facts from which it may be presumed that there has been direct or indirect discrimination. In the present case, Mr Allen has not suggested that Mr Tariq has not been able to do this. Mr Allen also submits that Mr Tariq could lose his claim by reason of section 42 of the Race Relations Act 1976 and/or regulation 24 of the Employment Equality Regulations on a basis which, by reason of the closed material procedure, would not be disclosed. Section 42 and regulation 24 are dealing with substantive law. If they were read and applied as excusing what would otherwise be unlawful discrimination, they might therefore be open to challenge under the principle of European Union law identified in para 14 above. But the present case is far from involving any such issue. First, the issue could only arise from a substantive decision, and the Tribunal is a long way from reaching such a decision. Second, it is far from clear that section 42 and regulation 24 are to be read as entitling a tribunal or court to excuse what would otherwise be unjustified discrimination on grounds of national security. The question would arise: if it would involve unjustified discrimination, how could the doing of the act be justified for the purpose of safeguarding national security? Third, the Home Offices dominant aim in the present proceedings is to show that there was no discrimination at all on any prohibited ground, but a rational and proportionate decision taken in the public interest. If the Employment Tribunal were at some future stage to find that there was discrimination on a prohibited ground, but that the effect of section 42 and/or regulation 24 was that such discrimination could none the less be regarded as justified as being for the purpose of safeguarding national security, the Tribunal would be obliged to identify this basis of decision, however generally, in open reasons, to enable its legitimacy under European Union law to be challenged. There is no reason to assume that the Tribunal, assisted as it would also be by a special advocate, would fail to do this. (c) Effective legal protection The question is therefore whether the closed material procedure authorised by United Kingdom law provides effective legal protection, by establishing a system of legal remedies and procedures to ensure respect for the relevant rights conferred by the Race Relations Act and the Employment Equality Regulations in implementation of the United Kingdoms obligations under the two Directives. Mr Allen relies upon the decisions of the Court of Justice in Joined Cases C 402/05 P and C 415/05 P Kadi v Council of the European Union and the General Court in Case T 85/09 Kadi v Commission of the European Union (Council of the European Union intervening). These two cases concerned the validity of the European Unions own measures, and the two European Courts were charged not merely with ascertaining and interpreting the relevant European legal principles applicable under the Treaties, but also with applying these to the particular measures and circumstances before them. In the former case [2009] AC 1225, the Court of Justice addressed Council Regulation 881/2002 which aimed to mirror within Europe a similar asset freezing regime to that mandated by Security Council Resolutions for all member states of the United Nations. The Regulation, in its Annex I, simply listed as persons whose assets were to be frozen persons whose names appeared on a list drawn up by the Security Councils Sanctions Committee, and no opportunity was given before or after its passing to such persons to mount any legal challenge to such listing at either the Security Council or the European level. The Court of Justice accepted that: 342 . with regard to a Community measure intended to give effect to a resolution adopted by the Security Council in connection with the fight against terrorism, overriding considerations to do with safety or the conduct of the international relations of the Community and of its Member States may militate against the communication of certain matters to the persons concerned and, therefore, against their being heard on those matters. It went on: 343 However, that does not mean, with regard to the principle of effective judicial protection, that restrictive measures such as those imposed by the contested regulation escape all review by the Community judicature once it has been claimed that the act laying them down concerns national security and terrorism. 344 In such a case, it is none the less the task of the Community judicature to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice (see, to that effect, the judgment of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413, para 131). The Regulation was annulled in respect of Mr Kadi and Al Barakaat (a Swedish foundation) because there had been no procedure for communicating any evidence or for any hearing of persons listed, so that such persons rights of defence and to an effective legal remedy were infringed. But the Court postponed the annulment for up to three months from 3 September 2008. The second Kadi case [2011] 1 CMLR 697 was a sequel. After the first case, the Commission sought and obtained from the Sanctions Committee a summary of its reasons for listing Mr Kadi, communicated that to him and received his comments on it on 10 November 2008. On 28 November 2008 the Commission by Commission Regulation (EC) No 1190/2008, made pursuant to a power in Regulation 881/2002 to amend Annex I to that Regulation, recited this course of events and purported on that basis to amend Annex I to reinsert Mr Kadi and Al Barakaat. Mr Kadi again successfully challenged this. The General Court held that his rights of defence had been observed only in the most formal and superficial sense, as the Commission in actual fact considered itself strictly bound by the Sanctions Committees findings and therefore at no time envisaged calling those findings into question in the light of the applicants observations (para 171). The General Court went on to say that the Commission, notwithstanding recitals in its Regulation, failed to take due account of the applicants comments (para 172) and that the procedure followed by the Commission, in response to the applicant's request, did not grant him even the most minimal access to the evidence against him. In actual fact, the applicant was refused such access despite his express request, whilst no balance was struck between his interests, on the one hand, and the need to protect the confidential nature of the information in question, on the other (see, in that regard, the judgment of the Court of Justice in Kadi, paras 342 to 344) (para 173). The General Court noted that this conclusion was consistent with the reasoning on the European Court of Human Rights in A v United Kingdom [2009] 49 EHRR 625 (para 176). Earlier in its judgment, at paras 146 147, the General Court said this about national security issues, with reference to its previous judgment in Case T 228/02 Organisation des Modjahedines du Peuple d'Iran v Council of the European Union [2006] ECR II 4665 (OMPI): 146 The General Court also noted in that regard, at para 156 of OMPI, that, although the European Court of Human Rights recognises that the use of confidential information may be necessary when national security is at stake, that does not mean, in that court's view, that national authorities are free from any review by the national courts simply because they state that the case concerns national security and terrorism (see the judgment of the European Court of Human Rights in Chahal v United Kingdom, para 131, and case law cited, and its judgment in calan v Turkey (2003) 37 EHRR 238, para 106 and case law cited). 147 The General Court added, at para 158 of OMPI, that it was not necessary for it to rule, in the action before it, on the separate question as to whether the applicant and/or its lawyers could be provided with the evidence and information alleged to be confidential, or whether they had to be provided only to the Court, in accordance with a procedure which remained to be defined so as to safeguard the public interests at issue whilst affording the party concerned a sufficient degree of judicial protection. The question identified by the General Court in para 147 did not arise for decision in either of the two Kadi cases. It is, however, clear from both Kadi cases that the Court of Justice will look for guidance in the jurisprudence of the European Court of Human Rights when deciding whether effective legal protection exists, and how any balance should be struck when a question arises whether civil procedures should be varied to reflect concerns relating to national security. A national court, faced with an issue of effective legal protection or, putting the same point in different terms, access to effective procedural justice, can be confident that both European courts, Luxembourg and Strasbourg, will have the same values and will expect and accept similar procedures. Article 6(2) of the Treaty on the European Union (The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law) and the Charter of Fundamental Rights already point strongly in this direction. Assuming that the European Union will in due course formally subscribe to the European Convention on Human Rights, as contemplated by the Treaty amendments introduced under the Treaty of Lisbon, the expectation will receive still further reinforcement. In the present case, the Home Office applied for and obtained the Tribunals order for a closed material procedure in order to be able to defend itself against Mr Tariqs claim that the removal of his security clearance involved unlawful discrimination on grounds of race or religion. The case concerns a different subject matter from that of both Kadi cases, where freezing orders were in issue. The effect of freezing orders (made under United Kingdom legislation directly implementing the Security Councils Resolutions) was examined by the Supreme Court in A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2 AC 534. Persons subject to such orders became effectively prisoners of the state and there was a devastating effect on them and their families: para 60. A v United Kingdom, to which the General Court in Kadi referred, also involved a different subject matter to the present, concerning, as it did, the detention of foreign nationals suspected of terrorist involvement. Rights said that: In A v United Kingdom 49 EHRR 695 the European Court of Human 216 The Court takes as its starting point that, as the national courts found and it has accepted, during the period of the applicants detention the activities and aims of the AlQaeda network had given rise to a public emergency threatening the life of the nation. It must therefore be borne in mind that at the relevant time there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack and, although the United Kingdom did not derogate from article 5(4), a strong public interest in obtaining information about AlQaeda and its associates and in maintaining the secrecy of the sources of such information (see also, right under article 5(4) in this connection, Fox, Campbell and Hartley (1991) 13 EHRR 157, para 39). 217 Balanced against these important public interests, however, was the applicants' to procedural fairness. Although the Court has found that, with the exception of the second and fourth applicants, the applicants detention did not fall within any of the categories listed in sub paragraphs (a) to (f) of article 5(1), it considers that the case law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see para 197 above). Moreover, in the circumstances of the present case, and in view of the dramatic impact of the lengthy and what appeared at that time to be indefinite deprivation of liberty on the applicants' fundamental rights, article 5(4) must import substantially the same fair trial guarantees as article 6(1) in its criminal aspect (Garcia Alva v Germany (2003) 37 EHRR 335, para 39, and see also see Chahal, cited above, paras 130 131). 218 Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, article 5(4) required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him. 219 The Court considers that SIAC, which was a fully independent court (see para 84 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee. In this connection, the special advocate could provide an important, additional safeguard through questioning the states witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure. On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants' appeals or that there were not compelling reasons for the lack of disclosure in each case. 220 The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case by case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied. In Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, the House of Lords applied the reasoning in para 220 of A v United Kingdom when concluding that a closed material procedure involving a special advocate could be legitimate in the context of the imposition of a control order on a suspected terrorist, so long as the case was not based solely or to a decisive extent on closed material. Mr Allen submits that the fundamental nature of equality rights makes it just as critical that Mr Tariq should receive the fullest procedural rights in this case as it was for Mr Kadi or A or AF to have such rights. However, the reasoning in para 217 of the European Court of Human Rights judgment in A v United Kingdom emphasises the context of that decision, the liberty of the individual. Detention, control orders and freezing orders impinge directly on personal freedom and liberty in a way to which Mr Tariq cannot be said to be exposed. In R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287; [2009] 1 WLR 2049, a claim for judicial review of the refusal of an application for British citizenship, the Court of Appeal distinguished A v United Kingdom on the ground that it was focusing on detention. In my opinion, it was justified in making this distinction. An applicant for British citizenship has, of course, an important interest in the appropriate outcome of his or her application. Mr Tariq also has an important interest in not being discriminated against which is entitled to appropriate protection; and this is so although success in establishing discrimination would be measured in damages, rather than by way of restoration of his security clearance (now definitively withdrawn) or of his position as an immigration officer. But the balancing exercise called for in para 217 of the European Courts judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself. That the outcome of the balancing exercise may differ with the circumstances is confirmed by three decisions of the European Commission and Court of Human Rights: Leander v Sweden (1987) 9 EHRR 433, Esbester v United Kingdom (1993) 18 EHRR CD72 and Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010. In Leander, the applicant had been refused permanent employment as museum technician with the Naval Museum, which was adjacent to the Karlskrona Naval Base in which the Museum had storage rooms and other objects to which he would need access. The refusal was on account of secret information, contained in an annex compiled by the police, which was alleged to make him a security risk and to which he was refused access. He claimed that there had been breaches of, inter alia, articles 8 and 13 of the Convention. The Court did not accept this. Article 8 provides that everyone has the right to respect for his private life, and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or other specified interests. As to article 8, the Court held that, although there was adverse interference with Mr Leanders private life through the consequences for his access to certain sensitive posts (para 59) and although he was refused any possibility of challenging the correctness of the information concerning him (para 61), the system for collecting and using the secret information contained a number of internal safeguards (para 62) and it could not be concluded that the interference involved in the non communication of the information to Mr Leander was not necessary in a democratic society in the interests of national security, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure (para 66). Article 13 provides that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority. As to article 13, the Court in Leander held by a majority (4 to 3) that an effective remedy under article 13 must mean a remedy that is as effective as can be, having regard to the restricted scope for recourse inherent in any system of secret surveillance for the protection of national security (para 84), and that, even if the procedure of complaint to the Government (which Mr Leander had followed and which had led to the Cabinet rejecting his complaint) were not considered sufficient, the aggregate of that and the other remedies of complaint to the Swedish Parliamentary Ombudsman and Chancellor of Justice (which he could also have pursued, although their views would only have been advisory) satisfied the conditions of article 13 (para 84). In Esbester 18 EHRR CD72 the Commission was again concerned with a refusal to employ, in this case as an administrative officer with the Central Office of Information (COI). The COI having offered to employ Mr Esbester subject to the satisfactory completion of our inquiries ., gave as its reasons for refusal simply that having completed our inquiries . we are unable to offer you an appointment. Mr Esbester claimed infringement of articles 8 and 13, maintaining that it was likely that the intelligence services had in the course of negative vetting procedures obtained and relied upon information about his private life, which he had had no opportunity to refute. He also alleged that there was inadequate legal regulation regarding the gathering of such information, and that the Security Service Tribunal responsible for investigating complaints gave inadequate protection and was prevented from giving reasons for its decisions. The Commission accepted, following Leander, that security vetting based on information about a persons private life constitutes interference within article 8, and it accepted, following Klass v Federal Republic of Germany (1978) 2 EHRR 214 and Malone v United Kingdom (1985) 7 EHRR 14 that the existence in the United Kingdom of a system for secret surveillance for vetting and the circumstances giving rise to the refusal to employ Mr Esbester gave rise to an inference that such interference had taken place. But it rejected Mr Esbesters complaints as manifestly unfounded. In finding the United Kingdoms system to be in accordance with the law, the Commission noted that the Court had held in Leander that the requirement of foreseeability in the special context of employment vetting in sectors affecting national security cannot be the same as in many other fields. In finding that the system was necessary in a democratic society, the Commission said, again with reference to Leander, that regard must also be had in this context to the margin of appreciation of the respondent state which in the area of assessing the requirements of and means of pursuing interests of national security has been held by the Court to be wide. In considering whether there existed adequate and effective guarantees against abuse, as required by the Courts decision in Klass, the Commission noted that the term national security was not amenable to exhaustive definition, and that, as regards the lack of reasons for the decisions of the Tribunal, the Court in Klass, when considering a similar problem, had found that the state could legitimately fear that the efficacy of surveillance systems might be jeopardised if information is divulged to the person concerned. The Commission concluded its discussion of article 8 by saying that In the absence of any evidence or indication that the system is not functioning as required by domestic law, the Commission finds that the framework of safeguards achieves a compromise between the requirements of defending democratic society and the rights of the individual which is compatible with the provisions of the Convention. Consequently it concludes that the interference in the present case was necessary in a democratic society in the interests of national security. As to article 13, the Commission held that the complaint of lack of an effective remedy failed in the absence of any arguable claim for breach of article 8. In Kennedy v United Kingdom decided by its Fourth Section on 18 May 2010, the Court was concerned with a claim that there had been breaches of articles 6 (the right to a fair trial in the determination of civil rights and obligations), 8 and 13 in circumstances where the claimants requests to MI5 and GCHQ under the Data Protection Act 1998 to discover whether information about him was being processed had been refused on the grounds of national security. Complaints about such refusals to the Investigatory Powers Tribunal (IPT) chaired by Lord Justice Mummery were examined in private. They concluded with the IPT simply notifying Mr Kennedy that no determination had been made in his favour in respect of his complaints. This meant either that there had been no interception or that any interception which took place was lawful (para 20). As to article 8, the Court held that the domestic law, practice and safeguards relating to surveillance satisfied the conditions of that article. It referred to, inter alia, Leander v Sweden as establishing that the requirement that the consequences of the domestic law must be foreseeable, before any interference could be said to be in accordance with the law under article 8(2), cannot be the same in the context of interception of communications as in many other fields (paras 151 152). As to article 6, the Court in Kennedy found it unnecessary to decide whether this article applies to proceedings concerning a decision to put someone under surveillance, because it concluded that, assuming it does, the IPTs rules of procedure complied with the requirements of article 6(1) (para 179). The parties respective cases appear from the following paragraphs of the Courts judgment: 181. The applicant submitted that even where national security was at stake, a domestic court could not infringe the fair hearing principle in a blanket and uncritical manner. He argued that less restrictive measures were available to achieve the aim pursued, including arrangements to protect witnesses' identities, disclosure of documents with redactions approved by the IPT, provision of a summary of particularly sensitive material under the supervision of the IPT and appointment of special advocates to whom disclosure of sensitive material could be made. He referred to a recent report on secret evidence published in June 2009 by the non governmental organisation, JUSTICE, which called for the strengthening of disclosure procedures and increased transparency in court proceedings. 182. The Government emphasised that even where article 6(1) applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of article 6 should be applied to such disputes (citing Vilho Eskelinen v Finland (2007) 45 EHRR 993, para 64). The obligation to read the Convention as a whole meant that the scope of the article 6 guarantees in such a case should be in harmony with the Court's approach to judicial control under article 8. The Government argued that the overarching consideration was that an individual could not be notified of interception measures while interception was ongoing or where notification would jeopardise the capabilities or operations of intercepting agencies. They therefore disputed that the less restrictive measures proposed by the applicant were appropriate. They noted that protection of witnesses' identities would not assist in keeping secret whether interception had occurred. Nor would disclosure of redacted documents or summaries of sensitive material. Further, unless they were appointed in every case, the appointment of special advocates would also allow a complainant to draw inferences about whether his communications had been intercepted. 183. The Government argued that the procedure before the IPT offered as fair a procedure as could be achieved in the context of secret surveillance powers. In particular, a complainant did not have to overcome any evidential burden to apply to the IPT and any legal issues could be determined in a public judgment after an inter partes hearing. Further, the IPT had full powers to obtain any material it considered necessary from relevant bodies and could call upon the assistance of the Commissioner. It could appoint an advocate to assist it at closed hearings. Finally, in the event that the complainant was successful, a reasoned decision would be provided. The Court, in holding that there had been no violation of article 6 or 13 in Kennedy, substantially aligned itself with the United Kingdom Governments position particularly in so far as it endorsed in relation to the concept of a fair trial under article 6 the relevance of similar considerations to those taken into account, previously and in Kennedy itself, when applying articles 8 and 13. It held: 184. The Court reiterates that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis a vis his opponent . The Court has held none the less that, even in proceedings under article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v The Netherlands (1996) 22 EHRR 330, para 70; Jasper v United Kingdom (2000) 30 EHRR 441, paras 51 to 53; and A v United Kingdom (2009) 49 EHRR 625, para 205). A similar approach applies in the context of civil proceedings. 185. The Court notes that the IPT, in its preliminary ruling of 23 January 2003, considered the applicant's complaints regarding the compliance of the Rules with article 6(1). It found that, with the exception of rule 9(6) which required all oral hearings to be held in private, the Rules challenged by the applicant were proportionate and necessary, with special regard to the need to preserve the Government's neither confirm nor deny policy 186. At the outset, the Court emphasises that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information. In the Court's view, this consideration justifies restrictions in the IPT proceedings. The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicant's right to a fair trial. 187. In respect of the rules limiting disclosure, the Court recalls that the entitlement to disclosure of relevant evidence is not an absolute right. The interests of national security or the need to keep secret methods of investigation of crime must be weighed against the general right to adversarial proceedings (see, mutatis mutandis, Edwards and Lewis v United Kingdom (2005) 40 EHRR 593, para 46). The Court notes that the prohibition on disclosure set out in rule 6(2) admits of exceptions, set out in rules 6(3) and (4). Accordingly, the prohibition is not an absolute one. The Court further observes that documents submitted to the IPT in respect of a specific complaint, as well as details of any witnesses who have provided evidence, are likely to be highly sensitive, particularly when viewed in light of the Government's neither confirm nor deny policy. The Court agrees with the Government that, in the circumstances, it was not possible to disclose redacted documents or to appoint special advocates as these measures would not have achieved the aim of preserving the secrecy of whether any interception had taken place. It is also relevant that where the IPT finds in the applicant's favour, it can exercise its discretion to disclose such documents and information under rule 6(4) . 188. As regards limitations on oral and public hearings, the Court recalls, first, that the obligation to hold a hearing is not absolute. There may be proceedings in which an oral hearing is not required and where the courts may fairly and reasonably decide the case on the basis of the parties' submissions and other written materials. The character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court (see Jussila v Finland (2006) 45 EHRR 900, paras 41 to 42). The Court notes that rule 9(2) provides that oral hearings are within the IPT's discretion and it is clear that there is nothing to prevent the IPT from holding an oral hearing where it considers that such a hearing would assist its examination of the case. 189. Concerning the provision of reasons, the Court emphasises that the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v Spain (1994) 19 EHRR 553, para 29). In the context of the IPT's proceedings, the Court considers that the "neither confirm nor deny" policy of the Government could be circumvented if an application to the IPT resulted in a complainant being advised whether interception had taken place. In the circumstances, it is sufficient that an applicant be advised that no determination has been in his favour. The Court further notes in this regard that, in the event that a complaint is successful, the complainant is entitled to have information regarding the findings of fact in his case . 190. In light of the above considerations, the Court considers that the restrictions on the procedure before the IPT did not violate the applicant's right to a fair trial. In reaching this conclusion, the Court emphasises the breadth of access to the IPT enjoyed by those complaining about interception within the United Kingdom and the absence of any evidential burden to be overcome in order to lodge an application with the IPT. In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicant's rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicant's article 6 rights. As regards article 13, the Court held that the IPT offered to the applicant an effective remedy insofar as his complaint was directed towards the alleged interception of his communications and, in respect of the applicants general complaint under article 8, it reiterated its case law to the effect that article 13 does not require the law to provide an effective remedy where the alleged violation arises from primary legislation, citing in this respect also Leander v United Kingdom 9 EHRR 433. These three cases Leander, Esbester and Kennedy establish that the demands of national security may necessitate and under European Convention law justify a system for handling and determining complaints under which an applicant is, for reasons of national security, unable to know the secret material by reference to which his or her complaint is determined. The critical questions under the Convention are whether the system is necessary and whether it contains sufficient safeguards. But, subject to satisfactory answers on these questions, national security considerations may justify a closed material procedure, closed evidence (even without use of a special advocate) and, furthermore, (as in Kennedy itself) a blanket decision leaving the precise basis of determination unclear. There is however a further decision, even more recent than Kennedy, on which Mr Allen relies in an opposite sense. That is Uukauskas v Lithuania (Application No 16965/04) decided by the Second Section of the Court on 6 July 2010. The applicant had a licence to keep a pistol and hunting rifle. His request for a licence for another kind of firearm was refused and his existing licence was withdrawn, after his listing by the police in an operational records file maintained by the police to hold data for law enforcement bodies obtained during operational activities. He instituted proceedings challenging his listing, and the court, after examining classified material submitted by the police without disclosure to the applicant, upheld the listing. He complained to the European Court of Human Rights on the basis that there had been a breach of article 6(1). The Court said (para 48): The Court is not insensitive to the goals which the Lithuanian law enforcement authorities pursued through their operational activities. Likewise, the Court shares the Government's view that documents which constitute state secrets may only be disclosed to persons who possess the appropriate authorisation. And yet the Court notes that Lithuanian law and judicial practice provide that such information may not be used as evidence in court against a person unless it has been declassified, and that it may not be the only evidence on which a court bases its decision (see paras 20 22 above). It went on to indicate that the file was the only evidence of the applicants alleged danger to society, that he had repeatedly asked for its disclosure to him, even in part, and that, without it, he had no possibility of being apprised of the evidence against him or of being able to respond to it (paras 50 51). The Court concluded (para 51): In conclusion, therefore, the Court finds that the decision making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the interests of the applicant. It follows that there has been a violation of article 6(1) in the present case. The case has the special feature that the procedure adopted was contrary to Lithuanian law. Quite probably for this reason, no reference was made to any of the decisions considered in paras 28 to 36 of this judgment. There was evidently also no procedure under Lithuanian law for the use of a special advocate to consider closed material: the choice lay between declassification and no use of the material at all. The decision is therefore very far from the present, and does not offer assistance on the issues which arise on this appeal. (d) Necessity for a closed material procedure in this case In the present case, Mr Allen submits that no necessity is shown for a closed material procedure. He submits that the rule of law and the maintenance of the modern democratic state [will] not [be] imperilled if the Home Office loses this case for want of advancing a secret case. In other words, the worst that may happen is that the Home Office has to pay an unmeritorious claim. On this basis, Mr Allen distinguishes control order cases such as AF (No 3), in which it could be said that national security would be directly imperilled if secret evidence could not be used to justify imposing a control order. This distinction would positively encourage unmeritorious claims; and it would on any view mean that the government could only operate a security vetting system on pain of having to accept or pay all claims for discrimination which appeared sufficiently arguable to avoid being dismissed as abusive. The only other possibility is that a court might, following the Court of Appeal decision in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786, determine that, if the national security material could not be deployed in defence, the claim might not be fairly justiciable at all. Laws LJ said of this situation in Carnduff (para 36) that . a case which can only be justly tried if one side holds up its hands cannot, in truth, be justly tried at all. Under that possibility, it would be Mr Tariqs case which would fail in limine. Neither of these possibilities is one which the law should readily contemplate. In the penal context, an accused is presumed innocent until proved guilty; there is a public interest in the trial of suspects before a court, but it is better that the state should forego prosecution than that there should be any risk of an innocent person being found guilty through inability to respond to the full case against them. These imperatives do not operate in quite the same way in a civil context like the present, where the state may not be directly involved as a party at all. The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a tribunal or court which has before it material enabling it to do this. In considering how this may be achieved, if a defendant can only defend itself by relying on material the disclosure of which would damage national security, a balance may have to be struck between the interests of claimant and defendant in a civil context. Mr Allens submission also involves anomalies. The Leander, Esbester and Kennedy cases demonstrate that, had Mr Tariq been claiming that the decision to suspend or remove security clearance was unjustified on its merits, he could not have complained about the use of a closed material procedure. Yet, on Mr Allens submission, all such a claimant would (presumably) have to do would be to claim damages, rather than any other relief. The Home Office could still only defend the claim by disclosing material contrary to the national interest; but, on Mr Allens case, no problem arises: the Home Office would not have to damage the national interest by making disclosure; instead, it could simply admit liability or defend fruitlessly and lose for want of being able to deploy the material. I cannot think that that is the law, in Strasbourg or domestically. (e) The acceptability of a special advocate procedure I do not therefore consider that a closed material procedure is in principle inconsistent with the right to an effective remedy in respect of alleged discrimination or with the Human Rights Convention. But there are further strings to Mr Allens case, which call for closer examination of the actual procedure, in particular the use of a special advocate. A special advocate procedure has been accepted as potentially useful in both United Kingdom and Strasbourg case law. Thus, in A v United Kingdom, addressing the issue of detention of terrorist suspects without trial, the Court of Human Rights said (para 220): The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. The Court went on: While this question must be decided on a case by case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. It concluded by saying that where the open material consisted of general assertions and the decision to maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied. Domestically, the House of Lords in both Secretary of State for the Home Department v MB [2007] UKHL 46; [2008] AC 440 and Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 accepted a special advocate procedure, while endorsing in AF (No 3) the applicability, in the context of control orders, of the approach taken in A v United Kingdom. Mr Allen draws attention to a report of the Joint Committee on Human Rights of the Houses of Lords and Commons on Counter Terrorism Policy and Human Rights (Session 2006 2007) (HL Paper 157, HC 394), published 30 July 2007, which precedes the cases mentioned in the previous paragraph. The Committee was addressing the use of special advocates in, in particular, control order proceedings, but it also heard evidence from four special advocates (including Ms Farbey who acts in this case), which ranged more widely. It identified a number of concerns. These included, first, the overriding duty to which it saw both SIAC and a court as being subject, to ensure that material was not disclosed contrary to the public interest, in other words its inability to balance the interests of justice to the individual against the public interest in non disclosure (paras 196 and 199). It was also concerned by, secondly, the difficulties presented if closed material was not gisted (paras 195 and 199) and, thirdly, the inflexibility of the prohibition on communication between special advocates and the person concerned or his or her legal representatives, once the special advocate had seen the closed material (paras 203 and 205). The first of these concerns is covered and resolved by case law subsequent to the Joint Committees Report. Under rule 54(2) the employment tribunal or judge has a discretion. This is subject to rule 54(4), according to which a tribunal or judge, when exercising its or his functions, shall ensure that information is not disclosed contrary to the interests of national security. But the tribunal or judge is subject to the overriding objective to deal with cases justly under regulation 3 of the Employment Procedure Regulations, and, most importantly also, obliged under section 3 of the Human Rights Act 1996 to interpret primary and secondary legislation in a way which is compatible with Convention rights. In Secretary of State for the Home Department v MB [2008] AC 440 (decided 31 October 2007), the House of Lords held that paragraph 4(3)(d) of the Prevention of Terrorism Act 2005 (the terms of which parallel those of rule 54(2)) should be read and given effect except where to do so would be incompatible with the right . to a fair trial (para 72, per Lady Hale; and see paras 84 and 92 per Lord Carswell and Lord Brown). The result was that, when and if the court did not consider that material could safely remain closed, the Secretary of State had a choice: either to disclose to the person concerned, or to withdraw reliance on the material. The House followed and applied this reasoning in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, when deciding that persons subject to control orders must be told the gist of the case against them. Applying it in the context of the present secondary legislation in rule 54(2), it means that, even if disclosure of material to the person concerned might involve some potential damage to national security, an employment tribunal or court might, weighing the interests of justice, conclude that either the state should make such disclosure, not merely to the special advocate but also to the person concerned, or it should withdraw any reliance on the material. Likewise, in relation to the third concern, it is a matter of discretion how far such contact is permitted, and the tribunal or judge can and should exercise such discretion flexibly and after balancing the competing interests. The second concern involves consideration of the case law and issue discussed in paras 28 to 37 above and 63 to 68 below. Mr Allen submits, first, that, despite the general endorsement of its potential appropriateness in these cases, the special advocate procedure involves flaws undermining its acceptability; and, secondly, that, even if the special advocate procedure is otherwise acceptable, this can only be on the basis of disclosure of the substance of the Home Offices case (gisting) in respect of Mr Tariq. Since the Court of Appeal accepted this second submission, it arises for consideration as a result of the Home Offices cross appeal. The flaws which Mr Allen identifies relate to the special advocates role and powers and the lack of guidance as to their exercise or supervision. These are matters of detail which he submits have gone largely and unjustifiably without scrutiny in previous cases. As to role, Mr Allen takes issue at the outset with the appointment of special advocates by the Attorney General who is the governments principal legal adviser. This is a point which was addressed and is the subject of previous authority in the form of the House of Lords decision in R v H [2004] UKHL 3; [2004] 2 AC 134, where the suitability of the Attorney General to act in this respect had been questioned in the courts below. Lord Bingham giving the unanimous opinion of the House said (para 46): In our opinion such doubt is misplaced. It is very well established that when exercising a range of functions the Attorney General acts not as a minister of the Crown (although he is of course such) and not as the public officer with overall responsibility for the conduct of prosecutions, but as an independent, unpartisan guardian of the public interest in the administration of justice: see Halsbury's Laws of England, 4th ed, vol 44(1) (1995), para 1344; Edwards, The Law Officers of the Crown (1964), pp ix, 286, 301 302. It is in that capacity alone that he approves the list of counsel judged suitable to act as special advocates or, now, special counsel, as when, at the invitation of a court, he appoints an amicus curiae. Counsel roundly acknowledged the complete integrity shown by successive holders of the office in exercising this role, and no plausible alternative procedure was suggested. It would perhaps allay any conceivable ground of doubt, however ill founded, if the Attorney General were to seek external approval of his list of eligible advocates by an appropriate professional body or bodies, but such approval is not in current circumstances essential to the acceptability of the procedure. Special advocates are appointed from the independent bar or solicitor advocates on the basis of open competition, and are selected for inclusion on the panel on the basis of their abilities. Mr Tariq was able to make representations as to the choice of his special advocate, in accordance with para 98 of the Treasury Solicitors Special Advocates Guide, Special Advocates A Guide to the Role of Special Advocates and the Special Advocates Support Office (SASO). His suggested choice was appointed. Para 88 of the Special Advocates Guide further makes clear that: The role of the Attorney General (or Solicitor General, acting in his place by virtue of section 1 Law Officers Act 1997) in appointing a special advocate is purely formal. No 'instructions' (other than in the purely formal sense) will come from the Law Officers to special advocates indicating any particular way that the case in which the special advocate is instructed is to be argued. That is a matter for special advocates and the appellant, to the extent that the appellant engages with the special advocates. Mr Allens first point on role is therefore one I reject. Mr Allen next submits that special advocates are subject to a conflict of interest which would be prohibited in private litigation. This is said to arise from the fact that they are supported by a unit (SASO) which is located within the Treasury Solicitors Department. It is not disputed (or disputable) that legal and administrative support is necessary for a special advocate procedure to work; and it is unclear as to where else such support might or should be located. The submission is simply that there is an impermissible conflict of interest. Reliance is placed on the Solicitors Code of Conduct 2007. Rule 3 precludes a solicitor from acting (without informed consent) where there is a conflict of interests defined as existing where, inter alia, the solicitor or his firm owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict. Mr Allen further submits that there is no sufficient Chinese wall between SASO and the remainder of the Treasury Solicitors Office to enable reliance on that possibility, which was discussed in the House of Lords in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222. In my opinion, these objections also fail. As to the former, the Treasury Solicitor does not have two clients and is not in breach of the professional code. The special advocate is an independent (security cleared) member of the bar or solicitor advocate, who is not professionally engaged by or on behalf of Mr Tariq, though he or she is charged to represent Mr Tariqs interests. As the Special Advocates Guide states (para 113): Actual conflicts of interest in the usual sense do not arise, since a special advocate owes no duty to the person whose interests he represents. However, a special advocate should be careful to ensure that no situation arises in which there could be any perception of anything other than absolute independence on his part. The Guide then reminds special advocates of the need for care to avoid any perceived conflict of interest when undertaking the role as well as in the future. SASO, which supports special advocates, operates for all practical purposes as a separate unit, with an established Chinese wall arrangement dividing it from the rest of the Treasury Solicitors Office. Maurice Kay LJ set out the position (para 30): SASO was set up in 2006 in response to the recommendation of the Constitutional Affairs Select Committee in its report on the operation of the Special Immigration Appeals Commission and use of SAs [special advocates] (7th report, session 2004 2005, 3 April 2005). The functions of SASO are described in Special Advocates A Guide to the Role of Special Advocates and the Special Advocates' Support Office, which is published on the Treasury Solicitor's Department's website. It is SASO that provides an SA with formal instructions. It also provides legal and administrative support to SAs and acts as the librarian of closed case law for them. Although formal instructions originate with SASO, it has no input into decisions such as whether to appeal a closed adverse judgment or to open part of a closed judgment. Such matters are for the independent judgment of the SA alone. Although SASO is physically located within the premises of the Treasury Solicitor at One Kemble Street, it has an established Chinese wall arrangement and is for all practical purposes a separate entity. It comprises five lawyers and three administrators. Four lawyers and two administrators form the SASO (closed) team, the remaining lawyer and administrator forming the SASO (open) team. The open team does not have security clearance. It alone communicates with the litigant's open representatives. Although other relevant litigation teams within the office of the Treasury Solicitor are able to share their facilities, this is not so in relation to SASO's resources and facilities. It has completely separate document handling, communication, storage and technology facilities. The four lawyers who carry out casework on cases in which the SAs are instructed do not carry out any work for any other part of the Treasury Solicitor's office. The fifth lawyer is at Grade 6 level. He does not have his own casework in relation to cases involving SAs. His role is more supervisory and he has a wider line management role which extends to the general private law litigation team. He may report to the Attorney General but only in relation to open issues in matters where SAs are instructed. In addition, in order to protect the independence of the SASO team, there are conflict checks to ensure that other members of the private law team do not act in cases which are in any way relevant to SASO. Mr Allen challenges the adequacy of this system. The information about its operation based on the Special Advocates Guide was amplified by a Home Office note produced during the Court of Appeal hearing. Mr Tariq invites scepticism about information provided in the context of litigation in which, he suggests, the Treasury Solicitor has an interest in the status quo. The information that SASO operates on a Chinese wall basis with the Treasury Solicitor teams who represent the Government in cases in which special advocates appear is however contained in the Special Advocates Guide (para 87). The arrangements described in both documents evidence a serious intention to achieve such a separation, and there is no reason to doubt their genuineness or efficacy. Significantly, as Maurice Kay LJ indicated in the passage quoted above, the position is that, although formal instructions originate with SASO, SASO has no input into special advocates decisions, which are taken only by the relevant independent special advocate. One can also be confident that, if any special advocate or court at any point suspected that the separation between SASO and other government legal teams was in any way incomplete, this would at once be brought to light. Maurice Kay LJ, based on his own experience, commented (para 32): If I may be permitted a subjective observation: if such problems were evident they would be expected to provoke adverse judicial comment but, in my experience, the system, although inherently imperfect, enjoys a high degree of confidence among the judges who deal with cases of this kind on a regular basis. In these circumstances, Mr Allen focuses on the fifth of the five SASO lawyers, a grade 6 lawyer who has no case work responsibility at all, but who does have a line management role in relation to both the SASO team and the Treasury Solicitors general private law team. He also chairs the monthly special advocates meetings at which cases and tactics are discussed, the minutes of which are sent to the Attorney Generals office, and he may occasionally brief the Attorney Generals office on open issues only. After pointing out that a person in Mr Tariqs position will instruct the special advocate before any closed material procedure begins, Mr Allen suggests that the description given of the grade 6 lawyers activity means that the content of such instructions could be shared with parts of the Treasury Solicitors office outside the SASO team or even with the Attorney General. I do not regard this as realistic. Substantive legal decisions are, as stated, taken by the special advocate. The grade 6 lawyer has no case work responsibility, and would not on the face of it be likely even to know of any instructions given by Mr Tariq. Even if he did know, disclosure to anyone outside the SASO team would involve a serious breach of his duty. There is no reason to think that minutes of the monthly meeting circulated to the Attorney Generals office would disclose such instructions, and the special advocate would presumably receive them and ensure that they did not. There is also no reason to think any briefing of the Attorney Generals office could or would go into detail about individual cases, still less about instructions given by Mr Tariq. It is clear that the Attorney General has no role and no detailed knowledge in relation to individual cases. In Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 the House was concerned with accountants (KPMG) who were in possession of information confidential to a former client (Prince Jefri) which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of which Prince Jefri had been chairman, to investigate the whereabouts of certain assets suggested to have been used by Prince Jefri for his own benefit. The House granted an injunction restraining KPMG from acting for the Agency. It held that the burden was on KPMG to show that there was no risk of the information coming into the possession of those within KPMG acting for the Agency. KPMG had attempted to erect a Chinese wall, but this was ad hoc and within a single department; further the two teams involved one which had acted for Prince Jefri and the one which was acting for the Agency contained large and rotating memberships of persons accustomed to working with each other. In these circumstances, the House held that, although there was no rule of law that Chinese walls or other similar arrangements were insufficient, nevertheless, to eliminate the risk, an effective Chinese wall needs to be an established part of the organisational structure of the firm, not created ad hoc and dependent on the acceptance of evidence sworn for the purpose by members of staff engaged on the relevant work (per Lord Millett, at p 239D E). The present case falls into an opposite category. SASO has a small team which works separately under arrangements which are not ad hoc, but well established, and it uses the services of independent outside special advocates, who can be relied upon to reinforce the culture and reality of such separation. There is no reason to doubt the genuineness and efficacy of the Chinese wall which has been set up in this way to service special advocates needs, in particular by providing assistance described in para 90 of the Special Advocates Guide. Mr Allen makes other further criticisms of the arrangements for special advocates: he submits that special advocates lack supervision, that there is insufficient guidance as to their role and that they lack any or sufficiently defined powers in respect of matters such as disclosure, the calling and cross examination of witnesses and appeal. I do not regard these criticisms as well founded or as rendering the whole closed material procedure unfair. Special advocates are experienced independent practitioners, accustomed to act of their own initiative and to take difficult decisions, and able to raise points of doubt or difficulty with the tribunal or court before which they appear. The special advocates role is familiar in a variety of contexts. It has been extensively described in the Special Advocates Guide. It divides into two parts, the open and closed. The Guide notes that throughout the open part, where the parties are exchanging open material, the special advocate will have the opportunity to meet the person in whose interests he or she is to act and to obtain as good an understanding as possible of his or her case (paras 99 100). Once the open stages have been completed the Secretary of State will serve his or her closed material upon the special advocate only (paras 101 102). The Guide goes on (para 102): The receipt of closed material marks the end of the period in which the special advocate may communicate directly with the appellant. It should be noted that communication with the appellant is still possible at this point but any communication from the special advocate to the appellant after this time requires the permission of the Court and the proposed format of it must be notified to the Secretary of State who can make objections if he so wishes (see SIAC Rule 36(4) and CPR 76.25(4)). During the closed phase, the special advocates role was summarised by Sedley LJ in Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015, [2009] INLR 180 in this way at para 17: The ways in which a special advocate will seek to represent the interests of an appellant are, first, to test by cross examination, evidence and argument the strength of the case for non disclosure. Secondly, to the extent that non disclosure is maintained, the special advocate is to do what he or she can to protect the interests of the appellant, a task which has to be carried out without taking instructions on any aspect of the closed material. In relation to the protection of the interests of the person in Mr Tariqs position in relation to disclosure after the closed phase has begun, the Guide amplifies the special advocates role (in the largely parallel context of his or her role in proceedings before SIAC) as follows (para 103): It is now for the special advocate to take a view himself on the material and to decide whether any of what is contained within the closed material should in fact be made open (and therefore be disclosed to the appellant) because its disclosure would not harm the public interest e.g. the material is already in the public domain or could not be regarded as damaging to national security or other public interests. Sometimes, the special advocate will submit that a summary or gist of the material could be safely disclosed to the appellant. The special advocate has a period after service of the closed material in which to consider and prepare written submissions on what, if any, of the 'closed' material should become open. These are known as rule 38 submissions in SIAC and rule 29 submissions in Control Order proceedings (although they are in fact governed by CPR 76.29). These submissions may also include requests to the Secretary of State for further information or documents to be provided to the special advocate. This period has usually in SIAC been a period of two to three weeks (although no period is specified see SIAC Rules rule 38(3)). In the CPR, similar provisions specify a period of two weeks for the special advocate to indicate whether he challenges the Secretary of state's assessment of what is open and what is closed (see rule 76.29(3)), though the Court may modify it in appropriate circumstances. With regard to the hearing on the merits, the special advocate will be present during the open part, when he or she will have the opportunity to observe how the case is put by counsel both for and against the person whose interests the special advocate will be protecting during the closed phase. The closed hearing will take place, and all but the special advocate and the Secretary of State will withdraw. I see no reason why a special advocate may not, where appropriate, take steps to call factual or expert evidence during the closed phase, if necessary applying for any necessary witness summons. The Guide is in my view correct in contemplating this (para 108): There is also a possibility that the special advocate may call his own witnesses. This latter has never, to date, been undertaken, certainly not in a SIAC context. There appears no reason in principle, however, why this should not be possible, and special advocates in proceedings in the High Court will have the considerable advantage of being able to call on both the remainder of the CPR (insofar as not disapplied) and on the inherent jurisdiction of the Court to achieve such an end. In its June 2005 Response to the Constitutional Affairs Select Committee's Report into the Operation of SIAC and the Use of Special Advocates, the Government acknowledged that it is, in principle, open to special advocates in SIAC appeals to call expert evidence. On any appeal, it is well established that the special advocate is able both to appear and represent an appellants interests in any closed phase of the appeal. Mr Allen suggests that the special advocates role in positively instituting an appeal in relation to events or decisions occurring during the closed phase is insufficiently clear. Again (and consistently with Maurice Kay LJs description in para 30, cited in para 50 above) I see no reason why the special advocates role should not embrace this. The special advocate may, with the courts permission, communicate with Mr Tariq, even after the closed phase has begun (para 50 above); the court would no doubt permit a special advocate to inform a person in Mr Tariqs position that there were closed matters which merited consideration on appeal, even though such matters could not in any way be disclosed. In this way, an appeal could be lodged to enable the special advocate to pursue such matters, although the subject matter and basis of the appeal would remain unknown to the person in Mr Tariqs position. Reference to the Court of Justice Mr Allen submits that the Supreme Court should refer to the Court of Justice points arising in this case on which European Union law is relevant. Article 267 of the Treaty on the European Union provides: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court The principles of European Union law which arise for consideration in this case are clear. There must in particular be effective legal protection in respect of the rights not to be discriminated against which Mr Tariq invokes, and, so far as guidance is necessary, it is to be found for the relevant purposes in the European Convention on Human Rights and the case law of the European Court of Human Rights. The principles which the European Court of Human Rights would apply in the area of national security have been confirmed recently by the decision in Kennedy. The questions before the Supreme Court involve the application of such principles to the circumstances of this case, and in particular to the closed material procedure involving a special advocate which the Employment Tribunal has ordered. There is on this basis no question of interpretation of the European Treaties which calls for a reference under article 267 as explained by the Court of Justice in Case 283/81 Srl CILFIT v Ministry of Health [1982] ECR 3415. It is not the role of the Court of Justice to rule on the application of established general criteria to a particular provision or arrangement, which must be considered in the light of the particular circumstances of the case in question: compare Case C 237/02 Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Hofstetter [2004] 2 CMLR 291, paras 21 23, explaining and distinguishing Joined Cases C 240/98 to 244/98 Ocano Grupo Editorial SA v Murciano Quintero [2002] 1 CMLR 1226. I add that, if Mr Tariq were to have cause for complaint about the application of the relevant legal principles as established by the European Convention on Human Rights, there will always exist the potential to seek redress in Strasbourg. The European Court of Human Rights is not limited to the examination of questions of interpretation or law arising under the Convention, but will re examine the fairness of their application as a whole in the light of the circumstances of the particular case. It follows that I would hold that the use of a closed material procedure before the Employment Tribunal was and is lawful in the present case, and dismiss Mr Tariqs appeal accordingly. The Home Offices appeal It is as well to bear in mind at the outset that the general nature of the Home Offices case has been communicated to Mr Tariq. It is that the Home Office was concerned in August 2006 that [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside and that its decision to withdraw security clearance in December 2006 was based on [his] close association with individuals suspected of involvement in plans to mount terrorist attacks and on its view that association with such individuals might make him vulnerable to attempts to exert undue influence on [him] to abuse his position: para 5 above; Mr Tariq must be able to meet this case on a general basis, in particular, by disclosing and describing his relationship and the nature and extent of his association with those of his relatives suspected and his cousin who was ultimately convicted of terrorist activity; and he has, further, on the basis of, in particular, his questioning in interview also been able to mount a sufficiently arguable case of discrimination to avoid any application to strike out his claim: para 6 above. What is in issue is the declaration made by the Employment Appeal Tribunal and upheld by the Court of Appeal to the effect that article 6 of the European Convention on Human Rights requires [Mr Tariq] to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively: para 3 above. This is worth repeating, because some language used in the Court of Appeal might suggest that Mr Tariq knew nothing at all of the nature of the case against him, as opposed to particular allegations supporting it. Thus, for example, Maurice Kay LJ said that, although a closed material procedure was in principle justified, it was none the less the right of a litigant to know the essence of the case against him, if necessary by gisting ([2010] ICR 1034, para 43). He went on to acknowledge that, in a particular case, this may put the public authority in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended, but said that all that is for the future in this litigation. It is the consequence of the requirements of justice. The Home Office by its appeal challenges this conclusion, pointing out that it raises directly the dilemma addressed by the Court of Appeal in the case of Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786. If the disclosure of material would harm national security, but without disclosure the public authority could not defend and would have to capitulate, the claim itself may not be justiciable. The appeal raises the question whether there is an absolute requirement that a claimant should him or herself see and know the allegations forming the basis of the states defence in sufficient detail to give instructions to the defence legal team to enable the allegations to be challenged effectively. One problem about the declaration made by the Employment Appeal Tribunal and upheld by the Court of Appeal is that it is questionable whether or how far it differs in any significant way from the ordinary duty of any party in any litigation to disclose the nature of its factual allegations, where no issue of national security arises at all. A second point is that the declaration made does not correspond with any requirement expressed in section 7 of the Employment Tribunals Act 1996 or in the language of the statutory instruments made under that Act. But the submission is no doubt that, if the Convention requires gisting of the nature declared in every case, even though this could damage national security, then the court should under section 3 of the Human Rights Act 1998 find it possible to read into the Employment Tribunals Act 1996 and the ET Procedure Rules and ET National Security Rules introduced under it, some qualification to enable such gisting to occur. The question is therefore whether there is in the European Convention on Human Rights, as explained by the European Court of Human Rights, any such absolute requirement, where this would involve the disclosure to Mr Tariq of the detail of allegations which would in normal litigation require to be disclosed, but which the interests of national security require to be kept secret. Clearly, it is a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it will lead to a claimant not knowing of such allegations in such detail. As the Home Office acknowledges, it is an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case; and this should be kept under review throughout the proceedings. However, to say that it is not possible under the Convention as interpreted by the Court in Strasbourg is in my view impossible, in the light of the clear line of jurisprudence culminating in the Courts decision in Kennedy which I have already discussed in paras 27 to 37 above. It is significant that, when the Court of Appeal reached its decision, it did not have the benefit of Kennedy. I would therefore allow the Home Offices appeal, and set aside the declaration made below to the effect that there exists an absolute requirement that Mr Tariq personally or his legal representatives be provided with sufficient detail of the allegations made against him to enable him to give instructions to his legal representatives on them. As I have indicated, both Mr Tariq and his legal representatives already know of the general nature of the Home Offices case. The Employment Tribunal will, with the assistance of the special advocate, keep under review and will be able to determine whether any and what further degree of gisting of the Home Offices case, or of disclosure regarding the detail of allegations made in support of it, is required, having regard to (a) the nature of the relevant allegations and of the national security interest in their non disclosure and in the light of its best judgment as to (b) the significance of such allegations for the Home Offices defence and (c) the significance for Mr Tariqs claim of the disclosure or non disclosure of such allegations to him. Employment Tribunals Act 1996, section 10 ANNEX (judgment, para 9) (5) Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security (a) to direct a tribunal to sit in private for all or part of particular Crown employment proceedings; (b) to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings; (c) to direct a tribunal to exclude the applicant's representatives from all or part of particular Crown employment proceedings; (d) to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings; (e) to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings. (6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do in relation to particular proceedings before it anything of a kind which, by virtue of subsection (5), employment tribunal procedure regulations may enable a Minister of the Crown to direct a tribunal to do in relation to particular Crown employment proceedings. (7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision (a) for the appointment by the Attorney General . of a person to represent the interests of the applicant; . The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) Schedule 1 The Employment Tribunals Rules of Procedure 54(1) A Minister of the Crown (whether or not he is a party to the proceedings) may, if he considers it expedient in the interests of national security, direct a tribunal or Employment Judge by notice to the Secretary to: (a) conduct proceedings in private for all or part of particular Crown employment proceedings; (b) exclude the claimant from all or part of particular Crown employment proceedings; (c) exclude the claimant's representative from all or part of particular Crown employment proceedings; (d) take steps to conceal the identity of a particular witness in particular Crown employment proceedings. (2) A tribunal or Employment Judge may, if it or he considers it expedient in the interests of national security, by order (a) do in relation to particular proceedings before it anything which can be required by direction to be done in relation to particular Crown employment proceedings under paragraph (1); (b) order any person to whom any document (including any judgment or record of the proceedings) has been provided for the purposes of the proceedings not to disclose any such document or the content thereof: (i) to any excluded person; (ii) in any case in which a direction has been given under [sub ]paragraph (l)(a) or an order has been made under [sub ]paragraph (2)(a) read with sub paragraph (1)(a), to any person excluded from all or part of the proceedings by virtue of such direction or order; or (iii) in any case in which a Minister of the Crown has informed the Secretary in accordance with paragraph (3) that he wishes to address the tribunal or Employment Judge with a view to an order being made under sub paragraph (2)(a) read with sub paragraph (l)(b) or (c), to any person who may be excluded from all or part of the proceedings by virtue of such an order, if an order is made, at any time before the tribunal or Employment Judge decides whether or not to make such an order; (c) take steps to keep secret all or part of the reasons for its judgment. The tribunal or Employment Judge (as the case may be) shall keep under review any order it or he has made under this paragraph. (3) In any proceedings in which a Minister of the Crown considers that it would be appropriate for a tribunal or Employment Judge to make an order as referred to in paragraph (2), he shall (whether or not he is a party to the proceedings) be entitled to appear before and to address the tribunal or Employment Judge thereon. The Minister shall inform the Secretary by notice that he wishes to address the tribunal or Employment Judge and the Secretary shall copy the notice to the parties. (4) When exercising its or his functions, a tribunal or Employment Judge shall ensure that information is not disclosed contrary to the interests of national security. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 2 The Employment Tribunals (National Security) Rules of Procedure 8 Special advocate (1) In any proceedings in which there is an excluded person the tribunal or Employment Judge shall inform the Attorney General of the proceedings before it with a view to the Attorney General , if he thinks it fit to do so, appointing a special advocate to represent the interests of the claimant in respect of those parts of the proceedings from which (a) any representative of his is excluded; (b) both he and his representative are excluded; or (c) he is excluded, where he does not have a representative. (2) A special advocate shall have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990 or shall be an advocate or a solicitor admitted in Scotland. (3) Where the excluded person is the claimant, he shall be permitted to make a statement to the tribunal or Employment Judge before the commencement of the proceedings, or the part of the proceedings, from which he is excluded. (4) Except in accordance with paragraphs (5) to (7), the special advocate may not communicate directly or indirectly with any person (including an excluded person) (a) (except in the case of the tribunal, Employment Judge and the respondent) on any matter contained in the grounds for the response referred to in rule 3(3); (b) (except in the case of a person who was present) on any matter discussed or referred to during any part of the proceedings in which the tribunal or Employment Judge sat in private in accordance with a direction or an order given or made under rule 54. (5) The special advocate may apply for orders from the tribunal or Employment Judge authorising him to seek instructions from, or otherwise to communicate with, an excluded person (a) on any matter contained in the grounds for the response referred to in rule 3(3); or (b) on any matter discussed or referred to during any part of the proceedings in which the tribunal or Employment Judge sat in private in accordance with a direction or an order given or made under rule 54. (6) An application under paragraph (5) shall be made in writing to the Employment Tribunal Office and shall include the title of the proceedings and the grounds for the application. (7) The Secretary shall notify the Minister of an application under paragraph (5) and the Minister shall be entitled to address the tribunal or Employment Judge on the application. (8) In these rules and those in Schedule I, in any case in which a special advocate has been appointed to represent the interests of the claimant in accordance with paragraph (I), any reference to a party shall (save in those references specified in paragraph (9)) include the special advocate. 10 Reasons in national security proceedings (1) This rule applies to written reasons given under rule 30 of Schedule 1 for a judgment or order made by the tribunal or Employment Judge in national security proceedings. (2) Before the Secretary sends a copy of the written reasons ('the full written reasons') to any party, or enters them in the Register under rule 32 of Schedule I, he shall send a copy of the full written reasons to the Minister. (3) If the Minister considers it expedient in the interests of national security and he has given a direction or the tribunal or an Employment Judge has made an order under rule 54 in those proceedings, the Minister may (a) direct the tribunal or Employment Judge that the full written reasons shall not be disclosed to persons specified in the direction, and to prepare a further document ('the edited reasons') setting out the reasons for the judgment or order, but with the omission of such of the information as is specified in the direction; (b) direct the tribunal or Employment Judge that the full written reasons shall not be disclosed to persons specified in the direction, but that no further document setting out the tribunal or Employment Judge's reasons should be prepared. (4) Where the Minister has directed the tribunal or Employment Judge in accordance with sub paragraph 3(a), the edited reasons shall be signed by the Employment Judge and initialled in each place where an omission has been made. (5) Where a direction has been made under sub paragraph (3)(a), the Secretary shall (a) send a copy of the edited reasons referred to in subparagraph (3)(a) to any person specified in the direction and to the persons listed in paragraph (7); (b) enter the edited reasons in the Register, but omit from the Register the full written reasons; and (c) send a copy of the full written reasons to the persons listed in paragraph (7). (6) Where a direction has been made under sub paragraph (3)(b), the Secretary shall send a copy of the full written reasons to the persons listed in paragraph (7), but he shall not enter the full written reasons in the Register. (7) The persons to whom full written reasons should be sent in accordance with paragraph (5) or (6) are (a) the respondent; (b) the claimant or the claimant's representative if they were not specified in the direction made under paragraph (3); (c) if applicable, the special advocate; (d) where the proceedings were referred to the tribunal by a court, to that court; and (e) where there are proceedings before a superior court (or in Scotland, an appellate court) relating to the decision in question, to that court. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Regulation 2 Definitions excluded person means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of: (a) a direction of a Minister of the Crown under rule 54(1)(b) or (c) of Schedule 1, or (b) an order of the tribunal under rule 54(2)(a) read with 54(1)(b) or (c) of Schedule 1; national security proceedings means proceedings in relation to which a direction is given under rule 54(1) of Schedule 1, or an order is made under rule 54(2) of that Schedule; special advocate means a person appointed in accordance with rule 8 of Schedule 2 . LORD HOPE I agree that, for the reasons so fully set out by Lord Mance in his judgment and the further reasons given by Lord Brown and Lord Dyson, the appeal by the Home Office should be allowed and that the cross appeal by Mr Tariq should be dismissed. At the heart of both the appeal and the cross appeal are two principles of great importance. They pull in different directions. On the one hand there is the principle of fair and open justice. As OConnor J declared in Hamdi v Rumsfeld 542 US 507 (2004), 533, parties whose rights are to be affected are entitled to be heard and in order that they may enjoy that right they must first be notified. In European Convention terms, this is the principle of equality of arms which is part of the wider concept of a fair trial: Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010, para 184. On the other there is the principle that gives weight to the interests of national security. This is one of the legitimate aims referred to in articles 8(2), 10(2) and 11(2) of the Convention. The extent of the discretion that must be accorded to the national authorities in this field was recognised in Leander v Sweden (1987) 9 EHHR 433, para 59. National security was described as a strong countervailing public interest in Kennedy, para 184. But it must be weighed against the fundamental right to a fair trial. The context will always be crucial to a resolution of questions as to where and how this balance is to be struck. Mr Tariq was employed by the Home Office in a capacity for which security clearance was required in the interests of national security. To be effective security vetting will usually, if not invariably, require to be carried out in secret. Its methods and the sources of information on which it depends cannot be revealed to the person who is being vetted. Those who supply the information must be able to do so in absolute confidence. In some cases, their personal safety may depend on this. The methods, if revealed to public scrutiny, may become unusable. These are the unusual circumstances in which the claim Mr Tariq seeks to make in this case must be determined. Mr Tariqs complaint against the Home Offices decision to suspend his security clearance is that it was based on grounds that amounted to direct or indirect discrimination against him on grounds of his race and religion. There is no doubt that he is entitled to a fair and public hearing in the relevant tribunal of his claim that the rights conferred on him by the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) have been breached. The principle of equal treatment is part of European Union law, but it is for national law to ensure that the right to a fair hearing is respected according to the principles established under the European Convention. By section 10(6) of the Employment Tribunals Act 1996 it is provided that the employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to adopt a closed procedure. Section 10(7) of the 1996 Act provides that the procedure regulations may make provision in that event for the appointment by the Attorney General of a special advocate to represent the interests of the applicant. The provisions that were made in the exercise of that power are to be found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861). Rule 54 of Schedule 1 to the Regulations provides for the use of closed procedure, and rule 8 of Schedule 2 provides for the appointment of special advocates. No one doubts Mr Tariqs right not to be discriminated against on grounds of his race or his religion. But it was his own choice to seek employment in a post for which, in the interests of national security, security clearance was required. He was a volunteer, not a conscript. This is not a case where he is the victim of action taken against him by the state which deprived him of his fundamental rights. Furthermore, as I have already indicated, security vetting is a highly sensitive area. Its intensity will no doubt vary from case to case, but common to them all is the need to preserve the integrity of sources of information and the methods of obtaining it. That must always be the paramount consideration, whatever the nature of the proceedings in which the issue arises. It ensures that the national interest is protected when people are appointed to posts where security clearance is required. Issues of employment and discrimination law raised by people appointed to those posts may require access to the way this process has been carried out. It was no doubt for that reason that the use of the closed procedure and the appointment of special advocates was expressly authorised by the statute. The question then is whether the difficulties that Mr Tariq faces in making good his discrimination claim are sufficiently counterbalanced by the procedures that the Home Office wishes the employment tribunal to adopt. First, there is the use of the closed procedure for the consideration of the material on which the Home Office wishes to rely in its defence. Is the procedure that the Regulations have prescribed for use in national security cases compatible with European Union law? This is the point raised by Mr Tariqs cross appeal. Second, if the use of the closed procedure is lawful, how is it to be applied in this case? Is the Home Office obliged to give sufficient detail of the material on which it relies to enable Mr Tariq to give detailed instructions to his special advocate to enable that material to be challenged effectively? This is the point raised by its appeal. The Court of Appeal held that the principle illustrated by Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 must apply. This was despite the fact that this would put the Home Office in the invidious position of having to make decisions as to whether, and if so how, the claim was to be defended: [2010] EWCA Civ 462, [2010] ICR 1034, para 50. I have found the second issue more troublesome than the first. As to the first, which is the issue raised in Mr Tariqs cross appeal, the question is whether the use of the closed procedure in cases of this type impairs the very essence of his right to a fair trial. The right to a fair trial itself is an absolute right, but rights that are to be implied from article 6 of the European Convention are not: Brown v Stott [2003] 1 AC 681, 719. Their purpose is to give effect, in a practical way, to the fundamental right. The right to a fair hearing must ordinarily carry with it the right to have proceedings conducted in open court, with full disclosure by both sides. But, for the reasons already mentioned, the use of an open procedure where details of the security vetting process are in issue cannot be resorted to without risk to the integrity of the system which in the national interest must be preserved. The observations of the Court of Justice in Joined Cases C 402/05P and C 415/05P Kadi v Council of the European Union [2009] AC 1225, para 344 indicate that European law is willing to accept a closed material procedure in the interests of national security so long as the individual is accorded a sufficient measure of procedural justice. That this is the position that the Strasbourg court too has adopted is amply demonstrated by its decisions in Kennedy v United Kingdom, paras 184 190. Parliament has expressed a clear democratic judgment that the tribunal may in its discretion make use of the closed procedure with the assistance of a special advocate. As for the procedure that the 2004 Regulations provide for, several features indicate that the balance has been struck in the right place. First, there is the fact that, under the procedure provided for by rule 54(2) of Schedule 1 to the Regulations, the decision as to whether closed procedure should be resorted to rests with the tribunal or the employment judge. The fact that the decision is taken by a judicial officer is important. It ensures that it is taken by someone who is both impartial and independent of the executive. Second, there is the fact that, as this is a judicial decision, it will not be taken without hearing argument in open court from both sides. It will be an informed decision, not one taken without proper regard to the interests of the individual. Third, it opens the door to the use of the special advocate. Fourth, it is a decision that can and should be kept under review as the case proceeds: see the last sentence of rule 54(2). Fifth, the special advocate can and should be heard as the process of keeping it under review proceeds. As against all that, account must be taken of the consequences for national security if this procedure were not to be available to the tribunal. Without it, there would be a stark choice: to conduct the entire defence in open proceedings however damaging that might be to the system of security vetting, and in particular to those who contributed to it in this case; or to concede the case and accept the consequences. They would not only be financial. They would lead to the government being seen as an easy target for unjustified claims. That would be a field day for the unscrupulous. They could lead to tensions if those who were in a position to make discrimination claims were thought to be enjoying an unfair advantage because their claims were not likely to be contested if they were to be pressed to the point of a public hearing. I think that the balance lies firmly in favour of allowing the tribunal, in its discretion, to make use of the closed procedure. I would dismiss the cross appeal. As for the second issue, there is a very real problem. Procedural justice indicates that Mr Tariq should be given sufficient information to enable him to give detailed instructions to his special advocate so that she can challenge the withheld material on his behalf. But Mr Eadie QC for the Home Office insists that the process of gisting as envisaged in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 cannot be resorted to in this case without risk to those who were involved in the security vetting process. In the AF (No 3) case I said that what would be needed would vary from case to case, and that the judge would be in the best position to strike the balance between what was needed to enable the special advocate to challenge the case against the individual and what could properly be kept closed: para 86. But I also said that if the concept of an effective challenge was to be applied, where detail matters it must be met by detail: para 87. That is what Mr Eadie objects to in this case. Here again the context for the argument is what matters. This is an entirely different case from Secretary of State for the Home Department v AF (No 3). There the fundamental rights of the individual were being severely restricted by the actions of the executive. Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state. In this case the individual is not faced with criminal proceedings against him or with severe restrictions on personal liberty. This is a civil claim and the question is whether Mr Tariq is entitled to damages. He is entitled to a fair hearing of his claim before an independent and impartial tribunal. But the Home Office says that it cannot defend the claim in open proceedings as, for understandable reasons, it cannot reveal how the security vetting was done in his case. That conclusion is unavoidable, given the nature of the work Mr Tariq was employed to do. How then is the balance to be struck here? Mr Tariq will be at a disadvantage if the closed procedure is adopted. But the disadvantage to the Home Office is greater, as unless the closed procedure is adopted it will have to concede the claim. There is no way that the disadvantage to the Home Office can be minimised. It will simply be unable to defend itself. It will be unable to obtain a judicial ruling on the point at all. That would plainly be a denial of justice. The disadvantage to Mr Tariq, on the other hand, is less clear cut. He is not entirely without information, as the general nature of the Home Offices case has been disclosed to him. He will have the services of the special advocate, with all that that involves second best by far, no doubt, but at least the special advocate will be there. His claim will be judicially determined by an independent and impartial tribunal, which can be expected to take full account of the fact that the details of the case for the Home Office have had to be kept closed. If inferences have to be drawn because of the quality or nature of the evidence for the Home Office, they will have to be drawn in Mr Tariqs favour and not against him. And throughout the process the need for the evidence to be kept closed will be kept under review as rule 54 of Schedule 1 to the Regulations requires, with the assistance of the special advocate. There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law. As I said at the beginning, the principles that lie at the heart of the case pull in different directions. It must be a question of degree, balancing the considerations on one side against those on the other, as to how much weight is to be given to each of them. I would hold that, given the nature of the case, the fact that the disadvantage to Mr Tariq that the closed procedure will give rise to can to some extent be minimised and the paramount need to protect the integrity of the security vetting process, the balance is in favour of the Home Office. I would allow the appeal. LORD BROWN I have read Lord Mances comprehensive judgment and, like him, would allow the Home Offices appeal and dismiss Mr Tariqs cross appeal. As to the cross appeal the question whether a closed material procedure in the employment tribunal can ever be compatible with the Race Directive and the Equal Treatment Framework Directive there is almost nothing I wish to add to Lord Mances judgment. To my mind plainly it can. The submission that it is never necessary for reasons of national security to deploy secret evidence in employment tribunal discrimination proceedings because instead the government can simply pay up I find not merely unpersuasive but wholly preposterous. Is it seriously to be suggested that, however unmeritorious such claims may be, the complainant should simply be paid off? Taxpayers money aside, consider the appalling consequences for the governments reputation were there to be a succession of findings of unlawful racial or religious discrimination and the insidious effect of all this upon relations between different racial groups. As for the appeal in effect the question whether a complainant in Mr Tariqs position has to be provided with sufficient details of the allegations being made against him (however sensitive the information on which they are based) to enable him to give instructions to his special advocate in order effectively to challenge them I conclude no less clearly that this is not required. On this question, however, I wish to add a few further thoughts of my own. It is, as I understand it, Mr Tariqs case on the appeal apparently supported by Mr John Howell QC for JUSTICE and Liberty that, assuming (contrary to his primary case) that a closed material procedure is available at all in employment tribunal proceedings, the complainant has exactly the same rights to be provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate as the Grand Chamber in A v United Kingdom (2009) 49 EHRR 625 (at para 220) decided had to be given to those deprived of their liberty at Belmarsh Prison pursuant to the Anti terrorism, Crime and Security Act 2001. For simplicitys sake I shall call this degree of disclosure A type disclosure. As is well known, the nine Members of the House of Lords sitting in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 unanimously held that A type disclosure was similarly required in control order cases under the regime established by the Prevention of Terrorism Act 2005 in place of the detention regime. Substantially relying on A and on AF (No 3), Mr Allen QC submits that in any special advocate context to which article 6 applies, there is required an irreducible minimum standard of fairness which in every case demands A type disclosure. Prominent amongst the passages prayed in aid from the AF (No 3) judgments are, to my considerable surprise, these from my own judgment: . the suspect must always be told sufficient of the case against him to enable him to give effective instructions to the special advocate, notwithstanding that sometimes this will be impossible and national security will thereby be put at risk (para 116). Plainly there now is a rigid principle. Strasbourg has chosen in para 220 of A to stipulate the need in all cases to disclose to the suspect enough about the allegations forming the sole or decisive grounds of suspicion against him to enable him to give effective instructions to the special advocate (para 119). The argument, notwithstanding its apparent acceptance by the Court of Appeal, is to my mind unsustainable. As all the judgments in AF (No 3), my own not least, made plain, the Grand Chambers judgment in A was to be regarded as indistinguishable simply because of the striking similarities between the two situations then under consideration: Belmarsh detention and the control order regime. To suggest that the identical rigid principle will be imported into every situation where article 6 applies notwithstanding that sometimes this [A type disclosure] will be impossible and national security will thereby be put at risk is absurd. It is, indeed, to re assert here the very argument already rejected in relation to the cross appeal: the argument that, if giving effect to A type disclosure will compromise national security, then it is always open to government instead to pay up. True it is that in the control order context, government has on a number of occasions since AF (No 3) chosen to abandon the control order rather than make the necessary degree of disclosure. That, however, is a far cry from recognising that governments should face the same dilemma in the context of a monetary claim for discrimination. Although the Court of Appeal did not regard these cases as being in a different category (para 50 of Maurice Kay LJs judgment below), for my part I strongly disagree. Not merely, moreover, is there no support for Mr Allens argument to be found in our domestic jurisprudence but, as Lord Mance convincingly demonstrates, it is now clearly belied by a series of Strasbourg decisions culminating most recently and most decisively in Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010. Kennedy concerned a complaint, largely on article 6 grounds, against the ruling of the Investigatory Powers Tribunal (IPT) made on 23 January 2003 as to the legality of various of their rules. A sufficient description of the highly restrictive nature of these rules is to be found at paras 7 and 25 of my judgment in this Court in R (A) v Director of Establishments of the Security Service [2009] UKSC 12, [2010] 2 AC 1 (at paras 8 and 30 of which I noted that the IPTs own decision on these rules was shortly to be considered by the European Court of Human Rights, as now it has been in Kennedy). The Court in Kennedy assumed (at para 179 of its judgment) that article 6 applies to proceedings before the IPT and then, at paras 181 190 of its judgment (cited by Lord Mance at paras 34 and 35 above) comprehensively rejected the claim that it had been violated. There could hardly be a clearer example of a procedure being held compliant with article 6 notwithstanding the conspicuous absence of anything approaching A type disclosure. The final comments I wish to make in the appeal are these. Security vetting by its very nature often involves highly sensitive material. As an immigration officer, Mr Tariq required security clearance to a comparatively high level (above that of a counter terrorist check albeit below that of developed vetting). Immigration officers require long term, frequent and controlled access to secret information and assets. It is surely, therefore, not altogether surprising that, upon his brothers and his cousins arrest and more particularly since his cousins conviction and life sentence for conspiracy to murder arising out of a terrorist plot to attack transatlantic flights from Heathrow he has been suspended from duty (albeit continuing to be paid) and his security clearance withdrawn. No one suggests that Mr Tariq himself was involved in the plot. What is suggested, however, is that he could be vulnerable to pressures from someone in his community to abuse his position as an immigration officer. Mr Tariq submitted an internal appeal against the Departmental Security Officers decision to withdraw his security clearance but this was dismissed by the Permanent Secretary of the Home Office (following his consideration of a full report from the Director of Human Resource Services). Mr Tariq then made a further appeal to the Security Vetting Appeals Panel (SVAP) (presided over by a retired High Court judge) which held both open and closed hearings, with a special advocate appointed for the closed hearings, and which as recently as January 2011 dismissed the appeal. (No objection is taken to the SVAPs use of a closed procedure and special advocate, apparently on the basis that it was bound to use such a procedure and that in any event its decision on the appeal is solely advisory, the department being free to ignore it.) We know nothing of the underlying facts of this case. Assume, however, in a case like the present that someone in the employees community (perhaps a relative or associate) has given information in confidence to those responsible for reviewing the employees security clearance which is detrimental to his case. Perhaps it belies assurances he has given as to the limited nature and extent of his contacts with those suspected of terrorist activity. It surely goes without saying that nothing of this could properly be disclosed to the employee beyond perhaps telling him that the department was not satisfied with the assurances he has given. To give chapter and verse of any inconsistencies between those assurances and the information given to the department would be to betray the information provided and quite likely put its provider at risk. Similar considerations could well apply even in respect of an initial vetting procedure. Is it really sensible, one cannot help wondering, to attempt to force disputes in such cases as these into the comparative straitjacket of employment tribunal proceedings. Even if it is, is it sensible to operate in parallel two sets of proceedings, both with closed procedures and special advocates, one before the SVAP, the other before the Employment Tribunal. Of course I recognise that the issues they are determining are not identical. But there must inevitably be some substantial overlap between them and the effort, time and expense involved in all this hardly bears thinking about. In my judgment in R (A) v Director of Establishments of Security Service (at paras 34 and 35) I expressly contemplated that in certain circumstances the IPTs exclusive jurisdiction might with advantage be widened. True, I was not considering a case like the present. I seriously wonder, however, whether it might not be wise to channel all disputes arising in security vetting cases to a single tribunal if not the IPT itself, then a body sharing some at least of its characteristics. That, however, is a thought for the future perhaps for consideration in relation to a Green Paper we are told will be published later this year with regard to possible ways of resolving, or at least mitigating, the undoubted problems faced by Government in litigation raising sensitive security issues. LORD KERR Introduction On 14 February 2008 the Employment Tribunal dealing with Mr Tariqs case sent to the minister a copy of the reasons it proposed to give for making its order under rule 54 of the First Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861). It was required to do so by rule 10 of the Employment Tribunals (National Security) Rules 2004 which are contained in Schedule 2 to the 2004 Regulations. The reasons were amended by the minister (or, more probably, by someone acting on his behalf) and were eventually issued to the claimant and his advisers in their amended form on 15 October 2008. The reasons that the tribunal proposed to give Mr Tariq related to the way in which his case would be dealt with. They purported to explain why he and his representatives would be excluded from those parts of the proceedings at which closed evidence was to be given or closed documents were to be considered; why a special advocate was to be appointed to represent his interests in any part of the proceedings from which he and his representatives were to be excluded; and why the proceedings should be held entirely in private. As a means of explaining these matters to Mr Tariq, the reasons given were, to say the least, not informative. Para 10 encapsulated them. It stated: Having read the relevant documents and having heard submissions, I was satisfied that it was expedient in the interest of national security to make an order under rule 54 as set out in the separate document marked as Orders. I was further satisfied that it would be in the interest of the claimant if a special advocate were to be appointed for the matter to be further reviewed, as I am required to do, at the next case management discussion on 1 May 2008 when not only can the issues as to what documents should be in the closed and open bundles and what should be included in the closed and open witness statements be addressed but also any submissions from the special advocate in that regard at that case management discussion in the anticipation that there would have been such an appointment before then. Beyond saying that the decisions as to the way in which his case was to be heard had been taken for reasons of national security, this paragraph conveyed precisely nothing to the claimant. The paragraphs that had preceded it did little more. Apart from rehearsing the submissions that had been made by either party, they said virtually nothing. But that did not make them immune from the ministers blue pen. In para 5 of the reasons the tribunal had set out (in 5.1, 5.2 and 5.3) the Home Office submissions that the entire proceedings should be held in private; that Mr Tariq and his representative should be excluded while closed evidence or documents were being considered; and that the tribunal should consider both the closed evidence and closed documents and that these would be provided to a special advocate, if one was appointed. In its original form, the statement of reasons continued at para 6: The respondents made this application on the basis that given the circumstances and the relationship of the claimant to other parties involved in what was believed to be unlawful activities and the fact that he might have contact with them that there could be inadvertent disclosure by him of information that was either sensitive or classified. Now it should be noted that on 30 August 2006, the departmental security officer, Jacqueline Sharland, had met Mr Tariq and his union representative and she had then explained that the review of Mr Tariq's security clearance had been prompted by national security concerns and that these related to Mr Tariq's vulnerability. At that meeting Mr Tariq indicated that he understood that the withdrawal of his security clearance had occurred because his brother had been arrested. There was no demur from Ms Sharland to this suggestion. Despite this, in October 2008, more than two years later, the minister (or a civil servant acting on his behalf) felt that para 6 of the tribunals reasons required amendment. He directed that it should be changed so as to read as follows: The respondents made the applications at paras 5.1 5.3 above, on the basis that the material in the closed bundle provided to the tribunal was sensitive on grounds of national security and accordingly should not be disclosed to the claimant or his representative. So, although Mr Tariq had been informed by the departmental security officer that his security clearance had been reviewed because he was considered to be vulnerable, and although he had responded that he believed that that had happened because his brother had been arrested, the Home Office view was that it was necessary on national security grounds that he should not be told in October 2008 that others who were believed to be involved in unlawful activities might receive sensitive or classified information that he might inadvertently impart to them. It has never been explained why the view was taken that this information could not be disclosed. Mystifying though this is, the second change to the statement of reasons directed by the minister is even more inexplicable. This required the complete deletion of para 8 of the reasons. This paragraph had done no more than summarise an argument made on the respondents behalf in the presence of Mr Tariqs representative, an argument of which, therefore, it must be assumed, he was fully aware. It had stated: The respondents further maintained that due to the nature of the contact and the place of contact (the claimant's parents home at which he partially resided with his family during most week ends), it was inappropriate for all these matters to be disclosed on a public basis and that there were matters properly to be dealt with on a closed basis and for the hearing generally to be in private. Again no explanation for the decision to withhold this information has been given. It seems likely that its subsequent disclosure and the full revelation of what para 6 contained was brought about by representations made by the special advocate appointed to act on Mr Tariqs behalf. Lord Mance has said that this is an indication of one of the purposes that a special advocate may serve. It may very well amount to such an indication but the fact that the intervention of the special advocate was required to secure the release of material which ought never to have been withheld is, in my opinion, profoundly troubling. Lord Mance has suggested that the course of events about the disclosure of this information offers a cautionary message. It does more than that. It illustrates all too clearly the dangers inherent in a closed material procedure where the party which asks for it is also the repository of information on the impact that an open system will avowedly have on national security. The common law right to know and effectively challenge the opposing case The right to know and effectively challenge the opposing case has long been recognised by the common law as a fundamental feature of the judicial process. In Kanda v Government of Malaya [1962] AC 322, 337 Lord Denning said: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn LC in Board of Education v Rice down to the decision of their Lordships Board in Ceylon University v Fernando. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side made behind the back of the other. The centrality of this right to the fairness of the trial process has been repeatedly emphasised. Thus, in In re K (Infants) [1963] Ch 381 Upjohn LJ at pp 405 406 said: It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial. And in Brinkley v Brinkley [1965] P 75, 78 Scarman J said that for a court to take into consideration evidence which a party to the proceedings has had no opportunity during trial to see or hear, and thus to challenge, explain or comment upon, seems to us to strike at the very root of the judicial process. In Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691 Hobhouse J expressed the principle in similarly forthright terms: The first principle is the principle of natural justice which applies wherever legal proceedings involve more than one person and one party is asking the tribunal for an order which will affect and bind another. Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party may not make secret communications to the court. Exceptions to the rule that a party to the proceedings must be informed of every detail of his opponents case have, of course, been recognised. But it is essential to be aware of the starting point from which one must embark on the inquiry whether the principle of equality of arms (which is such a vital hallmark of our adversarial system of the trial of contentious issues) may be compromised. As a general indeed, basic rule, those who are parties to litigation need to know what it is that their opponent alleges against them. They need to have the chance to counter those allegations. If that vital entitlement is to be denied them, weighty factors must be present to displace it. And it is self evident that he who wishes to have it displaced must show that there are sufficiently substantial reasons that this should happen. Put shortly, he who thus avers must establish that nothing less will do. The case made on behalf of the appellant in this appeal has been stigmatised by the suggestion that it amounts to a claim that the state must accept that it should pay compensation even in those instances where the claimant is known to be wholly undeserving but it is impossible to adduce evidence that would establish this because of national security considerations. The respondent claimed and the majority have accepted that the law will not contemplate such a situation. In my view, however, this approach carries the danger of allowing the possible consequences of the implementation of the proper principle to effect a modification of the principle itself. So, because, it is said, the state, faced with the dilemma of having to choose between revealing the information on which it relies to defeat the claim and compromising national security by doing so, would be forced to settle the case, a better solution must be found. That better solution is that the state should be allowed to deploy the information on which the claim can be defeated but be absolved from the need to disclose it to the claimant. This solution, it is clear, is founded not on principle but on pragmatism. Pragmatic considerations, of course, have their part to play in the resolution of difficult legal conundrums but, I suggest, they have no place here. Where, as in this case, the challenged decision is the subject of factual inquiry or dispute and the investigation of the disputed facts centres on an individuals actions or, to bring the matter directly to the circumstances of this case, his supposed vulnerability, that individual is the critical source of information needed to discover the truth; in many cases he may be the only source. If he is denied information as to the nature of the case made either directly against him or, as seems more likely here, against others whose presumed relationship with the claimant renders it unsuitable for him to retain security clearance and if he is thereby forced to speculate on the content of the defendants case, no truly adversarial proceedings are possible. As Upjohn LJ put it in In re K, the proceedings are not judicial. The withholding of information from a claimant which is then deployed to defeat his claim is, in my opinion, a breach of his fundamental common law right to a fair trial. Even if the closed material procedure was compatible with article 6 of the European Convention on Human Rights (and for reasons that I will discuss presently, I do not believe that it is) this has no bearing on the appellants right at common law to be provided with details of the case against him sufficient to enable him to present a reasoned challenge to it. This courts endorsement of a principle of non disclosure whereby a party in civil proceedings may have withheld from him the allegations forming the basis of the opposing case is a landmark decision, marking a departure from the common laws long established commitment to this basic procedural right. In my view, the removal of that right may only be achieved by legislation and only then by unambiguous language that clearly has that effect. In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, dealing with Parliaments power to legislate contrary to fundamental human rights, Lord Hoffmann at p 131 said: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. Although that statement of principle was made in the context of legislation overriding human rights, it applies with equal force to legislation affecting other constitutional rights such as arise in this case. In R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604, at para 27 Lord Steyn said of Lord Hoffmanns dictum, this principle may find its primary application in respect of cases under the European Convention on Human Rights. But the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann's dictum applies to fundamental rights beyond the four corners of the Convention. In my view it is engaged in the present case. And it therefore seems to me remarkable that a modification of such a fundamental right can be achieved without the unambiguous legislative provision that would be required to alter a right arising under the Convention. To recognise that this right continues to exist at common law does not mean that every time the state wishes to withhold information from a claimant which, although vital to the defence of the claim, cannot be revealed for reasons of national security, it must submit to settlement of the claim. As the experience in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786 illustrates, it is perfectly proper and, more importantly, principled to find in such cases that they cannot be regarded as justiciable because no just trial is possible. Where insistence upon a fully fair hearing for a claimant will deny the defendant (or where it is not a party, the state) the protection of its vital interests that the law should recognise, then a truly fair proceeding is not possible and the trial should be halted in limine. Lord Mance has said that this is not an option that the law should readily contemplate. I agree but it seems to me to be a plainly more palatable course than to permit a proceeding in which one party knows nothing of the case made against him and which, by definition, cannot be subject to properly informed challenge. At least in the Carnduff situation both parties are excluded from the judgment seat. In the state of affairs that will result from the decision of the majority in this case, one party has exclusive access to that seat and the system of justice cannot fail to be tainted in consequence. Article 6 Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. It is well established that the overriding right guaranteed by article 6(1), the right to a fair trial, is absolute see Montgomery v HM Advocate [2003] 1 AC 641, 673, Brown v Stott [2003] 1 AC 681, 719 and Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379 at para 73. But the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute: Brown v Stott at 704 per Lord Steyn. One of the implicit constituent rights of article 6 is that there should be equality of arms between the parties to proceedings. Of this constituent right, Lord Bingham said in Brown v Stott at 695 that it lay at the heart of the right to a fair trial. Equality of arms is the means by which a fair adversarial contest may take place. It requires that there must be an opportunity for all parties to be aware of and to comment on all the evidence adduced or observations submitted, with a view to influencing the courts decision Vanjak v Croatia (Application No 29889/04) (unreported) 14 January 2010, at para 52. Although, as a constituent element of article 6, equality of arms is not an absolute right, restrictions may only be placed upon it where it is strictly necessary and proportionate do so. A strong countervailing public interest is required to satisfy this requirement. Moreover, the restriction must be sufficiently counterbalanced by appropriate procedures allowed by the judicial authorities. And the restrictions must not be such as effectively to extinguish the very essence of the right. These propositions derive from a series of decisions of the European Court of Human Rights (ECtHR) which constitute a clear and constant line of authority emanating from Strasbourg. One may begin with Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249. At para 72 the court said: 72. The Court recalls that article 6(1) embodies the right to a court, of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect. In this respect, the contracting states enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. So the very essence of the right must not be impaired and the restriction on the constituent right must be proportionate. In Rowe and Davis v United Kingdom (2000) 30 EHRR 1 at para 61 the court said: . as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities. A precisely similar formula was employed by the court in para 52 of its judgment in Jasper v United Kingdom (2000) 30 EHRR 441 and in para 52 of Pocius v Lithuania (Application No 35601/04) (unreported) 6 July 2010. Significantly, it was also used by the court at para 184 of its judgment in Kennedy v United Kingdom (Application No 26839/05) (unreported) 18 May 2010 where it was confirmed that these principles apply with equal force to civil proceedings. From these statements it is clear that the balancing exercise between, on the one hand, full access to all the elements of the equality of arms principle and, on the other, the withholding of evidence on the grounds of national security, must be conducted on the basis that only such restriction on full access to relevant material as is absolutely required can be countenanced. And even if that hurdle is surmounted, it must be shown that the limitation on the rights of the party who is denied such access is adequately offset by sufficient counterbalancing measures. It seems to me that measures can only be regarded as sufficient if they either wholly eliminate the disadvantage that would otherwise have accrued or if they diminish the difficulties deriving from the non disclosure of the relevant material to a condition of insignificance. Thus as the interveners, Justice and Liberty, have put it, restrictions on untrammelled access to relevant material can only be justified in a justiciable case where sufficient information about the substantive case which a party has to meet is disclosed so that he may effectively challenge it. Otherwise, the limitation on the right to equality of arms can in no sense be regarded as having been sufficiently counterbalanced. A function of the counterbalancing measures is to ensure that the very essence of the right is not impaired. It is, I believe, important to have a clear understanding of what is meant by the essence of the right. If equality of arms lies at the heart of a fair trial, the essence of the right must surely include the requirement that sufficient information about the case which is to be made against him be given to a party so that he can give meaningful instructions to answer that case. In Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] AC 440, a case involving a challenge to a non derogating control order, Lord Bingham referred to the general acceptance by the House of Lords in R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738 that there was a core, irreducible, minimum entitlement for the appellant, as a life sentence prisoner, to be able effectively to test and challenge any evidence which decisively bore on the legality of his detention. That irreducible minimum entitlement also applied in the case of a control order: see para 43 of MB. The opportunity to know and effectively test the case against him (the core irreducible minimum entitlement) surely captures the essence of the right. And it seems to me that the essence of the right cannot change according to the context in which it arises. Whether a hearing should be conducted in private or in open session; whether information about the case against an individual should be provided by way of full disclosure or by redacted statements or in the form of a summary or gist; whether witnesses should be anonymised all of these are variables to which recourse may be had in order to reflect the context in which the requirements of article 6 must be examined. But if the essence of the right is to be regarded (as I believe it must be) as the indispensable and necessary attributes of the right as opposed to those which it may or may not have, its essence cannot alter according to the circumstances in which it falls to be considered. Para 217 of the European Court of Human Rights judgment in A v United Kingdom (2009) 49 EHRR 625 has been cited by Lord Mance as an example of the emphasis given by the court to the context in which the requirements of the right were being considered. That case involved a challenge to the decision of the Home Secretary to certify that each of the applicants should be detained because he reasonably believed that their presence in the United Kingdom posed a threat to national security. As it seems to me the only relevant part of para 217 is contained in the following passage: In view of the dramatic impact of the lengthy and what appeared at that time to be indefinite deprivation of liberty on the applicants fundamental rights, article 5(4) must import substantially the same fair trial guarantees as article 6(1) in its criminal aspect This says nothing about the essence of the right to equality of arms. It merely (but unsurprisingly) confirms that if ones liberty is to be deprived on foot of the order of the Secretary of State, the same guarantees as are available to defendants in a criminal trial should be extended to those who were the subject of detention orders. Lord Mance also expressed agreement with the decision of the Court of Appeal in R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287; [2009] 1 WLR 2049 where, according to Lord Mances analysis, it was held that a claim for judicial review of the refusal of an application for British citizenship could be distinguished from the requirements prescribed by A v United Kingdom on the ground that the latter cases focus was on detention. I do not agree that the AHK case distinguished A v United Kingdom or, at least, that it suggested (contra the decision in A v UK), that abrogation of the right of a claimant to know the essential elements of the case to be made against him was permissible. The AHK case was principally concerned with the question whether a special advocate should be appointed. In the list of principles to be applied in cases where the Secretary of State has decided that the reasons for refusing British citizenship could not be fully disclosed Sir Anthony Clarke MR at para 37 (iv) (d) said: All depends upon the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant's point of view, the difficulties facing the claimant in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State's case and the court in arriving at a fair conclusion. Underlying this statement is the acknowledgment that the claimant must be assisted in meeting the Secretary of States case. There is no reason to suppose that the Court of Appeal would have endorsed a procedure where the claimant was effectively prevented from knowing and meeting the essential case made against him. At a theoretical level it is possible that advocates retained to consider material that cannot be disclosed to a claimant can supply the vital ingredient of ensuring that the case made against the claimant is effectively met. In such circumstances the essence of the article 6 right is not lost. But AHK is not authority for the proposition that where that indispensable requirement cannot be fulfilled and the claimant is prevented from presenting a fully informed opposition to the case made against him, no violation of article 6 arises because the consequences for the claimant are less serious than the deprivation of his liberty. It is, I believe, crucial to a proper understanding of ECtHR jurisprudence in this area that the essence of the right under article 6 is that a party is entitled to know and effectively challenge the case made against him. Equality of arms, or a properly set adversarial contest, requires that both parties have equal, or at least a sufficient, access to the material that will be deployed against them. The adversarial contest sets the context and the adversarial contest arises in relation to article 6 rights as opposed to other Convention rights. Thus cases such as Leander v Sweden (1987) 9 EHRR 433 (which was concerned with alleged violations of articles 8, 10 and 13) and Esbester v United Kingdom (1998) 18 EHRR CD72 (which dealt with claims under article 8 and 13) are of little assistance in determining the requirements of the equality of arms principle under article 6. Equality of arms did not arise in these cases. No adversarial contest was engaged. Whether it is legitimate to withhold information in an article 8 or an article 10 context has nothing to do with the propriety of its non disclosure where parties are seeking a resolution of competing cases from a properly informed and impartial tribunal. Articles 8 and 10 are qualified rights. Interference with those rights may be justified on grounds specified in the articles. By contrast, article 6 is not subject to exemption from the effect of interference. Kennedy v United Kingdom involved complaints made by the applicant to the Investigatory Powers Tribunal (IPT) that his communications were being intercepted. The applicant had sought specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under article 6 (1). In particular, he asked that his arguments and evidence be presented at an oral hearing; that all hearings be conducted in public; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions; that evidence of each party be heard in the presence of the other party or their legal representatives, with oral evidence being open to cross examination by the other party; that any opinion received from a commissioner be disclosed to the parties; and that, following its final determination, the IPT state its findings and give reasons for its conclusions on each relevant issue. IPT had held that the applicants proceedings before that tribunal engaged article 6. That finding was somewhat diffidently contested before ECtHR, the government contending that there was no civil right involved. It was not contended, as it might well have been, that article 6, according to the courts constant jurisprudence, did not apply to cases of surveillance. ECtHR proceeded on the assumption that article 6 did apply. It is significant that the courts judgment is largely preoccupied with a consideration of the various specific claims made by the applicant about how the proceedings should be conducted. The question of providing him with sufficient information in the form of a gist or summary to meet the case against him did not feature in the list of those claims. The question of supplying redacted documents is discussed, however, and the courts decision seems largely to have been influenced by the argument advanced on behalf of the government that it was simply not possible to produce the information that the applicant sought because national security would inevitably be compromised. That stance is entirely consistent with the view that surveillance cases do not engage article 6. It is surprising that more was not made of this by the government and that the court did not address the issue directly. If it had done and if it had followed its own constant jurisprudence, the anomaly, which I believe the decision in Kennedy represents, would have been avoided. In Klass v Federal Republic of Germany (1978) 2 EHRR 214 at para 75 ECtHR said this about secret surveillance: As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of article 6; as a consequence, it of necessity escapes the requirements of that article. The logic of this position is inescapable. The entire point of surveillance is that the person who is subject to it should not be aware of that fact. It is therefore impossible to apply article 6 to any challenge to the decision to place someone under surveillance, at least until notice of termination of the surveillance has been given. This approach has been consistently applied by the court. So for instance in Rotaru v Romania (2000) 8 BHRC 449 at para 69 the court said where secret surveillance is concerned, objective supervisory machinery may be sufficient as long as the measures remain secret. It is only once the measures have been divulged that legal remedies must become available to the individual. It is precisely because the fact of surveillance must remain secret in order to be efficacious that article 6 cannot be engaged. It appears to me, therefore, that the decision in Kennedy ought to have been made on the basis that article 6 was not engaged because the issues that the case raised were simply not justiciable. That the decision is out of line with the established jurisprudence of the court is perhaps best exemplified by contrasting it with the approach of the Grand Chamber in A v United Kingdom as applied by the House of Lords in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269. At para 59 Lord Phillips said this about the ratio in A v United Kingdom: I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be. Whilst Lord Phillips at para 65 implied that the Grand Chambers decision (that non disclosure cannot deny a party knowledge of the essence of the case against him) might apply only where the consequences for an individual were as severe as those normally imposed under a control order, there are indications in his and other speeches that the principle is of general application. In particular, Lord Phillips rejected the suggestion that there should be a different standard where the control order did not amount to detention para 63 and at para 64 he said this: The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross examine the witnesses who give that testimony, whose identities should be disclosed. Both our criminal and our civil procedures set out to achieve these aims. In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved. How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament. That law now includes the Convention, as applied by the HRA. That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence. That is why the clear terms of the judgment in A v United Kingdom resolve the issue raised in these appeals. The views of Lord Hope were equally clear and comprehensive. At para 83 he said: The approach which the Grand Chamber has adopted is not, as it seems to me, at all surprising. The principle that the accused has a right to know what is being alleged against him has a long pedigree. As Lord Scott of Foscote observed in A v Secretary of State for the Home Department [2005] 2 AC 68, para 155, a denunciation on grounds that are not disclosed is the stuff of nightmares. The rule of law in a democratic society does not tolerate such behaviour. The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him. Lady Hale in para 103 said that Strasbourg had now made it entirely clear what the test of a fair hearing is. The test was whether the controlled person had had the possibility to challenge effectively the allegations made against him. He had to have sufficient information about those allegations to be able to give effective instructions to his special advocate. If the majority in this appeal are right, however, the test of a fair hearing in Mr Tariqs case is different. He need not be given sufficient information about the allegations against him to challenge them effectively or to give effective instructions to his special advocate. For my part I cannot understand why this should be so. The result of the decision of the majority is to create a different class of case from that where what Lord Brown has helpfully described as A type disclosure must be given. The eligibility criteria for inclusion in this privileged group are not clear. Certainly, the class is not confined to those whose liberty is at stake, as the speeches in AF (No 3) make clear. And, presumably, it must also include freezing order cases Kadi v Council of the European Union Joined Cases C 402/05 P and C 415/05 P [2009] AC 1225, as applied by the European General Court in Kadi II Case T 85/09 [2011] 1 CMLR 697. If A type disclosure is required in challenges to freezing orders, does it extend to property rights more generally? If it does, why should property rights be distinguished from loss of employment cases? After all, loss of livelihood may be just as devastating as having ones assets frozen. It seems to me that there is no principled basis on which to draw a distinction between the essence of the right to a fair trial based on the nature of the claim that is made. A fair trial in any context demands that certain indispensable features are present to enable a true adversarial contest to take place. That conclusion is reflected in the later decision of ECtHR of Uukauskas v Lithuania (Application No 16965/04) (unreported) 6 July 2010. Lord Mance has sought to distinguish this case on the basis that the procedure adopted was contrary to national law. But that consideration was in no sense central to the courts reasoning. On the contrary, the observation (at para 48) that Lithuanian law and judicial practice provide that such information may not be used as evidence in court against a person unless it has been declassified, and that it may not be the only evidence on which a court bases its decision was made in order to draw a contrast with the view that documents which constitute state secrets may only be disclosed to persons who possess the appropriate authorisation. It is quite clear that the violation of article 6 which the court held to have occurred was based on conventional ECtHR principles. This much is evident from para 51 where the court said; In conclusion, therefore, the Court finds that the decision making procedure did not comply with the requirements of adversarial proceedings or equality of arms, and did not incorporate adequate safeguards to protect the interests of the applicant. It follows that there has been a violation of article 6(1) in the present case. The unavoidable result from this case is that Strasbourg has again made it entirely clear what the test for a fair hearing is where someone seeks to challenge a decision that he should be removed from a firearms register. He is entitled to know the reasons that this has happened in order to be able to effectively challenge them. If that is so, why should someone who has been dismissed from his employment be in a less advantageous position? Conclusions I have concluded that the Court of Appeal was correct in finding that where article 6 is engaged, it is necessary for a party to proceedings to be provided with sufficient information about the allegations against him to allow him to give effective instructions to his legal representatives and, if one has been appointed, the special advocate so that those allegations can be effectively challenged. I would therefore dismiss the appeal by the Home Office. For the reasons given by Lord Mance, with which I agree, I would hold that the closed material procedure provided for in the Employment Tribunal legislative scheme is not in principle incompatible with article 6 and EU law. I would therefore also dismiss the cross appeal. LORD DYSON I agree that for the reasons given by Lord Mance the Court of Appeal was correct to hold that the closed material procedure provided for in the Employment Tribunal legislative scheme, including its provision for the appointment of special advocates is in principle compatible with article 6 of the European Convention on Human Rights (ECHR) and EU law. I also agree that the Court of Appeal was wrong to find that, in all cases in which article 6 (civil) is engaged, it is necessary for an individual to be provided with sufficient information about the allegations against him (the gist) to enable him to give effective instructions to his legal representatives and the special advocate (where one has been appointed) in relation to those allegations. It is on this second question that I wish to add some words of my own. General observations about closed procedures The article 6 right to a fair trial is absolute: see, for example, per Lord Hope in Dyer v Watson [2002] UKPC D1 [2004] 1 AC 379 at para 73. In principle, a fair trial presupposes adversarial proceedings and equality of arms. Thus, for example, in Vanjak v Croatia (Application No 29889/04) (unreported) 14 January 2010, at para 52, the European Court of Human Rights said: . . independently of whether the case is a civil, criminal or disciplinary one, the right to adversarial proceedings has to be complied with. That right means in principle the opportunity for the parties to court proceedings falling within the scope of article 6 to have knowledge of and comment on all evidence adduced or observations submitted, with a view to influencing the courts decision. But the constituent elements of a fair process are not absolute or fixed: see Brown v Stott [2003] 1 AC 681 at 693D E per Lord Bingham; 719G H per Lord Hope; and 727H per Lord Clyde. This was re affirmed by the ECtHR in relation to article 5(4) in A v United Kingdom (2009) 49 EHRR 625 at para 203: The requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Moreover, it has been recognised by the ECtHR that there are circumstances where a limitation on what would otherwise be a general rule of fairness is permissible. Thus in Rowe and Davis v United Kingdom (2000) 30 EHRR 1, at para 61, the European Court of Human Rights said: the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights may be sufficiently counterbalanced by the procedures followed by the judicial authorities. Prima facie, a closed material procedure denies the party who is refused access to the closed material the right to full and informed participation in adversarial proceedings and to that extent is inconsistent with the principle of equality of arms. There are two factors which the Secretary of State says are sufficient to counterbalance the effects of the closed material procedure in the present case. The first is that there is scrutiny by an independent court (the Employment Tribunal) fully appraised of all relevant material and experienced in dealing with discrimination cases. The second is the testing by a special advocate of the Home Offices case in closed session. But are these factors sufficient in circumstances where the gist of the Home Office case is not disclosed to the claimant? How can the special advocate represent the claimants interests if the claimant is unable to give full instructions to him? The answer to these questions in the context of proceedings involving the liberty of the subject is clear. If the special advocate is unable to perform his function in any useful way unless the detainee is provided with sufficient information about the allegations to enable him to give effective instructions to the special advocate, then there must be disclosure to the detainee of the gist of that information: see A v United Kingdom at para 220 and, in the context of control orders, Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. In such a case, there must be disclosure, regardless of how important the competing national interest may be in favour of withholding the information. The consequence of this will inevitably be that in some cases the prosecuting or detaining authorities will be faced with the invidious choice of disclosing sensitive information or risking losing the case. But what is the position in cases which do not involve the liberty of the subject? For the reasons given by Lord Mance and Lord Brown, I agree that neither A v United Kingdom nor AF (No3) decides this question. Mr Allen QC and Mr Howell QC submit that the reasoning in A v United Kingdom is not limited to cases involving the liberty of the subject and should be applied to civil claims too. They submit that, properly understood, the Strasbourg jurisprudence does not support the proposition that a different approach may be adopted to the problem in civil claims. They also say that to distinguish between the requirements of article 6 on the basis of a classification of the type of case involved is unprincipled and will give rise to uncertainty and confusion. But it is clear from para 203 of A v United Kingdom itself that article 6 does not require a uniform approach to be adopted in all classes of case. In Kennedy v United Kingdom (Application No 26839) (unreported) 18 May 2010, the European Court of Human Rights said that the entitlement to disclosure of relevant evidence is not an absolute right (para 187); the character of the proceedings may justify dispensing with an oral hearing (para 188); and the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (para 189). I therefore agree with what Sir Anthony Clarke MR said when giving the judgment of the court in R(AHK) v Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ 287, [2009] 1 WLR 2049 at para 45: The above analysis shows that the European Court of Human Rights considers each class of case separately. The issues in this class of case are a far cry from the issues that arise in the criminal cases discussed by the court in A v United Kingdom 19 February 2009. Moreover, without in any way minimising the effect of being refused British citizenship, the consequences of a deprivation of (or even interference with) liberty are plainly very much more serious. In these circumstances we do not think that the approach of the court in criminal cases or in cases of deprivation or interference with liberty can or should be applied directly to this class of case. That is not to say that, as explained earlier, each individual is not entitled to a fair hearing of his application for judicial review. Nevertheless, I would accept that the general rule is that an applicant should enjoy the full panoply of article 6 rights, including full disclosure of all relevant material and that any limitation on the ordinary incidents of article 6 requires careful justification. In deciding how to strike the balance between the rights of the individual and other competing interests, the court must consider whether scrutiny by an independent court and the use of special advocates are sufficient to counterbalance the limitations on the individuals article 6 rights. In many cases, an individuals case can be effectively prosecuted without his knowing the sensitive information which public interest considerations make it impossible to disclose to him. For example, in a discrimination claim such as that of Mr Tariq, the central issue may well not be whether the underlying security concerns are well founded, but rather whether the decision making process was infected by discrimination. As Mr Eadie QC points out, Mr Tariqs appeal is not against the assessments or conclusions of the Home Office as to the withdrawal of his security clearance. SVAP provides the expert forum for considering such issues. It was not for the Employment Tribunal to determine whether, for example, it believed or did not believe Mr Tariqs assertions about the nature of his relationships with persons involved in or associated with terrorist activities. Thus in the conduct of a discrimination claim, the special advocate and indeed the judge can to a considerable extent test the case of the alleged discriminator without the input of the claimant. The surveillance/security vetting cases Lord Mance has referred at para 68 to what he describes as the clear line of jurisprudence culminating in the Courts decision in Kennedy which demonstrates that, in civil cases, it is not necessary to provide the gist of information which the interests of national security require to be kept secret. I think that it is necessary to examine the authorities with some care to see precisely what these cases do establish. In the absence of special circumstances, our courts should follow any clear and constant jurisprudence of the European Court of Human Rights: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 26. The first case to note is Klass v Federal Republic of Germany (1978) 2 EHRR 214. This involved a challenge to legislation which permitted the authorities to open and inspect mail and listen to telephone conversations in order to protect, inter alia, against imminent dangers threatening the existence or the security of the state. The challenge was based on an alleged breach of articles 6, 8 and 13 of the European Convention on Human Rights. At para 75, the European Court of Human Rights said : As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of article 6; as a consequence, it of necessity escapes the requirements of that article. The cases of Leander v Sweden (1987) 9 EHRR 433 and Esbester v United Kingdom (1993) 18 EHRR CD72 are discussed by Lord Mance at paras 28 to 32 above. They can be considered together, although at first sight it may seem odd to refer to them at all since they are not article 6 cases. The claim in Leander was brought under articles 8, 10 and 13 and in Esbester under articles 8 and 13. I accept that what may be a proportionate and justified interference with a persons rights under article 8 may not correspond precisely with what may be a strictly necessary and sufficiently counterbalanced invasion of his right to a fair trial under article 6. Moreover, it is right to point out that Leander and Esbester were referred to by the European Court of Human Rights in Kennedy, but only in its discussion of the claims under articles 8 and 13: see paras 122, 152, 195 and 197. The section in Kennedy which deals with article 6 does not refer to either of these authorities. Mr Eadie accepts that Leander and Esbester did not concern article 6. He relies on them as being directly analogous to the present case, relating to security vetting in an employment context. Issues of fairness were central to the issues arising under articles 8 and 10 and the right to an effective remedy under article 13. The European Court of Human Rights found that the vetting systems in those cases were compatible with article 8 and upheld the right of the state not to disclose the reasons for the rejection of the applicants application for employment as a result of a security vetting process. Whereas Klass is a case where it seems to have been held that article 6 did not apply at all and Leander and Esbester are not article 6 cases, there can be no doubt that Kennedy is an article 6 case. In Kennedy (which was decided after the decision of the Court of Appeal in the present case), the applicant complained about an alleged interception of his communications, claiming that it was a violation of his article 8 rights. He also complained that the hearing before the Investigatory Powers Tribunal (IPT) was not attended by adequate safeguards as required under article 6 and that, as a result, he had been denied an effective remedy under article 13. Lord Mance has set out the relevant passages of the judgment at paras 34 and 35 above. The submissions of the parties summarised at paras 180 to 183 of the judgment were directed to the question of what article 6 required. It is of note that the Government submitted that the scope of the article 6 guarantees in that case should be in harmony with the Courts approach to judicial control under article 8. The courts assessment at paras 184 to 191 was explicitly on the basis of the application of article 6. In contrast with para 75 of Klass, the court did not say that the case escapes the requirements of [article 6]. Thus at para 186, the court emphasised that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information. The court continued: this consideration justifies restrictions in the IPT proceedings. The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicants right to a fair trial. This is the classic approach to article 6. The courts conclusion at para 190 was that the restrictions on the procedure before the IPT did not violate the applicants right to a fair trial. In reaching this conclusion, the court took into account the breadth of access to the IPT (an independent court) enjoyed by those complaining about interception and the absence of any evidential burden to be overcome in order to lodge an application with the IPT. It concluded: In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicants rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicants article 6 rights. Mr Allen and Mr Howell submit that Kennedy should be understood as a decision that, so long as the very subject matter of the dispute must justifiably remain secret, is effectively non justiciable and the substantive protections that article 6 contains cannot be applied in substance to its resolution. In other words, they submit that the decision in Kennedy should be analysed as an application of para 75 of Klass. If, however, the court had intended to adopt this approach, it would have said so. Instead, it clearly purported to apply article 6. Kennedy is a striking decision. But for the security issues raised in the case, it is surely inconceivable that the court would have concluded that the restrictions on the applicants rights before the IPT (a completely closed procedure without even the protection of a special advocate) were necessary and proportionate and did not impair the very essence of the applicants article 6 rights. The crucial reason for this conclusion was that the restrictions on the applicants rights were necessary in order to ensure the efficacy of the secret surveillance regime. Kennedy was a case about a secret surveillance regime by interception of his communications. This same language was used by the court in Klass at para 58 to justify the interference with the applicants article 8 rights in that case (another interception of communications case): the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision, since it is this very fact which ensures the efficacy of the interference. The same reasoning appears in the security vetting cases of Leander and Esbester. Thus, for example, at para 66 of Leander, the court said that the very fact that the information released to the military authorities was not communicated to Mr Leander cannot by itself warrant the conclusion that the interference was not necessary in a democratic society in the interests of national security, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure. In support of this proposition, the court referred to para 58 of Klass. There is similar reasoning in the Commissions decision in Esbester. In my view, the significance of Kennedy is that it is a decision explicitly based on an application of article 6 which adopted the same approach as that which was taken by the court in applying articles 8 and 13 in Leander and by the Commission in Esbester. This provides clear support for the submission of Mr Eadie that, for the purposes of the issues that arise in the present case, there is no material difference between articles 8 and 13 on the one hand and article 6 on the other. I do not consider that, if the complaints in Leander and Esbester had been based on article 6, the outcome in these cases would have been different. The other point to emphasise is that these cases show that there is no material difference between surveillance cases (such as Klass and Kennedy) and security vetting cases (such as Leander and Esbester). In the former, restrictions on an individuals right to disclosure and participation in a hearing will be considered necessary and proportionate if they are required in order to ensure the efficacy of the secret surveillance regime. In the latter, the restrictions will be considered necessary and proportionate if they are required in order to ensure the efficacy of the personnel control procedure. Mr Allen and Mr Howell submit that the limited significance of Leander, Esbester and Kennedy is demonstrated by the decision of the ECtHR in Uukauskas v Lithuania (Application No 16965/04) (unreported) 6 July 2010. Lord Mance has set out the facts at para 37 above. I find this a difficult decision to interpret. On the one hand, the court approached the matter in conventional article 6 terms: see para 46 where it noted that (i) the entitlement to disclosure of relevant evidence is not an absolute right; (ii) it may be necessary to withhold certain evidence to safeguard an important public interest; but (iii) only such measures restricting the rights of the defence which are strictly necessary are permissible and there must be sufficient counterbalancing. At para 48 the court referred to the fact that, according to Lithuanian law and judicial practice, secret information may not be used as evidence in court unless it has been declassified and it may not be the only evidence on which a court bases its decision. It is not clear to me to what extent the court based its conclusion that there had been a breach of article 6 on the fact that use of the secret material against the applicant (which was of decisive importance to his case) was contrary to Lithuanian law. But I accept that on the face of it, this is an article 6 decision which does not sit easily with the surveillance/vetting procedure cases to which I have referred. There is no reference to them. There is no weighing of the national interest in the protection of the community against crime against the general right to adversarial proceedings. For these reasons and because it is unclear to what extent the position under Lithuanian law influenced the decision, I agree with Lord Mance that this decision does not cast doubt on the approach adopted in the surveillance/security vetting cases. Unlike Lord Mance, however, I doubt whether the fact that there is no procedure under Lithuanian law for the use of a special advocate to consider closed material is of significance, since, as was pointed out by the European Court of Human Rights in Kennedy at para 187, the procedure before the IPT did not permit the use of special advocates either. In my judgment, these decisions show that there is a clear line of authority to support the proposition that, in surveillance and security vetting cases, an individual is not entitled to full article 6 rights if to accord him such rights would jeopardise the efficacy of the surveillance or security vetting regime itself. On the material shown to us, the line of authority may not be very long, but in my view it is sufficiently clear that it should be followed by our courts. The cases show, in particular, that there is no right to be given the gist of relevant information if and to the extent that this would jeopardise the efficacy of the surveillance or security vetting regime. The present case I have no doubt that article 6 does not require that Mr Tariq should be given the gist of information which would damage or jeopardise national security. First, and above all, this is a security vetting case and in such a case article 6 does not require gisting if and in so far as it would jeopardise the efficacy of the personnel control procedure. That is a sufficient reason for allowing the Home Office appeal. There is no sensible basis for distinguishing the present case from Leander and Esbester. In those cases (which concerned a complaint about the manner in which security vetting was conducted where the applicant was applying for a sensitive post), article 8 did not require disclosure of the security material. In the present case, the complaint is about the decision not to allow a person to remain in a post where security vetting was employed. There can be no distinction in principle between the two cases. A related point is that in all cases where security clearance is sought, it is because the individual has volunteered to undergo the clearance process for the purpose of doing (or continuing to do) the job that he is employed to do. He must be taken to know that checks will be made that may produce material that cannot be shown to him. As Lord Hope points out, he is a volunteer. I would add the following points which reinforce the Home Office case. First, the subject matter of the claim is a claim for damages for alleged discrimination. I do not wish to underestimate the importance of the right not to be subjected to discrimination. But on any view, discrimination is a less grave invasion of a persons rights than the deprivation of the right to liberty. Secondly, the issues in the present case are such that the presence of an independent court and a special advocate are likely to go a long way to making up for the fact that Mr Tariq will be unable fully to participate in the proceedings. As I have explained at para 147 above, there is likely to be only limited (if any) scope for Mr Tariq to be able to give instructions to the special advocate which are necessary to enable her to test the Home Office case effectively. Conclusion I would, therefore, allow the Home Offices appeal primarily on the ground that this case concerns a decision taken in the context of security vetting. In other classes of civil case which are outside the surveillance/security vetting context, the balance between the individuals article 6 rights and other competing interests may be struck differently. It is said that this gives rise to undesirable uncertainty. But much of the content of the European Convention on Human Rights is about striking balances. This is sometimes very difficult and different opinions can reasonably be held. As a consequence, outcomes are sometimes difficult to predict. This is inevitable. But it is not a reason for striving to devise hard and fast rules and rigid classifications. It is, however, at least possible to say that, in principle, article 6 requires as much disclosure as possible. It is very easy for the state to play the security card. The court should always be astute to examine critically any claim to withhold information on public interest grounds. For the reasons that I have given, I would allow the Home Office appeal. I would also dismiss the appeal of Mr Tariq for the reasons given by Lord Mance. LORD PHILLIPS, LADY HALE AND LORD CLARKE I agree that, for the reasons given by Lord Hope, Lord Brown, Lord Mance and Lord Dyson, the appeal of the Home Office should be allowed and that the cross appeal of Mr Tariq should be dismissed. LORD RODGER Lord Rodger, who died before judgment was given in this case, had indicated that he agreed with the judgments of Lord Mance and Lord Brown. |
This appeal is concerned with the long standing principle of insolvency law known as the rule against double proof. It originated in the law of individual bankruptcy but has since the Companies Act 1862 applied to the winding up of companies. It now extends to distributions made by administrators under para 65 of Schedule B1 to the Insolvency Act 1986 as substituted by the Enterprise Act 2002. Like the anti deprivation rule recently considered by the Supreme Court in Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2011] UKSC 38, [2011] 3 WLR 521, the rule against double proof is implicit in the Insolvency Act 1986. In the words of Neuberger J in In re Glen Express Ltd [2000] BPIR 456, 461, it remains good law. It is an overarching principle which still applies to insolvency, and nothing in Stein v Blake [1996] AC 243 calls it into question. The facts The appeal is concerned with distributions made and to be made by the administrators of Kaupthing Singer & Friedlander Ltd (KSF), a bank which went into administration during the financial crisis in October 2008. The disputed issues as to the rule against double proof arise, as is generally the case, in the context of suretyship. KSF has a wholly owned subsidiary named Singer & Friedlander Funding plc (Funding), which is also in administration. Fundings sole function was to raise funds for use by KSF and other group companies. In 2005 Funding issued 250m floating rate notes repayable in 2010. They were constituted under a trust deed dated 9 February 2005 made between Funding, KSF (then named Singer & Friedlander Ltd) and HSBC Trustee (CI) Ltd (the Trustee). By clause 7 of the trust deed KSF guaranteed payment of principal and interest on the notes and performance of Fundings other obligations under the trust deed. The correct construction of clause 7 (and in particular the non competition provisions in clause 7.7) is one of the issues in the appeal. The net proceeds of the notes (approximately 249.5m) were advanced by Funding to KSF by way of unsecured loan. When KSF went into administration on 8 October 2008 it owed Funding approximately 242.6m. When Funding went into administration on 15 October 2008 the amount of principal prospectively due on the notes was (following the buyback and cancellation of some of the notes during 2008) approximately 240.3m. On 23 March 2009 the Trustee gave notice that an event of default had occurred in respect of the notes. The effect of this was that the notes became immediately due and payable, and the obligations of Funding (as principal debtor) and KSF (as guarantor) came into immediate effect. On 28 April 2009 the Trustee submitted to Fundings administrators, and also to KSFs administrators, proofs of debt for principal and interest in respect of the loan notes in the sum of approximately 248.1m in each case. Those proofs have been admitted. On 8 May 2009 Funding submitted a proof in respect of its loan to KSF in the sum of approximately 242.6m. KSFs administrators have indicated that, subject to the issues raised in this appeal, they intend to admit Fundings proof. On 20 May 2009 KSFs administrators gave notice of their intention to make distributions in the administration, including distributions to ordinary unsecured creditors. This notice was given under rule 2.95 of the Insolvency Rules 1986 (SI 1986/1925) as amended, and with the permission of the court granted by an order of Henderson J made on 24 April 2009. KSF has numerous creditors who have already received dividends amounting to 58p in the pound (or in the case of Funding, had provision made for payment, subject to this appeal). By contrast Funding has only one creditor other than the Trustee, that is HM Revenue and Customs, which has proved for the relatively trivial sum of 2,654.10. Funding has no assets other than its loan to KSF. It has an issued capital, fully paid up, of only 12,500. The administrators of Funding have not given notice of an intention to make distributions in their administration. Mr Dicker QC, for the administrators of KSF, drew attention to this fact but did not take any point on it. The proceedings This is a leapfrog appeal to the Supreme Court under section 12 of the Administration of Justice Act 1969 as amended. The administrators of KSF applied to the Chancery Division for directions. The matter came before Sir Andrew Morritt C. At the hearing the Trustee recognised that the Chancellor was bound by the decision of the Court of Appeal in In re SSSL Realisations (2002) Ltd [2006] EWCA Civ 7, [2006] Ch 610 (SSSL), in which the Court of Appeal had in comparable circumstances applied the equitable principle known as the rule in Cherry v Boultbee (1839) 4 My & Cr 442. The only issue argued before the Chancellor was whether clause 7.7 of the trust deed excluded that rule. But the Trustee made clear its intention to argue in the Supreme Court, if granted permission to appeal, that SSSL was wrongly decided. Fundings administrators were joined in the proceedings but were not represented. The Chancellors order dated 18 December 2009 declared that the rule in Cherry v Boultbee was not excluded and directed that the administrators of KSF might rely on it unless and until KSFs right to indemnity (as a surety) had been satisfied in full. He granted a certificate under section 12 of the 1969 Act that there was a point of law of general public importance on which he was bound by a fully considered judgment of the Court of Appeal. The Supreme Court gave the Trustee permission to appeal. Both sets of administrators are respondents to the appeal but, again, Fundings administrators have not been represented. The rule against double proof The expression the rule in Cherry v Boultbee suggests a technical rule of some complexity. Any such impression would be misleading. It is basically a simple technique of netting off reciprocal monetary obligations, even where there is no room for legal set off, developed and used by masters in the Court of Chancery in giving directions for the administration of the estates of deceased persons. Complication arises only in a situation of insolvency, where the equitable rule produces a different outcome from that produced by statutory set off (see para 43 below). This appeal ultimately turns on what function, if any, the equitable rule has to perform in the operation of the rule against double proof as it applies in suretyship situations. The appellant Trustee, on behalf of the noteholders, submits that it would be irrational and unfair to apply it in circumstances in which there is clear House of Lords authority (Secretary of State for Trade and Industry v Frid [2004] UKHL 24, [2004] 2 AC 506) that statutory set off does not apply. The active respondents, the administrators of KSF, submit that its application is required by two decisions of the Court of Appeal, In re Melton [1918] 1 Ch 37 and SSSL [2006] Ch 610, and that they were rightly decided. The starting point in understanding and resolving this issue must be, not Cherry v Boultbee, but the rule against double proof as it applies to suretyship. One of the earliest judicial expositions of that rule was by Mellish LJ in In re Oriental Commercial Bank (1871) LR 7 Ch App 99, 103 104: But the principle itself that an insolvent estate, whether wound up in Chancery or in Bankruptcy, ought not to pay two dividends in respect of the same debt appears to me to be a perfectly sound principle. If it were not so, a creditor could always manage, by getting his debtor to enter into several distinct contracts with different people for the same debt, to obtain higher dividends than the other creditors, and perhaps get his debt paid in full. I apprehend that is what the law does not allow; the true principle is, that there is only to be one dividend in respect of what is in substance the same debt, although there may be two separate contracts. The function of the rule is not to prevent a double proof of the same debt against two separate estates (that is what insolvency practitioners call double dip). The rule prevents a double proof of what is in substance the same debt being made against the same estate, leading to the payment of a double dividend out of one estate. It is for that reason sometimes called the rule against double dividend. In the simplest case of suretyship (where the surety has neither given nor been provided with security, and has an unlimited liability) there is a triangle of rights and liabilities between the principal debtor (PD), the surety (S) and the creditor (C). PD has the primary obligation to C and a secondary obligation to indemnify S if and so far as S discharges PDs liability, but if PD is insolvent S may not enforce that right in competition with C. S has an obligation to C to answer for PDs liability, and the secondary right of obtaining an indemnity from PD. C can (after due notice) proceed against either or both of PD and section If both PD and S are in insolvent liquidation, C can prove against each for 100p in the pound but may not recover more than 100p in the pound in all. The primary purpose of the rule has been described as the protection of other creditors of PD against unfair treatment by an arrangement under which there are multiple creditors in respect of the same debt: Swinfen Eady LJ in In re Melton [1918] 1 Ch 37, 48 citing Mellish LJ in In re Oriental Commercial Bank. There is a full discussion of the purpose and scope of the rule in the judgment of Oliver LJ in Barclays Bank Ltd v TOSG Trust Fund Ltd [1984] AC 626, 636 644. The much quoted example given by Mellish LJ may seem surprising, since in a suretyship situation there are on the face of it two debtors and one creditor. But the surety is also potentially a creditor of the principal debtor, because of his right to an indemnity. The effect of the rule is that so long as C has not been paid in full, S may not compete with C either directly by proving against PD for an indemnity, or indirectly by setting off his right to an indemnity against any separate debt owed by S to PD. The position was summarised by Lord Hoffmann, with whom the rest of the appellate committee agreed, in Secretary of State for Trade and Industry v Frid [2004] 2 AC 506, para 13, commenting on In re Fenton (No 1) [1931] 1 Ch 85: In re Fenton, Ex p Fenton Textile Association Ltd [1931] 1 Ch 85 was another case of a surety under a pre insolvency guarantee, but this time he had not actually paid. Nor could he pay, because he was bankrupt and his assets had vested in his trustee. The creditor was still owed the money and entitled to prove in the liquidation. The Court of Appeal held, first, that one could not have more than one proof in respect of the same debt (the rule against double proof); otherwise, if there had been, say, four guarantors, there could have been five people receiving dividends on the same debt. Secondly, the Court of Appeal said that until the creditor had been paid, he had the superior right of proof and a proof by a surety was excluded. Thirdly, the court said that a debt which could not be proved could not be relied upon for set off. There is no longer doubt about any of these propositions. But the judgments of Lawrence and Romer LJJ make it clear (that of Lord Hanworth MR is a little obscure) that if the guarantor had paid off the debt after the insolvency date, he would have been entitled to set it off against a debt which he owed to the company. The rule in Cherry v Boultbee After that brief introduction to double proof (it will be necessary to return to it in more detail) it is appropriate to go back in time to the origins and development of the equitable rule. The rule was described as follows by Kekewich J in In re Akerman [1891] 3 Ch 212, 219: A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back. That is expanding what the Lord Chancellor calls in Cherry v Boultbee a right to pay out of the fund in hand, rather than a set off. In re Akerman was not an insolvency case. The issue was whether in the division of the testators residuary estate three of the testators seven children had to bring into account statute barred debts due to the estate. It was held that they were bound to bring them into account. The early cases on the rule were mostly concerned with testamentary gifts in favour of relatives who were debtors of the testator (or testatrix). Some of them became bankrupt. Three points should be noted. First, it was only later, and by analogy, that the rule was extended to cases not concerned with the administration of deceased persons estates. Second, the beneficiarys bankruptcy sometimes occurred before, and sometimes after, the death on which the testamentary disposition took effect, and the sequence of events may make a difference. Third, very few of the early cases involved suretyship. The earliest case that calls for mention is Jeffs v Wood (1723) 2 P Wms 128. Jeffs senior made a will appointing his son Jeffs junior as his executor and leaving a legacy of 500 to his nephew Wood, who was indebted to the testator in a smaller sum. Wood was made bankrupt after the testators death, but before the legacy had been paid. Sir Joseph Jekyll MR directed the executor to pay Wood the balance of the legacy after retention by the executor of the full amount of Woods debt to the testator. If Jeffs v Wood is (as some authorities have suggested) the first clear application of the equitable rule, then Cherry v Boultbee (1839) 4 My & Cr 442, which has given its name to the rule, is an illustration of how it operates differently where the beneficiary became bankrupt before the will took effect. The facts are more fully stated in the first instance report, 2 Keen 319. Thomas Boultbee owed 1,878 to his sister Catherine, who left him legacies totalling 2,500. He became bankrupt in 1821. She died in 1823, and Thomass assignee in bankruptcy claimed the legacy from Catherines executors. Lord Cottenham LC held that the executor could deduct from the legacies (which had in any event abated) only so much of the debt as would have been paid as a dividend in Thomass bankruptcy (in which Catherine had not proved). The reasoning behind the different outcome in the later case appears at p 447: the bankruptcy of the debtor having taken place in the lifetime of the testatrix, her executors were never entitled to receive from the assignee more than the dividends upon the debt. The underlying principle appears even more clearly in later cases. In Willes v Greenhill (No 1) (1860) 29 Beav 376 the testator had in 1830 backed a bill for his son Henry. It was dishonoured, and after the testators death in 1832 his executors met the liability. Henry had a one sixth interest, subject to his mothers life interest, in the residuary trust fund. Henry mortgaged this interest and the mortgage was transferred to Willes. The issue of priority in the distribution of Henrys share arose on the widows death in 1849. Sir John Romilly MR held that the executors right to make an adjustment to indemnify themselves took priority to the rights of the mortgagee. It was not a bankruptcy case, but it brings out the proprietary character of the rights of those who participate (whether as creditors, legatees or shareholders) in the distribution of a fund held or administered by fiduciaries. The inception of the administration (or bankruptcy, or liquidation) crystallises the position, and persons who were previously unsecured creditors obtain proprietary interests of a sort (though they may ultimately prove worthless because others take priority). The rule was applied in the compulsory liquidation of a company in In re Rhodesia Goldfields Ltd [1910] 1 Ch 239. Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set off was therefore not available. But Swinfen Eady J said (at p 247) that it would be a strange travesty of equity to hold that in distributing the fund Partridge was entitled to be paid at once all that was due to him out of the companys money, and subsequently to find, after it had been established that he owed money to the fund, that the amount could not be recovered from him. Payment of what was due to Partridge and his assignees was therefore deferred until the claim against him was resolved. The rule was applied again by Sargant J in In re Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 (upheld by the Court of Appeal in brief judgments [1915] 2 Ch 442). William Alt died insolvent in 1908. His estate included shares in the company, which went into voluntary liquidation in 1914. Alt was indebted to the company in the sum of 2,633 (as certified by the master in the administration of the insolvent estate). It was held that in the distribution of the companys surplus assets the liquidator could retain out of the fund, on account of Alts debt, only the amount of the dividend on the debt. Sargant J distinguished other cited authorities (at p 153) as having an entire absence of the special feature present in Cherry v Boultbee and in the case before me, namely, the insolvency of the original debtor before the right of retainer or quasi set off had first arisen. Sargant Js judgment contains a full review of the authorities. These included In re Auriferous Properties Ltd (No 2) [1898] 2 Ch 428 and In re West Coast Gold Fields Ltd [1905] 1 Ch 597. These cases concerned claims made in liquidations by creditors who were also holders of shares which were not fully paid up. In each case it was held, following the seminal decision of Lord Chelmsford LC and the Lord Justices in In re Overend Gurney & Co (Grissells case) (1866) LR 1 Ch App 528, that the claimant could recover nothing as a creditor until all his liability as a contributory had been discharged. Buckley J said in In re West Coast Gold Fields Ltd [1905] 1 Ch 597, 602 (where the shareholder was bankrupt but the company solvent and in voluntary liquidation): The right view is that the person liable as contributory must discharge himself in that character before he can set up that, as a creditor, he is entitled to receive anything, and a fortiori, as it seems to me, before he can set up that, as a contributory, he is entitled to receive anything. That decision was upheld by the Court of Appeal in a brief judgment of the court [1906] 1 Ch 1. The payment up of the shares in full was a condition precedent to any participation in the distribution of surplus assets. In this appeal the appellants case is that payment off in full of the Trustee as creditor is a condition precedent to the admission of any proof against Funding by KSF as surety. In re Melton, In re Fenton (No 1) and In re Fenton (No 2) In re Melton [1918] 1 Ch 37 and the two cases of In re Fenton (No 1) [1931] 1 Ch 85 and (No 2) [1932] 1 Ch 178 are discussed at length in the judgment of Chadwick LJ in SSSL (paras 69 91) and In re Melton was the principal authority relied on in the Court of Appeals reasoning in SSSL. It is therefore necessary to look at these cases, and especially In re Melton, in some detail. The facts of In re Melton were quite complicated and it is important to note the sequence of events. Richard Melton was married, with one son Arthur, and three daughters. In 1901 Richard and another surety gave a joint and several guarantee in respect of Arthurs bank overdraft, limited to 500. Richard died in 1907. By his will he settled his real estate on his wife for life and then on trust for sale for his four children in equal shares. His personal estate was very small. In 1910 Arthur mortgaged his one quarter interest in expectancy to the bank. In 1911 Arthur absconded and later in that year he was adjudicated bankrupt. He then owed the bank 1,057. The bank valued its security at 158 and proved for the balance. It received a dividend of 494 in Arthurs bankruptcy. By then both sureties were dead and the bank called on their respective executors to pay 500, with interest from the date of demand. The other set of executors paid 250 and their share of the interest. Richards executors had no funds available and had to go to court for power to raise money on the settled real estate. They obtained authority, raised 420, and paid 313 to the bank, representing 250 together with interest. In 1916 the widow died and the trust for sale arose. The land was sold for about 1,600 net of the mortgage and costs. Three quarters of the fund was distributable to the daughters. Arthurs mortgaged quarter share had been sold by the bank and purchased by Frances, the deserted wife of the absconding Arthur. The question was whether Frances, as assignee of Arthurs original interest, must bring into account the 313 paid by the executors to the bank. Astbury J held that she must. Frances appealed. The daughters opposed her appeal. The executors were neutral, and neither Arthurs trustee in bankruptcy nor the bank was a party. In the Court of Appeal all three members of the Court (Swinfen Eady, Warrington and Scrutton LJJ) delivered full judgments. All of them attached great weight to the sequence of events. The testator had before his death incurred a potential liability as surety to the bank, with a concomitant potential right to indemnity if the surety was called on to pay, and the bank was (by one means or another) paid off in full. The law report does not state in terms that the bank was paid off in full, but both the statement of facts, and the judgments, seem to proceed on the basis that the bank had no further claim against either the surety or the estate of the principal debtor. The testators potential liability was a liability which affected the administration of his estate prior to Arthurs bankruptcy, and it matured into an immediate liability when the bank called on the executors to pay, and 313 was eventually paid. Similarly the potential right to an indemnity was a contingent asset of the estate prior to Arthurs bankruptcy, and it matured into an immediate claim when the 313 was paid, apparently in full and final satisfaction of the banks claims against anyone. The proprietary character of the rights (or equities) arising from this sequence of events was reflected (though expressed in rather different terms) in all three judgments in the Court of Appeal in In re Melton [1918] 1 Ch 37. Swinfen Eady LJ stated at p 52 (speaking of In re Binns [1896] 2 Ch 584, a comparable case where there were two sons made bankrupt after the death of their father, the surety): The fallacy is that at the date of the bankruptcy what was claimed was not part of the debtors estate. An equity that the testators estate should be indemnified in respect of his liability under the guarantee arose at his death; and when the sons became bankrupt there was already an equity subject to which the trustees in bankruptcy took the sons interests; and the trustees in bankruptcy took nothing more than the debtors had, and the debtors interests under the will were subject to this equity. In this passage the word equity is used three times. It is not fully explained but it emphasises that an unsecured right of indemnity had, on the testators death, acquired some sort of proprietary character. Similarly Warrington LJ stated, at p 57: What the trustees are here claiming never was distributable amongst the creditors of the bankrupt at all. I think, therefore, in the present case, on the simple ground that the right of the trustees to retain is in respect of something which at the date of the bankruptcy did not form part of the estate distributable amongst the creditors of the bankrupt, the trustees are still entitled to the right they then had. If it were necessary for the purposes of this decision I do not think it is I should, as at present advised, be prepared to say that the trustees in respect of their claim are in the position of secured creditors; for their right, as expressed by the Lord Chancellor in Cherry v Boultbee, seems to me to have all the characteristics of a depository lien. Scrutton LJ reached the same conclusion, though he saw it in less definitely proprietary terms (at p 60): Speaking for myself, I am not prepared to say that this right of the executor is a mortgage, charge or lien. I do not wish finally to decide that, because the question may directly arise in other cases, but, as at present advised, I do not see how that can be called a lien. Equally, however, I see nothing in section 7(1) of the Bankruptcy Act 1914, to prevent the exercise of this right; it is not the use of a remedy against the property or person of the debtor, which the creditor is forbidden to make use of, unless he is a secured creditor. It appears to me to be simply a right to see that the person who claims a share of the testators estate claims only the proper share . So the appeal was dismissed. In In re Melton all three members of the court considered that the case of In re Binns [1896] 2 Ch 584 had been wrongly decided, and was based on a fallacy which had already been exposed in Midland Banking Co v Chambers (1869) LR 4 Ch App 398. This point played an important part in the reasoning of Swinfen Eady LJ (at pp 51 52) and Warrington LJ (at pp 56 57). Midland Banking Co v Chambers and In re Binns were both cases concerned with insolvency and suretyship, but with the further element of security being provided in the earlier case by PD to S, and in the later case by S to C. In the earlier case Thorpe gave the bank a guarantee, limited to 300, of Mercers overdraft. The guarantee was given in 1865. In 1866 Mercer made an assignment to trustees for his creditors, which was equivalent to bankruptcy. At some time before then Mercer granted Thorpe a mortgage to indemnify him. Mercers overdraft stood at 410. The trustees sold the mortgaged property and paid Thorpe 300, which he paid to the bank. The issue between the bank and the trustees was whether the bank could prove for 410 or only 110. It was not argued that the security was a fraudulent preference. Malins V C held that the bank could prove for the full sum, and the trustees appealed. The Lord Justices dismissed the appeal. The trustees argued that the 300 had been paid out of PDs estate, but that was dismissed as a fallacy because S had the benefit of a valid security granted prior to the bankruptcy. Giffard LJ said (at p 402) that the 300 was paid out of something which, having before the execution of the creditors deed been dedicated to the purpose of indemnifying the surety, was not, at the time of the execution of that deed, part of the debtors estate. There was also a question of construction of the guarantee which both courts resolved in favour of the bank. In In re Binns the security was the other way round. In 1894 William Binns deposited 2,400 in his own name with the bank where two of his sons, who traded as J & F Binns, had an overdraft. William signed a letter in these terms: I hereby declare that my deposit of 2,400 is lodged with you as a continuing security for any amount that may from time to time be owing to you by J & F Binns. In 1895 William died leaving each son a legacy and a one sixth share of his residuary estate. The overdraft then stood at 8,858. A few months later the sons were made bankrupt. The bank proved for the whole overdraft debt but was unlikely to receive more than about 3,300 by way of dividend. It had not yet appropriated the 2,400 deposit but it was accepted that it would do so. The issue was between the sons trustees in bankruptcy, who contended that the sons beneficial interests under the will were assets available for their creditors, and the trustees of the fathers will, who contended that they could retain the sons beneficial interests in order to indemnify the fathers estate against the 2,400 which he had deposited. The trustees in bankruptcy were represented by Mr Swinfen Eady QC, who argued that the trustees of the will had no right to prove in the bankruptcy, because the bank had proved for the whole overdraft debt and it was gone (in the sense, it seems, of being incapable of proof again, because of the rule against double proof). This argument was accepted by North J. He said (at p 588, but using PD, S and C): But the difficulty in [Ss] way is this that there is no debt in respect of which [S] can at present claim to retain anything as against [PD]. The claim against [PD] is made by [C]; and [S] cannot as against [C] set up an adverse claim of any kind. No doubt when [C] have been paid in full the position of matters would be different . North J went on to explain that, on the facts, there was no real prospect of the bank ever being paid in full. Warrington LJ criticised North J in In re Melton (at p 57) but he was mistaken in his premise (at p 56) that the facts of In re Binns were undoubtedly, for all substantial purposes, identical with those of In re Melton. In In re Melton the bank had been paid in full; in In re Binns the bank had not been paid in full, and was never going to be paid in full. Moreover in In re Melton there was no question of anything in the testators estate going to the bankrupt sons trustee: his interest had been mortgaged and then sold and Frances (the deserted wife) was a purchaser for value (but only of an equitable interest, and with notice of the equity of indemnification). In In re Binns, by contrast, the sons interests under their fathers will were available to their trustees in bankruptcy, and the diversion of those interests to other members of the family would have meant that S was in competition with C while Cs claims had not been fully satisfied. There is also the question why Swinfen Eady LJ, having won In re Binns as leading counsel about 20 years before, said in his judgment in In re Melton that it was fallacious and wrongly decided. The relevant passage is at pp 51 52 and it is not at all easy to follow. Swinfen Eady LJ said twice that North J fell into the same fallacy as was exposed by Giffard LJ in Midland Banking Co v Chambers, but the facts and the issues in that case were quite different. In the later case S had provided security to C; in the earlier case PD had provided security to S, and the security had been dealt with in an unusual way (by a mortgagors sale, not a mortgagees) which left room for argument about where the 300 should be treated as coming from. The reasoning in In re Melton does not satisfy me that In re Binns was wrongly decided. That does not however cast any doubt on the correctness of the decision in In re Melton, the facts of which were quite unusual. I come next to the two Fenton cases. Fenton had a large holding of shares in a company (referred to as the Association) which owned woollen mills. He was also heavily indebted to the Association. In 1921 he made an arrangement with his creditors and the Association submitted a proof for over 550,000, subsequently reduced to about 423,000. Fenton had entered into four limited guarantees of bank loans in respect of which the Association was the principal debtor. The total liabilities under these guarantees amounted to 166,795, which his trustee sought to set off against the debt proved by the Association. The Association itself went into compulsory liquidation in 1923. The banks were unsecured creditors of the Association and only one of them proved in the liquidation, because there was going to be nothing left for unsecured creditors (this was established in the Court of Appeal; at first instance the judge was told that none of the banks had proved). The banks proved against Fenton for the total sum of 166,795. Luxmoore J at first instance permitted the set off in full. The Court of Appeal unanimously allowed an appeal by the Associations liquidator. The judgment of Lord Hanworth MR is a little obscure (as Lord Hoffmann put it in Secretary of State for Trade and Industry v Frid [2004] 2 AC 506, para 13). Much of it was concerned with a discussion of the need for mutuality in set off; but in the final passage (at pp 109 110) he referred to In re Oriental Commercial Bank (1871) LR 7 Ch App 99, 103 and relied on the rule against double proof. So did Lawrence LJ at p 114, addressing the situation where both principal debtor and surety are bankrupt: The reason why, in my opinion, such a claim . cannot be set off is because so long as the estate of the principal debtor remains liable to the principal creditor the surety will not be permitted to prove against the estate of the principal debtor, as such a proof would be a double proof for the same debt, and would therefore be inadmissible as being contrary to the established rule in bankruptcy. Romer LJ agreed. He said at pp 119 120: In the present case, if Fenton, not having paid the banks anything under his guarantee, were entitled to prove in the winding up of the Association, or if, having paid them less than the amount due to them, he were to prove for the amount so paid, and the banks were also to prove in the winding up of the Association for the full sum due to them, as they would be entitled to do, the estate of the Association would be subjected to more than one proof in respect of the same debt, and this is not permissible. A further issue in the liquidation of the Association came before Luxmoore J a year later: In re Fenton (No 2) [1932] 1 Ch 178. Fentons trustee in bankruptcy had declared a dividend of one shilling (5p) in the pound and the question was whether the trustee could withhold the Associations dividend because of Fentons liability on his guarantees to the banks, and his potential right to an indemnity. The judge held (rather surprisingly, in view of the passage from Romer LJs judgment quoted above) that this point had not been decided by the Court of Appeal. The argument for Fentons trustee was that so long as the Association was indebted, either immediately or contingently, to Fentons estate, the Association should receive no dividend, despite the fact that it had proved for a separate liability of 423,000. Luxmoore J rejected this for essentially the same reason as the Court of Appeal had rejected set off in the earlier proceedings (at pp 187 188): But the position is further complicated by the fact that the banks have already proved or are entitled to prove against the assets of the Association in respect of the whole of the sum guaranteed, and consequently if the trustee of the deeds of arrangement should retain out of the dividend payable to the Association a sum equal to the dividend on the total amount due to the banks under the guarantee, there would in effect be an allowance against the Association of two dividends in respect of what is for all practical purposes the same debt, and so the rule against double proof would be infringed. In other words S (Fentons estate) would be competing with C (the banks, which had not been, and never were going to be, paid in full) in claiming (whether directly or by set off or retention) against PD (the Association). The Court of Appeal in SSSL held that In re Fenton (No 2) was wrongly decided. SSSL: introduction Both the facts and the issues in SSSL were complicated. Remarkably, the point now at issue was not raised at all at first instance, and so the Supreme Court has not been referred, except in passing, to the judgment of Lloyd J [2004] EWHC 1760 (Ch), [2005] 1 BCLC 1. The numerous issues that Lloyd J did have to resolve turned largely on the correct construction and legal effect of a subordination (or non competition) clause in a deed of indemnity entered into by six companies in the group headed by Save Group plc (Group) in favour of AIG Europe (UK) Ltd (AIG). The group traded as petrol retailers and AIG provided a bond for payment of excise duty to HMRC, so enabling liability for duty to be deferred. The deed of indemnity related to the bond and the companies that gave the indemnity included Group and its subsidiary, then called Save Service Stations Ltd, later renamed SSSL Realisations (2002) Ltd (Stations). Stations owned most of the fixed assets of the petrol retailing business. There were substantial inter company debts. Group had a treasury function and Stations owed large sums to Group both for loans and for petrol products bought by Group and sold on to Stations. In 2001 Group and all its subsidiaries went into administration. Later Group went into compulsory liquidation and Stations into creditors voluntary liquidation. In early 2004 both sets of liquidators made separate applications to the court for directions. Issues were agreed and heard by Lloyd J in June 2004. On 27 July 2004 he held that Group was not entitled to prove for the debt due to it from Stations. That is a very brief summary of the practical result of a long judgment which covered numerous issues, not including the rule in Cherry v Boultbee. The rule was raised in a respondents notice served by Stations in response to Groups notice of appeal. The point was raised contingently, against the event that the Court of Appeal were to hold that Groups liquidators could disclaim its contract with AIG. In the event the Court of Appeal upheld Lloyd J on the disclaimer point, and every other point, and dealt with Cherry v Boultbee only because the issue had been fully argued, and Chadwick LJ (para 68) thought it sensible to address it. When the present case came before the Chancellor it was not disputed that SSSL should be treated as a binding precedent. In SSSL Chadwick LJ gave the only judgment in the Court of Appeal [2006] Ch 610, with which Jonathan Parker LJ and Etherton J agreed. In his judgment he introduced the rule in Cherry v Boultbee in paras 11 17, 20 25 and 31, but his main reasoning about the rule is in paras 68117. Before coming to those paragraphs I would note parenthetically that in SSSL the Court of Appeal had detailed evidence as to the assets and liabilities of the various group companies, and Chadwick LJ was at pains to explain the financial implications of the issues. That was no doubt appropriate in a case in which the court was being asked to grant an injunction. In this appeal, by contrast, the Supreme Court has no relevant documentary evidence (the only exhibit to the sixth witness statement of Mr Brazzill, one of the administrators of KSF, included in our papers is the offering circular published by Funding, which is now ancient history), and Mr Moss QC, for the Trustee, was not eager to go into the figures. I make no complaint about that, as the court has to decide the point as a matter of principle. Mr Moss did tell us that the Trustee will recover about 84% of its claim if it loses the appeal completely, and 100% if it wins either on Cherry v Boultbee or on the point of construction which the Chancellor decided against the Trustee. Apart from that we know that Funding has no assets other than the debt owed to it by KSF, and no significant creditors other than the Trustee; and that KSF has numerous creditors and has so far paid (or reserved) dividends totalling 58p in the pound. Above all it is essential to bear in mind, in order to avoid confusion, that although this appeal raises the same legal issue as was raised in SSSL the factual context is different. In SSSL PD was the parent company, Group, and S was (among other subsidiaries) Stations; and (apart from any question of indemnification of S) S owed PD about 70m. In the present appeal PD is the subsidiary, Funding; S is the parent company, KSF; and (apart from any question of indemnification) S owes PD about 242m. In his judgment Chadwick LJ was also at pains to explain the operation of the rule in Cherry v Boultbee in mathematical notation which, if I may respectfully say so, tends to suggest that the rule is a branch of rocket science. The disparity between the results of the examples in para 13 of his judgment is simply the difference between netting off at 100p in the pound and netting off at the appropriate dividend rate. In the example set off means that the debtor beneficiary gets 1,818, that is 100p in the pound worth of set off, and 90.9p in the pound for the balance of 2,000 due from the bankrupts estate. The equitable rule means that he gets 1,750, that is 91.7p in the pound for the whole 3,000 due to him, with 1,000 treated as already in his hands. Where the equitable rule applies the rate of dividend is marginally higher for everyone, because the differential (in the example, 91 out of the set off of 1,000) is made available for distribution across the board. The lower the expected rate of dividend, the greater will be the disparity between the two computations. SSSL: the Court of Appeals reasoning The scheme of paras 68 to 117 of Chadwick LJs judgment is as follows: (1) Para 68 sets out the financial implications of the point. (2) Paras 69 to 78 contain a full discussion of In re Melton, concluding with the extraction of three principles stated in para 79. (3) Paras 80 to 82 identify three questions left unanswered by In re Melton. (4) Paras 83 to 92 discuss the two cases of In re Fenton, concluding that In re Fenton (No 2) was wrongly decided. (5) Paras 93 to 97 discuss the purpose of the rule against double proof (which has been briefly introduced in paras 14 to 15). (6) Paras 98 to 117 discuss and answer the three questions left unanswered by In re Melton, the first being whether the equitable rule applies in a situation where statutory set off is (as noted by Lord Hoffmann in Secretary of State for Trade and Industry v Frid [2004] 2 AC 506, para 13) excluded by the rule against double proof. The first principle that Chadwick LJ extracted from In re Melton is the equitable rule itself, which he set out as a mathematical formula. The second principle is that the rule extends to cases where the fund has a right to be indemnified by the claimant against a liability which the fund may be required to meet in the future. That proposition seems to be too widely stated. In the passage quoted from the judgment of Warrington LJ in In re Melton (at p 55) that time refers to the death of Richard Melton in 1907. His settled estate did not become distributable until his widows death in 1916, and by then there was an immediate right to an indemnity for the 313 paid by the estate. The judgment of Warrington J in In re Abrahams [1908] 2 Ch 69, 73, states the correct rule: the debt due to the testator is one which is not immediately payable, whereas the right of the debtor to receive the residuary share is an immediate right. I think, therefore, that the debtor is entitled to receive that share. Chadwick LJ also relied on Warrington LJs comments on In re Binns [1896] 2 Ch 584. But (as already noted) the facts of In re Binns were not identical, or even similar, to those of In re Melton. The third principle, set out in para 79 (3), is also too widely stated, as Chadwick LJ himself recognised in the following paragraph. After referring to section 323 of the Insolvency Act 1986 and rule 4.90 of the Insolvency Rules he observed: But the question remains whether the [equitable] rule is applicable in a case where by reason of the rule against double proof there is no set off between Xs claim against the fund, on the one hand, and the funds right to be indemnified by X on the other hand. That is the heart of the matter, but having posed that question the judgment embarks on a lengthy discussion of the two Fenton cases, concluding that In re Fenton (No 2) was wrongly decided because it was inconsistent with the judgments in In re Melton. I respectfully disagree. In In re Fenton (No 2) Luxmoore J was faithfully following the reasoning of the Court of Appeal in In re Fenton (No 1). The banks (C) were never going to recover in full either from the Association (PD) or from Fenton (S), and Fentons trustee could not seek to recover from the Association in competition with the banks, either by direct proof or by set off, merely because he had paid a dividend of 5p in the pound. The equitable rule is a technique of netting off similar to statutory set off. It is true that in a situation of double insolvency (that is where both PD and S are bankrupt or in insolvent liquidation) the equitable rule may produce a different result from set off if PDs insolvency occurred before that of S (that is the difference between Jeffs v Wood and In re Rhodesia Goldfields Ltd, on the one hand, and Cherry v Boultbee and In re Peruvian Railway Construction Co Ltd, on the other hand). But in this appeal that is of little importance as there is a larger and more basic question to be asked first. If the policy of the law underlying the rule against double proof is powerful enough to oust statutory set off, is there any good reason why it should not have the same effect on the equitable rule? Chadwick LJ considered that there are good reasons, and (para 92) that the contrary view involved three misunderstandings: of the principle underlying the equitable rule, of the reasoning in In re Melton, and of the object of the rule against double proof. I have to say that I find much of his reasoning difficult to follow. The distinction drawn in para 94 between swelling assets and limiting claims seems to be, in this context, a distinction without a difference: netting off matches assets against claims, and the rule against double proof is (as has often been said) a matter of substance, not form. Para 96 of the judgment suggests that in a double insolvency the equitable rule and the rule against double proof can and should both apply, and that this would strike a fair balance between the competing interests of creditors. In my view this approach would lead to many doubts and difficulties, and whether the end result would strike a fair balance would depend very much on the facts of the particular case (that point is made forcefully in a case note by Look Chan Ho, Understanding Debt Subordination and the Rule in Cherry v Boultbee: Re SSSL Realisations [2006] JIBLR 266, 271 272; see also a learned article from an Australian viewpoint, Dean, Luckett and Houghton, Notional Calculations in Liquidations Revisited: the case of ASC Class Order Cross Guarantees (1993) 11 Company and Securities Law Journal 204). The facts of this case would be regarded as unusual in normal commercial dealings (though they may be more usual in the world of investment banking) in that Funding, a subsidiary with a relatively tiny paid up capital, borrowed almost 250m, and as it has no other significant creditors the Trustee will, if it wins this appeal, make a full recovery on behalf of the noteholders. In that respect the case has some similarity to In re Polly Peck International plc [1996] 2 All ER 433, in which it was argued, unsuccessfully, that the special purpose vehicle incorporated in the Cayman Islands should be regarded as a single economic unit with the holding company, so as to eliminate double dip as well as double dividend. Para 98 of the judgment refers to the line of authority dealing with the special case of shareholders liable for calls on shares which are not fully paid up. Some of these cases are mentioned in para 20 above. Chadwick LJ sets out a fuller citation of the cases but I have to say, with respect, that he seems to have missed their point. The situation in this line of authority is that a shareholder is a creditor of an insolvent company, but his shares are not fully paid up, so that he is liable as a contributory. Suppose he has 10,000 1 shares, 10p paid, and is owed 15,000, but the dividend prospectively payable is only 30p in the pound. If the liquidator calls on him for 9,000 to make his shares fully paid up, he has no right of set off, and to that extent he is disadvantaged (that is In re Auriferous Properties Ltd (No 1) [1898] 1 Ch 691). If he seeks to prove in the liquidation, the liquidator can rely on the equitable rule as it applies in a case of this sort that is, that he can receive nothing until he has paid everything that he owes as a contributory. That is In re Auriferous Properties Ltd (No 2) [1898] 2 Ch 428. The rule is also very clearly stated by Buckley J in In re West Coast Gold Fields Ltd [1905] 1 Ch 597, 602 (affirmed [1906] 1 Ch 1, and cited in para 20 above). Payment of the call is a condition precedent to the shareholders participation in any distribution, and again the shareholder is to that extent disadvantaged. So the equitable rule may be said to fill the gap left by disapplication of set off, but it does not work in opposition to set off. It produces a similar netting off effect except where some cogent principle of law requires one claim to be given strict priority to another. The principle that a companys contributories must stand in the queue behind its creditors is one such principle. The rule against double proof is another. I would accept Mr Mosss submission that it would be technical, artificial and wrong to treat the rule against double proof as trumping set off (as it undoubtedly does) but as not trumping the equitable rule. Conclusion I would therefore allow this appeal on that ground, and set aside the Chancellors direction. Once the Trustee has received 100p in the pound the rule against double proof will cease to apply, and any assets then remaining in the hands of Fundings administrators will be administered without further regard to it. It is not necessary to address the issue of the correct construction of clause 7.7 of the trust deed, and it seems better not to comment on an issue which the Chancellor approached (as he was bound to) on legal premises now shown to be mistaken. LORD HOPE I would allow this appeal. For the reasons given by Lord Walker with which I am in full agreement, I too would hold that the equitable rule in Cherry v Boultbee is excluded by the rule against double proof. So the Trustee must be paid in full before there can be any proof against Funding as the principal debtor by KSF as guarantor. |
The liability of employers for deaths caused by mesothelioma has pre occupied courts and legislators over recent years. The present appeals concern claims to pass the burden of this liability on to insurers, made either by employers or in the case of insolvent employers by the personal representatives of former employees using the mechanism of the Third Party (Rights against Insurers) Act 1930. The appeals concern employers liability insurance. This is in contrast with Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 where public liability insurance was in issue. Employers liability focuses necessarily upon the relevant employment relationships and activities. Public liability relates to any of the insureds relationships and to activities affecting the world at large. Another feature of employers liability is that, under the Employers Liability (Compulsory Insurance) Act 1969 (the ELCIA), it has since 1 January 1972 been compulsory for every employer other than local authorities carrying on any business in Great Britain to insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain The appeals arise because the relevant insurers maintain that the employers liability insurances which they issued respond (or, better, could only have responded) to mesothelioma which developed (or, possibly, manifested itself) as a disease during the relevant insurance periods all long past. In contrast, the relevant employers and personal representatives maintain that the insurances respond to mesothelioma which develops and manifests itself later; all that is required, they say, is exposure of the victim during the insurance period to asbestos in circumstances where the law attributes responsibility for the mesothelioma to such exposure. These alternative bases of response (or triggers of liability) have been loosely described as an occurrence (or manifestation) basis and an exposure (or causation) basis. It is in issue whether the ELCIA, after it came into force, mandated any particular basis of response. A secondary issue, arising if the insurances only respond on an occurrence basis, is whether the aetiology of mesothelioma justifies a conclusion that there was during the relevant insurance period an occurrence sufficient to trigger liability under the insurances. Burton J, [2008] EWHC 2692 (QB), concluded that the relevant insurances all responded on an exposure basis. The Court of Appeal, [2010] EWCA Civ 1096, by a majority (Rix and Stanley Burnton LJJ), upheld the judge in relation to some of the insurances (particularly those covering disease contracted during the relevant insurance period); but they concluded that others (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. Smith LJ would have upheld the judges judgment in its entirety. The full judgments in both courts repay study. They have been of great assistance to this court and make it possible to go directly to the heart of the issues. Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres: Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, para 1, per Lord Phillips. It is a cancer of the pleura, which are thin linings around the lungs and on the inside of the rib cage. It is usually undetectable until shortly before death. Its unusual features include what Burton J in this case at para 30 described as the unknowability and indescribability of its precise pathogenesis. In particular, it is impossible to know whether any particular inhalation of asbestos (at least any occurring more than ten or so years prior to diagnosability) played any or no part in such development. Because of this unusual feature, the law has developed a special rule. The special rule was the product of judicial innovation in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. It was modified by statutory intervention in the form of the Compensation Act 2006, section 3. Leaving aside exposures occurring within the ten or so years prior to diagnosability, the rule can now be stated as being that when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a "material increase in risk" of the victim contracting the disease will be held to be jointly and severally liable in respect of the disease. Burton Js findings in the present case justify certain further propositions, mostly also corresponding with the summary in Lord Phillips judgment in Sienkiewicz (para 19): (i) A significant proportion of those who contract mesothelioma have no record of occupational exposure to asbestos. The likelihood is that (vi) in their case the disease results from inhalation of asbestos dust that is in the environment. There is, however, a possibility that some cases of mesothelioma are "idiopathic", i.e. attributable to an unknown cause other than asbestos. (ii) The more fibres that are inhaled, the greater the risk of contracting mesothelioma. (iii) There is usually a very long period between the exposure to asbestos and the development of the first malignant cell. Typically this can be at least 30 years. (iv) For a lengthy period (perhaps another five years) after the development of the first malignant cell, there remains a possibility of dormancy and reversal, but at a point (Burton J thought a further five years or so before the disease manifested itself, and was thus diagnosable) a process of angiogenesis will occur. This involves the development by malignant cells of their own independent blood supply, so assuring their continuing growth. (v) The mechanism by which asbestos fibres cause mesothelioma is still not fully understood. It is believed that a cell has to go through 6 or 7 genetic mutations before it becomes malignant, and asbestos fibres may have causative effect on each of these. It is also possible that asbestos fibres have a causative effect by inhibiting the activity of natural killer cells that would otherwise destroy a mutating cell before it reaches the stage of becoming malignant. Mesothelioma currently claims about 3000 lives a year in the United Kingdom. This speaks to the common use of asbestos materials up to the 1960s and 1970s. In Annex I to his judgment Rix LJ set out the insuring clauses of the various forms of policy wording in use from time to time. Subject to re ordering to reflect the development of the language, Annex A to this judgment includes the same and some further wording. It can be seen that the Excess policies and the first two MMI policies promise to indemnify the insured employer against liability if at any time during the period of insurance (or of any renewal) any employee shall sustain under the earlier policies personal injury by accident or disease or under the later policies [any] bodily injury or disease in the case of the first Excess policy while engaged in the service of the Employer or in other cases arising out of and in the course of [his] employment by the insured employer. In the case of the Independent policy, the insurer, under the recital, promised to indemnify the employer during the period of insurance or of any renewal. The insuring clause itself contains no express limitation to any period. It promises indemnity against all sums for which the employer shall be liable for damages for such injury or disease if any employee shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule. The third MMI policy and the BAI policies were in more developed form. The former promises indemnity in respect of legal liability for sums payable as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any employee when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy. The latter promised indemnity against all sums which the Insured may become liable to pay to any Employee . in respect of any claim for injury sustained or disease contracted by such Employee during the period of insurance or any renewal. The insurers party to the present appeals have at all times represented only a small part of the employers liability insurance market. By far the larger part of the market consists of companies who until the late 1960s (when competition rules intervened) operated a tariff system which bound them to adopt a specified policy form and specified rates. Until 1948 tariff insurance was focused on Workmens Compensation Act claims, but in 1948 legislative changes (in particular the abolition by the Law Reform (Personal Injuries) Act 1948 of the doctrine of common employment) made a common law claim for future accruing causes of action much more attractive. It may well have been in anticipation of these changes that the tariff companies introduced a new form of policy in May 1948, still in widespread use today, providing indemnity if any employee shall sustain any personal injury by accident or disease caused during the period of insurance. Under this tariff wording, sustain looks to the occurrence of an accident or development of a disease at any time, while caused makes clear that the trigger to cover is that the accident or disease has been caused during the insurance period. The present insurers were non tariff companies, and have always been free to set their own wordings. From dates after the insurances the subject of this appeal, three of the insurers in fact ceased to use the wordings set out in Annex A, and themselves moved expressly to causation based wordings Excess in about 1976, Independent in the mid 1980s, and BAI in 1983. As a matter of insurance practice, however, until the decision in Bolton in 2006, all these wordings, whether tariff or non tariff and whether using the language caused, sustain or sustained or contracted, paid out on long tail claims (including the mesothelioma claims which became increasingly frequent in the 1980s) by reference to the date(s) of exposure. Where successive employers with different insurers had exposed a particular employee victim to asbestos, liability was in practice apportioned between the employers, and so insurers, broadly according to the extent of exposure for which each employer was responsible. The rival cases Insurers submit that all the wordings in Annex A require the injury or disease to occur during the period of insurance or of any renewal. In the alternative, if the use of the word contracted in the third MMI policy and the BAI policies or the different formulation of the Independent policy leads to any different conclusion in any of such cases, they submit that this leaves unaffected the clear meaning of the Excess and first two MMI policy wordings. The employers and interested employees contend that all these policies are to be understood as operating on an exposure or causation basis. The implications of these alternative interpretations are clear. On insurers primary contention, the policies set out in Annex A would not respond to current mesothelioma claims. It is unlikely that most of them would have responded to many, if any, mesothelioma claims, since it was only in the 1980s that such claims began to emerge to any great extent. Policies written on a causation basis since the dates indicated in paragraph 10 above would also not respond to current mesothelioma claims. Insurers response is that any insurance must be read according to its terms. Until 1 January 1972, when the ELCIA came into force, it was not obligatory for employers to have any form of employers liability insurance. Further, viewed on an occurrence or manifestation basis, the policies would pick up long tail claims arising from exposure occurring at any time in the past. In this connection, it is to be noted that various long tail diseases were well recognised perils from the era of Workmens Compensation legislation before 1948. Instances were scrotal cancer, pneumoconiosis and more specifically (from the time of Merewether and Prices 1930 Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry) asbestosis. All these would only develop over and could manifest themselves after considerable periods of years. Following upon the 1930 report, The Asbestos Industry Regulations 1931 (SI 1931/1140) were introduced to regulate factories handling and processing raw fibre, and in 1969 The Asbestos Regulations 1969 (SI 1969/690) extended this regulation more widely it appears in the light of an appreciation that mesothelioma could result from exposure to small quantities of asbestos dust (see In re T & N Ltd (No 3) [2006] EWHC 1447 (Ch), [2007] 1 All ER 851, para 118). The Court of Appeals conclusions The force of insurers case rests in the use of the word sustain, whether in connection with the phrase personal injury by accident or disease or bodily injury or disease or in the conjunction injury or disease . sustained or contracted or injury sustained or disease contracted. Rix and Stanley Burnton LJJ concluded that the word sustain looked prima facie at the experience of the suffering employee rather than its cause (paras 232 and 343). Insurances responding to injury or disease sustained during the insurance period would not, on this basis, cover mesothelioma sustained long afterwards. Rix LJ had some compunction about the result because of what he (though not Stanley Burnton LJ) felt was a tension with the commercial purpose of employers liability insurance in the extraordinary context of mesothelioma (para 235). Rix LJ would have liked to hold that mesothelioma sufferers sustained sufficient injury on exposure to asbestos to trigger the insurances in force at the date of such exposure, but felt bound by Bolton to conclude the contrary (paras 277 289). However, Rix LJ, though not Stanley Burnton LJ, considered that the particular wording of the Independent insurances did not explicitly require the injury or disease to be sustained during the insurance period, and could be read as covering the sustaining of injury at any time arising out of and in the course of employment during the insurance period (paras 300 and 350). Rix and Stanley Burnton LJJ differed as to the significance of the ELCIA extension provisions included in the Independent wording, the third MMI wording and the second BAI wording, as quoted in Annex A. Rix LJ thought that the ELCIA required employers to insure on a causation basis (paras 184 and 186) although, since he also expressed the view that an insurance arranged and maintained on a sustained basis could comply with the ELCIA, he may perhaps only have meant required in practice. At all events, he held that the ELCIA extension provisions covered liability incurred to the personal representatives of employees on a causation basis, while enabling insurers to recoup themselves so far as possible from the relevant employers in respect of liability they would not otherwise have had to meet (paras 292, 300 and 302). Stanley Burnton LJ did not agree that the ELCIA required causation wording (para 342), but considered that it required insurance to be taken out and maintained in respect of ex employees, or at least those who were or had been employed at any time after the coming into force of ELCIA (para 342; and see Rix LJs comments at paras 305 307). Rix, Smith and Stanley Burnton LJJ were all agreed that, where provision was made for disease contracted, this could and should be construed as introducing cover on a causation basis, even if or though wording such as injury (or disease) sustained could only respond on an occurrence basis. Analysis Annex A sets out the insuring clauses. Insurers case is, as I have said, rooted most strongly in the word sustain, particularly when it is used by itself, rather than in conjunction with a more ambivalent alternative in the phrase sustained or contracted. The natural meaning of the word sustain, taken in isolation and as defined in the Shorter Oxford English Dictionary from an appropriate date (1965, 3rd ed), is, with respect to injury, undergo, experience, have to submit to, or, possibly, to have inflicted upon one, suffer the infliction of. But the insurance cover granted (and no doubt required) extended expressly beyond injury by accident to embrace disease. This was achieved by less natural conjunctions, such as sustain [any] personal injury by accident or disease or sustain [any] bodily injury or disease. Conscious perhaps that the verb sustain does not fit naturally with the concept of disease, some companies (MMI in its third wording and BAI in its first and second wordings) introduced the different verb contracted in the formulations sustained or contracted or injury sustained or disease contracted. This use of contracted with respect to disease is considerably more natural, but is clearly open to an interpretation that it looks back to the initiating or causative factor of the disease, and (whatever the answer on that point) highlights a question whether any substantial difference exists in this connection between such wordings and other wordings referring more awkwardly to the sustaining of personal injury by disease or the sustaining simply of disease. To resolve these questions it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more broadly. As Lord Mustill observed in Charter Reinsurance Co Ltd v Fagan [1977] AC 313, 384, all such words must be set in the landscape of the instrument as a whole and, at p 381, any instinctive response to their meaning must be verified by studying the other terms of the contract, placed in the context of the factual and commercial background of the transaction. The present case has given rise to considerable argument about what constitutes and is admissible as part of the commercial background to the insurances, which may shape their meaning. But in my opinion, considerable insight into the scope, purpose and proper interpretation of each of these insurances is to be gained from a study of its language, read in its entirety. So, for the moment, I concentrate on the assistance to be gained in that connection. A first point, made very clearly below by Rix LJ (para 263), is that the wordings on their face require the course of employment to be contemporaneous with the sustaining of injury. This leaves open what is meant either by sustaining or by injury. Rix LJ thought that the Independent wording could be understood differently in effect, as if it had expressly read: If any person who is under a contract of service or apprenticeship with the Insured shall at any time sustain bodily injury or disease arising out of and in the course of his employment by the Insured during the policy period in connection with the Contract specified or type of work described in the Schedule . That interpretation assumes that sustain in this context equates with the occurrence, rather than causation, of the injury or disease, and only arises for consideration if that assumption is correct. A second point is that the insurance wordings demonstrate a close link between the actual employment undertaken during each insurance period and the premium agreed to be payable for the risks undertaken by insurers in respect of that period. Premium is linked expressly to actual wages, salaries and earnings during the insurance period under the Excess policies, the first MMI wording and the BAI policies. The second and third MMI wordings contemplate that premium may be linked to wages, salaries and earnings, and, to the extent that any inference regarding the general nature and scope of cover under these standard wordings can be drawn from such a link, it must be capable of being drawn whether or not premium was actually so linked in any particular case. As to the Contractors Combined Policy issued by the Independent, it is a probable inference that the estimates which were provided and were to be updated will have included, in respect of the employers liability cover in section 1, wages, salaries and other earnings paid. Finally, the Independent cover is linked to the actual contract or work which the employer is undertaking during the insurance period. These links are in my view significant. True, premium may sometimes be calculated on a rough and ready basis. Minor discrepancies between the premium calculation and the risk may be understandable: see e.g. Ellerbeck Collieries, Ld v Cornhill Insurance Co [1932] 1 KB 401, 418, per Greer LJ (who pointed out that any such discrepancy there was more apparent than real, since workmen not earning wages because off work would not actually be at risk of any fresh accident, even though they would remain susceptible to certification for disablement). Here the position is quite different. Great care is taken in all the policies to tie premium to the actual employment undertaken during the insurance period, and in the case of the Excess, Independent and MMI policies to tie cover to a business, contract or activities described in the schedule. The natural expectation is that premium is measured by reference to actual employment or work during the insurance period because it is the risks attaching to such employment or work which are being undertaken by insurers. At the very least, the drawing of this link makes improbable the contention advanced by some of the insurers that the present insurances were apt to pick up liabilities emerging during the insurance period which could be attributable to employment and activities undertaken and negligent conduct committed at times long past. The number of employees, their employment activities and the risks involved at those times could be very different. The significance which attaches to the employment current during the insurance period is underlined by legal and practitioner texts. As long ago as 1912, MacGillivray on Insurance (1st ed), pp 966 wrote: The nature and scope of the employers business must be clearly defined in the insurance policy, and workmen employed outside the scope of the assureds business as described in the policy will not be covered In the section on Employers Liability Insurance in Stone & Coxs Accident, Fire and Marine Year Book (1957), pp 688 689, the authors stressed the importance of identifying any special hazards, such as signs of careless management or lack of control or careless workmen, and observed: The surveying of Employers Liability risks has probably become more general than formerly. Apart from the question of the possibilities of accident, there is now the serious question of disability due to disease and in particular the disease known as pneumoconiosis. In 1974 MMI produced a Guide to Insurance Officers in Local Government, which it said that it would like to see on the desk of every insurance officer for ready reference at any time; this, after noting that employers liability was almost invariably dealt with by a separate policy and that its importance had been increased by the ELCIA, went on: "7. Premiums are usually based on wages and salaries this is not only a convenient yardstick but is logical since loss of earnings usually represents a substantial part of claims. Rates of premiums vary according to the nature of the work of the labour force, and the claims experience. 8. A feature of employers liability claims is the length of time which often elapses between the date of the accident and the final settlement, and the cost of servicing claims tends to be high. Injury caused at work during the period of insurance even though it may not be diagnosed till years afterwards can be a liability under the policy." I note in parenthesis that 1974 was the year in which MMI changed from a pure sustain form of wording to a form covering bodily injury or disease suffered, when sustained or contracted during the currency of the policy. Yet there is no suggestion in the Guide of any change in substance. It is in this light improbable that the present insurances can or should be read as offering cover in respect of ancient, as opposed to current, employment and activities. But there is a third point. If insurances in the present form only address risks arising from employment during the insurance period, then, on insurers case, there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to injury or disease in another later period. If the employment relationship spans both insurance periods and the employer remains insured with the same insurers in both periods, there may be no problem. The employee is employed at all relevant times and the insurance may be viewed as a single continuing contract. The policy wordings set out in Annex A, with their references to insurance during the period of insurance or during any subsequent renewal period, would support the latter view. But, even in the days of more stable long term employment and insurance relationships, employees could and would move employment or retire, or employers would cease business, or change insurers. On the basis that the insurances only cover risks arising from employment during the insurance period, there would be no cover unless the liability arose from and in the course of and involved injury or disease during the currency of the same employment and the same insurance (including any renewal). Fourthly, on insurers case, employers would as a result be vulnerable to any decision by insurers not to renew; and such a decision might arise from the simple performance by employers of their common law duty to disclose past negligence to insurers upon any renewal. Employers who discovered or came to appreciate that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease (e.g. by exposing their employees to asbestos) would have such a duty. Insurers could then, on their own case, simply refuse any renewal or further cover. Employers could then have to disclose that refusal also to any further insurers to whom they made a proposal for cover. One response made by insurers to such problems is that they would not arise in the large bulk of cases. That is no doubt true. Most employers liability cases involve short tail claims: typically, an accident involving injury. It is not surprising if the language of the insurances fits more easily with situations in which cause and effect coincide in time. But, by the same token, this does not mean that the underlying risk being assumed was in either partys mind limited to circumstances in which a cause gave rise to an effect during one and the same insurance period. Rix LJ, in accepting that cover depended upon injury being sustained in the sense of experienced during the insurance period, was influenced by the thought that this was not an absurd or meaningless interpretation. The insurance could operate entirely successfully in some 99% of cases (para 235). In the light of this Courts recent decision in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, para 30, this, in my view, gives too little weight to the implications of the rival interpretations and to the principle that where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense. The 1% of cases in which there might be no cover could not be regarded as insignificant. Well before 1948, there was general awareness of the existence of long tail diseases which would only develop and manifest themselves after considerable periods of years (see para 12 above; and see also Cartledge v E Jopling & Sons Ltd [1963] AC 758). The connection between asbestos exposure and mesothelioma became generally known in the mid 1960s, following the publication in 1965 of Newhouse and Thompsons report on Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area and a Sunday Times article. Yet on insurers case, the present insurances would not cover any situation where, after the termination of employment or the expiry of an insurance, injury or disease developed from an employers breach of duty to a relevant employee during an insurance period. A fifth point concerns the way in which the policies deal with the issue of extra territorial scope. The first Excess wording stands apart from the others in its treatment of that issue. Cover only exists in respect of any employee in the employers service who shall sustain any personal injury by accident or disease while engaged in the service of the employer in Great Britain, Northern Ireland, the Isle of Man or Channel Islands, in work forming part of the process in the employers business. As soon as one postulates a delay in time between the causation and experiencing of a disease, it becomes apparent that this wording could operate to very curious effect if sustain looks to the latter rather than the former. A disease (e.g. a cancer) experienced during employment could be covered although caused by pre employment exposure, while a disease caused by employment would not be covered if only experienced while working abroad. The natural inference to draw from the references to being engaged in the employers service and in work forming part of the employers business process is that it was envisaged that the accident or disease would and should arise out of such service and work, rather than merely occur during it. That points to an underlying focus on causation, even if the assumption was that in the majority of cases causation and experiencing of any injury by accident or disease would coincide. As to the other policies, at the very least, the way they deal with territorial issues throws doubt on any proposition that their wordings are so carefully or well chosen that a court should be careful to stick literally to whatever might be perceived as their natural meaning. They address territorial scope by specific exclusions, but the cover and the exclusions use different language. Thus, although the second and third Excess wordings cover liability to employees who sustain personal injury by accident or disease, the territorial exclusion is in respect only of accidents occurring outside Great Britain, etc, leaving it unclear how disease, whether caused or developing outside Great Britain, should be dealt with. The Independent wording also covers liability to employees who sustain bodily injury or disease, while the territorial exclusion is for injury, illness, loss or damage caused elsewhere than in Great Britain, etc. While the contrast in language is capable of lending some support to a view that sustain looks to experiencing, rather than to causation, an alternative possibility is that the two words were understood as having the same effect and that the cover was understood as focused on causation. The language of this exclusion thus cuts both ways, as Rix LJ recognised (para 297). A similar position applies to the contrast between injury or disease sustained and injury or disease caused outside Great Britain, etc. under the first two MMI wordings. Under the third wording, the language of the cover and the exclusion have been deliberately matched. Under the BAI wordings, however, there is an incongruity between cover for injury sustained or disease contracted and the exclusion in respect of liability for accidents . arising outside the United Kingdom. Again, this leaves the position in respect of disease unclear, and the difference between injury sustained and accidents arising can be read either as deliberate or as suggesting that no significance was attached to the difference or that the real concern was with causation. The history and Workmens Compensation Acts Much attention was, both below and before the Supreme Court, paid to the development of employees rights to compensation in respect of personal injury and disease, at common law and under the scheme of the Workmens Compensation Acts (WCAs). The WCAs were in force from 1897 until replaced in 1948 under the National Insurance (Industrial Injuries) Act 1946. The history and a number of the decisions under the WCAs were examined by Rix LJ in paras 126 to 165 of his judgment. He concluded that such an examination yields in the present context not a lot. To a considerable extent, I agree and I shall not repeat the whole exercise, but identify some potentially relevant aspects. Etymologically, some of the language presently in issue can be traced back to statutory language found in the Employers Liability Act 1880 and the WCA 1897. The 1880 Act modified the common law doctrine of common employment, by entitling employees to recover common law compensation for injury caused by specified matters for which employers were responsible, provided that they gave notice, within six weeks of sustaining the injury of its cause and the date at which it was sustained. The 1897 Act, applying to personal injury by accident arising out of and in the course of employment, also required notice to be given of the accident as soon as it occurred, stating the cause of the injury and the date at which it was sustained. These Acts therefore distinguished the causation and the sustaining of an injury, but not in any presently relevant context. Further, any reference to sustaining disappeared from the Workmens Compensation scheme in the 1906 Act, which amended the scheme to require a notice stating the cause of the injury and the date at which the accident happened. The 1906 WCA also expressly extended the scheme to cover certain diseases specified in section 8. In that context, it provided that, where a workman was certified as disabled or suspended from employment or died due to a disease and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous the date of the disablement or suspension, whether under one or more employers, then he or his dependants shall be entitled to compensation under this Act as if the disease or such suspension . were a personal injury by accident arising out of and in the course of that employment . Section 8(a) provided: The disablement or suspension shall be treated as the happening of the accident. Under section 8(c), the compensation was recoverable from the employer last employing the employee within the previous twelve months, providing the employee furnished that employer with particulars of all his other employers in the employment to the nature of which the disease was due. It was not necessary to prove that the disease actually arose from the last employment, merely to prove that the relevant employment gave rise to a risk of such a disease: Blatchford v Staddon and Founds [1927] AC 461. The 1906 Act may be regarded in this respect as involving an early statutory instance of the kind of liability recognised in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572. However, failing such particulars, the last employer could excuse himself upon proving that the disease was not contracted whilst the workman was in his employment (section 8(c)(i)). The last employer might also join any other employer (within the last twelve months) and it was provided that upon proof that the disease was in fact contracted whilst the workman was in the employment of that other employer, that other employer shall be the employer from whom the compensation is to be recoverable (section 8(c)(ii)). Finally, section 8(c)(iii) provided that: if the disease is of such a nature as to be contracted by a gradual process, any other employer within the last twelve months was liable to make such contributions as might be agreed or determined by arbitration under the Act. Under this scheme, therefore, compensation for disease was initially based upon the nature of the employment and its potential for causing, rather than upon proof that it caused, such a disease. The paternal benevolence of the Legislature (as Visc Sumner put it in Blatchford: p 469) is well known, and if the price of that benevolence is paid by the last employer, who thus has to bear others burdens, that is nothing new in this kind of legislation. However, the last relevant employer could seek, in specified circumstances, to avoid or to pass on to another employer responsibility by proof that the disease was not actually contracted in his employment. Alternatively, in the case of a disease of such a nature as to be contracted by a gradual process, all relevant employers within the last twelve months would be liable to contribute. The scheme was, as I see it, concerned with either the risk of or actual causation, and in its use of the word contracted it appears to me to have been directing attention to the causation, rather than the mere experiencing or manifestation, of disease. The WCA scheme was the subject of further amendment by the 1925 Act. Section 43 superseded section 8 of the 1906 Act as regards scheduled diseases, while section 47 made specific provision for the introduction of a parallel scheme covering silicosis. Effect was given to this by inter alia the Metal Grinding Industries (Silicosis) Scheme which came into force in July 1927, making provision for obtaining compensation from the last employer within the previous three years, and giving such employer rights to look to other such employers within the last five years. An insurance covering employers liability in this connection was considered in Smith & Son v Eagle Star (1933) 47 Ll. L.R. 88, (1934) 48 Ll. L.R. 67. Mr Hill had been employed in processes giving rise to silicosis for some 20 years. For the last two of these years, from 31 March 1928 to 16 June 1930, he worked for Smith & Son. From 30 June 1927 to 17 June 1930, Smith & Son had an insurance against WCA liability in respect of any personal injury or disease which at any time during the continuance of this policy shall be sustained or contracted by any workmen . The policy was expressly extended to cover any liability in connection with any claim made by employees in respect of silicosis, and the decision of the Court of Appeal rested on this ground. But Scrutton LJ also examined the main policy language, and in particular what was meant by contracted. He noted that there has been a good deal of discussion in the Courts about a disease which is gradually contracted commencing at some stage and through the process going on increasing the disease until at last it results in total disablement (p 70), and concluded that the word was not to be read as first contracted, but in the sense of influenced or increased until it ultimately comes to total disablement. This, although not directly focusing on the first development of a disease from some earlier cause, suggests a flexible view of the word contracted, directed once again to the employments responsible for causing the disease. Confirmation that this was Scrutton LJs view can be found in the earlier case of Ellerbeck Collieries Ltd v Cornhill Insurance Co [1932] 1 KB 401. Two workmen who had been in the colliery companys service for many years were on respectively 11 and 12 March 1929 (dates they were actually off work) certified as suffering from miners nystagmus. The Cornhill had on 8 March 1929 issued the colliery company with a three month provisional cover note insuring in terms matching the wording of the insuring clause in the first Excess wording (i.e. against liability in respect of any employee who shall sustain any personal injury by accident or disease while engaged in the service of the employer). Failing a satisfactory survey, the cover note actually expired on 18 March 1929. The first point decided was whether the employees had sustained personal injury by accident or disease during the period of validity of the cover note (8 to 18 March 1929). It was held that they did. The judgments in the Court of Appeal are of interest for a number of reasons. First, both Scrutton LJ (p 408) and Greer LJ (p 417) approached the question of construction on the basis that the policy was intended to protect the employers against their liability to their workmen under the WCAs. Scrutton LJ added that it seems to me that the policy was intended to cover the liability of the employers for the results of industrial diseases caused by the employment (p 409). His description of the policy, covering in terms any employee sustaining personal injury by accident or disease in service, as intended to cover liability . for the results of diseases caused by the employment fits precisely with the analysis which I consider correct (paragraphs 18 28 above). Second, Scrutton LJ went on to refer to the difficulties in saying when an industrial disease, such as miners nystagmus or lead poisoning, begins, and in these circumstances the difficulty for an employee to pick the proper employer to sue. He described the way in which Parliament, by what became section 43 of the WCA 1925, had addressed such difficulties by providing a conventional and artificial means for enabling the workman to get compensation, leaving the various employers to fight out their proportion of the liability between themselves (p 409). He said that the last employer, liable under the WCA scheme, then claims on the insurance company on the ground that he is liable to make compensation for an injury by disease, and the date of the injury or disablement is by statute and certificate fixed as happening between the dates for which he is provisionally covered (p 411). On this basis, and in the light of the House of Lords decision in Blatchford, Scrutton LJ concluded that he was bound to hold that an accident has happened within the period of the provisional cover against the consequences of which the insurance company is bound to indemnify the employer (p 413). In short, the conventional and artificial provisions of the WCA defined what constituted an accident and when personal injury by accident or disease was sustained for the purposes of the insurance. Greer LJ, more shortly, adopted the same approach (p 418). Only Slesser LJ (p 421) expressed a reservation about the possibility that the artificial deeming provisions of section 43(a) of the WCA 1925 might only apply as between employee and employer, and that it might have been necessary to consider separately the date of the sustaining of injury as between the employer and the insurer, had there been any admissible evidence that the two employees had actually contracted the scheduled disease before the granting of the statutory medical certificate. Commercial purpose and practice Much general evidence was directed or elicited before Burton J in relation to the commercial purpose of the present insurances, and to practice relating to their operation in the years before the present issue arose. It was argued that there was, prior to the decision in Bolton, a universal usage of the insurance industry to pay out mesothelioma or similar claims under [employers liability] policies by reference to the date of inhalation/exposure whatever the wording, or an estoppel by convention to like effect. Burton J rejected the argument (paras 180 to 201, esp. para 201), for the reasons that, first, there was no evidence relating to years earlier than the 1980s which could be put down to any kind of arguable usage, second, any usage was not certain, not least because of the multiplicity of approaches to or bases for it and, third, it was not binding. It was not incorporated into the insurance contracts. No issue of estoppel by convention was pursued to the Court of Appeal (Rix LJ, para 24, and Stanley Burnton LJ, paras 332 and 335) and the issue of a universal custom was only pursued by Zurich Insurance Company (Rix LJ, para 24). By a multiplicity of approaches to or bases for insurers practice, Burton J was referring to evidence that insurers followed the practice they did in some cases because they believed that their contracts were to be interpreted on a causation/exposure basis, in others because they believed that the aetiology of diseases such as mesothelioma was such that injury was in fact sustained (in the sense of experienced) at the date of inhalation, while yet others may have failed to realise that their historically relevant wordings had been on a different basis to the causation wordings to which they had since switched or may have failed to address their minds to any relevant issue at all in relation to an insured who was usually a longstanding repeat client. Rix LJ (para 228) contented himself with agreeing with Burton Js reasoning on this aspect, while Stanley Burnton LJ noted and agreed in particular with Burton Js second reason, relating to the believed aetiology of mesothelioma (para 335). Smith LJ, on the other hand, treated the commonly held understanding that diseases such as mesothelioma involved injury at the date of inhalation as part of the factual matrix of all the insurance contracts (paras 322 323), and considered against that background that no difference in meaning should be held to exist between policies using sustained and causation wording, until the time when the two sides of the insurance industry should be considered to have appreciated that some diseases, including mesothelioma, do not occur until many years after exposure to the causative agent (para 327). She put that as around the time of the decision in Bolton, after which parties using a sustained wording must be taken to have meant only to cover injuries actually occurring during the policy period (para 327). The argument of a binding usage was not pursued before the Supreme Court, rightly so for the reasons given by the judge and the majority in the Court of Appeal. Equally, there has been no suggestion of estoppel by convention, along the lines recognised as possible in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 47. However, on the issues of policy interpretation, Mr Stuart Smith QC for Zurich Insurance, maintained before the Supreme Court an argument that there was a consensus based on market practice, whereby, for one reason or another, such policies would respond to long tail diseases by reference to the date of exposure, and that this could constitute relevant background to their construction. Assuming that, short of a binding usage or estoppel by convention, a practice, if known to or shared by the relevant parties, could in some circumstances be relevant background (see e.g. Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989), still, in my opinion the argument fails in the present case. It fails in particular in the light of the judges findings, even in relation to policies made in and after the 1980s. A practice based on a mistaken understanding, by only some insurers, that the policies operated on a causation basis cannot be relevant background to the interpretation of every policy; on the judges findings other insurers do not appear to have understood that the policies operated on that basis. A practice based on a mistaken understanding by others in the market as to when long tail diseases could be said to have been experienced or to involve injury is likewise an unpromising start for construing all policies; if the understanding were good, it would mean that such diseases fell within the policies, even though the policy cover was restricted to injury or disease experienced during the policy period. The understanding would not therefore carry any imperative to read a sustained wording as meaning caused. Before the Supreme Court, both employers and employees continued to rely upon the evidence given at trial regarding the general purpose of employers liability insurance as part of the background to the interpretation of the present insurances. Rix LJ (paras 223 to 235) gave it some weight as such, but Stanley Burnton LJ thought that there was little if any assistance to be gained by reference to the commercial purpose of EL insurance, as this was simply to provide the cover defined in the policy (para 333). The Supreme Court was provided with a useful summary of the considerable volume of evidence relied upon in this connection. It consisted in general of answers given by insurers, two at least of them with experience going back to the 1940s. They were asked (frequently in response to leading though not inadmissible on that score questions in cross examination) about their or others views, understandings or perceptions as to the purpose of the policies, and the way in which these would or should respond, in relation to injuries arising from exposure in the course of activities during the policy period. In my judgment, Stanley Burnton LJ was right to reject such evidence as inadmissible. The parties cannot be asked what they meant by their contract, and, failing any binding usage, it is equally inadmissible to ask other persons operating in the market to give general evidence as to what they would have understood the parties to have meant by the words used in the context in which they were used. The evidence does not seem to have amounted to more than that. However, I do not agree with Stanley Burnton LJs suggestion that no useful conclusions can be drawn about the commercial purpose of the policies, save that it was to provide the defined cover. In my opinion, relevant conclusions about the general nature and purpose of the individual policies can be drawn in this case, just as they could in the case of the different (and wordier) instrument in issue in In re Sigma Finance Corporation [2009] UKSC 2, [2012] 1 All ER 571 (see especially paras 10, 12 and 37). They can be drawn from an overall consideration of the individual insurance wordings, and particularly from the features which tie cover to the employees and activities during the relevant policy period and the five points considered in paragraphs 18 to 28 above. Further, if the policies are on any view apt to cover employers liability for long tail diseases which initiate during, but only manifest themselves years after, the original policy period, one may look with scepticism at an interpretation which distinguishes this situation from other situations where a long tail disease is caused but does not strictly begin during the policy period, and only manifests itself years later. This is particularly so if a conclusion that the latter diseases fell outside the policy cover meant that they would or might well not fall within any subsequent employers liability policy. ELCIA 1969 Section 1 of the ELCIA provides: 1. (1) Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain (3) For the purposes of this Act (a) approved policy means a policy of insurance not subject to any conditions or exceptions prohibited for those purposes by regulations. 4. (1) Provision may be made by regulations for securing that certificates of insurance in such form and containing such particulars as may be prescribed by the regulations, are issued by insurers to employers entering into contracts of insurance in accordance with the requirements of this Act . (2) . the employer shall during the currency of the insurance and such further period (if any) as may be provided by regulations (a) comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees; . The only conditions or exceptions ever prohibited were certain exemptions from liability. Under section 3, the ELCIA did not however apply to local authority employers, such as most of MMIs insureds. Under section 4, provision might be made for certificates of insurance to be issued to employers, and in that event the employer was, obliged during the currency of the insurance and such further period (if any) as may be provided by regulations to comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees. In reaching his conclusions on the ELCIA (para 16 above), Rix LJ engaged in an impressive analysis, to which I would refer (paras 166 to 186). The only doubt this leaves is how, if the ELCIA requires a causation wording, an employer could properly insure on a wording which only covered injury sustained in the sense of experienced (see para 186 and paragraph 16 above). The scope of the ELCIA is, as Rix LJ indicated, open to three alternative analyses: that it requires cover in respect of (i) all future liability incurred during the insurance period, whenever the negligence or injury, or (ii) liability for all future injury or disease sustained (in the sense of experienced) by employees during the insurance period, whenever the negligence, or (iii) liability for all negligence or breach of statutory duty during the insurance period giving rise to liability as in (ii). The retrospectivity of cover involved in (i) and (ii) is unlikely to have been intended. The only one of the three possibilities not involving a degree of retrospectivity is (iii). A duty on every employer to insure, and maintain, insurance is consistent with a requirement to have the insurance in place during, though to maintain it after, the relevant insurance period. The provision, contemplated by section 4, for copies of insurance certificates to be issued by insurers and to be displayed by any employer for the information of his employees during the currency of the insurance and such further period as may be provided by regulations indicates, first, a desire to assure employees of their insurance protection during the relevant insurance period, and, secondly, an awareness that this assurance might need to remain in place after such insurance period; it is therefore suggestive of (iii), rather than (i) or (ii). As Rix LJ observed, it is only cover in accordance with (iii) that can give an employee the assurance that any injury or disease suffered as an employee and arising out of and in the course of [his] employment will be covered by insurance, the benefit of which would, if necessary, be available to him at the time under the Third Party (Rights against Insurers) Act 1930. An obligation to have a policy in force only at or by the time when injury is actually experienced would leave employees or ex employees at the mercy of compliance with the statute by their employers or ex employers at uncertain future dates. It would also leave such employees or ex employees at the mercy of employers who, for whatever reason, ceased to carry on business either in Great Britain or (for example due to insolvency) at all. Further, if injury or disease suffered or contracted bears the same meaning as insurers suggest that injury or disease sustained or contracted bears, then an employee, who had the misfortune to succumb to a disease abroad caused by his employment or previous employment in Great Britain, would not be covered (unless regulations intervened to ensure that he was). Stanley Burnton LJ thought that any issue as to the nature of the insurance required under ELCIA was resolved by its use of the word sustained, rather than caused. He went on to conclude that the ELCIA covered any injury sustained (in the sense of experienced) during a period of insurance, by anyone who was then or had at any previous time been an employee. However, that latter conclusion introduces a retrospectivity into the scope of the ELCIA, which, as already indicated, I think unlikely to have been intended. The statute could have used the tariff wording of causation instead of sustained. But in the statutory language the word sustained is not coupled with a phrase such as during the period of the insurance. Even if sustained means experienced in the context of the statute, the statute may require insurance on what is effectively a causation basis; the words sustained by his employees may well mean sustained at any future time by his current employees. The key to the meaning of the statutory language seems to me the combination of the phrases arising out of and in the course of their employment in Great Britain and not including injury or disease suffered or contracted outside Great Britain. Together, and for reasons given in the last two paragraphs, they indicate a statutory requirement to insure in respect of activities during the course of employment in Great Britain which may in the future give rise in or out of Great Britain to liability to the employees involved in such activities. In my judgment, therefore, the conclusion which gives proper effect to the protective purpose of the legislation is that the ELCIA requires insurance on a causation basis. The ELCIA extension provision to the Independent and second BAI wordings (see Annex A), as well as a similar extension provision to the MMI policy intended for insureds who were not local authorities, achieved this result expressly in relation to policies written subsequent to the coming into force of the ELCIA, at least for the purpose of ensuring that employees claims were covered by insurance. Any other subsequent insurances not containing that extension provision should, if possible, be read as providing the relevant employers cover required by statute. This is a powerful tool in the interpretation of such insurances. Bolton M.B.C. v Municipal Mutual Insurance Ltd The Court of Appeal in the present case was bound by its previous decision in Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 on public liability policies. The majority regarded that case as, in effect, determining the meaning which must be put on the word sustained in the present employers liability policies: see paras 284, per Rix LJ, and 339, per Stanley Burnton LJ, who however also found the logic of Longmore LJs judgment convincing in relation to the latter type of policies. Smith LJ on the other hand considered that public liability and employers liability insurances gave rise to different considerations (para 328). In my opinion, that is right. Employers liability policies are subject to particular terms and considerations, analysed above (particularly in paragraphs 18 28 and, in the case of policies effected after the coming into effect of the ELCIA, paragraphs 41 46). These considerations are not or certainly not necessarily applicable to public liability insurances. The present case was concerned with employers liability not public liability insurances, and it may well be that not all the relevant facts relating to the latter are before us. We certainly have not heard full argument on the proper conclusions which may be drawn regarding the basis of liability or trigger generally applicable under the latter. In these circumstances, I would proceed on the basis that we are not bound by Bolton, that this does not involve any view about the correctness or otherwise of Bolton, but only that it is unnecessary to consider what the position generally may be under public liability policies. Assuming that, in relation to public liability insurance, the position generally is as stated in Bolton, that does not alter the conclusions which I reach. It merely means, in their light, that public liability insurance generally and the present employers liability policies operate on different bases, because of their different backgrounds, terms and purposes. Contracted There is no difficulty about treating the word contracted as looking to the causation or initiation of a disease, rather than to its development or manifestation. In relation to the two BAI wordings and the third MMI wording, this interpretation obtains strong support from the general nature and purpose of the relevant policies, derived from their immediate context and terms and analysed in paragraphs 18 to 28 and 41 above. To the limited extent that the WCA background may assist to inform the meaning of later policies, it can be seen overall as a legislative scheme which was concerned with either the risk of or actual causation (para 32 above). Even if, in the phrase sustained or contracted or injury sustained or disease contracted, the word sustained is to be understood as meaning experienced, that would reflect no more than the fact that the cause and effect of an injury commonly coincide; I would still unhesitatingly conclude, as did the Court of Appeal, that the word contracted used in conjunction with disease looks to the initiating or causative factor of the disease. Sustained The majority of the Court of Appeal considered that it was impossible to view policies with pure sustained wordings as operating by reference to the initiating or causative factor of a disease. They did so primarily by reference to the wording of the insuring clauses. In my view, as indicated in paragraphs 18 19 above, a broader approach is necessary. The general nature and purpose of these policies can be derived from their immediate context and terms, analysed in paragraphs 18 to 28 and 41 above. It is true, as Rix LJ said, that phrases such as injury sustained by an employee or an employee who shall sustain injury, in either case by accident or disease, appear to address the impact of the accident or disease on the employee. But the underlying focus of the insurance cover is on the employees and activities current during the insurance period. The cover would be potentially incomplete, and employers would be potentially exposed to uninsured risks, were sustained to be understood as meaning developed or manifested. This is so, even before the ELCIA came into force. Any policies written subsequent to the coming into force of the ELCIA either afford cover consistent with the Acts requirements by virtue of an ELCIA extension provision, or, to the extent that this is not the case, should be construed, if at all possible, as meeting employers obligations under that Act. In my view, such obligations included taking out insurance in respect of negligence during the insurance period affecting an employee in a manner giving rise to bodily injury or disease then or at any subsequent time. On this basis, I consider that, although the word sustained may initially appear to refer to the development or manifestation of such an injury or disease as it impacts employees, the only approach, consistent with the nature and underlying purpose of these insurances both before and after the ELCIA, is one which looks to the initiation or causation of the accident or disease which injured the employee. The disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself subsequently. Disease sustained, read as meaning experienced or incurred Rix LJ was attracted by the submission that, even if sustaining disease meant experiencing or incurring it during the period of the insurance, long tail diseases could be said to have been sustained during the period of insurance in this sense. He asked rhetorically whether an employee who had inhaled asbestos had not sustained an injury in the form of an assault of the fibres, as a result of which he was worse off through having dangerous fibres in his lungs (para 280). He noted that, although there was at most trivial injury or damage, and nothing that could create actionable damage, nevertheless, when mesothelioma develops, it is the risk of mesothelioma created by the exposure which is the damage (see . Barker ) and it is the exposure, and the risk of mesothelioma, that is the damage (para 281). He only felt bound to reject this analysis (para 284) because of the Court of Appeals previous decision in Bolton. It may be that in the case of some long tail diseases, the victim can be said to have incurred or caught them at the same time as the initial ingestion or scratch giving rise to them. But it is clear that this is not the position with inhalation of asbestos in relation to either asbestosis or mesothelioma. No cause of action arises from exposure or inhalation alone: Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281. Further, for reasons which I develop in paragraphs 64 65 below, the exposure and risk are not by themselves damage in any sense known to the law. Damage is only incurred when mesothelioma develops. Only when it develops does the victim incur damage which is legally relevant, and even then this is not because any physical link necessarily exists or can be proved between the mesothelioma and the original exposure. The rule in Fairchild and Barker imposes liability for the mesothelioma upon persons who have exposed the victim to asbestos, and so created a risk of mesothelioma. But it is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure. And, even if it were viewed simply as a rule imposing retrospective liability on employers for exposing their employees to the risk of mesothelioma, the insurance policies do not insure risks of physical injury or disease, but only actual injury or disease. The application of the insurances in respect of mesothelioma At the outset of these appeals, the application of the insurances in respect of mesothelioma suffered by employees exposed to asbestos during their employment by an insured employer did not appear controversial. This changed after a question from Lord Phillips on day 4 of the hearing, followed by a later written note. All the same, the transcript pages containing any argument on the point numbered only 40 out of a total of some 1140. So far as Mr Edelman made any submissions on this point, in his written case or orally, they were to this effect: if the correct analysis of the Houses decision in Fairchild be that an employer who exposes an employee to asbestos is deemed to have caused that employees mesothelioma, then employers liability insurances held by the employer on a causation basis should respond; but, if the policies do not respond on a causation basis, there is no justification for treating the employee as having suffered injury or a disease during their currency, because employers cannot prove that any particular inhalation caused any injury. This led to some discussion, particularly with counsel for employers and employees, of the points which I have already addressed in paragraphs 50 52 above. The point now expressed forcefully by Lord Phillips in his judgment is that exposure to the risk of mesothelioma is the correct analysis of the Fairchild principle, at least as subsequently interpreted, and that such exposure can satisfy neither the concept of injury nor the concept of causation for the purposes of the policies. If that is right, then the present insurance claims must all fail. Indeed, the great bulk of insurance claims settled by other insurers (e.g. former tariff insurers) or by the present insurers under the causation policies they have issued in more recent years (paragraph 10 above) should presumably also have failed. The only exception may be the case of an employee exposed to asbestos in only one employment by an employer holding insurance throughout with only one insurer. In such a case it might (perhaps) be said that, whichever particular inhalation(s) may have been responsible for the employees mesothelioma, it (or they) must have been insured. Even then, the logic of the Supreme Courts reasoning in Fairchild and Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229 might lead to the conclusion that causation was still unprovable in the light of the possibilities of environmental or idiopathic causation of mesothelioma. Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts. Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context. In their leading work on Causation in the law (Clarendon Press, 2nd ed 1985) Professor H. L. A. Hart and Tony Honor examined both this understanding and its relationship to legal decision making. Generally, but not always, a cause must involve an act or omission that was at least a sine qua non of the injury in respect of which responsibility attaches (the but for test). But sometimes two separate acts or omissions may each independently have been sufficient to give rise to that injury (as when A and B simultaneously, but independently shoot C dead), and then we may as a matter of legal policy accept a weaker causal relationship for the imposition of responsibility: see p lxv in the preface to and p 123 of the 2nd edition. Other cases where causal requirements have been relaxed include Bonnington Castings Ltd v Wardlaw [1956] AC 613; there, materially contributing to part of an accumulation of dust which cumulatively led to pneumoconiosis gave rise to liability for the whole disease (although it has been suggested that some apportionment might now be possible in fact and law). Another relevant authority is McGhee v National Coal Board [1973] 1 WLR 1; there, liability for dermatitis was held to exist because the defendant had materially contributed to part of the claimants exposure to dirt, any part of which might, independently of any other, have given rise to the abrasion leading to the claimants dermatitis. It was recognised that this involved liability based on materially contributing to the risk of the injury. Lord Reid at p.4G H described the result as reached taking a broader view of causation, and Lord Wilberforce at p 5G viewed it as involving a conclusion as to the causal connection that had to exist between the default and the disease complained of. The contrary view (viz, that proof of risk was insufficient without proof that the risk caused or materially contributed to the disease) had a logic which Lord Wilberforce acknowledged, but rejected for policy and evidential reasons set out at p.6C F. In Fairchild, McGhee was seen as a precursor of the decision there reached. Putting aside the possibility of an idiopathic or environmental cause, a Fairchild type situation exists when (a) there are two separate potential causes exposing the claimant to the same risk, one involving an act or omission by the defendant, (b) either one of which causes would have been sufficient to give rise to the injury, and (c) one of which did so, but (d) neither of which can as a matter of probability be shown to have done so. Taking into account the later decisions in Barker v Corus and Sienkiewicz, the Fairchild principle extends to any case where there has been an act or omission exposing a person to asbestos, which exposure may have caused the mesothelioma, but which cannot be shown as a matter of probability to have done so. On that basis, the House held in Barker v Corus that each or any persons liability should only be proportionate to the extent that he had exposed another to the risk of mesothelioma. Parliament by the Compensation Act 2006 reversed that conclusion and made each such person liable in respect of the whole of the damage caused by the mesothelioma. Lord Phillips in his judgment addresses the basis of Fairchild in the light of Barker v Corus, the 2006 Act and Sienkiewicz. He accepts that, if Fairchild is now correctly to be understood as a special rule deeming employers who have exposed an employee to asbestos to have caused any subsequently suffered mesothelioma, then the insurance policies should apply (para 109). But he concludes that Fairchild must be understood as creating liability not for the disease, but for the creation of the risk of causing the disease. It follows in his view that employers and employees gain no assistance from the special rule in asserting that mesothelioma suffered by any person was caused or initiated in any particular policy period. On this basis, even though the insurances respond to injuries caused or initiated during their periods, the employers and employees fail for want of proof. It is not fruitful to repeat the exercise undertaken in Barker v Corus of examining in detail the significance of the speeches in Fairchild. The House was not agreed about this in Barker, but the majority speeches of Lords Hoffmann, Scott and Walker were at pains to reject any analysis of Fairchild as proceeding upon a fiction that each exposure had caused or materially contributed to the disease: see paras 31, 61 and 104; they each also referred to the liability created by Fairchild as being not for causing the disease, but for materially increasing the risk of the mesothelioma which was in fact suffered: paras 31, 36 and 40, 53, 61 and 113. Lord Rodger (dissenting) perceived the majority to be misinterpreting Fairchild by failing to acknowledge that it was based on an equation of materially increasing risk with materially contributing to causation, an equation which he thought had been accepted as sufficient causation in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1. It is on the apparently bright line distinction said to have been drawn by the majority in Barker between materially contributing to increasing the risk of, and causing, a disease that Lord Phillips now founds his judgment in these appeals. The Compensation Act 2006 applies where a person who has exposed someone to asbestos is liable in tort in connection with damage caused to the latter by mesothelioma whether by reason of having materially increased a risk or for any other reason (section 3(1)(d)). It makes the former person liable in respect of the whole of the damage (section 3(2)(a)). On its face, the Act assumes rather than creates the liability, and only alters the measure of recovery. That was the view expressed in Sienkiewicz by Lords Phillips, Rodger and Brown (paras 70, 131 and 183). However, on further analysis, the distinction identified in paragraphs 58 59 above proves more elusive. Even in Barker itself, Lord Walker described exposing the employee to the risk of mesothelioma as being equated with causing his injury and the result as an explicit variation of the ordinary requirement as to causation (para 104), and spoke of the rule as one by which exposure to the risk of injury is equated with legal responsibility for that injury (para 109). However, it is conceivable that he meant that the ordinary requirement of causation of the disease was entirely replaced by another liability creating rule. It is in the later authority of Sienkiewicz that the difficulty of drawing any clear cut distinction between creating a risk and causation of the disease becomes most apparent. Lord Phillips there stated that the rule in its current form was that the person responsible for the exposure and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease (para 1). Later, he said that the law was presently contained in Fairchild and Barker which had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances (para 70). That was the analysis of Fairchild advanced by Lord Rodger in Barker v Corus (paras 73 and 83) but rejected there by the majority. Lord Brown in Sienkiewicz spoke of a more relaxed approach to causation (para 178) and flexibility in the approach to causation (para 187). I referred to Fairchild and Barker as involving a special rule of causation (para 188), and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims (para 196) and to adjustments in the burden of proof (paras 198 and 200). Lord Rodger was, on the other hand, loyal to the majority view in Barker by referring to liability as based on materially increas[ing] the risk (para 113), and Lord Dyson was cautious in speaking of materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207). Lord Phillips has in para 123 set out a passage from an extra judicial commentary written by Lord Hoffmann in Perspectives on Causation (2011), p 8. In it, Lord Hoffmann describes the two ways in which the changes introduced by Fairchild and Barker could be characterised, one as changing the causal requirements for an action for damages for mesothelioma ; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent; the other as creat[ing], exceptionally, a cause of action for the increased risk of mesothelioma, rather than for the disease itself. Lord Hoffmann notes that the House in Barker (Lord Rodger dissenting) adopted the second explanation of what had happened in Fairchild. But in the next sentence, not quoted by Lord Phillips, Lord Hoffmann went on: Parliament almost immediately reversed this decision by a statute giving effect to the first explanation, which had been advocated by Lord Rodger in his dissenting speech. Lord Hoffmanns extra judicial (or judicial) words cannot by themselves alter the true effect of a statute, but his comments do again show that the suggested distinction is more fluid than might at first appear. It is relevant to look more closely at what Barker decides. In Barker, Lord Hoffmann spoke of Fairchild as applying an exceptional and less demanding test for the necessary causal link between the defendants conduct and the damage (para 1) and of the requirement of a sufficient causal link between the defendants conduct and the claimants injury (para 17). In his note in Perspectives on Causation, he picked up this language with references to the causal requirements of the relevant rule and to the issues in cases of mesothelioma and analogous situations as involving the causal requirements for an action for damages for mesothelioma. Lady Hale in Barker also viewed the common law rules governing the measure of recovery as closely linked to the common laws approach to causation, and said that there was no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations (para 122). In paras 123 and 124, she made clear that in her view the issue in Barker could be seen as arising from the expanded perceptions or developed concept of causation which the law had accepted. These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker v Corus as one concerned with the issue of the causal requirements or causal link, as between the defendants conduct and the disease, which the common law requires in order for there to be an action for mesothelioma. But analysis of the rule arrived at after Fairchild and Barker justifies further propositions. Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops. Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281; the House there decided that not even the emergence of pleural plaques marking the past exposure to asbestos constituted injury for the purpose of giving a cause of action. In order to fall within the principle in Fairchild and Barker, the development of mesothelioma is a pre condition: see Barker, per Lord Hoffmann (para 48) and Lord Scott (para 53). Lady Hale went further, stressing that she in fact agreed with Lord Rodgers view that the damage which is the gist of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma (para 120). In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply for the risk created by exposing someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically not the law: see Rothwell and the statements in Barker itself, cited above. The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim. As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma. In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised. What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim. The actual development of mesothelioma is an essential element of the cause of action. In ordinary language, the cause of action is for or in respect of the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild and Barker, held responsible for and in respect of both that exposure and the mesothelioma. This legal responsibility may be described in various ways. For reasons already indicated, it is over simple to describe it as being for the risk. Another way is to view a defendant responsible under the rule as an insurer, but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault. A third way is to view it as responsibility for the mesothelioma, based on a weak or broad view of the causal requirements or causal link appropriate in the particular context to ground liability for the mesothelioma. This third way is entirely natural. It was adopted by Lords Reid and Wilberforce in McGhee, by Lord Hoffmann, Lady Hale and (possibly) Lord Walker in Barker and by Lord Hoffmann in his extra judicial commentary. It seems to have received the perhaps instinctive endorsement of a number of members of this Court, including myself, in Sienkiewicz. Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear. They have the meanings assigned to them and understood in ordinary usage in their context. A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforces words in McGhee, p 6C F (cited in para 56 above). The present appeals concern the meanings we assign to the concept of causation, first in the context of considering employers liability to their employees and then in considering the scope of employers insurance cover with respect to such liability. It is instructive in this connection to look more closely at the Compensation Act 2006. Section 3(3) states that section 3(2) does not prevent (a) one responsible person from claiming a contribution from another, or (b) a finding of contributory negligence. Section 3(4) goes on to provide that [I]n determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible . Section 3(3) necessarily relates to the legal bases for claiming contribution or asserting contributory negligence, which are to be found in, respectively, the Civil Liability (Contribution) Act 1978 and the Law Reform (Contributory Negligence) Act 1945. The 1978 Act addresses the situation where two or more persons are liable in respect of the same damage (section 1(1)), while section 2(1) provides for contribution in such situations to be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage in question. Although under section 3(4) of the 2006 Act, the court must have regard to the relative lengths of the exposure for which each was responsible, the same damage which is a pre condition to the application of the 1978 Act must be the mesothelioma. It cannot be the risk created by the person by or from whom contribution is sought, because each person and exposure creates a separate risk, and no one person or exposure creates the total risk resulting from all exposures. The 2006 Act, by its reference to the 1978 Act, thus assumes that every person, who has exposed to asbestos a victim who later experiences mesothelioma, incurs responsibility for the mesothelioma. That language again fits an analysis whereby the rule in Fairchild and Barker identifies the appropriate weak or broad causal link between the exposure and the mesothelioma. A similar position applies under the 1945 Act. Under section 1(1), that Act applies [w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons. In that event, the damages recoverable are to be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage. The application of this section, as contemplated by the 2006 Act, is only possible on the basis that a mesothelioma sufferer may be said to have suffered the mesothelioma partly as the result . of the fault of anyone who has exposed him to asbestos. In other words, the rule in Fairchild and Barker must have been viewed by the drafters in my opinion entirely understandably as establishing a causal link, between the exposure and the mesothelioma, sufficient for it to be said that the mesothelioma was the result of each (and every) exposure. A similar view is also implicit in the provisions of the Act drafted on the basis that insurers who would commonly of course be employers liability insurers would be among the persons by or for whose benefit or against whom contribution would be sought in cases of multiple responsible persons: see section 3(7)(b) and (10)(a) of the 2006 Act. Those provisions necessarily assume that employers liability insurances, written generally on a causation basis, would respond to Fairchild/Barker type liability incurred by employers. Ultimately, the present appeals raise the questions how the present employers liability insurance policies respond as a matter of construction in circumstances within the rule in Fairchild and Barker. Where two contracts are linked, the law will try to read them consistently with each other. This is so with language in a bill of lading, incorporated from a charterparty: The Njegos [1936] P 90. A similar approach applies to language in a reinsurance incorporated from the insurance: Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852 and Groupama Navigation et Transports v Catatumbo CA Seguros [2000] 2 Lloyds Reports 350, even though there is no guarantee that a reinsurance will in every possible circumstance that may develop pick up every liability that may be held to exist under an insurance: see Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHC 40, [2010] 1 AC 180. The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured. Thus, as Scrutton and Greer LJJ accepted in the Ellerbeck Collieries case (paragraph 34 above), an employers liability insurance could have been expected to respond to the conventional and artificial definition in the WCAs as to what constituted an accident and when personal injury by accident or disease was sustained for the purposes of employers liability to employees. Furthermore, if the common law during or even after the currency of an insurance develops in a manner which increases employers liability, compared with previous perceptions as to what the common law was, that is a risk which the insurers must accept, within the limits of the relevant insurance and insurance period. Eady J correctly identified this in Phillips v Syndicate 992 Gunner [2003] EWHC 1084 (QB), [2004] Lloyds Insurance and Reinsurance Reports 426, 429 (left). The declaratory theory does not presume the existence of an ideal system of the common law, which the judges from time to time reveal in their decisions. But it does mean that, when judges state what the law is, their decisions do . have a retrospective effect in the sense that the law as stated will, generally speaking, be applicable not only to the case coming before [them] but, as part of the common law, to other comparable cases which come before the courts, whenever the events which are the subject of those cases: Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, 378G H, per Lord Goff. The declaratory theory is a pragmatic tool, essential when cases can only come before the court some time, perhaps some years after the relevant events occurred, and when the law [must] be applied equally to all, and yet be capable of organic change (p 379A). A similar principle must, generally speaking, apply in relation to a statute such as the Compensation Act 2006, which changes or corrects the common law to what Parliament perceives to be a more appropriate result for the purposes of all future cases coming before the courts, whenever the events giving rise to them. In the case of that Act, the result was one which the courts might as a matter of common law well have themselves accepted (and which indeed Lord Rodger in his powerful dissent in Barker v Corus believed that the common law had accepted) in Fairchild. Concluding, as I have done, that the present insurances covered employers liability for injuries or diseases caused during the relevant insurance periods, the question is whether they cover employers liability for mesothelioma arising under the rule in Fairchild and Barker from having exposed employees to asbestos during such periods. It is not in dispute that, if the rule is characterised as a rule of deemed causation, then the policies must respond. A parallel example, so familiar that it is easy to overlook, is the vicarious liability to an employee, A, which rests on any employer, B, who has not himself been negligent but must answer vicariously for the negligence of another employee, C. We have no hesitation in saying that the employer B has in such a case caused the injury or disease suffered by A. But this is so in reality only because a rule of law requires us to equate the acts or omissions of C with those of B. The argument, accepted by Lord Phillips, is that the rule in Fairchild and Barker is not one of deemed causation of or, therefore, liability for the disease, but one of liability for the risk created by the exposure. For reasons which I have set out, I regard this distinction as too simple. The liability arises only because of the incurring of the disease and is for the disease. A condition of such liability is that the employer (negligently) exposed the victim to asbestos. The insurance policies, read as operating on a causation basis, are aimed at covering liability generated by employers activities during their insurance periods: see paragraphs 18 28 and 41 above; unless liability for mesothelioma flowing from negligent exposure during an insurance period is covered by the policies, this aspect of employers activities will not in practice be covered at all. In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient weak or broad causal link for the disease to be regarded as caused within the insurance period. It would, I think, have been anomalous and unjust if the law by deeming there to have been causation of the disease could have created policy liability (which is common ground), but the law by insisting that the liability in respect of mesothelioma was for the risk of causation achieved a quite different result. As I have sought to show, it is not in any event accurate to treat the liability as being either solely or strictly for the risk. The risk is no more than an element or condition necessary to establish liability for the mesothelioma. The reality, reinforced by provisions in the 2006 Act, is that the employer is being held responsible for the mesothelioma. For this purpose, the law accepts a weak or broad causal link. The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease. But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond. The concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild and Barker. Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond. Conclusion I would therefore dismiss the appeals by insurers so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. ANNEX A The policy wordings (dates are approximate) (1) Excess First Wording (late 1940s): Whereas . (hereinafter called The Employer) carrying on the business of . has made a proposal . this Policy witnesseth that in consideration of the payment of . as premium to the Company on the estimated total amount, as set forth in the Schedule hereto, of the wages, salaries, and other earnings of Employees, a description of whom is set forth in the said Schedule (which premium is subject to adjustment as hereinafter provided) the Company agrees to indemnify the Employer in the manner following, namely That if at any time during the period commencing on theday of19 , and ending on theday of19 (both days inclusive) and for such further period or periods as may be mutually agreed upon, any employee in the Employer's immediate service shall sustain any personal injury by accident or disease while engaged in the service of the Employer in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands, in work forming part of or process in the business above mentioned, and in case the Employer shall be liable to damages for such injury, either under or by virtue of the Common Law, the Fatal Accidents Acts 1846 to 1908, or the Law Reform (Miscellaneous Provisions) Act 1934, the Company will indemnify the Employer The Schedule required a description of the insured companys employees and their estimated total wages, salary and other earnings. Condition 1 of the policy further provided that: the Employer shall truly record in a wages book the name of every employee and the amount of wages, salary and other earnings paid to him. Second Wording (late 1950s to 1960s): Whereas the Employer . carrying on the business described in the . Schedule has made . a written proposal and declaration, containing particulars and statements which it is hereby agreed are the basis of this Contract . and has paid the premium mentioned in the Schedule, which premium is subject to adjustment as hereinafter provided, this Policy witnesseth that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in work forming part of the process in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease The policy provided that the Company should not be liable under it in respect of accidents occurring elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands. The policy provided that premiums were to be regulated by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with a wages book being kept open to inspection for that purpose and the employer supplying the correct amounts within one month of the expiry of each insurance period. Condition 1 and the Schedule were in similar form to those in the first wording. Third Wording (1970 to 1976) After a recital in the same form as the second wording, this wording provided: that if at any time during the period of the indemnity as stated in the Schedule or during any subsequent period for which the Company may accept premium for the renewal of this Policy any person of a description mentioned in the Schedule who is under a contract of service or apprenticeship with the Employer shall sustain personal injury by accident or disease arising out of and in the course of employment by the Employer in the business mentioned in the Schedule, the Company will indemnify the Employer against liability at law for damages in respect of such injury or disease Under the third wording, there was the same territorial limitation as under the second wording in relation to accidents occurring elsewhere than in Great Britain, etc. Premiums were also regulated by reference to wages, salaries, etc. and condition 1 and the Schedule were in the same terms as in the second wording. (2) Independent Sole wording in Issue (1972 to 1987): This was a Contractors Combined Policy, covering Employers Liability (section 1), Public Liability (section 2) and Loss of or Damage to Contract Works (section 3). It provided: NOW THIS POLICY WITNESSETH that during the Period of Insurance or during any subsequent period for which the Company may accept payment for the continuance of this Policy and subject to the terms, exceptions and conditions contained herein and or endorsed hereon, the Company will indemnify the Insured as hereinafter specified. SECTION 1 EMPLOYERS' LIABILITY If any person who is under a contract of service or apprenticeship with the Insured shall sustain bodily injury or disease arising out of and in the course of his employment by the Insured in connection with the Contract specified or type of work described in the Schedule the Company will indemnify the Insured against all sums for which the Insured shall be liable at law for damages for such injury or disease The Policy provided that the Company was not to be liable for injury, illness, loss or damage caused elsewhere than in Great Britain, the Isle of Man or the Channel Islands. As a result of the ELCIA 1969 making insurance in respect of employers liability compulsory, the Independent wording also contained the further provision (the ELCIA extension provision): "AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY The indemnity granted by section 1 of this Policy is deemed to be in accordance with the provisions of any law relating to compulsory insurance of liability to employees in Great Britain. It is agreed the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the provisions of such law. " The policy Schedule contains spaces for entry of first, annual and minimum premium, as well as of the name of the Principal for whom the insured is undertaking work, the details of the contract or type of work covered by the policy and its situation. Condition 7 provides that the premium is based on estimates provided by the Insured, for record keeping, for the supply of updated information as required by the Company within one month of the expiry of each insurance period and for adjustment of the premium on that basis. (3) MMI First Wording (1949 to 1958) the Company hereby agrees that if at any time during the period of insurance specified in the schedule or thereafter during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified in the said schedule, or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any personal injury by accident or disease arising out of and in the course of his employment by the Insured in their activities described in the schedule and if the Insured shall be liable to pay damages for such injury or disease then, subject to the terms and conditions contained herein or endorsed hereon, the Company shall indemnify the Insured against all sums for which the Insured shall be so liable The policy was expressed not to apply to or include liability in respect of injury or disease caused elsewhere than in Great Britain, Northern Ireland, the Isle of Man or the Channel Islands. Condition 5 regulated premiums by reference to wages, salaries, etc, and made provision for a wages book and adjustment to like effect to the Excess second wording. The policy Schedule provided for the classification of staff and employees according to departments and job description, with corresponding figures for estimated total remuneration. Second Wording (1958 to 1974) the Company hereby agrees that if at any time during the First Period of Insurance specified in the said Schedule or during any subsequent period for which the Insured shall agree to pay and the Company shall agree to accept a renewal premium of the amount specified as the Renewal Premium in the said Schedule or of such other amount as the Company shall from time to time require, any person under a contract of service with the Insured shall sustain any bodily injury or disease arising out of and in the course of his employment by the Insured in the Insured's activities described in the said Schedule and if the Insured shall be liable to pay damages for such injury or disease or for death resulting from such injury or disease then, subject to the terms, exceptions and conditions contained herein or endorsed hereon or set out in the Schedule to this Policythe Company will indemnity the Insured against all sums for which the Insured shall be so liable. Like the first wording, this wording contained a territorial exclusion of liability in respect of injury or disease caused elsewhere than in Great Britain, etc. The policy Schedule provided for the entry of the Estimates (if any) on which the premium is calculated, including in particular any such estimate of wages, salaries, etc. paid to staff, and cross referred to condition 7, which provided that, if the premium had been based on any estimates, an accurate record should be kept (of actual amounts), the insured should provide insurers with such particulars and information as might be required within one month of the expiry of the policy period and the premium adjusted accordingly. Third Wording (1974 to 1992) The Company agrees to indemnify the Insured in respect of all sums without limit as to amount which the Insured shall be legally liable to pay as compensation for bodily injury or disease (including death resulting from such bodily injury or disease) suffered by any person under a contract of service or apprenticeship with the Insured when such injury or disease arises out of and in the course of employment by the Insured and is sustained or contracted during the currency of this Policy. The policy Schedule contemplated a premium adjustable in accordance with condition 5, which in turn provided (in like manner to condition 7 of the second wording) for the adjustment of any premium so calculated by reference to actual amounts at the end of the policy period. (4) BAI First Wording (1953 to 1974) . the Company willindemnify the Insured against all sums of money which the Insured may become liable to pay to any Employee engaged in the direct service of the insured or any dependent of such Employee in respect of any claim for injury sustained or disease contracted by such Employee betweenandboth inclusive The policy carried the note: This policy does not cover the insureds liability for accidents to workmen arising outside the United Kingdom. Conditions 1 and 2 made elaborate provision for the regulation of premiums by the amount of wages, salaries, or other earnings paid to employees by the employer during each period of insurance, with pay sheets and books of account being kept open to inspection for that purpose and the employer making a return, and the premium being adjusted, subject to a minimum, at the end of each insurance period. Second Wording (1974 to 1983) the Company willindemnify the Insured against all sums of money which the Insured may become legally liable to pay in respect of any claim for injury sustained or disease contracted by any person engaged in and upon the service of the Insured and being in the Insured's direct employment under a Contract of Service or Apprenticeship between theday ofand theday ofboth inclusive This wording also excluded insurers from liability in respect of accidents to employees arising outside the United Kingdom. Like the Independent and third MMI wordings, the BAI second wording also included the ELCIA extension provision. Conditions 1 and 2 provided for the regulation and adjustment of premiums by reference to actual wages, salaries, etc. during each insurance period, in like terms to conditions 1 and 2 in the first wording. (5) Zurich The Municipal First Select wording (1993 to 1998) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury sustained during the Period of Insurance by any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits. The Municipal Second Select wording (1998 ) The INSURER will indemnify the INSURED in respect of all sums which the INSURED may become legally liable to pay as damages and claimants' costs and expenses in respect of Injury caused during the Period of Insurance to any EMPLOYEE arising out of and in the course of employment by the INSURED in the BUSINESS within the Geographical Limits. The tariff wording (1948 ) if any person under a contract of service or apprenticeship with the Insured shall sustain any personal injury by accident or disease caused during the period of insurance and arising out of and in the course of his employment by the Insured in the business above mentioned and if the Insured shall be liable to pay damages for such injury or disease the Association shall indemnify the Insured against all sums for which the Insured shall be so liable. LORD CLARKE Like other members of the Court, I agree with Lord Mance on the construction issue. Thus I agree that, for the purposes of the EL policies, mesothelioma is sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the asbestos fibre or fibres which cause the disease. I do not wish to add to Lord Mances reasoning on the construction issue. I do however wish to add some words of my own on the causation issue which sharply divides Lord Phillips and Lord Mance. I wish to say shortly why I prefer the conclusion of Lord Mance to that of Lord Phillips. As I see it, the effect of Fairchild, Barker and Sienkiewicz may be summarised in this way. An employer who, in breach of duty, has exposed an employee to asbestos is liable in damages if the employee subsequently suffers the disease. The employees cause of action is not that he was exposed to the risk of mesothelioma. He has no claim unless he in fact suffers the disease. It is the disease which represents the damage which completes the cause of action and it is only then that his cause of action accrues and the relevant time limit begins to run. It is axiomatic that, in order to succeed in tort, the employee must show a sufficient causal link between the breach of duty, namely the exposure to asbestos, and the disease which represents the damage, namely mesothelioma. The effect of the majority opinion in Barker is that, where there are two or more employers who have exposed the claimant to the risk of mesothelioma, they are not jointly and severally liable to the claimant for the whole of the consequences of the disease but only severally liable for an aliquot part. That decision was reversed by the Compensation Act 2006, so that such employers are jointly and severally liable for the whole of the consequences. The question in this appeal is whether the employers liability insurers are liable to indemnify the employers in respect of that liability. It would in my opinion be a remarkable result if they were not. Lord Phillips notes at para 109 that Mr Edelman QC accepted that, if the correct analysis of the special rule, which (using Lord Phillips definitions) was the result of the combined effect of the special approach in Fairchild and Barker and the Compensation Act 2006, was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust, the insurers would be liable. Lord Phillips accepts that that concession was correctly made. I agree, for the reasons he gives at paras 109 to 114. The question is therefore whether the correct analysis of the special rule is indeed that the employers were deemed to have caused the mesothelioma. I accept that in such a case the employee cannot show on the balance of probabilities that the employers negligence caused the disease. The effect of Fairchild and Sienkiewicz was however that the employer is liable where the exposure contributed to the risk that the employee would suffer the disease and where the employee in fact suffers the disease. That is not in dispute. Lord Phillips says at para 124 that the majority in Barker drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease. He quotes para 2 of Lord Hoffmanns speech as follows: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised. Lord Phillips further notes that at para 125 Lord Hoffmann advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance. See also the passages to like effect referred to by Lord Mance at para 61. I accept that Lord Hoffmann and others did indeed advance that view of Fairchild but it is I think important to note that it was in the context of the question whether, in a case of two or more employers, each was severally liable for a proportion of the consequences of the mesothelioma or whether each was jointly and severally liable for the whole. Lord Hoffmann cannot have intended to hold, without more, that the basis of liability was the wrongful creation of the risk or chance of causing the disease because there would be no liability at all but for the subsequent existence of the mesothelioma. It seems to me that, whether the majority in Barker were correct or not, there is no escape from the conclusion that, in all these cases, where it is not possible to show that the particular employer caused the claimant to suffer mesothelioma, the underlying question is who should be held responsible for causing the mesothelioma which in fact struck down the employee. None of the cases is authority for the proposition that causation is irrelevant. On the contrary, the quest is for the employer who can fairly be held liable for the consequences of the disease and therefore for the employer who can fairly be said to have caused the disease. The courts have embarked on similar quests over the years. Lord Mance has given a number of examples. As Lord Mance shows at para 56, they include Bonnington and McGhee, where Lord Reid was prepared to take a broad view of causation and Lord Wilberforce rejected a traditional approach for policy or evidential reasons. In my opinion the reasoning in Sienkiewicz is of some significance in this context. Lord Mance has given the relevant references in para 61. Thus, as Lord Mance observes, at para 61 Lord Phillips said that Fairchild and Barker had developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances. Lord Mance further refers to Lord Brown speaking of a more relaxed approach to causation and flexibility in the approach to causation at paras 178 and 187. Lord Mance had himself referred to Fairchild and Barker as involving a special rule of causation at para 188, and Lord Kerr referred to them as involving a modification of the previously applicable legal rules in relation to the causation element in employers liability claims at para 196 and to adjustments in the burden of proof at paras 198 and 200. Again, as Lord Mance observes at para 61 above, Lord Dyson referred (at para 207) to materially increasing the risk of contracting the disease as sufficient to satisfy the causal requirements for liability (para 207). Both Mr Beloff QC and Mr Stuart Smith QC addressed these issues in their oral submissions. They both in effect submitted that the effect of Fairchild, Barker and Sienkiewicz was that the employers were deemed to have caused mesothelioma by exposing the employees to asbestos dust. They both recognised that the ordinary rule of causation could not apply and that some element of policy or doctrine was required in order to explain Fairchild. Mr Stuart Smith submitted that the effect of Fairchild was that each material exposure to asbestos dust is doctrinally held responsible for the mesothelioma. Mr Beloffs submission was to much the same effect. He relied upon a dictum of Lord Walker in Barker at para 109: A rule of law by which exposure to risk of injury is equated with legal responsibility for that injury entails the possibility that an employer may be held liable for an injury which was not in fact caused by that exposure (though in the present state of medical science, that fact can be neither proved nor disproved). The injury is of course the mesothelioma, which is necessary to complete the cause of action. On that basis it seems to me that Lord Walkers statement that the risk of injury is equated with legal responsibility for the injury is in effect to say that, by creating the risk of mesothelioma in the future, the employer is deemed to have caused the mesothelioma, if it should develop in the future. It appears to me that these conclusions are supported by Lord Mances analysis of section 3 of the Compensation 2006 at paras 67 and 68, with which I agree and to which I do not wish to add anything. Given Mr Edelmans concession that, if that is correct, the employers are liable under the policies (and this Courts acceptance of it) I would hold that the causation point does not assist the insurers. I would only add this. It appears to me that, once it is held that, on these facts, the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies. Rather as in AXA, the whole purpose of the policies was to insure the employers against liability to their employees. That purpose would be frustrated if the insurers submissions on this point were accepted. I agree with Lord Mance, for the reasons he gives at paras 69 73 that these policies respond to these claims. For these reasons, I too would dismiss the appeals by insurers so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. LORD DYSON I too agree with Lord Mance on the construction issue. As to the causation issue, I agree with the reasoning of Lord Mance and Lord Clarke. Accordingly, I would dismiss the appeals by insurers in so far as they concern the policies with contracted wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with sustained wordings. LORD PHILLIPS Introduction So called long tail industrial diseases have raised peculiar difficulties in the field of tort. These diseases result from the effect on the body of exposure to noxious substances. The effect can be long, drawn out and mysterious, in as much as medical science has not yet identified the precise mechanism, or chain of causation, by which the noxious substance causes the disease. Mesothelioma is a long tail disease in which the problems raised have been particularly acute. The problems arise in the application of principles of law that do not ordinarily give rise to difficulty. An employer will be liable in damages if by an act or omission that is negligent or in breach of statutory duty he causes physical harm to an employee. In the vast majority of cases there will be no difficulty in identifying the moment at which the negligence or breach of duty causes the physical harm, for the harm will take the form of an obvious injury. This is not the position in respect of mesothelioma. Asbestos dust, inhaled into the lungs, is the agency that causes mesothelioma, but as long as forty or fifty years may elapse before the effects on the body of dust inhaled culminate in symptoms of mesothelioma. Once the symptoms are felt, the disease will develop swiftly to bring about an inevitable and extremely unpleasant death. Where a victim of mesothelioma was exposed to asbestos dust over a period of years it is impossible, even with hindsight, to determine on balance of probabilities whether dust inhaled in a particular year caused or contributed to the development of the mesothelioma. It follows that, where the victim worked for a series of employers, each of whom exposed him to asbestos dust, it is impossible to prove on balance of probability that any particular employer caused or contributed to the victims mesothelioma. This means that the normal principles of the law of tort provide no remedy to the employee or his dependants. The manifest injustice of this position led the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572 to create what I shall describe as a special approach to causation in respect of mesothelioma, whose effect was immediately varied by Parliament by section 3 of the Compensation Act 2006. I shall describe the composite result achieved by the House of Lords and Parliament as the special rule. I shall examine the nature of this special rule in due course. Its effect was, however, to place each employer in the same position as that employer would have been under at common law if it were proved, on balance of probability, that its negligence or breach of duty in exposing the employee to asbestos dust had contributed to causing the employees mesothelioma. These developments of the law of tort have formed the backdrop to the issue that has occupied almost all of the eight days that this Court has devoted to this appeal. I shall call this issue the construction issue. The construction issue relates to the true construction of a number of policies of insurance against employers liabilities (EL policies) with similar, but not identical, provisions as to the cover provided. The EL policies provided cover by reference to specific periods usually of a year. The central issue relates to the event or events that, on true construction of each policy, had to occur within the period of the policy in order to render the insurer liable to indemnify the employer in respect of liability for causing an employees mesothelioma. The policies provided cover in respect of diseases sustained or contracted during the period of the policy. The meaning of each of those words, in its context, lies at the heart of the construction issue. It does not seem that the construction issue initially received a great deal of consideration. Insurers treated the policies as if they covered an employer whose breach of duty within the period of the policy had contributed to causing the disease and regarded this requirement as satisfied if the employer was held liable because he had exposed the employee to asbestos dust during that period. Where more than one insurer was liable on this basis, they apportioned liability according to the period of exposure covered by each. The attitude of four of the five insurers party to this appeal changed as a result of the decision of the Court of Appeal in Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50; [2006] 1 WLR 1492. Those insurers are MMI, Excess, BAI and Independent, each of which is in run off. I shall describe them collectively as the insurers. Their opponents I shall describe collectively as the employers, although they embrace solvent employers, individuals claiming under the Third Party (Rights against Insurers) Act 1930, and Zurich, which has a community of interest with these. Bolton concerned the scope of cover of a public liability policy (PL policy) in relation to liability for causing mesothelioma. The policy provided cover in respect of an injury that occurs during the currency of the policy. The argument proceeded on the premise that the chain of causation of mesothelioma, once it was diagnosed, could be traced back to the initial inhalation of asbestos dust. The issue was whether the mesothelioma could properly be said to have occurred at the time of the initial inhalation. The Court of Appeal held that it could not. The injury only occurred, at earliest, at the stage of development of the disease at which malignancy occurred. This was, on the evidence, ten years, give or take a year, from the date on which it became possible to diagnose the existence of the tumour but very many years after the initial inhalation of asbestos dust. This decision led the insurers to take the point that a similar approach should be taken to the interpretation of the cover afforded by the EL policies. Mesothelioma was not, on true construction of the policies, sustained or contracted at the time of the initial inhalation of asbestos dust. It was only sustained or contracted at the much later stage when, as a consequence of the process initiated by asbestos dust, an actionable injury in the form of malignancy, developed. Before Burton J, the Court of Appeal and this Court the construction issue has been argued at great length and in great detail. I agree, as do the other members of the Court, with the conclusions reached by Lord Mance on the construction issue. These conclusions have application not merely to mesothelioma but to employers liabilities in relation to other long tail industrial diseases such as asbestosis and pneumoconiosis. For the purpose of EL policies, these diseases are sustained or contracted when the process that leads to the disease is initiated as a result of the wrongful exposure of the employee to the noxious substance that causes, or contributes to the cause or the extent of, the disease. Throughout the hearing of this appeal there has lurked a second issue. It has not been the subject of argument below, nor does it feature in the agreed Statement of Facts and Issues. This is, perhaps, because it relates to a point that does not arise out of Bolton. It has always been there for the taking, but insurers have not hitherto chosen to raise it, perhaps because its consequences are unattractive. It arises out of a problem that is similar to that which led the House of Lords to formulate the special approach in Fairchild and Barker. It is not possible for an employer to prove that an employees mesothelioma was, in fact, caused in whole or in part by any particular period of exposure to asbestos dust. Thus the employer cannot prove, on balance of probability, that the mesothelioma for which he has been held liable under the special rule was, in fact, initiated in any particular policy year. How, then, can he prove that his liability falls within the scope of the cover, even if the policy bears the construction contended for by the employers and upheld by this Court? How can he prove that his liability arises out of disease sustained or contracted within the policy period, giving these words the same meaning as initiated? I shall call this issue the causation issue. The causation issue and the judgments below Although the causation issue was not raised in argument below, it was dealt with, at least implicitly, in the judgments of both courts. Burton J at first instance, and Rix and Stanley Burnton LJJ in the Court of Appeal proceeded on the basis that, in the case of a mesothelioma victim, exposing the victim to asbestos dust could be treated as equivalent to causing his disease. This approach was based on the special rule. Thus Burton J at paras 42 to 58 summarised, without significant comment, what he described as the special mesothelioma jurisprudence as it was at the time of his judgment. This included Fairchild, Barker and the 2006 Compensation Act. He thereafter proceeded on the basis that exposing a mesothelioma victim to asbestos dust could be treated as having been equivalent to causing the victim to contract the disease. Thus, when summarising his conclusions at para 243 he said: I conclude, in relation to the policies in issue before me, that they respond, just as would policies with caused wording, to claims against insurers where employers are liable on the basis of inhalation by employees during the policy period. They respond, consistently with other EL policies, in respect of mesothelioma claims, on an exposure basis. For the purposes of these policies, injury is sustained when it is caused and disease is contracted when it is caused, and the policies fall to be so construed. Rix LJ drew a distinction between the meaning of contracted and sustained. Contracted referred to the time of the diseases causal origins para 245. He felt constrained by Bolton, however, to hold that no injury was sustained until the disease reached the malignant stage. Implicit in his judgment was the premise that exposure to asbestos dust during the period of the policy could be treated as the causal origin of the disease see for example his comments at para 244. A difficult passage in his judgment at paras 280 283, when considering the meaning of injury, suggests that this premise was founded on the special rule. Thus he was able to conclude that the disease was contracted at the time that the victim was exposed to asbestos dust albeit that injury was not sustained at that point. In a short judgment Stanley Burnton LJ adopted similar reasoning. He stated, at para 338: We are agreed that in any year in which there was substantial exposure to asbestos, mesothelioma was caused by that exposure during that year. The fact that the disease did not develop for some years does not break the chain of causation. Submissions on the causation issue The causation issue was not raised by the insurers as a discrete issue. It none the less surfaced in a passage of the written case for Excess that was addressing the employers case that personal injury by disease was sustained at the moment of inhalation of asbestos dust that triggered the process of sustaining personal injury by disease. One of the arguments advanced by Excess in answer to this submission read as follows: Medically and empirically, one cannot be said to have suffered an injury on a particular day because it cannot be known in (say) a 10 year occupational exposure period on which of the 3652 days the fatal dose was inhaled (and it may be on more than one). It is likely that any ingestion on a particular day was irrelevant to the development of the final condition. There has been a tendency on the part of the claimants to treat inhalation as a single event from which an unbroken line can be drawn to malignancy. It is not. Inhalation (and hence on this theory) injury may occur over several thousands of days. Each day does not bring injury. Any particular day cannot therefore be selected as injury day. To overcome problems of medical causation in a personal injury action against an employer, the House of Lords extended the McGhee principle to mesothelioma in Fairchild. However this was a rule of causation and not definition. There is no such rule in insurance policies which defines what amounts to an injury. The Supreme Court in Sienkiewicz stressed the limits of the Fairchild exception in no uncertain terms, and it is submitted that it would be quite wrong for it now to invade the law of contract. A liability policy responds only to indemnify against a liability (i.e. actionable injury). There is no such liability on inhalation. Injury occurs when the claimant has a personal injury by disease. Thus Excess took the point that the special rule could not properly be invoked to establish that, on true construction of the contracts of insurance, injury was sustained upon inhalation of asbestos dust. This passage appeared after a submission at para 209 that it was only possible to equate the inhalation of a culpable quantity of asbestos dust with sustaining personal injury by disease by, inter alia, creating a special rule governing the response of EL policies in respect of mesothelioma, and possibly other long tail diseases. This proved to be what counsel for the employers sought to do when invited by the Court to address the causation issue. They did so in short oral submissions that cannot, when taken together, have occupied more than half an hour of the eight day hearing. The relevant submissions made by Mr Beloff QC for Akzo and AMEC and the Local Authorities are reported at pp 120 122 of the transcript for 15 December 2011. He started by observing that we had to cut the Gordian knot. He suggested that we should do so by equating creation of a risk with causing bodily injury. This he submitted was permissible because the object of the policy was to provide cover to an employer who, in breach of duty to employees, caused them compensatable damage. Were this approach not adopted, it would be impossible to show that any of a number of insurers providing cover over a period of years was liable. The law should rebel against such a result. In support of this submission Mr Beloff cited a statement by Lord Walker of Gestingthorpe in Barker at para 109 suggesting that the special approach to mesothelioma equated the exposure to the risk of injury with legal liability for the injury. Mr Stuart Smith QC for Zurich dealt with the causation issue at rather greater length in a passage reported at pp 126 to 131 of the same transcript. He started by accepting that it was impossible to know when the metabolic changes that led to the development of mesothelioma in fact occurred. Fairchild dealt with this problem by creating a doctrinal rule under which each significant exposure to asbestos dust was held to be responsible for the mesothelioma. Thus doctrinally the process of developing mesothelioma started upon inhalation. This doctrinal framework for the application of the law of tort was that within which policies of insurance against tortious liability had to operate. Mr Stuart Smith agreed with this summary of his argument advanced by Lord Mance: If the law of tort treats someone, an employee, as having sustained a personal injury and treats the employer as liable to pay damages for such personal injury, then the policy answers. These submissions on behalf of the employers raise the following questions: i) Will the policies respond to fictional or doctrinal events that are deemed to have occurred under the special rule? If so: ii) Does the special rule deem that events have occurred to which the policies should respond? If not: iii) Can this Court properly reformulate the special rule in such a way as to require the policies to respond? Will the policies respond to fictional or doctrinal events? On the premise that he failed on the construction issue, Mr Edelman accepted that, if the correct analysis of the special rule was that the employers were deemed to have caused the mesothelioma by exposing the victims to asbestos dust, then the policies should properly respond. Because of the view that I take of the next two questions I do not need to decide whether the concession was properly made. I have, however, concluded that it was. The policies exist to provide protection against employers liability in tort. If the law of tort, whether laid down by the courts or by Parliament, resorts to legal or doctrinal fictions, it seems logical that the policies should respond as if the fictions were facts. A purposive approach to construction of the policies would lead to this result. Two examples illustrate this approach. Ellerbeck Collieries Ltd v Cornhill Insurance Co Ltd [1932] 1 KB 401 involved a policy of insurance against liability under the Workmens Compensation Act 1925. The terms of the policy entitled the employer to indemnity if at any time during the currency of the insurance any employee sustained any personal injury by accident or disease. The 1925 Act imposed a fictitious test for identifying when an industrial disease was sustained, namely the date on which a certifying surgeon issued a certificate that the employee was suffering from the disease. On the strength of a certificate issued within the currency of a policy of insurance an employer was held liable to two workmen who had, in fact, sustained the relevant disease before the period of the insurance began. The Court of Appeal held that this liability fell within the cover of the policy. The argument for applying the fictional date was a strong one because, as Greer LJ observed at p 417, the policy was intended to cover the employers liability under the Act. The parallel between Ellerbeck and the present case would have been stronger had the relevant policies been taken out after the special rule had been created. In Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] AC 281 the House of Lords held that pleural plaques caused by exposure to asbestos dust did not constitute actionable injury because they produced no adverse physical effects. The Scottish Parliament responded to this decision by introducing the Damages (Asbestos related Conditions) (Scotland) Act 2009 (the Scottish Act). That Act provides by section 1 that asbestos related pleural plaques constitute a personal injury which is not negligible and that accordingly they constitute actionable harm for the purpose of an action for damages for personal injury. In AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2011] 3 WLR 871 the Supreme Court rejected a challenge by insurers to the lawfulness of this Act. The Scottish Act effected a limited alteration to the common law in decreeing that asymptomatic pleural plaques constituted non negligible personal injury and thus actionable damage. Lord Mance at para 88 suggested that the main target of the legislation was employers insurers. He went on at para 89 to consider whether the Act would, in fact, alter the meaning to be given to bodily injury under a policy of insurance: A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland. However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world. Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury. I say no more about the answer, which may be elicited in another context or suit. While Lord Mance left open the effect of the Scottish Act on the construction of policies of liability insurance, Lord Brown was in no doubt that the effect of the Scottish Act was to subject insurers to liabilities to which they would not have been subject prior to that Act. He referred at para 80 to the undoubted, and deliberate, impact of the legislation upon pending claims. Earlier, at para 77, he drew an analogy with the effect of the decision in Fairchild on EL insurers liability: Had the House of Lords in Rothwell decided that asymptomatic pleural plaques of themselves constitute a non negligible personal injury and thus actionable damage decided in other words that in this particular context the common law should develop in this admittedly novel way the appellants would doubtless have deplored the decision but they could certainly not have questioned its legitimacy. No doubt they would have resented the fact that, as a consequence of the decision, they would unexpectedly have had to pay out on claims resulting from the employees exposure to asbestos upwards of 20 years (quite likely up to 40 years) previously. But they could no more have advanced an [article 1, Protocol 1] challenge to this development of the law than they could have challenged the House of Lords decision some four years earlier in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 to adopt a less stringent than the usual but for test for establishing the necessary causal connection between an employers negligence and a claimants condition in, most notably, mesothelioma cases. Employers (and their liability insurers) necessarily take the risk of the common law developing in ways which may adversely affect them with regard to personal injury claims. In this passage Lord Brown assumed that the effect of Fairchild was to bring employers liabilities in respect of mesothelioma within the scope of the cover afforded by EL policies. I am about to consider whether he was correct in this. I agree, however, with the general principle expressed in the last sentence of the extract from his judgment that I have just cited. It is for this reason that I would give an affirmative answer to the first of the three questions posed at para 108 above. I turn to the second. What is the special rule? The employers submissions on the causation issue proceed on the premise that the special rule deems exposure to asbestos dust of an employee who is subsequently diagnosed with mesothelioma to have been a cause of the mesothelioma. I have reached the conclusion that that premise is unsound. In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229 I summarised the special rule as follows at para 1: When a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a material increase in risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease. This is certainly the effect of the special rule, but in order to discover the juridical basis of the rule it is necessary first to identify the basis of the special approach adopted by the House of Lords in Fairchild and Barker and then to consider the effect of section 3 of the Compensation Act, which adapted the special approach into the special rule. The special approach In Sienkiewicz, at para 70, I stated that Fairchild and Barker developed the common law by equating materially increasing the risk with contributing to the cause in specified and limited circumstances, which include ignorance of how causation in fact occurs. As I shall show, this was not an accurate summary of the special approach adopted in those cases. In Fairchild the House of Lords confronted the position where a mesothelioma victim had worked consecutively for a number of employers, each of which had exposed him to asbestos dust. One or more of these had caused his mesothelioma, but because of the limits of medical knowledge it was not possible, on balance of probability, to identify which. In these circumstances their Lordships adopted a special approach that enabled them to find that each of the employers was jointly and severally liable for the mesothelioma. In doing so they purported to be following a similar approach adopted by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1. They were not, however, all agreed as to the basis of that approach. Lord Hutton, at para 109, held that it was based on the drawing of a factual or legal inference leading to the conclusion that the breach of duty [in exposing the employee to asbestos dust] was a cause of the disease. The majority of the House did not agree. Lord Bingham said, at para 35: I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts. Lord Nicholls of Birkenhead said, at para 42: So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established." Lord Hoffmann at para 65 rejected the suggestion that the House in McGhee held that materially increasing the risk of the disease should be treated as equivalent to material contributing to the injury. He concluded: I would respectfully prefer not to resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability. Lord Rodger of Earlsferry did not agree. His reasoning was close to that of Lord Hutton. He held, at para 168: Following the approach in McGhee I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness. What then happened has been summarised by Lord Hoffmann in Perspectives on Causation (2011) at p 8: There are two ways in which one could characterise this change in the substantive law of negligence. One is to say that the causal requirements for an action for damages for mesothelioma have been changed; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent. The other is to say that the House created, exceptionally, a cause of action for the increased risk of mesothelioma rather than for the disease itself. In the former case, satisfying the new causal requirement would entitle the claimant to sue for the whole injury caused by contracting the disease. In the latter case, he would be able to sue only for the loss caused by the risk of his contracting the disease having been increased. That would be a proportion of the injury caused by the disease, depending on the extent to which the risk had also been created by other causes. In Barker v Corus the House of Lords (Lord Rodger of Earlsferry dissenting) adopted the second explanation of what had happened in Fairchild. I believe that this summary of the position is essentially correct. The majority in Barker were persuaded that justice would best be served if the special approach adopted in Fairchild were applied in such a way as to render each defendant who had wrongfully exposed the claimant to asbestos dust severally liable for that proportion of the mesothelioma that represented the proportion of the wrongful exposure attributable to that defendant. This was achieved by holding that the liability of each defendant resulted from adding to the risk that the employee would contract mesothelioma. It did not result from an implication that each defendant had actually contributed to the cause of the disease. At the start of his speech at para 2 Lord Hoffmann drew the vital distinction between being liable for contributing to the cause of the disease and being liable for the creation of the risk of causing the disease: Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease a risk which is known to have materialised. Lord Hoffmann went on to adopt the latter analysis as the basis of liability in Fairchild. At para 31 he held that the majority in Fairchild had not proceeded upon the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease. The creation of a material risk of mesothelioma was sufficient for liability. At para 35 he advanced the thesis that the basis of liability was the wrongful creation of the risk or chance of causing the disease and that the damage that the defendant should be regarded as having caused was the creation of such risk or chance. Liability for the mesothelioma that developed should be apportioned according to the contribution that each defendant made to the risk that mesothelioma would be contracted. Lord Scott of Foscote and Lord Walker of Gestingthorpe expressly agreed with both Lord Hoffmanns conclusion that liability for the mesothelioma fell to be apportioned and with his reasons for so concluding. Lord Scott held at para 53 that it was essential to keep firmly in mind that liability in Fairchild was not imposed on any of the defendant employers on the ground that the employers breach of contract had caused the mesothelioma. That causative link had not been proved against any of them. It was imposed because each, by its breach of duty, had materially contributed to the risk that the employee would contract mesothelioma. At para 61 he emphasised that the Fairchild principle was not based on the fiction that each defendant had actually caused the eventual outcome. It was based on subjecting the victim to a material risk. Lord Walker, having stated that he was in full agreement with Lord Hoffmanns reasons went on at para 104 to make a statement that was inconsistent with them, this being to the same effect as the statement relied on by Mr Beloff see para 106 above. Lord Walker stated that the decision in Fairchild equated exposing the victim to the risk of injury with causing his injury. This was the same mistake as I made in Sienkiewicz see para 117 above. Had this been the case, each defendant would have been jointly and severally liable for the injury. Lord Walker went on to say, however, that the result in Fairchild was achieved, not by some fiction, but as an explicit variation of the ordinary requirement as to causation. At para 113 he stated that Fairchild was decided by the majority, not on the fictional basis that the defendants should be treated as having caused the victims damage, but on the factual basis that they had wrongfully exposed him to the risk of damage. Lady Hale did not adopt Lord Hoffmanns thesis that the creation of risk constituted the damage for which each defendant was liable. In general, however, she agreed with the majority. She held that in Fairchild, for the first time in our legal history defendants were made liable for damage even though they might not have caused it at all. It was not said that the defendants had caused or materially contributed to the harm. All that could be said was that each had contributed to the risk of harm. In these circumstances it was sensible and fair to apportion liability for the harm in proportion to the contribution that each had made to the risk of harm. Lord Rodger of Earlsferry vigorously dissented from the reasoning of the majority and from the result in so far as it apportioned liability. He observed at para 71 that the majority were not so much reinterpreting as rewriting the key decisions in McGhee and Fairchild. At para 85 he stated that the new analysis that the House was adopting would tend to maximise the inconsistencies in the law. I have some sympathy with the observations of Lord Rodger. It would, I think, have been possible for the House in Barker to have defined the special approach in Fairchild as one that treated contribution to risk as contribution to the causation of damage. The important fact is, however, that the majority did not do so. They were at pains to emphasise that the special approach was not based on the fiction that the defendants had contributed to causing the mesothelioma. Liability for a proportion of the mesothelioma resulted from contribution to the risk that mesothelioma would be caused and reflected the possibility that a defendant might have caused or contributed to the cause of the disease. This was no obiter expression of opinion. It formed the basis of the substantive decision that liability was severable and not joint. The special rule The special approach rendered each employer who had wrongfully exposed a mesothelioma victim to asbestos dust liable for a proportion of the mesothelioma without creating any inference or legal fiction that the employer in question had actually contributed to causing the disease. Section 3 of the Compensation Act altered the position by imposing joint and several liability on those who were only severally liable under the special approach. Did the special rule that resulted involve a different basis of liability to that which formed the basis of the special approach? This question is considered by Jonathan Morgan in his interesting Chapter 4 of Perspectives on Causation headed Causation, Politics and Law: The English and Scottish Asbestos Saga. At p 79 he poses the following question: Has Parliament, by implication, therefore also reversed Lord Hoffmanns principled reinterpretation of Fairchild? Is the nature of Fairchild liability now after all for causing mesothelioma and not increasing risk? Mr Morgan gives a negative answer to this question, expressing the view that Barker has altered the jurisprudential basis of the Fairchild liability irrevocably. I agree that section 3 of the Compensation Act did not alter the jurisprudential basis of the special approach laid down by the House of Lords in Fairchild and Barker. All that it did was to alter the effect of the special approach by making each defendant jointly and severally liable for the whole of the injury sustained. Section 3(1) provides that the section applies where (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure [for which the defendant was responsible]or another exposure which caused the victim to become ill, and (d) the responsible person is liable in tort(whether by reason of having materially increased a risk or for any other reason). It is not possible to read section 3 as imposing a different basis of liability to that identified by the majority in Barker. The consequence of the special rule Having regard to its jurisprudential basis I cannot see how the employers can found upon the special rule as identifying the policy year or years in which a victims mesothelioma is initiated. The position is that it is impossible to prove on balance of probability when mesothelioma is initiated, or contracted, or sustained, giving each of those words the same meaning. The special rule does not fill the gap for it raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. Should this Court redefine the special rule in order to engage the EL policies? The special approach of the majority in Barker had the object of ensuring that employers who had wrongfully subjected their employees to asbestos dust should bear what the majority considered to be a fair share of responsibility for their wrongdoing. It does not seem likely that the majority gave consideration to the implications for the responsibility of EL insurers of the manner in which this object was achieved. Should this Court now redefine the special rule with the object of enabling claims to be brought under the EL policies? This would, I think, involve holding that the majority in Barker erred in their analysis and that the true basis of the special approach in Fairchild was that contribution to risk should be deemed to be contribution to causation. I would give a firm No to this question. The adoption of the special approach in Fairchild has provoked considerable criticism, both judicial and academic. An example of the former is to be found in the judgment of Lord Brown in Sienkiewicz. An example of the latter is Mr Morgans closely reasoned Chapter 4 of Perspectives on Causation. But the object of the special approach in Fairchild and Barker was at least to ensure that those who had breached the duties that they owed to their employees did not escape liability because of scientific uncertainty. It would be judicial law making of a different dimension to create a legal fiction as to the policy years in which cases of mesothelioma were initiated in order to render liable insurers who could not otherwise be shown to be liable. The Secretary of State has intervened in this appeal and has submitted that, should the claims of employees or their dependants not be met by insurers, they are likely to be a burden on the public purse. It is open to question whether this is a proper consideration, even when considering whether the special rule should be redefined for what are essentially reasons of policy. In any event it seems to me that the position is somewhat more complex than the Secretary of State suggests. The burden of claims in respect of mesothelioma on a scale that was never anticipated is reducing both employers and insurers to insolvency. If this Court were to redefine the special rule so as to impose liability for mesothelioma claims on EL insurers where it could not otherwise be made out, this would in many cases be at the expense of others with claims on the same insurers founded on facts and not legal fictions. The liabilities in respect of mesothelioma will increase the overall shortfall on the part of insurers and this is also likely to have implications for the public purse. So far as I am concerned, however, these considerations have little relevance. Even if there were a compelling case for contending that a means should be found to render EL insurers liable, my reaction would be that this was a matter for Parliament not the courts. It would be wrong in principle for this Court to depart from the reasoning of the majority in Barker for the sole purpose of imposing liability on EL insurers. |
These appeals raise issues as to the respective duties of the Secretary of State and the First tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, more particularly as to the operation of the so called one stop procedures. The Master of the Rolls (para 40), echoing words of Jackson LJ, described the law in this field as an impenetrable jungle of intertwined statutory provisions and judicial decisions. It is difficult to disagree, although on this occasion the judiciary must share some of the blame. The Patels Mr Patel and his wife arrived from India in the United Kingdom on 24 March 2009. He had been granted leave to enter as a working holiday maker until 6 March 2011, and she as his dependent wife. Their only child was born here in 2010. On 26 February 2011, they applied for further leave to remain in the UK, relying on article 8 of the European Convention on Human Rights, and rule 395C of the Immigration Rules. Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the United Kingdom. They had a right of appeal to the First tier Tribunal, but that was dismissed on 14 July 2011. The merits of the refusal on the issues there raised are no longer in dispute. On further appeal to the Upper Tribunal they took a new point. This was that, in the light of the decision of the Court of Appeal in R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159, [2011] Imm AR 484, followed in Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, [2012] Imm AR 254, the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument, which failed before the Upper Tribunal and the Court of Appeal, is the principal issue in this court. Mr Alam Mr Alam, a citizen of Bangladesh, entered the country on 26 August 2007, as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies. On 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old, and therefore did not, as required by the guidance under the Points Based System, show that he had held the necessary level of funds for a consecutive period ending no more than one month before the application. By the time of the hearing before the tribunal, on 10 June 2011, he had produced the appropriate bank statements. The tribunal held that, for the purposes of his appeal under the rules, this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (which had come into effect between the date of his appeal and the date of the hearing). However, the immigration judge held that this did not prevent him taking it into account in the appeal under article 8 of the Convention, on the basis that, since he clearly meets the requirements of the rules, it was not proportionate to the aims of immigration control to refuse his application. The Upper Tribunal reversed that decision, holding that the judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8. The tribunal accepted that the appellant having been in the country undertaking studies for some four years had thereby formed some sort of protected private life for the purposes of article 8. But no other aspect of his life in this country was relied on. His family ties were all with his native Bangladesh, to which he wished to return after his studies. Although the new evidence was not directly relevant under article 8, it took account of the unusual circumstances in which the right to prove compliance with the rules had been lost: I have considered the circumstances in which the claimant has failed to meet the Rules: viz. that he is one of a necessarily fixed class whose ability to prove compliance with the Rules has changed by operation of law since he began his appeal proceedings. Those circumstances do, to some extent, diminish the State's interest in removing the claimant, merely in order to maintain the integrity of the Rules. If the claimant's article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate. As it is, however, I consider that the balance falls to be struck in favour of the Secretary of State. (para 22) Mr Anwar Mr. Anwar, a citizen of Pakistan, entered on 26 February 2010 with leave to remain as a student until 1 April 2011. On 31 March 2011 he applied to extend his leave as a Tier 4 student to enable him to complete his course. The application was supported by a Confirmation of Acceptance for Studies (CAS), which recorded that he had been assessed by reference to a document entitled ACCA examination Financial Accounting (F3). The F3 document itself was not included with the application. On 10 May 2011 the Secretary of State refused the application because, contrary to the relevant guidance, it had not included a document referred to in the CAS, and accordingly no points had been awarded for the CAS. On his appeal to the First tier Tribunal the appellant produced the relevant document, claiming that it had in fact been sent with his application form. The tribunal allowed his appeal, but their decision was set aside by the Upper Tribunal, which held that on the balance of probabilities he had not sent the relevant document with his application. That factual finding is not now in dispute. Although there was a reference to the European Convention in the grounds of appeal to the First tier tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together, and dismissed them both on 13 July 2012. The arguments were wide ranging, summarised by Sullivan LJ under eight grounds. Most are no longer in issue. The issues According to the agreed statement, the following issues are said to arise in the appeals to this court: Patel i) Whether there is an obligation on the Secretary of State to issue a decision to remove at the same time as or immediately after refusing an individuals application for variation of leave to remain in the United Kingdom. ii) Whether there is an obligation on the Secretary of State to issue a one stop notice under section 120 of the 2002 Act when refusing an individuals application for variation of leave to remain in the United Kingdom. iii) Whether the Secretary of States refusal to vary an individuals leave to remain in the United Kingdom is unlawful if it is issued in isolation from a one stop notice or a decision to remove. Alam/Anwar iv) Whether the conclusion of the majority in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one stop notice issued under section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct. v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT amounted to additional grounds under section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in section 85A of that Act. vi) In an article 8 case, when balancing the demands of fair and firm immigration control against the disruption to the family or private life of a person if removed for non compliance with the Immigration Rules, whether the nature and degree of the non compliance is significant or, as the Court of Appeal has held (in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35), irrelevant. While these issues were agreed between the parties, and they conveniently identify the main matters on which we heard submissions, it will be necessary to consider in due course the extent to which they do properly arise for decision on these appeals. For example, the question of an obligation to serve notices under section 120 (issue (ii)) does not arise in any of the three cases, since such notices were in fact served in all of them. The statutory provisions The Immigration Act 1971, and the rules made under it, constitute the principal statutory framework for the control of immigration, and the Secretary of States functions in that respect. Both the statute and the rules have been subject to frequent amendment and addition. The issues in the present appeals turn principally on the provisions of the Nationality, Immigration and Asylum Act 2002 which established a new statutory code relating to appeals against immigration decisions, including the so called one stop notices under section 120. In relation to the Secretary of States powers of removal, it will be necessary also to consider the Immigration and Asylum Act 1999 section 10, and the Immigration, Asylum and Nationality Act 2006 section 47. The starting point is section 3 of the 1971 Act. It provides that a person who is not a British citizen may not enter the United Kingdom except with leave under the Act. Where leave is given for a limited period, it may be varied by restricting, enlarging or removing the limit on its duration (section 3(3)). Section 3C (added by the 2002 Act) is entitled Continuation of leave pending variation decision. It applies where a person with limited leave applies, before the leave expires, for a variation of the leave. Subsection (2) has the effect that the leave is extended during any period when (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the 2002 Act could be brought while the appellant is in the United Kingdom, or an appeal brought while the appellant is within the United Kingdom is pending. By section 3C(4), a person may not make a further application for variation of his leave while it is extended under this section, but that does not prevent a variation of the application already made. It is common ground that such a variation may include grounds unrelated to those in the initial application. This provision needs to be understood also in the context of section 92 of the 2002 Act. That makes clear that for most categories of immigration decision, other than asylum or human rights claims made from within the United Kingdom and those decisions listed in subsection (2), an appeal must be brought from outside the country. Section 3C provides a limited exception for applications to extend existing leave made before its expiry. Section 82(1) of the 2002 Act confers a right of appeal to the tribunal in respect of an immigration decision. By section 82(2) immigration decision is defined as including (inter alia) a refusal to vary leave to enter or remain if the result of the refusal is that the person has no leave to remain (para (d)); and a decision that a person is to be removed by way of directions under either section 10 of the 1999 Immigration and Asylum Act or section 47 of the Immigration, Asylum and Nationality Act 2006 (paras (g), (ha)). Section 84 enumerates the possible grounds of appeal which include: (a) that the decision is not in accordance with immigration rules; (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights. Section 85 is headed Matters to be considered. Its present form, along with section 85A, is derived from amendments made by the UK Borders Act 2007, which were brought into effect, subject to transitional provisions, on 23 May 2011. It provides: (1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1). (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced. (4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But subsection (4) is subject to the exceptions in section 85A. The exceptions in section 85A include the following: (3) Exception 2 applies to an appeal under section 82(1) if (a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d), (b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a Points Based System, and (c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f). (4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it (a) was submitted in support of, and at the time of making, the application to which the immigration decision related, (b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c), (c) is adduced to prove that a document is genuine or valid, or (d) is adduced in connection with the Secretary of States reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of points under the Points Based System. This provision, which is relevant to the Alam and Anwar appeals, needs a little unravelling. It is not in dispute that exception 2 applied to both appeals, because the applications had fallen to be considered under the Points Based System. Accordingly, (under subsection (4)(a)) the tribunal was unable to consider the new evidence in support of the case under the rules. It could only consider it (under subsection (4)(b)) in so far as it related to grounds other than those specified in (3)(c), that is grounds other under section 84(1)(a), (e) or (f). Such other grounds include the human rights grounds under section 84(1)(c) and (g). Accordingly, consideration of the new evidence so far as relevant to such grounds, in particular article 8 of the Convention, was not excluded. Section 86 deals with the determination of the appeal. The tribunal is required to determine any matter raised as a ground of appeal and any matter which section 85 requires it to consider. It must allow the appeal in so far as it thinks that a decision against which the appeal is brought or is treated as being brought was not in accordance with the law. It may also allow the appeal on the grounds that a discretion exercised in making such a decision should have been exercised differently (section 86(3)(b)), but refusal to depart from the immigration rules is not treated as the exercise of a discretion for these purposes (section 86(6)). One stop notice Section 120 of the 2002 Act applies to a person (a) who has made an application to enter or remain in the UK, or (b) in respect of whom an immigration decision has been taken or may be taken. By subsection (2): The Secretary of State or an immigration officer may by notice in writing require the person to state: (a) his reasons for wishing to enter or to remain in the United Kingdom, (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom. There is no express provision dealing with the form of the response, nor imposing on the Secretary of State any express duty to consider it or determine the issues raised by it. Under section 85(2) as already noted, the tribunal, hearing an existing appeal under section 82(1), is required to consider any matter raised in the section 120 statement if it constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against. Furthermore, by section 96, the section 120 notice opens the way for the Secretary of State to issue a certificate limiting the scope for subsequent appeal. Thus section 96(2) precludes an appeal against an immigration decision (the new decision) in respect of a person where the Secretary of State or an immigration officer certifies: (a) that the person received notice under section 120 by virtue of a decision other than the new decision, (b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement in response to that notice. Removal decisions The Secretary of States powers of removal are defined by section 10 of the 1999 Act and section 47 of the 2006 Act. The former provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; By subsection (9) the reasonable costs of complying with the direction must be met by the Secretary of State. Section 47 of the 2006 Act, as originally enacted, provided: (1) Where a persons leave to enter or remain in the United Kingdom is extended by section 3C(2)(b), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends. Again the costs of compliance must be met by the Secretary of State (section 47(4)). For completeness, I note that on 8 May 2013 (after the time relevant for the present appeals) a new form of the section was inserted, providing for notice of a pre removal decision (which includes the decision on an application to vary leave to remain) to be given at the same time as the removal direction under section 47. This change was designed to deal with a practical problem arising from Sapkota which had been highlighted by a subsequent decision of the Upper Tribunal (upheld by the Court of Appeal). It is not directly material to the present appeals. The Patel appeals There is no dispute now as to the merits of the refusal of leave to remain in the Patel cases, under either the rules or the Convention. The sole issue is one of law relating to the form in which the decision was made, more particularly its segregation (the word used in some of the cases) from the decision to direct removal. The failure to issue such a direction, it is said, was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain. A similar issue in relation to service of a section 120 notice, although identified in the agreed statement, does not arise on the facts of the case, since such a notice was in fact served. In support of this argument, Mr Malik relies principally on the decisions of the Court of Appeal in the cases of Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254 to which I have already referred. It was held, in summary, (in Mirza) that a policy of separating the refusal of leave to remain from the decision to remove was contrary to the policy and objectives of the 2002 Act to deal compendiously with all issues on the lawfulness of a persons residence in the United Kingdom; and consequently (in Sapkota) that an unjustified deferral of the removal decision would mean that the actual immigration decision was not in accordance with the law. Those judgments, and the subsequent Court of Appeal authorities, are discussed in detail in the judgment of the Master of the Rolls in the present case. Without disrespect to the judges involved in those decisions, or to Mr Maliks determined arguments in support of them, I do not propose to add materially to the voluminous discussion which this issue has already generated. It is sufficient to say that I am in entire agreement with the reasons of the Court of Appeal for not following them. The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that powers. Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control. Any extra protection provided to an appellant is incidental. Neither section can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision. As Burnton LJ said in the Court of Appeal [2013] 1 WLR 63, para 73: This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty. For the court to do so is to amend the legislation, not to interpret it. The contrary argument depends to my mind on a misapplication of the so called Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Under that principle, it is clear that discretionary powers conferred by statute must not be used in such a way as to thwart or run counter to the policy or objects of the Act (per Lord Reid, at p 1030C D)). It can no doubt be said that one of the purposes of the 2002 Act was to reduce the scope for repeat appeals, and that, as Laws LJ observed, the legislation leans in favour of what are called one stop appeals (JM (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 23). It may be also, as Mr Malik submits, that the exercise of the Secretary of States powers has the incidental effect in some cases of adding to the range of matters an appellant is able to raise by way of appeal during the period that his leave is extended under section 3C. However, neither such general observations nor such incidental effects can be translated into an overriding policy requiring the Secretary of State to act in a particular way, nor into a right for the appellant to insist that he does so. It is to be borne in mind also that exercise of the powers to direct removal, which alone are at issue in the Patel case, is likely to involve both public cost and personal hardship or indignity. The Secretary of State does not thwart the policy of the Act if she proceeds in the first instance on the basis that unlawful overstayers should be allowed to leave of their own volition (as on the evidence the great majority do). The Upper Tribunal observed in the present case, commenting on its concerns at the implications of the decision in Sapkota: For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful. Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law. (para 32) It follows that the Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by the failure to do so. In so far as the decisions of the Court of Appeal in the cases of Mirza and Sapkota indicate the contrary, they were in my view wrongly decided. It is unnecessary to consider whether the Court of Appeal was entitled as a matter of precedent to depart from them. No such inhibition affects this court. The Alam/Anwar appeals I have set out above the agreed issues said to arise in these appeals. The practical problem faced by the appellants arises from their failure to produce relevant information as required under the Points Based System at the relevant time. Each appellant was able to adduce the relevant evidence in response to the section 120 notice, but was barred by exception 2 of section 85A from relying on it directly in support of his appeal. The issue in short is whether an indirect route could be found to achieve a favourable result. The proposed route depends on using the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain, relying not on the rules, but on human rights grounds (article 8 of the Convention), and thus taking it outside the scope of exception 2. This in turn depends on two propositions: first, that the tribunal was obliged to consider the new evidence in that context (scope of appeal), and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 (merits of appeal). I would accordingly dismiss the Patel appeals. Scope of appeal The first issue was the subject of detailed discussion in AS (Afghanistan) v Secretary of State for the Home Department [2011] 1 WLR 385. The Court of Appeal by a majority held that section 85(2) was to be construed as imposing a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it was not directly related to the issues considered by the Secretary of State in the original decision. In AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833; [2011] Imm AR 832), it was held that majoritys approach did not require consideration of events subsequent to the Secretary of States decision. That issue does not arise in the present cases, where the new evidence related to material which was available at the time of the decisions. Turning to the judgments in AS itself, it would be difficult to expand on or improve the depth of legal and contextual analysis to be found in the judgments of all three judges. The fact that the analysis led such experienced judges to opposite conclusions suggests that the path to enlightenment will not be found by attempting a similar exercise in this judgment. The problem lies in the drafting of the relevant provisions, which defies conventional analysis. It is not only obscure in places and lacking in detail, but contains pointers in both directions. On the one hand, the words against the decision appealed against in section 85(2) suggest a focus on the content of the original decision. As Arden LJ said: A ground of appeal is not a ground of appeal against the decision appealed against if it would not, if accepted, lead to its reversal, as opposed to its being superseded by a new decision on the new evidence that leave to enter or remain should be granted. (para 30) On the other hand the first ground of appeal under section 84(1) is that the immigration decision is not (not was not) in accordance with the Rules; and in considering that question the tribunal is specifically empowered (subject to the exceptions in section 85A) to have regard to evidence concerning a matter arising after the date of appeal. Moore Bick LJ (with whom Sullivan LJ agreed) thought that the reference to the decision appealed against did not imply a limitation to the original grounds. Having decided that the decisions referred to sections 85(1) and (2) were immigration decisions of the kind identified in section 82(1), he said at para 79: . the natural meaning of these provisions is to impose on the tribunal a duty to consider matters raised by the appellant insofar as they provide grounds for challenging a substantive decision of a kind identified in section 82 that affects his immigration status. On the face of it they do not restrict that duty to considering grounds that relate to the reasons for that decision or to the original grounds of appeal. There was a similar lack of agreement on the effect of section 85(4), and in particular of the reference to matters relevant to the substance of the decision appealed against. That seems a curiously ambiguous term, which can fairly be read as referring either to the substantive effect of the decision or to the substantive reasons underlying it. Arden LJ took the latter view, which she saw as supporting her interpretation of section 85(2) (paras 31 2). At para 30 she adopted as plainly correct the approach of the Asylum and Immigration Tribunal (EA (Nigeria) v Secretary of State for the Home Department [2007] UKAIT 00013), which had read these words as meaning that the new evidence had to be relevant to the decision actually made, and had added at para 6 that: a decision on a matter under the Immigration Rules is a decision on the detailed eligibility of an individual by reference to the particular requirements of the rule in question in the context of an application that that person has made. Sullivan LJ took the opposite view, seeing section 85(4) as consistent with his view that the tribunals consideration was not limited to the grounds considered by the Secretary of State: Since section 85(2) is concerned with statements of additional grounds which must include any reasons why an appellant should be allowed to remain, and which are expressly not confined to the reasons why he should be allowed to remain under rule x of the Rules, I am not persuaded that the reference to the decision appealed against must be a reference to the decision to refuse to vary leave to remain under rule x, rather than the decision to refuse to vary leave to remain, being one of the immigration decisions as defined by section 82 (2). Such an approach to section 85 (2) would be consistent with the reference in section 85 (4) to the substance of the decision. (para 113) Moore Bick LJ thought that section 85(4) itself had little bearing on the issues before the court, since it was concerned only with the evidence which the tribunal could consider (para 83). However, his understanding of the word substance in this context, agreeing with that of Sullivan LJ, is apparent from his earlier discussion of the appropriate response to a section 120 notice. He saw its purpose as to impose on the appellant a duty to put forward any grounds he may have for challenging the substance of the decision made against him, rather than simply the grounds on which it was made (para 80, emphasis added). The broader approach of the majority seems to me to gain some support from the scheme of section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the section. Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or rules under which the application is initially made. The same approach can be applied to the decision on that application, the identity or substance of which in the context of an appeal is not dependent on the particular grounds first relied on. It is of interest that, at an earlier stage, the broader approach seems to have accorded with the reading of those responsible within the Home Office for advice to immigration officers. The Immigration Directorates Instructions, issued in September 2006, noted that it was not possible under section 3C to make a second application, but continued: On the other hand, it is possible to vary the grounds of an application already made, even by introducing something completely new. A student application can be varied so as to include marriage grounds. If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application. (para 3.2 emphasis added) The same approach is supported by the current edition of Macdonalds Immigration Law & Practice 8th ed (2010) para 19.22 (under the heading The tribunal as primary decision maker). The only implicit criticism made of the majority approach in AS is that it did not go far enough. They observe that even without a section 120 notice the tribunal should be free to consider any matter including a matter arising after the decision which is relevant to the substance of the decision regardless of whether a one stop notice has been served. The substance of the decision is not the decision makers reasoned response to the particular application or factual situation that was before it but is one of the immigration decisions enumerated in section 82 and a matter includes anything capable of supporting a fresh application to the decision maker Whether or not such an extension of the majoritys reasoning can be supported, that passage indicates that the broader approach in itself is not controversial. In the end, although the arguments are finely balanced, I prefer the approach of the majority in AS. Like Sullivan LJ, I find a broad approach more consistent with the coherence of this part of the Act. He noted that the standard form of appeal, echoing the effect of the section 120 notice, urged appellants to raise any additional ground at that stage, on pain of not being able to do so later, and observed: . it seems to me that appellants would have good reason to question the coherence of the statutory scheme if they were then to be told by the AIT that it had no jurisdiction to consider the additional ground that they had been ordered by both the Secretary of State and the AIT to put forward. (para 99) Merits of appeal The second issue is the materiality to the human rights case of evidence that the appellant could in fact have complied with the rules, even though he failed to do so. The argument is that, if it is shown that the appellant could have met the substantive requirements of the rules, the failure to do so should be regarded as purely formal, and that accordingly, in the proportionality balance required by article 8, the objectives of immigration control should carry relatively less weight. A variant of this argument, referred to as the near miss principle, is that the degree of failure to meet the requirements of the rules may be relevant in the proportionality balance. Support for such an approach is said to be found in the judgment of Sedley LJ (agreed by Rimer and Sullivan LJJ) in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376. The main issue in that case was the extent to which it was permissible for mandatory criteria relevant to the Points Based System to be contained in guidance rather than rules submitted to Parliament under section 3(2) of the 1971 Act. That issue has since been considered in the Supreme Court in R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33; [2012] 1 WLR 2208 and R (New College London Ltd) v Secretary of State for the Home Department (Migrants Rights Network intervening) [2013] UKSC 51, [2013] 1 WLR 2358. However Sedley LJ also considered the application of article 8 under such a system. He said at paras 45 46: There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here. That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having 800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route. The court can be seen in that passage to have endorsed the view that, at least in relation to financial criteria, a near miss (a marginal or momentary shortfall) might affect the consideration of proportionality under article 8. That view did not affect the results in any of the cases before it. In the only one to which it might have been relevant (Mrs Maleckia), it was held that there was in any event no prospect of success under article 8 (para 53). Mr Malik also relies on other cases, before and since, which have adopted a similar approach without reference to Pankina. In SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28, the court when allowing an appeal against the tribunals decision on other grounds agreed with them that the fact that the appellant only just failed to qualify for admission was a fact to be counted in her favour. Ward LJ, at para 30, adopted the observation of Collins J in Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin) para 38 that: one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter. Ward LJ added: That seems to us to be the right approach. As Simon Brown L.J. said in Ekinci at paragraph 16: Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights. (I note in passing that those comments of Simon Brown LJ were made with reference to the rather different appeal provisions of the Immigration and Asylum Act 1999, and were directed specifically to a case with an obvious article 8 dimension.) More recently, in R (Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin), Blake J, sitting on this occasion in the Administrative Court, held that on the facts the interference with the applicants family life was such as to make it disproportionate under article 8 to remove her, notwithstanding that she was unable to satisfy a relevant criterion in the rules. He said, at para 35 (without specific reference to Pankina): the terms of the immigration rules are not a legitimate aim in their own right A judgment needs to be made as to how significant the aim, and how far the removal of the particular claimant in the circumstances of her case is necessary to promote that aim. The mere fact a genuine spouse lawfully admitted with her British citizen husband and settled children can no longer meet one requirement of the rules through no fault of her own is unlikely to amount to a weighty reason to justify interference with family life here that is otherwise to be respected. The opposite approach is supported by the judgment of Stanley Burnton LJ (agreed by Maurice Kay and Lewison LJJ) in Miah v Secretary of State for the Home Department [2013] QB 35. In that case the applicant was refused leave to remain as a Tier 2 (General) Migrant at a time when he was two months short of the five years continuous residence necessary to support a case for indefinite leave to remain under the rules. It was argued that, in assessing whether his removal should be permitted under article 8.2 of the Convention, the weight to be given to the maintenance of immigration controls should be diminished because he had missed satisfying the rules by only a small margin. Burnton LJ observed that, as formulated in the skeleton submissions of Mr Malik (appearing for the appellant in that case as in the present), the argument was not so much near miss as sliding scale, by virtue of which There is an inverse relationship between the degree to which there is compliance with the rules and the immigration policy imperative which demands that unsuccessful applicants be removed (paras 9 10). In rejecting that argument, Burnton LJ referred to a passage in the speech of Lord Bingham in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which he discussed the long established and central role of the immigration rules in determining those to whom leave to enter or remain should be granted. Although the near miss argument as such was not in issue in that case, Burnton LJ thought it inconsistent with Lord Binghams approach. He said at para 14: I find Lord Bingham's reference in para 6 to rules, to be administratively workable, [requiring] that a line be drawn somewhere and in para 16 to the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory to be helpful and generally inconsistent with a near miss principle. He referred to two previous Court of Appeal judgments (not cited in Pankina) in which similar arguments had been rejected: Mongoto v Secretary of State for the Home Department [2005] EWCA Civ 751, and R (Rudi) v Secretary of State for the Home Department [2007] EWCA Civ 1326. In the latter case, citing Mongoto, I said of the near miss argument: 28. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of the policy does not excuse the decision maker from due consideration of cases falling outside it. However, the law knows no near miss principle. There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason. Faced with the conflict between the approach taken in these authorities and that of Pankina Burnton LJ had no difficulty in preferring the former, which he regarded as binding on the court (paras 21 25). He could see no principled basis for distinguishing, as Sedley LJ had proposed, between rules to which the near miss principle did and did not apply. In particular he disagreed with Sedley LJ that a financial criterion has in itself no meaning, and could therefore be distinguished from other rules, such as those relating to academic qualifications, in respect of which a miss is as good as a mile. In conclusion he said at paras 25 26: Finally, quite apart from authority, I prefer the approach stated in Mongotos case and Rudis case. A rule is a rule. The considerations to which Lord Bingham referred in Huangs case require rules to be treated as such. Moreover, once an apparently bright line rule is regarded as subject to a near miss penumbra, and a decision is made in favour of a near miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined. For these reasons, I would dismiss the appeal in relation to the near miss argument. In my judgment, there is no near miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the tribunal, must assess the strength of an article 8 claim, but the requirements of immigration control are not weakened by the degree of non compliance with the Immigration Rules. The difference between the two positions may not be as stark as the submissions before us have suggested. The most authoritative guidance on the correct approach of the tribunal to article 8 remains that of Lord Bingham in Huang. In the passage cited by Burnton LJ Lord Bingham observed that the rules are designed to identify those to whom on grounds such as kinship and family relationship and dependence leave to enter should be granted, and that such rules to be administratively workable, require that a line be drawn somewhere. But that was no more than the starting point for the consideration of article 8. Thus in Mrs Huangs own case, the most relevant rule (rule 317) was not satisfied, since she was not, when the decision was made, aged 65 or over and she was not a widow. He commented at para 6: Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative. Thus the balance drawn by the rules may be relevant to the consideration of proportionality. I said much the same in Rudi. Although I rejected the concept of a near miss principle, I did not see this as inconsistent with the Collins Js words in Lekstaka: Collins J's statement, on which the court relied [in SB], seems unexceptionable. It is saying no more, as I read it, than that the practical or compassionate considerations which underlie the policy are also likely to be relevant to the cases of those who fall just outside it, and to that extent may add weight to their argument for exceptional treatment. He is not saying that there arises any presumption or expectation that the policy will be extended to embrace them. (para 31(ii)) (My reference to exceptional treatment needs to be read now in the light of Huang para 20 in which Lord Bingham made clear that, contrary to previous Court of Appeal case law, there was no separate test of exceptionality.) Although the context of the rules may be relevant to the consideration of proportionality, I agree with Burnton LJ that this cannot be equated with a formalised near miss or sliding scale principle, as argued for by Mr Malik. That approach is unsupported by Strasbourg authority, or by a proper reading of Lord Binghams words. Mrs Huangs case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8. Conversely, a near miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of States discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJs call in Pankina for common sense in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above). However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8. The present appeals I have discussed the respective arguments on this point in some detail because of its general importance and the conflicting statements found in some of the judgments. However, I can deal relatively shortly with the two cases before us. The near miss argument was not advanced in the same form before the Court of Appeal, apparently because it was thought to be precluded by Miah. Even if otherwise well founded, it is not in my view available to Mr Anwar, since no separate human rights grounds were advanced on his behalf before either tribunal. So the issue as to whether the tribunal would have been obliged to consider them, and with what effect, did not arise. In Mr Alams case the human rights case was considered at both levels, but ultimately failed before the Upper Tribunal on its merits. The Upper Tribunal fairly gave some weight to the unusual circumstances in which he had lost his ability to rely on the new evidence (as a result of a change in the rules after the start of the appeal). But there was little or nothing to weigh on the other side of the balance, apart from the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. I see no error in the approach of the Upper Tribunal. Conclusion For these reasons, I would dismiss all three appeals. LORD MANCE (with whom Lord Kerr, Lord Reed and Lord Hughes agree) I would also dismiss these appeals for the reasons given by Lord Carnwath. Anything that we say about AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385 is obiter, since in the case of Anwar no separate human rights ground was advanced in either tribunal and in the case of Alam the Upper Tribunal held correctly that there is nothing in any human rights point that was raised. If we were to disagree with the majority approach in AS, that would raise a problem of precedent for lower courts, but since I would on balance also favour leaving the majority view undisturbed, that problem does not arise. In fact, it appears that the whole area of appeals is likely to be reshaped by the Immigration Bill 2013 (HC Bill 110), so that the majority approach in AS and any view we express about the correct approach are likely to become irrelevant in future cases. The issue arising under section 85(2) of the Nationality, Immigration and Asylum Act 2002 which was addressed in AS is undoubtedly a difficult and very arguable one, and the arguments for and against the rival approaches are comprehensively discussed in AS. As I see it, the essential question was well defined by Sullivan LJ at paras 111 113. It is whether the decision appealed against to which section 85(2) refers is the generic decision to refuse leave to remain (i.e. in the present cases, within section 82(2)(d)), or the particular decision to refuse leave under a particular head, for example under a particular rule of the Immigration Rules or on a Human Rights ground. The majority approach in AS does not mean that section 85(2) enables an appellant, who has sought leave to remain, to go outside the scope of a leave to remain application by adding or substituting an appeal under a different head of section 82(2), e.g. by asserting a wrongful refusal of entry clearance or of a certificate of entitlement: see sections 82(2)(b) or (c)). To that extent, it seems to me that the majority approach is not open to the criticism that it amounts to re reading section 85(2) as if it used the words against a decision of a kind listed in section 82(2) or omitted the words against the decision appealed against altogether. Where the Secretary of State chooses to give a section 120(2) notice, the aim is to flush out any new (a) reasons for wishing to enter or remain and/or (b) grounds for being permitted to enter or remain and/or (c) grounds for not being removed or required to leave the UK. The statement in response need not repeat reasons or grounds set out in the existing application or decision which is the occasion for giving the notice: section 120(3). When section 85(2) requires the Tribunal to consider any matter raised in the [section 120] statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against, it is therefore referring to new reasons or grounds not previously covered by the decision appealed against. So long as they [constitute] a ground of appeal of a kind listed in section 84(1), they can be relied upon. By inference, it can be said, it is or becomes legitimate to treat them as constituting a ground of appeal, even though they were not raised before or decided by the Secretary of State. So, instead of relying on the Immigration Rules to justify leave to remain, an appellant can rely on a Human Rights ground, as Alam sought to do. And in AS itself, it would follow that the majority was correct to hold that an appellant could invoke a different Immigration Rule to justify leave to remain in the case of AS herself: that she qualified under the International Graduate Scheme, rather than as a person intending to establish herself in business, in the other case of NV, on the basis that she had ten years residence, rather than on the basis that she was a student. Section 3C(4) of the 1971 Act certainly provides some forceful arguments to the contrary of the majority conclusion in AS. But I am inclined to think that Moore Bick and Sullivan LJJ deal sufficiently in their paras 84 86 and 102 with the problem of reconciling their conclusion with section 3C(4). Essentially, it is up to the Secretary of State to decide whether to serve a section 120 notice. It is true that the majority approach to section 85(2) means that an applicant may open up issues which would otherwise be closed, at least until conclusion of the existing appeal (after which the applicant, if unsuccessful in the appeal, would be an overstayer). But it does at the same time close down some further applications which the appellant might, whether as an overstayer or from abroad, make. The fact that the Tribunal will, in a wider area, become primary decision maker appears to me relatively indecisive, bearing in mind that it anyway acts as decision maker in some significant areas. The overlap argument advanced by Sullivan LJ at para 106 also seems to me relevant, if one is considering the advantages and disadvantages of each solution. help identify at what level of detail that decision is to be considered. On the other hand, I am not persuaded that there is anything in the substance point based on section 85(4). Moore Bick LJ (para 83), rather than Sullivan LJ (para 113) was in my view right on this. Section 85(4) is dealing only with evidence which goes to the substance (heart) of the decision, but does not |
It will be convenient to describe the appellant and the respondent as the wife and the husband even though they were divorced 22 years ago. The circumstances of the case are highly unusual. The suit for divorce proceeded in the Sunderland County Court and, within weeks of the grant of the decree absolute on 26 October 1992, the court file was transferred to the Gloucester and Cheltenham County Court. But that court has either destroyed or mislaid the file. The current internal instruction to courts is to retain divorce files for 100 years but to allow them to strip them of most documents (including, oddly, the petition) after 18 years from the date of the final order. The fact that not even a stripped file has been found suggests that the whole file has been mislaid. Furthermore neither party presently holds any document relating to the divorce proceedings other than the decree absolute. In 2011 the wife issued an application within the proceedings for financial orders, in particular for an order that the husband should make payment of a lump sum to her in satisfaction of all her claims. She also applied for an order that the husband should make interim periodical payments to her in sums equal to her estimated costs of the substantive application pursuant to the decision of the Court of Appeal in Currey v Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946. The husband cross applied for an order that the wifes substantive application, which had been fixed to be heard for three days beginning on 15 April 2013, be struck out pursuant to Rule 4.4 of the Family Procedure Rules 2010, S1 2010/2955, (the family rules). On 14 December 2012 Mr Nicholas Francis QC, sitting as a deputy judge of the High Court, Family Division, dismissed the husbands cross application and, on the wifes application, ordered the husband to make interim periodical payments to her, indeed directly to [her] solicitors, at the rate of 31,250 per month for four months (ie a total of 125,000) beginning on 2 January 2013 (the costs allowance order). The husband appealed to the Court of Appeal against both orders. By orders dated 13 June 2013 that court (Thorpe, Jackson and Tomlinson LJJ, [2013] EWCA Civ 495, [2013] 1 WLR 3525), set aside the orders of the deputy judge; struck out the wifes substantive application; and ordered that, of the 125,000 which by then the husband had paid in full, the wife should repay to him such sum as exceeded the state of her account with her solicitors on 17 January 2013, which amounted to an order for repayment of 36,677 (the repayment order). The court explained its striking out order and its repayment order in judgments delivered on 8 May and 13 June 2013 respectively. The wife appeals against the orders made by the Court of Appeal and thus seeks the reinstatement of the orders of the deputy judge. Her appeal raises the following questions: (a) What is the extent of the jurisdiction to strike out a spouses application for a financial order under Rule 4.4 of the family rules? In the light of the factors relevant to the determination of the wifes application did the Court of Appeal err in striking it out? If the answer to (b) is yes, what case management directions would be proportionate to the unusual circumstances of the wifes application? Irrespective of the answer to (b), did it err in setting aside the costs allowance order and/or in making the repayment order? (d) (b) (c) THE PARTIES PRESENT CIRCUMSTANCES The wife is aged 55. According to her written evidence, which (as the husband accepts) should be assumed to be true for the purposes of his strike out application, she is in poor health. She lives in a house with three or four bedrooms in Monmouth which in 2010 she purchased from the local authority on a discounted basis under the Right to Buy scheme for 60,000 by virtue of a mortgage in that amount. The house is in a poor state of repair. The wife has the following four children. (a) Emily, who is aged 36. Emily was born to the wife prior to the marriage by a man other than the husband. Emilys father never maintained her. Upon the marriage the husband and the wife treated her as a child of the family. Throughout her life Emily has encountered difficulties which the wife has tried to help her to surmount. Emily lives in the house in Monmouth. She has a daughter, aged four, who lives mid week with the wifes mother and at weekends and during holidays in the house in Monmouth. (b) Dane, who is aged 31. He is a child of the marriage. Thirteen years ago, when he became 18, Dane moved from the house in Monmouth in order to live with the husband and to work for his company. and (d) Robin, who is aged 21, and Jessie, who is aged 18. They were born to the wife long after her separation from the husband by a man who has never maintained them. They live with the wife in the house in Monmouth. (c) The wife subsists partly on her wages generated during periods of low paid employment, albeit punctuated by periods of ill health, and partly on state benefits. The three adult children resident in her household appear to make no more than modest contributions to its running expenses. The husband is aged 53. He has achieved brilliant success and is clearly a remarkable man. For several years following the breakdown of the marriage he was, as I will explain, a new age traveller, protesting loudly against nuclear weapons and, generally, in favour of green solutions to societys needs. His long standing interest in green energy, together with his innate scientific ingenuity, led him in due course, and from the smallest beginnings, to develop the commercial supply of wind power. He is now the sole shareholder of Ecotricity Group Ltd, a company which, through others, provides green electricity to at least 70,000 homes and businesses in the UK from its fleet of turbines. The value of his company is at least 57m. He lives with his second wife, their small son and Dane in a Georgian hill fort overlooking Stroud. THE HISTORY Early in 1981, when she was aged 21, the wife met the husband, who was aged 19. He and some friends were renting a house in Stafford. In the summer 1981 the wife moved with Emily, then aged two, into the house and began to cohabit with him. She enrolled on a degree course at North Staffordshire Polytechnic but, after one term, abandoned it. She says (but he denies) that he persuaded her to abandon it. On 18 December 1981 the parties were married. Thereafter they largely subsisted on state benefits. Late in 1982 they moved to Norfolk. By then the wife was pregnant. She says (but he does not recall) that she enrolled on a degree course at the University of East Anglia but was constrained to withdraw from it when unable to make arrangements for the care of Emily and the coming baby. On 2 May 1983 Dane was born. Late in 1983 the family moved to rented accommodation in Lowestoft but early in 1984 the husband moved into a bed sitting room elsewhere in the town. If brief subsequent reunions alleged by the wife (but denied by the husband) are ignored, their marital cohabitation then came to an end: it had subsisted for just over two years. Then began the husbands life as a traveller. It was to continue for about eight years. In 1984 he left Lowestoft in an old ambulance which had been converted into a camper van. Although the circumstances are disputed, it seems that, during that first year of separation, Dane, albeit aged only one, was spending much of his time with the husband on the road rather than with the wife and Emily in Lowestoft. The wife says (but the husband disputes) that in the summer 1984 she and Emily joined the husband and Dane in the ambulance on a site in Bath and that in the following summer, after Dane had on any view gone back to live permanently with her, she and the children joined the husband at Stonehenge for the summer solstice. Then she moved with the children to Sunderland. From 1985 to 1995 the life of the wife and children, and indeed of the husband, was profoundly unsettled. (a) (b) In 1985 the wife obtained work in a womens refuge in Sunderland. In 1985/86 the husband drove to Spain with a new partner in a 30 year old fire engine which he had converted so as to burn diesel rather than petrol. He stayed there for a year. (c) Following his return to England, the husband rejoined the travelling community but visited Sunderland on various occasions in order to see the children. In 1988 the wife moved with the children to Durham and makes an assertion (about which the husband has no recollection) that she then enrolled on a course at Durham University but had to withdraw from it for lack of his financial support of herself or the children. (d) (e) In June 1989 both the husband and the wife and children attended the Glastonbury festival. The wife introduces it as a reconciliation but on any view they did not resume cohabitation there. (f) At around the same time, allegedly at the husbands request, the wife left Durham with the children in order to live on a local authority travellers site in Swindon. The husband describes the site as akin to a rubbish tip. When not travelling during the summer, he had begun to live with his partner on a site in Stroud, to which the wife and children moved for a few weeks. (h) (g) For almost two years between 1989 and 1991 the wife and children occupied travellers sites in the west country. The three of them lived from hand to mouth. In the autumn 1991 the wife obtained a job picking fruit for a fortnight and this (so she says but the husband disputes) explains why the children went temporarily to live with him in a trailer on another site near Stroud. The wife says that, at the end of the fortnight, the husband refused to return them to her and it seems that, by a ruse and with the aid of her stepfather, the wife spirited them back to Sunderland, where she and the children set up home again. In 1992 the wife and children moved to a house in the Forest of Dean. Shortly afterwards the wife struck up a relationship with the father of Robin and Jessie, who was working there temporarily. He returned to his home in Somerset prior to Robins birth and, when late in 1995, he went to the wifes home in order to visit Robin, Jessie was conceived. In his judgment delivered on 8 May 2013, Thorpe LJ described the wifes relationship with the father of Robin and Jessie as tantamount to marriage and therefore suggested that, during its currency, any claim by the wife against the husband would have carried little credibility; but, with respect and as the husband accepts, that description by the learned lord justice represented a substantial misunderstanding of the evidence. (i) Early in 1994 Emily, who was then aged 15 and who was beginning to present the difficulties which have since beset her, moved to live with the husband and his partner. But, after about a year, she returned to live with the wife. (j) Shortly after Emilys departure from it, the wife, Dane and Robin were evicted from the house in the Forest of Dean and, according to the wife (k) (as to which the husband has no recollection), moved to live in a shelter for the homeless. In 1995 the local authority let to the wife the house in Monmouth which she has since bought from it. There she, Emily, Dane, Robin and, following her birth in 1996, Jessie all began to reside; and there they continued to live from hand to mouth, largely on state benefits. A Hazard Awareness Notice issued by the local authority in 2010 stated that the house was heated by only two electric fires; that there was no hot water in the kitchen; that the house was damp; and that the back door could not be locked. LEGAL PROCEEDINGS Meanwhile, in 1991, there had been legal proceedings between the parties. They were precipitated by the wifes removal of the children back to Sunderland. The husband issued an application in the Sunderland Family Proceedings Court for an order that both children should reside with him. No copy of the courts order survives but it is agreed that early in 1992 the justices instead ordered that the children should reside with the wife. It may also have made an order for contact, perhaps for reasonable contact, in favour of the husband. The parties agree that the justices also ordered that the husband should make nominal periodical payments to the wife for the benefit of the children. For the general removal of the ability of a court to exercise its jurisdiction to make an order for child maintenance was not to take effect until a year later: section 8(3) of the Child Support Act 1991. Early in 1992, in the Sunderland County Court, the wife issued the petition for divorce which resulted in the decree absolute dated 26 October 1992. Did she include in her petition applications for the full range of financial orders for the benefit of herself? In the absence of any copy of it, we can make only an educated guess which is that she did so. Such was the usual practice. But it matters not for, in the absence of her remarriage (which would have precluded her doing so: section 28(3) of the Matrimonial Causes Act 1973 (the 1973 Act)) it was open to her to initiate applications for them in 2011 or at any time. Then the potentially important further question arises: assuming that in her petition she included applications for financial orders, what orders, if any, were then made upon them? The husband asserts a clear recollection that, following the transfer of the proceedings to the Gloucester and Cheltenham County Court, it ordered that [he] did not have to pay [the wife] any money. His asserted recollection is of course, consistent with each of three hypotheses: (a) (b) (c) that the court made only a nominal order for the husband to make periodical payments to the wife; or that its order on her applications was no order or (which amounts to the same thing) that it never addressed them; or that it dismissed all the wifes applications; in that event it would not be open to her to bring the present proceedings. The Court of Appeal considered it likely that no order was sought or made, ie it favoured hypothesis (b). I agree. The court added that hypotheses (a) and (c) were possible. Hypothesis (a) is indeed a significant possibility but in my view hypothesis (c) is so remote a possibility as entirely to be discounted. Notwithstanding the shortness of the marital cohabitation and its expiry eight years previously, I cannot imagine that the court would have dismissed the financial applications of the wife (who was also a young mother) in the absence either of her consent or of a capital payment by the husband, neither of which is suggested to have been forthcoming. FAILURE TO SUPPORT THE CHILDREN The wife strongly relies on the husbands lack of financial support of Dane until 2001. She also relies on his failure to support Emily from 1984 onwards save during the year when she lived with him. But in respect of Emily, treated as a child of the family, the husband would be able to point out that the extent of his obligation to maintain her at any time during her minority would have been influenced by the extent, if at all, to which he had at an earlier time assumed responsibility for maintaining her: section 25(4)(a) of the 1973 Act. The wife contends that, from about 1994, the husband gave pocket money to Dane during periods of contact; that once he bought a computer and a desk for him; but that, despite repeated pleas on her part, he never made payments to her for the support of Dane or indeed of Emily. The husbands case differs only in degree. He contends that he made occasional cash payments to the wife of up to 200; that from time to time he provided her with second hand cars; and that there was a period of unspecified length during the later years when he provided her with regular monthly cash payments of 200. Although for present purposes the wifes case must be taken at face value, it happens in any event to be virtually common ground that during all those years the husband did not provide the wife with any substantial payments of maintenance for either of the two children; and that she struggled to maintain a home for them in circumstances of real privation bordering upon poverty. For most of those years the husbands failure to pay maintenance reflected his inability to pay it. It is clear that, in making only a nominal order in favour of the children the justices in Sunderland in 1992 were satisfied that he was unable to provide support. Equally in March 1997 the Child Support Agency, to whom the wife had applied for support, assessed the husbands liability to support Dane at nil. The wife adds that both in 1994 and in 1996 she consulted solicitors in an attempt to extract maintenance for herself and the children from the husband but that, no doubt for the same reason, nothing came of it. Meanwhile the husband was taking those first steps which, in retrospect, can be seen to have led to his phenomenal success. One year early in the 1990s, at the Glastonbury festival, he fixed a windmill to the top of an old pylon, installed batteries at its foot, plugged in four large mobile telephones and offered festival goers a wind powered phone service. Then he went to Cornwall to inspect Britains first wind turbines. Thereupon he and a partner began to make wind monitoring equipment. Then in 1996, following the grant of planning permission and with the aid of a substantial bank loan, he and two others, through a limited company, erected a wind turbine on the top of a hill at Nympsfield, near Stroud, by which they generated and sold electricity. Suddenly the company began to generate a substantial net pre tax profit: it was 236k in 1997 and it doubled within the following three years. There is no need to chart the later expansion of the husbands businesses. The fact is, therefore, that it was only in the final years of Danes minority that the husband was in a position to pay substantial maintenance for him. STRIKE OUT IN FAMILY PROCEEDINGS Rule 4.4 of the family rules, which contains the power to strike out an application in family proceedings, has no parallel in any of the preceding sets of rules which governed what are now called family proceedings. There has always been an inherent jurisdiction, at any rate in the High Court, to protect the court by striking out material abusive of its process; but there is no value in today considering its extent. Paragraph (4) of Rule 4.4 provides that paragraph (1) does not limit any other power of the court to strike out a statement of case but no one suggests that the deputy judge had an inherent jurisdiction to strike out which went wider than that set by paragraph (1). In my view family courts may, like civil courts, now safely proceed on the footing that, were their power under the rules not to go so far as to enable them to strike out the statement, their inherent jurisdiction, if any, would go no further: Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004, para 42. The family rules came into force on 6 April 2011 and, prior to the decision of the Court of Appeal in the present case, there was no reported authority on the construction of Rule 4.4. So far as is material, the rule, which does not apply to proceedings in relation to children, provides: (1) the court may strike out a statement of case if it appears to the court a) that the statement of case discloses no reasonable grounds for bringing or defending the application; b) that the statement of case is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings Rule 4.4(1) is modelled upon Rule 3.4(2) of the Civil Procedure Rules 1998, S1 1998/3132, (the civil rules), which came into effect on 29 April 1999. Indeed, of the words in Rule 4.4 quoted in para 19 above, only one differs from those in Rule 3.4(2), which refers at (a) to bringing or defending the claim rather than the application. It would be odd if in family proceedings the words in Rule 4.4(1) extended to a situation to which, if transposed to civil proceedings, the words in Rule 3.4(2) would not extend. Although the principal task is to construe the words no reasonable grounds and abuse of the courts process in (a) and (b), Rule 4.4(1) poses a preliminary conundrum. The power is to strike out a statement of case if that statement is an abuse or (which in particular generates the conundrum) if it discloses no reasonable grounds. Rule 4.1(1) provides that, in Part 4, statement of case means the whole or part of an application form or answer. The form to be used in applying in divorce proceedings for a financial order is Form A: see Rule 5.1 and Table 2 in Practice Direction 5A supplementary to that rule. The conundrum stems from the fact that Form A in effect requires the applicant to do no more than to identify the names and addresses for service of herself and the respondent and to specify the financial order or orders for which she is applying. The form does not enable the applicant there to set out the grounds of her application. Instead she will no doubt do so in her financial statement, which, save as otherwise directed, must be in Form E and must be filed and served at least five weeks prior to the first appointment: Rules 9.14 and 5.1 and Table 2 in Practice Direction 5A. It would therefore make no sense to ask, as a literal construction of the rules would require, whether the Form A discloses reasonable grounds for bringing the application: for it never discloses any grounds at all. We must do our best to make the rules operate sensibly and I suggest that, pending possible reconsideration by the Family Procedure Rule Committee either of Rule 4.1(1) or of Rule 4.4(1)(a) and (b), the phrase statement of case in (a) and (b) should be taken to refer to the statement in support of the application for a financial order as well as to the application in Form A itself. So, then, to the principal task, namely the construction of the words no reasonable grounds and abuse of the courts process. In this respect subparagraphs 1 and 2 of paragraph 2 of Practice Direction 4A, which supplements Rule 4.4, are helpful. They say: 2.1 The following are examples of cases where the court may conclude that an application falls within rule 4.4(1)(a) (a) (b) (c) those which set out no facts indicating what the application is about; those which are incoherent and make no sense; those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent. 2.2 An application may fall within rule 4.4(1)(b) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill founded. Subparagraphs 1 and 2 are closely modelled on subparagraphs 4 and 5 of paragraph 1 of Practice Direction 3A, which supplements Rule 3.4 of the civil rules. Apart from having, intriguingly, chosen to replace vexatious with frivolous in subparagraph 2, the makers of the family rules chose to adopt the examples given by the makers of the civil rules in effect word for word. One might, in the light of this parallel, even more confidently have inferred that the makers of the family rules intended that their reference to no reasonable grounds and abuse of the courts process should carry the same meaning as in the civil rules. The civil rules, however, expressly confer a further power, namely to give summary judgment. Rule 24.2 empowers the court in civil proceedings to give summary judgment if it considers that the claimant or defendant has no real prospect of successfully prosecuting or defending the claim and if there is no other compelling reason why the case should be disposed of at a trial. In the civil rules Practice Direction 3A draws a link between the powers to strike out and to give summary judgment in civil proceedings. Paragraph 1.2 explains that they are two distinct powers which may be used to achieve the summary disposal of issues which do not need full investigation at trial. Paragraph 1.7 is as follows: A party may believe he can show without a trial that an opponents case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under Rule 3.4 or Part 24 (or both) as he thinks appropriate. It is indeed common practice in civil proceedings to join an application to strike out under Rule 3.4 with an application for summary judgment under Rule 24.2. But in Swain v Hillman [2001] 1 All ER 91 at p 92 Lord Woolf MR observed that the power under Rule 24.2 was wider than the power under Rule 3.4 and that under the latter, unlike the former, the general focus of the court was only upon the statement of case which was alleged to disclose no reasonable grounds for bringing the claim. Or, as my Lady, then Hale J, crisply put it three months later, the essence of a strike out is that one does not look at the evidence on the claim: Bridgeman v Brown, Court of Appeal, 19 January 2000, All England Official Transcript, p 4. Now arises the complication. On the one hand the family rules contain no power analogous to Rule 24.2 of the civil rules to give summary judgment. On the other hand paragraph 2.4 of Practice Direction 4A, which supplements Rule 4.4 of the family rules, provides: A party may believe that it can be shown without the need for a hearing that an opponents case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 4.4. The paragraph is of course modelled on paragraph 1.7 of Practice Direction 3A in the civil rules, set out at para 24 above. In giving the leading judgment in the Court of Appeal, with which Jackson and Tomlinson LJJ agreed, Thorpe LJ based the decision to strike out the wifes application on Rule 4.4(1)(a), namely on the absence of any reasonable grounds for bringing it. But, in giving a concurring judgment with which in turn Thorpe and Tomlinson LJJ also agreed, Jackson LJ identified an alternative basis for the decision. He suggested that it was unfortunate that the family rules contained no rule equivalent to Rule 24.2 of the civil rules; that the effect of the omission could not be that an application for a financial order which had no real prospect of success had to proceed to trial; that the solution lay in Rule 4.4(1)(b), namely that an application which had no real prospect of success was an abuse of the courts process; and that the wifes application was a classic example of it. As a result of the fuller argument with which this court has been presented, it is clear to me that, with respect, Jackson LJ was wrong to insinuate into the concept of abuse of process in Rule 4.4(1)(b) of the family rules an application for a financial order which has no real prospect of success. The learned Lord Justice did not (and could not) suggest that the omission from the family rules of any rule analogous to Rule 24.2 of the civil rules was accidental. It was deliberate; and so it was bold for him to say that nevertheless the effect of that rule was to be discerned elsewhere in the family rules. Although the power to strike out under Rule 4.4(1) extends beyond applications for financial remedies, for example to petitions for divorce, no doubt it is to such applications that the rule is most relevant. The objection to a grant of summary judgment upon an application by an ex spouse for a financial order in favour of herself is not just that its determination is discretionary but that, by virtue of section 25(1) of the 1973 Act, it is the duty of the court in determining it to have regard to all the circumstances and, in particular, to the eight matters set out in subsection (2). The determination of an application by a court which has failed to have regard to them is unlawful: Livesey (formerly Jenkins) v Livesey [1985] AC 424 at p 437, Lord Brandon of Oakbrook. The meticulous duty cast upon family courts by section 25(2) is inconsistent with any summary power to determine either that an ex wife has no real prospect of successfully prosecuting her claim or that an ex husband has no real prospect of successfully defending it. Indeed, were the latter conclusion to be appropriate, how should the court proceed to quantify the ex wifes claim? For in applications for financial orders there is no such separation as exists in civil proceedings between issues of liability and those of quantum. Procedures for the courts determination of applications for financial orders, which both respect its duty under section 25(2) of the 1973 Act and yet cater for such applications as may be fit for an abbreviated hearing, are now well in place: see para 29 below. I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 of Practice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable. Applications made after the applicant had remarried or after an identical application had been dismissed or otherwise finally determined would be examples of applications not legally recognisable. Since the greater includes the lesser, it is no doubt possible to describe applications which fall foul of Rule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4 of the Practice Direction remains in my view an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment. Rule 1.2 of the family rules requires the court to seek to give effect to the overriding objective when it interprets any of the rules or exercises any power thereby given to it. Rule 1.1(1) defines the overriding objective as enabling the court to deal with a case justly, which, by rule 1.1(2)(b) and (e), includes dealing with it in ways proportionate to the nature of the issues and allotting to it an appropriate share of the courts resources. Such should therefore be the courts objective in determining whether the wifes statement of case falls foul of Rule 4.4(1)(a) and/or (b) and if so whether (being perhaps only nominally a separate question) to exercise its resultant discretion to strike it out. No one argues that the wifes Form A and supporting affidavit represent an abuse of the process of the court save in the extended sense proposed by Jackson LJ; if his proposal is wrong, subparagraph (b) does not apply. In my view subparagraph (a) is equally inapplicable: for, keeping closely in mind that it does not encompass inquiry into the existence or otherwise of a real prospect of success, one cannot say that the form and the affidavit fail to disclose either a legally recognisable application or, in any other relevant sense, reasonable grounds for bringing it. Although, however, the wifes appeal against the strike out should succeed and her application should proceed, it is essential at this stage to conduct a provisional evaluation of the issues. For, by Rule 1.4(1) of the family rules, the court must further the overriding objective by actively managing cases, which, by Rule 1.4(2)(b)(i) and (c), includes promptly identifying the issues, isolating those which need full investigation and tailoring future procedure accordingly. This exercise will dictate the nature, and in particular the length, of the substantive hearing. No doubt the High Court judge who, in the present case, directed, even prior to the filing of evidence on either side, that the wifes application should be fixed to be heard for three days was seeking to help the parties to procure an early fixture. But, by so doing, he was not discharging his duty under Rule 1.4. Family courts have developed specific procedures for the determination of certain types of financial application. The obvious example is the determination of an application on a summons to a respondent to show cause why the order should not be in the terms with which, prior to an attempt to resile from them, she or he had agreed either following the separation (Dean v Dean [1978] Fam 161) or prior to the marriage (Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467). In both cases, however, the court stressed that the show cause procedure did not obviate the need for the court to discharge its duty under section 25 of the 1973 Act, powerful though the effect of the agreement would, within that exercise, probably prove to be. Indeed Sir James Munby, President of the Family Division, has recently directed that a spouse attempting to reject an award made following her or his submission to arbitration by a member of the Institute of Family Law Arbitrators should also be subject to the show cause procedure: S v S (Arbitral Award: Approval), Practice Note, [2014] EWHC 7 (Fam), [2014] 1 WLR 2299. I do not suggest that the wifes application is suited to the show cause procedure but, in the light of the analysis of the issues to which I now turn, it may well be suited to tight directions pursuant to Rule 1.4. ANALYSIS OF THE ISSUES The wifes application faces formidable difficulties. (a) The marital cohabitation subsisted for scarcely more than two years. (b) (c) The standard of living enjoyed by the parties prior to the breakdown It broke down 31 years ago. could not have been lower. (d) The husband did not begin to create his current wealth until 13 years after the breakdown. (e) The wife has made no contribution, direct or indirect, to its creation. Furthermore, (f), the wifes delay in bringing the application appears to be inordinate. She can explain the first 13 years of it: there was no point in pressing financial applications against the husband while he had no money. But what about the delay for the 14 years from say 1997 until 2011, when her application was issued? She says that, for the first several of those years, she did not realise that the husband was becoming wealthy and that, for example, his continued failure to maintain Dane led her to assume that there was no significant change in his financial circumstances. But that point takes the wife to no further than 2001 when, on becoming an adult, Dane went to live with the husband. She points to the legacy of discouragement from seeking financial provision from the husband which arose from the justices nominal order in 1992, from the agencys nil assessment in 1997 and from unproductive consultations with local solicitors in 1994 and 1996. But there is no explanation for much of the more recent delay. Consistently with the potentially life long obligations which attend a marriage, there is no time limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce. Sections 23(1) and 24(1) of the 1973 Act provide that such orders may be made on granting a decree of divorce or at any time thereafter. Yet there is a prominent strain of public policy hostile to forensic delay. The court will look critically at explanations for it; and, even irrespective of its effect upon the respondent, will be likely, by reason of it and subject to the potency of other factors, to reduce or even to eliminate its provision for the applicant. Nevertheless it remains important to address its effect upon the respondent. In some cases, albeit not in the present, a respondent can show that he has assumed financial obligations or otherwise arranged his financial affairs in the belief that the applicant would make no claim against him and that he has done so in a way which, even if it were possible, it would not be reasonable for him to put into reverse. Sometimes, instead, he can point to factual issues of which the dimming of memories or the disappearance of witnesses over the period of the delay no longer permits accurate determination. But, were this wifes application to proceed to substantive determination, the need for resolution of factual issues would be slight. All that is said on behalf of the husband in the present case is that the delay has deprived him of the chance of establishing that, around 1992, the wifes financial applications were dismissed; but, as already indicated, a dismissal is so unlikely that it should be entirely discounted. Confronted by the difficulties identified at (a) to (f) in paras 30 and 31 above, what might the wife assert so as to carry her application forward to possible success? It is, standing alone, insufficient that the husband is now so wealthy that (as has readily been agreed) he can meet whatever award, if any, might reasonably be made in her favour and there is no need for any exploration of his financial circumstances. But the wife asserts needs, both for a better home for herself and her family and, in the light of the severe limitations on her earning capacity, for a fund out of which to maintain herself for the rest of her life. These, with questionable forensic wisdom, she quantifies at 0.55m for the home and 1.35m for the fund, and thus at a total of 1.9m. Even at this stage one can say that, in the light of the negatives, an award approaching that size is out of the question. It is a dangerous fallacy, albeit currently propounded by those who favour reform along the lines of the Divorce (Financial Provision) Bill currently before the House of Lords, that the current law always requires rich men to meet the reasonable needs of their ex wives. As Thorpe LJ said in North v North [2007] EWCA Civ 760, [2008] 1 FLR 158, at para 32, it does not follow that the respondent is inevitably responsible financially for any established needs [h]e is not an insurer against all hazards In order to sustain a case of need, at any rate if made after many years of separation, a wife must show not only that the need exists but that it has been generated by her relationship with her husband: see Miller v Miller, McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, para 138 (Lady Hale). Apparently the wife aspires to argue that, but for the thwarting of her attempts in 1981, 1982 and 1988 to secure a degree and thereby to raise her earning capacity, her needs would not have reached their current level. In this regard she would also argue that her responsibility for the care for Dane and Emily over the years has inhibited her establishment of a higher earning capacity; but the husband would counter by reference to her responsibility for the care of her two younger children and to her poor health over the years. It is not at this stage clear to me that the wife will be able to sustain her claim on the basis of need. But the wife has a point which may prove to be much more powerful. The deputy judge addressed it in detail but unfortunately the Court of Appeal omitted to refer to it. In the discharge of its duty under section 25 of the 1973 Act the court will be required, by subsection (2)(f), to have regard to the contributions which each of the parties has made to the welfare of the family, including any contribution by looking after the home or caring for the family. Such contributions are not limited to those made prior to the separation or even during the marriage. The wife strongly relies on (a) her care of Dane from 1985 to 2001; (b) her care of Emily from 1984 to 1994, from 1995 to her becoming an adult in 1997, and perhaps in the light of her difficulties even thereafter; the absence of any significant financial or other contribution on the part of the husband to their care during those years; and (c) (d) the conditions of poverty in which she was constrained to provide such care to Dane and Emily during those years. The wife suggests that it is no answer to this part of her case for the husband to point to his inability to make significant payments for the children for most of those years, as recognised by the justices in 1992 and by the agency in 1997. The husband (so she contends) mischaracterises her case as one in which she seeks either to investigate the amount of child support that he should have paid during those years or indirectly to appeal against, for example, the determination of the agency in 1997. Her case is no more than that, for whatever reason, the heavy burden fell upon her and, in effect, upon her alone. In Pearce v Pearce (1980) 1 FLR 261 the parties separated in 1969 and for nine years the wife cared single handedly for the three children. Until 1977 the husband was an undischarged bankrupt and made no financial contribution to the running of the wifes household, which was sustained by state benefits. In 1978 the husband inherited from his father a house worth 19,000 and liquid capital of 15,000. The wife then applied for an order for a lump sum. The Court of Appeal upheld an award to her of a lump sum of 12,000. Ormrod LJ, with whom Orr LJ agreed, said, at p 264, that courts would not encourage applications long after the divorce but that the justice of the case might require an award notwithstanding a lapse of time. He continued: One has here a husband who has never paid a penny piece for the maintenance of his former wife or his three children since, at the latest, 1969 and it means that the wife has lived in great difficulty on social security with all the responsibilities for bringing up these three girls unaided, all that length of time, so that on the merits, in my judgment, she has a strong case. Her claim on the merits certainly goes a long way to eliminating the contrary factor, the lapse of time. Ormrod LJ added, at p 266: The husband has never attempted to discharge his obligations in relation to these three children. The whole responsibility has been placed on the wife, whose life must have been made very difficult all these years. Is there any reason whatever why, now that the husband has come into a certain amount of money, she and the children should not have the opportunity of benefiting to some extent from it? Finally Ormrod LJ held, at p 267, that, in the light of his lack of contribution to the wifes household, the fact that the husbands capital had come to him by inheritance long after the separation was no ground for exempting it from partial redistribution to the wife and that the award gave her an opportunity of perhaps living in something a little bit better than the poverty which she has been living in all these years. For another example of a short marriage, a substantial contribution on the part of the wife in caring for the children, a 30 year delay in her bringing her application (following an overseas divorce) and a significant capital award, see M v L (Financial Relief After Overseas Divorce) [2003] EWHC 328 (Fam), [2003] 2 FLR 425. In my view this court should direct the swift referral of the wifes application to a Financial Dispute Resolution (FDR) appointment before a judge of the Family Division, who, in the absence of settlement, will indorse or impose the time estimate of the substantive hearing and, in accordance with Rule 9.17(9)(b) of the family rules, will direct the fixing of dates for it. Subsequently, at the Pre Trial Review, the allocated trial judge will decide which issues need full investigation and hearing for the purposes of Rule 1.4(2)(c)(i) and, in the light of his decision, will insert the time for cross examination of each party (to be measured, surely, in hours rather than days) into the template prepared in accordance with the Statement on the Efficient Conduct of Financial Remedy Final Hearings issued, in relation to the High Court, by Mostyn J, with the authority of the President, on 5 June 2014. It may however be helpful to suggest that the major issues requiring limited investigation by way of oral evidence seem at this stage to be the wifes delay on the one hand and the disparate contributions to the care of the children on the other. These are, to my mind, the two magnetic factors. They pull in opposite directions and the question may ultimately prove to be whether, in the light also of the five difficulties identified in para 30 above, the wifes delay is so potent a factor as not just to reduce but even to eliminate what might otherwise have been awarded to her by reference to contributions and possibly also to needs. Had it been relevant, as Jackson LJ considered, to ask whether the wifes application had a real prospect of success, my opinion would have been that it had a real prospect of comparatively modest success, perhaps of an order which would enable her, like the wife in the Pearce case above, to purchase a somewhat more comfortable, and mortgage free, home for herself and her remaining dependants. THE COSTS ALLOWANCE If, as the Court of Appeal held, the wifes application should be struck out, it followed, subject to consequential issues about whether to make a repayment order, that the husbands appeal against the costs allowance order should be allowed. But the husband had argued to the Court of Appeal, and, albeit faintly, continues to argue before this court that, even were her application not to be struck out, the deputy judge should not have made that order. The court now has a statutory jurisdiction to order a party to an application for financial orders in divorce proceedings to make payments to enable the other to pay for legal services for the purposes of pursuing or defending it. It is set out in section 22ZA of the 1973 Act, inserted by section 49(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and it came into force on 1 April 2013. Such provision no longer has to be cast in the form of maintenance pending suit or interim periodical payments. It is a free standing jurisdiction under which the court can order payment of a capital sum albeit, if it so directs, to be made by instalments. Under subsection (3) of section 22ZA the court cannot make an order unless satisfied that otherwise the applicant for it would not reasonably be able to obtain appropriate legal services and, under subsection (4), that in particular she (or he) is not reasonably able to secure a loan to pay for the services and is unlikely to be able to obtain them by granting a charge over any assets recovered as a result of the application. But the deputy judge made his order prior to 1 April 2013. So he was exercising the jurisdiction which was first recognised by Holman J in A v A (Maintenance Pending Suit: Payment of Legal Fees) [2001] 1 WLR 605 and the existence of which was indorsed by the Court of Appeal in the Currey case cited at para 2 above. There I said, at para 20: In my view the initial, overarching inquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery. So there is a close parallel between the criteria articulated in the Currey case and those set out in section 22ZA (3) and (4) of the 1973 Act. The evidence accepted by the deputy judge was that the wifes solicitors had agreed to extend credit to her for services rendered to her until his determination of her application for a costs allowance order but that, were the application to fail, the partners of the firm would meet in order to determine whether, and if so on what basis, they could continue to act for her. According to the husband, this evidence should have led the deputy judge to decline to be satisfied that the solicitors would not continue to act for her until the determination of her application, at any rate in the event that she were to execute a charge in their favour upon whatever she might recover of the sort held to be lawful in Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) [1997] 2 FLR 116. I disagree. In circumstances in which the wife already owed the solicitors about 88,000 for their work done on her behalf on an application in which her ultimate recovery from the husband was likely to be comparatively modest and conceivably even non existent, it was unreasonable to consider that they would, still less should, continue to act for her on that basis against an evidently litigious husband who was causing substantial escalation of the interlocutory costs in a manner which clearly caused him no difficulty. So the deputy judges costs allowance order should be restored and the Court of Appeals repayment order set aside. The court has received energetic argument about the repayment order. It was for repayment of such sum as exceeded the wifes liability to her solicitors on 17 January 2013, being the date when the husband filed his notice of appeal and therefore when, in the opinion of the Court of Appeal, her solicitors should have appreciated the vulnerability of their security under the order. The wifes liability to her solicitors on that date was in the sum of 88,323 so the effect of the order was for repayment of 36,677. The four instalments totalling 125,000 paid by the husband between January and April 2013 had been paid into the client account of the wifes solicitors and, by the date of the hearing in the Court of Appeal had, save for 2539, been released into their office account against invoices delivered to the wife both for 88,323 and for the work more recently done on her behalf referable to the husbands appeal. It may be helpful briefly to notice the wifes argument that, even had the Court of Appeal been correct to have concluded that the costs allowance order should not have been made, it was not open to it to direct repayment of any part of the 125,000 other than 2539. The argument is that the wife could not be ordered to make repayment because she had never received any part of the sum paid; that, while it remained in their client account, the wifes solicitors held it for the benefit not of her but of the husband (hence his entitlement to repayment of 2539); and that, when the balance of the fund was released in stages into their office account, it became the property of the solicitors. In support of this argument the wife cites Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164, in which the House of Lords held that a solicitor for a borrower might hold borrowed money in trust not for the borrower but for the lender subject to the solicitors power to apply it by way of loan to the borrower for such purposes as had, to his knowledge, been agreed with the lender. I cannot accept this analysis of the costs allowance order. It provided for the husband to make interim periodical payments to the wife and indeed to make them directly to her solicitors or, in other words, via them. Had he not duly paid under the order, it would have been for her to enforce it. When the instalments were paid into their client account, the solicitors therefore held them for her benefit albeit subject to the terms of the order. If an order for payment made in respect of legal services under section 22ZA of the 1973 Act or made under the preceding jurisdiction recognised in the Currey case has been wrongly made, the appellate court must at least have jurisdiction to order that sums paid under it should be repaid; otherwise such orders would, to the extent implemented, in practice be unappealable. But, as by its order for only partial repayment the Court of Appeal recognised, an appellate court has a discretion whether to exercise its jurisdiction to order repayment in the wake of a successful appeal. Where the payments have been applied to the purchase of legal services in accordance with the order, the court should in that regard carefully consider all the circumstances, including whether the payer, say a husband, should have applied for a stay of the order and whether, in the light of his circumstances and the wifes ability to make repayment to him, it is reasonable to exercise the discretion to order repayment whether unconditionally or subject to a prohibition against enforcement against her without further leave. The exercise should certainly not be equated with that of determining the incidence of costs at the conclusion of an appeal. |
This litigation concerns claims by Marks and Spencer plc (M&S) for group relief in respect of losses sustained by two of their subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany; and Marks and Spencer (Belgium) NV (MSB), which was resident in Belgium. The claims were originally made and refused by the Revenue (HMRC) more than ten years ago. They raise questions about the availability of cross border group relief and the method of quantifying such relief as is available which, despite having been the subject of nine separate hearings since the case was first considered in December 2002, have still not yet been resolved. The appeals come before the Court at this stage on an application by M&S for a reference to the Court of Justice of the European Communities. On 14 October 2011 the Court of Appeal gave judgment on five issues which had been identified as arising in the case: Marks and Spencer plc v Revenue and Customs Commissioners [2011] EWCA Civ 1156, [2012] STC 231. The Court of Appeal found in favour of M&S on four of these issues and in favour of HMRC on the other one. It gave the parties permission to appeal on all issues. M&S had intended to seek a reference on the first issue, but on 21 February 2013 the CJEU gave judgment in Case C 123/11 Proceedings brought by A Oy. M&S submit that any doubt that might have existed on the first issue has been dispelled by that ruling, that a reference is no longer necessary and that it can now be answered in their favour. HMRC had objected to M&Ss application for a preliminary ruling on the ground that the answer to the first issue was already clear. As matters now stand, however, they simply invite this Court to determine this issue in their favour. So the hearing on M&Ss application for a reference became a substantive hearing of the appeal on the first issue. Background M&S began to expand its business into other countries in 1975. By the end of the 1990s it had sales outlets in more than 34 countries, with a network of subsidiaries and franchises. But by that date it had already begun to incur losses, and in March 2001 it decided to withdraw from its continental European activity. It was able to sell its French and Spanish subsidiaries to third parties, but no purchasers could be found for MSD and MSB. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. The first group relief claims were made between 2000 and 2003 at a time when neither subsidiary was in liquidation. They concerned MSDs losses for the years 1998 to 2001 and MSBs losses for the years 2001 and 2002. Claims for the same losses by the same companies for the same years were made on three subsequent occasions in response to what M&S describe as factual and jurisprudential developments: on 20 March 2007, when both companies were in liquidation; on 12 December 2007, just before the companies were dissolved; and on 11 June 2008, on behalf of MSB following the dissolution of that company. The claims for the years from 2000 onwards were governed by the self assessment rules in Schedule 18 to the Finance Act 1998 and were within the statutory time limits. HMRC maintain that the claims for years prior to 2000, which were governed by the corporation tax pay and file rules in Schedule 17A to the Taxes Act 1988, were out of time when they were included in the claims that were made on the three occasions subsequent to the making of the first claims between 2000 and 2003. The basic contention underlying all these claims was that the provisions in United Kingdom legislation which restricted group relief claims to losses of UK resident companies and, after the Finance Act 2000, losses of UK branches of non resident companies were contrary to article 43 EC (now article 49 TFEU) on the freedom of establishment, and were thus unlawful. On 17 December 2002 the Special Commissioners held that there had been no breach of that article: Marks and Spencer plc v Halsey (Inspector of Taxes) [2003] STC (SCD) 70. Park J on appeal decided to refer the matter to the ECJ: [2003] EWHC 1945 (Ch). He sought a preliminary ruling on two questions. The first was the compatibility of the UK provisions with article 43 EC. The second was what difference the facts of M&Ss case might make to the answer to the first question. The ECJ gave its ruling in its judgment of 13 December 2005: Case C 446/03 Marks & Spencer plc v David Halsey (Her Majestys Inspector of Taxes) [2005] ECR I 10837. It ruled that the answer to the first question was that article 43 EC did not preclude provisions of a Member State which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another Member State. The restriction was justified by three grounds when taken together: preserving the balanced allocation of the power to impose taxes between Member States; preventing losses being taken into account twice in different Member States; and preventing the risk of tax avoidance if the taxpayer were to be free to choose the Member State in which to claim relief: paras 42 51. As to the proportionality of the restriction, however, the ECJ went on to say this: 55 In that regard, the Court considers that the restrictive measure at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued where: the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods, if necessary by transferring those losses to a third party or by offsetting the losses against the profits made by the subsidiary in previous periods, and there is no possibility for the foreign subsidiarys losses to be taken into account in its state of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party. 56 Where, in one Member State, the resident parent company demonstrates to the tax authorities that those conditions are fulfilled, it is contrary to article 43 EC and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non resident subsidiary. The debate then returned to the United Kingdom. Park J gave effect to the ruling of the ECJ on 10 April 2006: Marks and Spencer plc v Halsey (Inspector of Taxes) [2006] EWHC 811 (Ch), [2006] STC 1235. He held that the no possibilities test referred to in para 55 of the ECJs judgment required an analysis of the recognised possibilities legally available given the objective facts of the companys situation at the relevant time, and that the test was to be applied at the date when the group relief claim was made. He remitted the case to the Special Commissioners, but both parties appealed against his decision. The Court of Appeal upheld the judges findings: [2007] EWCA Civ 117, [2008] STC 526. The case then returned to the Tax Chamber of the First Tier Tribunal: Marks and Spencer plc v Revenue and Customs Commissioners [2009] UKFTT 64 (TC); [2009] UKFTT 231 (TC); [2009] SFTD 757, and proceeded from there to the Upper Tribunal [2010] UKUT 213 (TCC), [2010] STC 2470 and then to a second Court of Appeal, whose decisions are now under appeal to this court. The issues that arose in the second Court of Appeal were summarised by Moses LJ in [2012] STC 231, para 4 as follows: (i) Is the test that the ECJ established to identify those circumstances in which it would be unlawful to preclude cross border relief for losses, the no possibilities test, to be applied (as the Revenue contend) at the end of the accounting period in which the losses crystallised rather than (as M&S contends) the date of claim? This question involves deciding whether the Court of Appeal in the first appeal reached a binding decision on that issue and whether it remains binding on this court in light of subsequent decisions of the ECJ. (ii) Can sequential/cumulative claims be made (as M&S contends) by the same company for the same losses of the same surrendering company in respect of the same accounting period? The Revenue assert that that is not a question decided by the Court of Appeal and is precluded both by UK fiscal rules and by the underlying jurisprudence of the ECJ. (iii) If a surrendering company has some losses which it has or can utilise and others which it cannot, does the no possibilities test (as the Revenue contend) preclude transfer of that proportion of the losses which it has no possibility of using? (iv) Does the principle of effectiveness require M&S to be allowed to make fresh pay and file claims now that the ECJ has identified the circumstances in which losses may be transferred cross border, when at the time M&S made those claims there was no means of foreseeing the test established by the court? (v) What is the correct method of calculating the losses available to be transferred? The Court of Appeal refused HMRCs appeal on the first, second, third and fifth issues. It refused M&Ss appeal on the fourth issue. As both parties sought and obtained permission to appeal to this court, all five issues remain to be decided. They have been re stated in a slightly amended form in the statement of facts and issues. For present purposes only the first issue need be set out here. It is in these terms: In Case C 446/03 Marks & Spencer v Halsey, did the ECJ decide that it was contrary to article 43 EC to preclude cross border loss relief in the Member State of the claimant company (a) only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the Member State of the surrendering company in that accounting period, in any previous accounting period or in future accounting periods (as HMRC contend), or (b) where the taxpayer can show, on the basis of the circumstances existing at the date of the claim, that there has been no possibility of utilising the losses in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in future accounting periods (as M&S contend)? Issue 1 in the courts below The question which Park J had to resolve, when the case returned to him after the ECJ had given its ruling, was whether the facts by reference to which the conditions set out in para 55 had to be satisfied were those which existed or could be foreseen at the end of the accounting period in which the losses arose, or those which existed at the date of the claim. He held that the relevant time was the date of the claim: [2006] STC 1235, paras 44 46. He said that the end of the accounting period was too soon. It would be likely to rule out virtually every case. He found it hard to imagine any case in which German or Belgian law would not provide for some possibility of relief for the losses at the end of an accounting period in which MSD or MSB made a loss and was still carrying on its trade. The date of the claim provided a rational basis for applying para 55, and if a company claimed group relief at a time when those criteria are satisfied it should get the relief. The first Court of Appeal also held that the relevant time was the date when the claim was made: [2008] STC 526, para 32 42. Chadwick LJ said in para 36 that he could find no support in the reasoning which underlay the approach of the ECJ for the proposition that the para 55 conditions must be satisfied at the end of the surrender period: It is important to keep in mind, as it seems to me, that the question whether the United Kingdom tax authorities are precluded by Community law from applying the restriction on group relief imposed by domestic law does not arise until a claim for group relief is made by the claimant company. The claim must be accompanied by a notice from the surrendering company. At the least the surrendering company must consent to the use of its losses by the claimant company; and (as I have said) it may well be that the claimant company can be required to provide some formal confirmation from the surrendering company that the losses are not available in its state of residence. The question whether the United Kingdom tax authorities are precluded by Community law from applying the restriction on group relief imposed by domestic law turns on whether the para 55 conditions are satisfied. I can see no reason in principle why the latter question whether the para 55 conditions are satisfied should not be answered by reference to the facts as they are when the former question arises. The second Court of Appeal did not agree: [2012] STC 231. Moses LJ said in para 29 that the principled objection to allowing the question whether the para 55 conditions are satisfied to be answered by reference to the facts as they are at the time of the claim is that it gives an option or choice as to where the losses may be relieved, and that that option was recognised by the ECJ as substantially jeopardising fiscal sovereignty. In other words, the claimant company should not be given an opportunity to take steps that might bring about a situation in which it could make a cross border claim. Placing the relevant moment at the end of the accounting period in which the losses were made denied it that opportunity. In paras 30 and 31 he gave further reasons for disagreeing with the reasoning of Park J and the first Court of Appeal. But in para 33 he recognised that there was a question as to whether it was open to his court to do so. HMRC contended that it was open to his court to depart from the decision in the first Court of Appeal because subsequent decisions of the ECJ demonstrated that it fell into error, and that his court should follow those subsequent decisions. Moses LJ said that he was more than happy to follow the approach of Chadwick LJ in Cond Nast Publications Ltd v Customs and Excise [2006] EWCA Civ 976; [2006] STC 1721, para 44, that the Court of Appeal could refuse to follow its own earlier decision where the judgment of the ECJ under consideration in the earlier case had been the subject of further consideration, and consequent interpretation, explanation or qualification, by the Court in a later judgment. But he was unable to find anything in Case C 231/05 Proceedings brought by Oy AA [2007] ECR I 6373; [2008] STC 991 or Lidl Belgium GmbH & Co KG v Finanzamt Heilbronn Case C 414/06 [2008] ECR I 3601; [2008] STC 3229 which followed the ruling in Marks & Spencer v Halsey that suggested that the Court thought that it was departing from or going beyond what it had previously decided, although it had every opportunity to do so. He concluded therefore that his court was bound by the decision of the first Court of Appeal, and that its decision as to the date for assessment of the para 55 conditions was binding on his court: paras 46 48. The subsequent cases in the Court of Justice In Oy AA [2007] ECR I 6373 a Finnish parent company wished, for non fiscal and genuine commercial reasons, to support an ailing subsidiary which was established in the United Kingdom by transferring profits to secure its financial position. The question was whether it could deduct those transfers from its taxable income in Finland. Finnish law limited a companys right to make intra group transfers from its taxable business income to cases where a national parent company holds at least nine tenths of the shares of another national company. The ECJ said that restricting the deductibility of intra group transfers in this way was apt to safeguard the allocation of powers to impose taxes between Member States, and to combat tax avoidance by deliberately transferring income by means of intra group transfers to companies resident in low taxation jurisdictions. It ensured that profits earned by group companies in Finland were subject to taxation there according to the principle of territoriality: para 65. Two of the three justifications referred to in para 51 of Marks & Spencer were therefore satisfied. Safeguarding the allocation of the power to impose taxes could not be achieved by a corresponding, less restrictive national provision, and the law in question was proportionate. So article 43 EC did not preclude a system such as that in issue in that case: para 67. There is nothing in this ruling that departs from, or modifies, the justifications referred to in Marks & Spencer or its view in para 46, which it repeated in para 55 of Oy AA, that to give companies the option to have their losses taken into account in the Member State in which they are established or in another Member State would significantly jeopardise a balanced allocation of power to impose taxes between Member States. In Lidl Belgium GmbH & Co KG [2008] ECR I 3601 the parent company, Lidl Belgium, was resident in Germany and had a permanent establishment in Luxembourg. Its permanent establishment incurred a loss which the parent company sought to deduct from its tax base in Germany. This was contrary to German law, as the permanent establishment was not subject to taxation in Germany. The question was whether the national tax regime was precluded by article 43 EC. The Court followed the same approach as it had adopted in Marks & Spencer and Oy AA. As in Oy AA, it held that the national legislation could be justified by the need to safeguard the allocation of power to tax between the Member States and the need to prevent tax avoidance: para 41. It recognised, as it did in Marks & Spencer, para 55, that a measure which restricted the freedom of establishment goes beyond what is necessary to obtain the objectives pursued where a non resident subsidiary has exhausted the possibilities for having the losses incurred in the Member State where it is situated taken into account for the accounting period concerned and previous accounting periods, and where there is no possibility for that subsidiarys loss to be taken into account in that State for future periods. But Luxembourg tax legislation provided for the possibility of deducting a taxpayers losses in future tax years, and the claimant had not shown that the conditions laid down in para 55 of Marks & Spencer were satisfied. Here again there is a straightforward application of the principles established by Marks & Spencer. Once again the Court recognised the legitimate interest which the Member States have in preventing conduct which is liable to undermine the right to exercise the powers of taxation which are vested in them, and that to give a company the right to elect to have its losses taken into account in the Member State in which it has its seat or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States concerned. In Case C 337/08 X Holding BV v Staatssecretaris van Financin [2010] ECR I 01215 a tax scheme which permitted a parent company to form a single tax entity with its resident subsidiary, but prevented it from doing this with a non resident subsidiary, was held to be justified on the application of the principles established in Marks & Spencer and applied in Oy AA and Lidl. As Moses LJ found when he examined these cases in the Court of Appeal, there is nothing in them which assists, either one way or the other, in the determination of the question raised by the first issue. Moses LJ did not, of course, have the benefit of considering the Courts judgment of 21 February 2013 in A Oy. It is this judgment which is said by M&S to confirm the soundness of their submission that the question whether cross border relief in the Member State of the claimant company is precluded should be determined on the basis of the circumstances existing at the date of the claim and not at the end of the accounting period in which the losses arose. They say that it shows that the contrary view by Moses LJ is no longer tenable. A was a Finnish undertaking with a subsidiary in Sweden, referred to as B. Following trading losses, B closed its sales outlets but remained bound by two long term leases. A planned to merge with B for reasons that could be justified commercially and to make it possible for Bs leases to be transferred to A. The effect of that operation would be that the assets, liabilities and residual obligations of B would be transferred to A and that the Finnish parent would no longer have a subsidiary in Sweden. A sought an advance decision as to whether, once the operation had been carried out, it would be able to deduct Bs losses in accordance with the Finnish law on income tax. When it received a negative answer it sought a preliminary ruling from the CJEU on the question whether article 49 TFEU, as it now is, precluded legislation under which that deduction could not be made while allowing for that possibility if the merger was with a resident subsidiary. Advocate General Kokott was of the opinion that further development of the courts case law since Marks & Spencer had altered the scope of the justifications referred to in that judgment, that they could be referred to for examining the need for a national measure only if the prevention of double use of losses was recognised as an independent justification, that a justification based on the allocation of taxation powers among the Member States alone was no longer appropriate and that the possibility that the Swedish subsidiary might have its accumulated losses taken into account in its State of residence was irrelevant: paras 47 54. But she went on nevertheless in paras 55 59 to consider whether the conditions in Marks & Spencer for the losses of a non resident subsidiary to be taken into account in the parent companys Member State were fulfilled. In her opinion the Marks & Spencer exception was formulated very restrictively, so that there must be no possibility for the foreign subsidiarys losses to be taken into account in its State of residence for past or future periods either by itself or a third party. In A Oys case the merger arose from a free decision of the parent company. The taxable company still had the option of using the Swedish losses in the future by resuming trading and through the resulting profits. Cessation of trading raised the possibility of choosing the tax scheme applicable to those losses which, according to the courts case law, the taxable company did not have. The Finnish provision was necessary for attaining the objective of preserving the allocation of taxing powers among Member States, and the disadvantages it caused were reasonably proportionate: para 68. The Court did not follow either of the two approaches indicated by the Advocate General. The task which it set itself was to consider whether the difference in treatment between resident and non resident companies was appropriate for ensuring the objective pursued and did not go beyond what was necessary to achieve that objective: para 39. It considered all three of the justifications referred to in para 43 of Marks & Spencer taken together, and concluded that the legislation pursued legitimate objectives compatible with the Treaty which were justified by overriding interests in the public interest: paras 40 46. It then turned in para 48 to the question whether the legislation was necessary to attain those objectives: 48. With respect to the proportionality of the obstacle to freedom of establishment, it must be observed, first, that granting the parent company the possibility of taking into account the losses of its non resident subsidiary in connection with a cross border merger is not a priori such as to allow the parent company to choose freely from one year to the next the tax scheme applicable to the subsidiarys losses (see, a contrario, X Holding, para 31). 49. It follows, secondly, from the courts case law that a restrictive measure such as that at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued in a situation in which the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account (see, to that effect, Marks & Spencer, para 55). It is for the parent company to show that that is the case (see, to that effect, Marks & Spencer, para 56). As for the facts of that case, As argument was that, once the merger had been carried out, B would be liquidated and A would no longer have a subsidiary or permanent establishment in Sweden. So neither of those two companies would appear to have the possibility of relying in Sweden, after the merger, on the losses incurred in Sweden before the merger. The Courts response to this argument in para 52 was that those specific circumstances were not in themselves capable of showing that there was no possibility of taking into account the losses that exist in the subsidiarys State of residence: 53. Thus several Member States which have intervened in the case consider, on the contrary, that the possibility of taking Bs losses into account in Sweden continues to exist. The German Government submits that those losses can be deducted from the income, admittedly very small, which B continues to receive in Sweden. It adds that B is still involved in leases which could be assigned. The French Government also submits that Swedish law allows companies to take losses into account in previous tax years or on the occasion of the taxation of capital gains made on the assets and liabilities of the merged company. The Italian Government submits that Sweden is entitled to evaluate the assets transferred and to tax the merged company on the profit thus realised. 54. It is therefore for the national court to determine whether A has in fact proved that B has exhausted all the possibilities of taking account of the losses which exist in Sweden. The Court observed in para 55 that, were the referring court to reach the conclusion that such proof had been produced, denial to A of the possibility of deducting from its taxable profits the losses incurred by its non resident subsidiary, in the context of the proposed merger, would be contrary to articles 49 TFEU and 56 TFEU. It held in para 56 that those articles did not preclude national legislation to that effect. But it added this qualification: Such national legislation is none the less incompatible with European Union law if it does not allow the parent company the possibility of showing that its non resident subsidiary has exhausted the possibilities of taking those losses into account and that there is no possibility of their being taken into account in its State of residence in respect of future tax years either by itself or by a third party. M&S submit that there are several points in this judgment that are relevant to the first issue. First, it held that the fact that A exercised a free choice in undertaking the merger did not preclude relief: para 48. In other words, the principle that a taxpayer should not be able to choose the country in which to relieve losses does not extend to steps which pose no threat to an entitlement to cross border relief. Steps which are taken simply in order to show that the para 55 conditions are met do not threaten the balanced allocation of taxing powers. Secondly, the judgment suggests that the mere fact that losses could be carried forward under local law at the end of the accounting period does not of itself mean that the para 55 conditions are not met. Reference was made to this possibility in para 50 of the judgment, but this did not lead to a conclusion that the para 55 conditions were not met. It was still necessary for the national court to examine whether, on the facts, all possibilities of using the losses had been exhausted: para 54. That being so, there was no principled reason for insisting that the relevant date should be the end of the accounting period in which the losses were incurred. Discussion The point which the first issue raises comes down, in the end, to a choice between what Moses LJ described as the principled approach contended for by HMRC and the one contended for by M&S. The approach for which M&S contend looks instead to the practical consequences if the relevant date is to be taken to be the end of the accounting period in which the losses in question arose. Park J identified the objection to HMRCs approach in the judgment which he delivered when the case returned to him after the ECJ had given its ruling: [2006] STC 1235, para 46. He said that the end of the accounting period was too soon. As he saw it, the choice of that date would be likely to rule out virtually every case. So he held that it should be the date when the claim was made. On the other hand, there is Moses LJs point that to prefer the date of the claim would afford the claimant company the opportunity to bring about a situation in which the para 55 conditions would be satisfied. That would mean that in the period up to the appeal the claimant would be free to choose whether to bring about a situation in which the losses could be transferred cross border: [2012] STC 231, para 30. The CJEUs judgment in A Oy has made it easier to decide between the two alternatives. Mr Ewart QC for HMRC said that giving the claimant a choice, for whatever reason, as to where its profits were to be taxed would upset the balanced allocation of the power to impose taxes. That was the critical justification for the rule in Marks & Spencer that provisions of the kind in issue were not precluded by Community law. M&S had not shown that there was any principled reason for selecting the date of the claim. To choose that date would open up the possibility of choice as to where to seek relief for losses that crystallised in the accounting period. A line had to be drawn somewhere, and the date to which to look was the date when the loss crystallised. A Oy had to be approached with caution, as it was a pre transaction case. In any event the balanced allocation rule was not just about tax avoidance. To allow losses to be brought in from another Member State was bound to upset that balance. It would require a quite extreme case to justify upsetting that balance, and voluntary acts such as liquidation after the loss had crystallised should be excluded. Mr Milne QC for M&S did not dispute the need to avoid upsetting the balanced allocation of the power to impose taxes. He agreed that the para 55 conditions were designed to ensure that there was no double use of the claim for relief. The questions that had to be addressed were essentially practical questions. It was a factual exercise. During the course of the hearing he altered his position as to the date as at which the entitlement to relief was to be determined. In its written case M&S said that the most obvious date was, as Chadwick LJ held, the date of the claim. But Mr Milne suggested that the facts should be examined at the time when the question was asked, which was the date when the claim was being scrutinised. A Oy had clarified the landscape. The Advocate Generals approach was very similar to that of Moses LJ, but that was not what the CJEU decided. The facts of the case showed that B was involved in leases that could still be assigned, so there were assets that could be realised. Yet the Court still left it to the national court to determine whether A had in fact proved that B had exhausted all the possibilities of taking account of the losses and that there was no possibility of their being taken into account in respect of future tax years: paras 54, 56. That was best done, said Mr Milne, by looking to the facts as they were at the date of the first instance hearing. I agree with Mr Milne that the exercise that is to be carried out is essentially a factual one, and the claimant company ought to be given an opportunity to deal with it in as realistic a manner as possible. The approach contended for by HMRC would mean that there would be no realistic chance of satisfying the para 55 conditions at all. It would hardly ever be possible, if regard is had only to how matters stood at the end of the relevant accounting period, to exclude entirely the possibility that the losses in question might be utilised in the Member State of the surrendering company unless, of course, this was prevented by its local law. The balanced allocation principle does not require to be supported by an approach which restricts the claimant company to that extent. This is made clear by the way the issue was dealt with in A Oy: see para 48. The use of the present tense in the Courts description of the matters to be determined by the national court in paras 54 and 56 might be taken as suggesting that the facts that are to be examined are the facts as they are at the date of the inquiry. But they are equally consistent with the proposition that, while the date of the inquiry is the date when the facts are being considered, the date as at which they are to be taken to be established is the date when the proceedings are commenced. Mr Milne did not present any detailed argument for preferring the date of the inquiry to the date that both Park J and the first Court of Appeal held to be the correct date, which was the date of the claim. The First Tier Tribunal at [2009] UKFTT 64 (TC), para 42 and the Upper Tribunal at [2010] STC 2470, paras 56 57 took the same view, holding that the date of the claim was appropriate in relation to the pay and file years: see also para 69(2) of Schedule 18 to the Finance Act 1998 which, for self assessment years, uses the phrase at the time the claim is made. There is no indication in any of these judgments that selecting the date of the claim is likely in practice to give rise to any difficulty. On the contrary, that date has the advantage of certainty, as the facts to be inquired into will not be susceptible to change between the making of the claim and the commencement of the inquiry. For these reasons I would reject the choice that Mr Milne made in the course of the hearing and hold that the entitlement to cross border relief is to be examined, as stated in alternative (b) in the first issue, on the basis of the circumstances existing at the date of the claim. The question whether successive claims can be made, and with what effect, must be left over for consideration under the second issue. The national court will, of course, be alert to the possibility that the claimant company may simply be choosing in which Member State it should be taxed. The para 55 conditions are designed to exclude that possibility. But the judgment in A Oy shows that the mere fact that losses can be carried forward at the end of the accounting period in which they arose does not mean that the para 55 conditions cannot be met. Moreover the fact that the merger that was contemplated in that case was not seen as a ground for denying the possibility of taking the losses into account, on the ground that it allowed the parent company to choose freely from one year to the next the tax scheme applicable to its subsidiarys losses, shows that the decisions to wind up MSD and MSB are not open to objection on that ground either. What M&S was doing can be attributed to the fact that the companies had ceased trading six years earlier, and not to the exercise of an option to choose where to seek relief for the losses that had been incurred. There is no reason to think that what it did must be seen as a threat to the balanced allocation of taxing powers. The principle that lies behind HMRCs approach must, of course, be respected. But it does not justify the choice of date for which they contend which, as Park J said, is too soon to give the claimant company a reasonable opportunity of showing that the para 55 conditions are satisfied. Conclusion I would answer the first issue by rejecting the alternative contended for by I would hold that the question for inquiry is whether the claimant company has been able to show, on the basis of the circumstances known at the date when it makes its claim, that there has been no possibility of the losses in question being utilised in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in any future accounting periods. The consequence of this finding is that the third issue does not need to be answered. The parties will be heard as to the answers to be given to the three remaining issues at a later date. |
This appeal concerns a tenants break clause in a lease. The lease had been granted for a term expiring on 2 February 2018, and, in the normal way, the rent was payable in advance on the usual quarter days. The tenant exercised its right under the break clause to determine the lease on 24 January 2012, after it had paid the full quarters rent due on 25 December 2011. The issue is whether it can recover from the landlords the apportioned rent in respect of the period from 24 January to 24 March 2012. The resolution of that issue turns on the interpretation of the lease, and it requires the court to consider the principles by reference to which a term is to be implied into a contract. The Contractual documentation The defendants were the landlords and the claimant was the tenant under four sub underleases of different floors in a building known as The Point (the Building) in Paddington Basin, London W2. Each sub underlease was set out in a Schedule to a deed made on 15 January 2010, which varied or restated the provisions of a previous sub underlease which had been granted to the claimant in 2006. The origin of most of the provisions of each of the four sub underleases granted in 2010 is to be found in the four sub underleases granted in 2006. In this judgment, it is only necessary to refer to one of the four deeds (the Deed), the sub underlease it granted (the Lease) and the sub underlease (the earlier Lease) it replaced, as any differences between the four Deeds, the four 2010 sub underleases and the four 2006 sub underleases are irrelevant for present purposes. The Lease demised the third floor of the Building (the Premises) together with the use of two car parking spaces to the claimant for a term of years starting on 25 January 2006 and ending on 2 February 2018. The reddendum reserved a rent consisting of (a) the Basic Rent and (b) the Car Park Licence Fee. The Basic Rent was 919,800 plus VAT per annum, which was to be reviewed in accordance with Schedule 4, which provided for reviews on certain specified review dates. The Basic Rent was to be paid yearly and proportionately for any part of a year by equal quarterly instalments in advance on the [usual] quarter days. As at 25 December 2011, the Basic Rent was 1,236,689 per annum plus VAT. The Car Park Licence Fee was 6,000 per annum, which was to be paid by equal quarterly instalments in advance on the [usual] quarter days. The Lease was validly excluded from the ambit of sections 24 28 of the Landlord and Tenant Act 1954, which meant that, if not determined before 2 February 2018, the Lease would end on that date. Clause 8.1 of the Lease entitled the claimant (so long as it remained the tenant) to determine the Lease, by giving the landlords six months prior written notice (a break notice) to take effect on the first break date, namely 24 January 2012, and clause 8.2 provided for a second break date of 24 January 2016. Clause 8.3 stipulated that a break notice would only have effect if on the break date there are no arrears of Basic Rent or VAT on Basic Rent. Clause 8.4 provided that a break notice would only take effect on the first break date if on or prior to the first break date the tenant pays to the landlord the sum of 919,800 plus VAT. Clause 8.5 was concerned with consequential conveyancing machinery. Clause 8.6 entitled the landlords to waive compliance with all or any of the conditions set out in clause 8.3. Clause 8.7 stated that if the provisions of this clause are complied with the Lease should end on the break date without prejudice to the rights of either party in respect of any previous breach by the other. A very similar clause to clause 8 was contained in the earlier Lease: hence the choice of break dates, which were on anniversaries of the date of grant of the earlier Lease. Schedule 5 to the Lease dealt with insurance. In brief, the landlords covenanted to insure the Building against specified risks, and the tenant was obliged to pay to the landlord a fair proportion [assessed by reference to the ratio of the floor area of the Premises to that of the Building] of every premium payable by the landlord for insuring the Building . These payments were reserved as rent. Schedule 7 to the Lease was concerned with the services which the landlord covenanted to provide to the occupiers of the Building, and the service charge which the tenant was to pay in return. The service charge, which was reserved as rent, was to be a fair proportion (assessed in a similar way to the insurance rent) of the cost to the landlords of providing the services. This was initially to be based on an annual estimate, which was to be paid on account in advance by equal instalments on the usual quarter days. Paragraph 4.5 of the Schedule provided for payment by the tenant of a balancing sum in ten working days if the actual expenditure was greater than the payment on account, and paragraph 4.6 entitled the tenant to be credited with any overpayment against the next payment on account, if the expenditure was less than the payment on account. As is almost invariably the case with modern commercial leases, the Lease was a very full and detailed document. It ran to some 70 pages, including 15 pages of tenants covenants and nine pages of landlords covenants, and it included, in clause 5, a right for the landlords to forfeit the Lease for non payment of rent or other breach of covenant by the tenant. The provisions for review of the Basic Rent in Schedule 4 ran to four pages, and required a periodic review of the rent to the then current market rental value of the Premises as at certain specified review dates. Paragraph 8 of Schedule 4 stated that if the reviewed rent was not determined by a review date, rent at the preceding rate is to be payable and, once the reviewed rent is determined, a balancing figure is payable by the tenant to the landlords. It is not necessary to say much about the Deed, save that clause 4 provided that, if the tenant did not exercise its right to break the Lease (and the other three sub underleases) on 24 January 2012, the landlords would pay the tenant 150,000 by crediting it against the tenants liability for the rent due on the following quarter day, 25 March 2012. The factual background On 7 July 2011, pursuant to clause 8.1, the claimant tenant served a break notice on the defendant landlords to determine the Lease on 24 January 2012. On 19 July 2011, the defendants invoiced the claimant for its share of the insurance rent premium under Schedule 5 (the insurance rent) in respect of the year from 1 July 2011, in the sum of 14,972.85 plus VAT, which the claimant paid two weeks later. Shortly before 25 December 2011, the claimant paid the defendants the rent due on that date in respect of the quarter from that date up to and including 24 March 2012, the day before the next quarter day, thereby ensuring that clause 8.3 of the Lease was satisfied. This rent consisted of the Basic Rent (as reviewed) of 309,172.25 plus VAT, and the Car Park Licence Fee of 1,500. On or about 18 January 2012, the claimant paid the defendants 919,800 plus VAT, pursuant to clause 8.4 of the Lease. As a result of these payments, the break notice served on 7 July 2011 was effective, and the Lease determined on 24 January 2012. On 3 September 2012, more than eight months after the expiry of the Lease, the defendants served on the claimant a service charge certificate in respect of the services provided in the calendar year 2011. This showed that the cost of the services had been less than the estimate, and the defendants credited the claimant with its excess payment. Although there were similar issues about the Car Park Licence Fee, the insurance rent and the service charge, the principal issue between the parties at trial was whether the claimant was entitled to be refunded a sum equal to the apportioned Basic Rent in respect of the period 24 January 2012 (when the Lease expired) and 25 March 2012, given that the claimant had paid the Basic Rent (in the sum of 309,172.25 plus VAT) on 25 December 2011 in respect of that period even though the Lease had expired on 24 January 2012. In a carefully reasoned judgment, Morgan J held that the claimant was so entitled [2013] EWHC 1279 (Ch). For reasons given by Arden LJ (with whom Jackson and Fulford LJJ agreed), the Court of Appeal allowed the defendants appeal [2014] EWCA Civ 603. The claimant now appeals to this court, contending, as it did in the courts below, that there should be implied into the Lease a term that, if the tenant exercises the right to break under clause 8 and the Lease consequently determines on 24 January, the landlords ought to pay back a proportion of the Basic Rent paid by the tenant due on the immediately preceding 25 December (the apportioned sum), being apportioned in respect of the period 24 January up to and including the ensuing 24 March 2012. A similar issue arises in relation to the Car Park Licence Fee and the insurance rent, which I shall deal with at the end of this judgment. Implied terms in contracts It is rightly accepted on behalf of the claimant that there is no provision in the Lease which expressly obliges the landlords to pay the apportioned sum to the tenant. Accordingly, it follows that in order to succeed the claimant has to establish that such an obligation must be implied into the Lease. As Lady Hale pointed out in Geys v Socit Gnrale [2013] 1 AC 523, para 55, there are two types of contractual implied term. The first, with which this case is concerned, is a term which is implied into a particular contract, in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made. The second type of implied terms arises because, unless such a term is expressly excluded, the law (sometimes by statute, sometimes through the common law) effectively imposes certain terms into certain classes of relationship. There have, of course, been many judicial observations as to the nature of the requirements which have to be satisfied before a term can be implied into a detailed commercial contract. They include three classic statements, which have been frequently quoted in law books and judgments. In The Moorcock (1889) 14 PD 64, 68, Bowen LJ observed that in all the cases where a term had been implied, it will be found that the law is raising an implication from the presumed intention of the parties with the object of giving the transaction such efficacy as both parties must have intended that at all events it should have. In Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592, 605, Scrutton LJ said that [a] term can only be implied if it is necessary in the business sense to give efficacy to the contract. He added that a term would only be implied if it is such a term that it can confidently be said that if at the time the contract was being negotiated the parties had been asked what would happen in a certain event, they would both have replied Of course, so and so will happen; we did not trouble to say that; it is too clear. And in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227, MacKinnon LJ observed that, [p]rima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying. Reflecting what Scrutton LJ had said 20 years earlier, MacKinnon LJ also famously added that a term would only be implied if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common Oh, of course!. Support for the notion that a term will only be implied if it satisfies the test of business necessity is to be found in a number of observations made in the House of Lords. Notable examples included Lord Pearson (with whom Lord Guest and Lord Diplock agreed) in Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601, 609, and Lord Wilberforce, Lord Cross, Lord Salmon and Lord Edmund Davies in Liverpool City Council v Irwin [1977] AC 239, 254, 258, 262 and 266 respectively. More recently, the test of necessary to give business efficacy to the contract in issue was mentioned by Lady Hale in Geys at para 55 and by Lord Carnwath in Arnold v Britton [2015] 2 WLR 1593, para 112. In the Privy Council case of BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 52 ALJR 20, 26, Lord Simon (speaking for the majority, which included Viscount Dilhorne and Lord Keith) said that: [F]or a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that it goes without saying; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. In Philips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472, 481, Sir Thomas Bingham MR set out Lord Simons formulation, and described it as a summary which distil[led] the essence of much learning on implied terms but whose simplicity could be almost misleading. Sir Thomas then explained that it was difficult to infer with confidence what the parties must have intended when they have entered into a lengthy and carefully drafted contract but have omitted to make provision for the matter in issue, because it may well be doubtful whether the omission was the result of the parties oversight or of their deliberate decision, or indeed the parties might suspect that they are unlikely to agree on what is to happen in a certain eventuality and may well choose to leave the matter uncovered in their contract in the hope that the eventuality will not occur. Sir Thomas went on to say this at p 482: The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. [He then quoted the observations of Scrutton LJ in Reigate, and continued] [I]t is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred Sir Thomass approach in Philips was consistent with his reasoning, as Bingham LJ in the earlier case The APJ Priti [1987] 2 Lloyds Rep 37, 42, where he rejected the argument that a warranty, to the effect that the port declared was prospectively safe, could be implied into a voyage charter party. His reasons for rejecting the implication were because the omission of an express warranty may well have been deliberate, because such an implied term is not necessary for the business efficacy of the charter and because such an implied term would at best lie uneasily beside the express terms of the charter. In my judgment, the judicial observations so far considered represent a clear, consistent and principled approach. It could be dangerous to reformulate the principles, but I would add six comments on the summary given by Lord Simon in BP Refinery as extended by Sir Thomas Bingham in Philips and exemplified in The APJ Priti. First, in Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459, Lord Steyn rightly observed that the implication of a term was not critically dependent on proof of an actual intention of the parties when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting. Secondly, a term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term. However, and thirdly, it is questionable whether Lord Simons first requirement, reasonableness and equitableness, will usually, if ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be reasonable and equitable. Fourthly, as Lord Hoffmann I think suggested in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988, para 27, although Lord Simons requirements are otherwise cumulative, I would accept that business necessity and obviousness, his second and third requirements, can be alternatives in the sense that only one of them needs to be satisfied, although I suspect that in practice it would be a rare case where only one of those two requirements would be satisfied. Fifthly, if one approaches the issue by reference to the officious bystander, it is vital to formulate the question to be posed by [him] with the utmost care, to quote from Lewison, The Interpretation of Contracts 5th ed (2011), para 6.09. Sixthly, necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of absolute necessity, not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simons second requirement is, as suggested by Lord Sumption in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence. Before leaving this issue of general principle, it is appropriate to refer a little further to Belize Telecom, where Lord Hoffmann suggested that the process of implying terms into a contract was part of the exercise of the construction, or interpretation, of the contract. In summary, he said at para 21 that [t]here is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?. There are two points to be made about that observation. First, the notion that a term will be implied if a reasonable reader of the contract, knowing all its provisions and the surrounding circumstances, would understand it to be implied is quite acceptable, provided that (i) the reasonable reader is treated as reading the contract at the time it was made and (ii) he would consider the term to be so obvious as to go without saying or to be necessary for business efficacy. (The difference between what the reasonable reader would understand and what the parties, acting reasonably, would agree, appears to me to be a notional distinction without a practical difference.) The first proviso emphasises that the question whether a term is implied is to be judged at the date the contract is made. The second proviso is important because otherwise Lord Hoffmanns formulation may be interpreted as suggesting that reasonableness is a sufficient ground for implying a term. (For the same reason, it would be wrong to treat Lord Steyns statement in Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459 that a term will be implied if it is essential to give effect to the reasonable expectations of the parties as diluting the test of necessity. That is clear from what Lord Steyn said earlier on the same page, namely that [t]he legal test for the implication of a term is strict necessity, which he described as a stringent test.) It is necessary to emphasise that there has been no dilution of the requirements which have to be satisfied before a term will be implied, because it is apparent that Belize Telecom has been interpreted by both academic lawyers and judges as having changed the law. Examples of academic articles include C Peters The implication of terms in fact [2009] CLJ 513, P Davies, Recent developments in the Law of Implied Terms [2010] LMCLQ 140, J McCaughran Implied terms: the journey of the man on the Clapham Omnibus [2011] CLJ 607, and JW Carter and W Courtney, Belize Telecom: a reply to Professor McLauchlan [2015] LMCLQ 245). And in Foo Jong Peng v Phua Kiah Mai [2012] 4 SLR 1267, paras 34 36, the Singapore Court of Appeal refused to follow the reasoning in Belize at least in so far as it suggest[ed] that the traditional business efficacy and officious bystander tests are not central to the implication of terms (reasoning which was followed in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] SGCA 43). The Singapore Court of Appeal were in my view right to hold that the law governing the circumstances in which a term will be implied into a contract remains unchanged following Belize Telecom. The second point to be made about what was said in Belize Telecom concerns the suggestion that the process of implying a term is part of the exercise of interpretation. Although some support may arguably be found for such a view in Trollope at p 609, the first clear expression of that view to which we were referred was in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, 212, where Lord Hoffmann suggested that the issue of whether to imply a term into a contract was one of construction of the agreement as a whole in its commercial setting. Lord Steyn quoted this passage with approval in Equitable Life at p 459, and, as just mentioned, Lord Hoffmann took this proposition further in Belize Telecom, paras 17 27. Thus, at para 18, he said that the implication of the term is not an addition to the instrument. It only spells out what the instrument means; and at para 23, he referred to The danger in detaching the phrase necessary to give business efficacy from the basic process of construction. Whether or not one agrees with that approach as a matter of principle must depend on what precisely one understands by the word construction. I accept that both (i) construing the words which the parties have used in their contract and (ii) implying terms into the contract, involve determining the scope and meaning of the contract. However, Lord Hoffmanns analysis in Belize Telecom could obscure the fact that construing the words used and implying additional words are different processes governed by different rules. Of course, it is fair to say that the factors to be taken into account on an issue of construction, namely the words used in the contract, the surrounding circumstances known to both parties at the time of the contract, commercial common sense, and the reasonable reader or reasonable parties, are also taken into account on an issue of implication. However, that does not mean that the exercise of implication should be properly classified as part of the exercise of interpretation, let alone that it should be carried out at the same time as interpretation. When one is implying a term or a phrase, one is not construing words, as the words to be implied are ex hypothesi not there to be construed; and to speak of construing the contract as a whole, including the implied terms, is not helpful, not least because it begs the question as to what construction actually means in this context. In most, possibly all, disputes about whether a term should be implied into a contract, it is only after the process of construing the express words is complete that the issue of an implied term falls to be considered. Until one has decided what the parties have expressly agreed, it is difficult to see how one can set about deciding whether a term should be implied and if so what term. This appeal is just such a case. Further, given that it is a cardinal rule that no term can be implied into a contract if it contradicts an express term, it would seem logically to follow that, until the express terms of a contract have been construed, it is, at least normally, not sensibly possible to decide whether a further term should be implied. Having said that, I accept Lord Carnwaths point in para 71 to the extent that in some cases it could conceivably be appropriate to reconsider the interpretation of the express terms of a contract once one has decided whether to imply a term, but, even if that is right, it does not alter the fact that the express terms of a contract must be interpreted before one can consider any question of implication. In any event, the process of implication involves a rather different exercise from that of construction. As Sir Thomas Bingham trenchantly explained in Philips at p 481: The courts usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constraints on the exercise of this extraordinary power. It is of some interest to see how implication was dealt with in the recent case in this court of Aberdeen City Council v Stewart Milne Group Ltd 2012 SLT 205. At para 20, Lord Hope described the implication of a term into the contract in that case as the product of the way I would interpret this contract. And at para 33, Lord Clarke said that the point at issue should be resolved by holding that such a term should be implied rather than by a process of interpretation. He added that [t]he result is of course the same. It is true that Belize Telecom was a unanimous decision of the Judicial Committee of the Privy Council and that the judgment was given by Lord Hoffmann, whose contributions in so many areas of law have been outstanding. However, it is apparent that Lord Hoffmanns observations in Belize Telecom, paras 17 27 are open to more than one interpretation on the two points identified in paras 23 24 and 25 30 above, and that some of those interpretations are wrong in law. In those circumstances, the right course for us to take is to say that those observations should henceforth be treated as a characteristically inspired discussion rather than authoritative guidance on the law of implied terms. Having made those general remarks about implied terms, I turn to consider the specific issue on this appeal, namely the claimants contention that it is entitled to claim the apportioned sum from the defendants by virtue of an implied term to that effect in the Lease. I shall start by focussing on the terms of the Lease and the Deed, and then turn to the broader picture. The arguments based on the provisions of the Lease and the Deed Each quarters rent paid in advance under a modern commercial lease, such as the Lease in this case, can fairly be said to be referable to the tenants use and enjoyment of the demised premises for the forthcoming quarter. Accordingly, the sum of 309,172.25 plus VAT due on 25 December 2011, and paid shortly before that date, can fairly be said, at least in general terms, to have been envisaged as being the tenants quid pro quo for being able to occupy and enjoy the Premises up to 25 March 2012. There is therefore real force in the contention that, if the defendants can retain the apportioned sum, it would be unfairly prejudicial to the claimant and a pure windfall for the defendants. A provision that the defendant landlords should reimburse the claimant tenant the apportioned sum would thus seem to be reasonable and equitable. The claimants case is reinforced by the fact that, as explained in para 4 above, the two break dates of 24 January 2012 and 2016 owe their origin to the date of grant of the earlier Lease, and that date was dependent on the date on which the head landlord gave its consent to the grant of the earlier Lease. Thus, it can fairly be said that the parties had agreed the terms of the break clause, not knowing whether the break dates would be shortly after, shortly before or even on, a quarter day. This supports the notion that they are unlikely to have intended that the apportioned rent was intended to be retained by the landlords as part of the compensation for the tenants operation of the break clause. This point is mildly weakened by the fact that the parties could have varied the break dates, or the terms of clause 8, when they came to renegotiate in 2010 the terms originally agreed in the 2006 Lease, but it still has force. A further point on which the claimant relies arises from the fact that the Basic Rent is stipulated in the Lease to be paid yearly and proportionately for any part of a year by equal quarterly instalments in advance (emphasis added). It is common ground that the effect of the italicised words is that, if the Lease had run its full course to 2 February 2018, the tenant would only have had to pay an apportioned part of the Basic Rent due on 25 December 2017, because, as at that date, the parties would have known that the Lease would expire before the next quarter day, 25 March 2018. In the present case, it is common ground that, because the claimant had not paid the sum of 919,800 plus VAT due under clause 8.4 before 25 December 2011, it would not have been known as at that date whether the Lease would come to an end before 25 March 2012, and the tenant therefore had to pay the quarters rent in full: it only became clear that the Lease would determine on 24 January 2012 when the claimant paid the 919,800 plus VAT on 18 January. However, if the claimant had paid the 919,800 plus VAT before 25 December 2011, the claimant argues (rightly in my view) that it would have been clear on 25 December 2011 that the Lease would end on 24 January 2012, so that the claimant would only have had to pay an appropriate proportion of the Basic Rent on 25 December 2011. The claimant accordingly contends that commercial common sense mandates that it should be in the same financial position whether it pays the 919,800 plus VAT before 25 December 2011 or chooses to wait, as it is entitled to, until after 25 December 2011 to pay that sum. (I might add that this point is somewhat reinforced when one considers what would have happened if the tenant had waited till the second break date to determine the Lease: because clause 8.4 only applies to the first break date, the tenant would have been entitled to pay only an apportioned part of the quarters Basic Rent on 25 December 2015.) The claimant raised other points which, to my mind, had less force. Thus, the fact that the Basic Rent was payable yearly and proportionately for any part of a year was said of itself to support the implied term for which the claimant contends. Given that the italicised words did not justify the claimant paying only an apportioned part of the rent due on 25 December 2011 on the facts of this case, those words appear if anything to undermine the claimants case: the fact that the Lease expressly provided that only part of a quarters rent was to be paid in some circumstances could fairly be said to undermine the notion that one should imply a term which has a similar effect in other circumstances. There is considerable force in the points discussed in paras 33 35 above, and between them they help make out a powerful case for contending that it is necessary for business efficacy that the term contended for by the claimant should be implied into the Lease. However, it is necessary to consider the countervailing arguments. The defendants rely on the fact that the Lease is a very detailed document, which had been entered into between two substantial and experienced parties, and had been negotiated and drafted by expert solicitors. In particular, the Lease makes provision for a large number of contingencies. Accordingly, it is said, with obvious justification, that the observations of Sir Thomas Bingham in Philips Electronique quoted in para 19 above are particularly in point. More specifically, the defendants refer to the express provisions relating to the payment of money in connection with clause 8. First, there is the payment of 919,800 plus VAT under clause 8.4. It is said that, while it involves no logical inconsistency, it is somewhat peculiar to imply into the Lease a term requiring the landlords to pay the tenant around 200,000 plus VAT on 25 January 2012, when the Lease has an express term requiring the tenant to pay the landlords around 900,000 plus VAT by 24 January 2012: the implied term lie[s] uneasily with the express terms to use Bingham LJs expression in The APJ Priti. Secondly, there is the condition in clause 8.3 which required the tenant to have paid all rent due on 25 March 2012 if it wished to exercise the right to break. Given that the effect of that provision is that the tenant must have paid rent for the whole quarter ending on 25 March 2012, it can again be said to be somewhat peculiar to imply a term requiring the landlord to repay the tenant most of that sum. Clauses 8.3 and 8.4 of the Lease, together with clause 4 of the Deed, which provided that the tenant would be paid 150,000 if it did not exercise its right to break, show how carefully and fully the parties considered and identified their rights against each other in relation to clause 8 of the Lease. There is force in the argument that these three provisions show that the parties had directed their minds to the specific question of what payments were to be made between them in connection with clause 8, and in particular what sums were to be paid if the right to break either was implemented or was not implemented, and that this renders it inappropriate for the court to step in and fill in what is no more than an arguable lacuna. There is, in my view, less force in the defendants reliance on paragraph 8 of Schedule 4 to the Lease (discussed in para 7 above). I see the logic of the argument that the fact that the rent review provisions expressly dealt with a similar point is an indication that the parties must have intentionally excluded any reference to such a point in clause 8. However, the rent review provisions were no doubt taken from a previous precedent, and, while careful thought would have been given to their precise terms, a provision such as paragraph 8 of Schedule 4 would have been in any sophisticated modern rent review clause. Having said that, I suppose that it might be said that the defendants could make something of the fact that such a provision is not normally included in a standard break clause, but I think that is too remote from the issue in this case to be of any help, and it is, sensibly, not a point which was developed, or even raised, in argument. The general law on apportionment of rent payable in advance The arguments discussed so far have focussed on the terms of the Lease (and the Deed) and their commercial effect. However, it is also necessary to consider the established legal background against which the Lease was entered into, and in particular the general attitude of the law to the apportionability of rent payable in advance. It has long been well established that rent, whether payable in arrear or advance, is not apportionable in time in common law. Accordingly, if a lease under which the rent is payable in arrear was forfeited or came to an end prematurely for some other reason, the landlord loses the right to recover the rent due on the rent day following that determination, at least according to the common law see eg William Cluns Case (1613) 10 Co Rep 127a. Parliament sought to remedy this initially in a limited way through the now repealed section 15 of the Distress for Rent Act 1737 and the Apportionment Act 1834, and then more comprehensively through the Apportionment Act 1870, which is still in force. Section 2 of the 1870 Act prospectively provides that All rents, annuities, dividends, and other periodical payments in the nature of income should like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. There is no doubt that section 2 applies to rent payable in arrear, as was held by Malins V C in Capron v Capron (1874) LR 17 Eq 288. In Ellis v Rowbotham [1900] 1 QB 740, the Court of Appeal held that the 1870 Act did not apply to rent payable in advance and, ever since then, it has been assumed that this was the law. At the invitation of the court, it was argued on behalf of the claimant that Ellis should be overruled. I am satisfied that it should be approved. In their brief reasoned judgments, both AL Smith and Romer LJJ explained that (i) the mischief that the 1870 Act was concerned to correct related solely to rent in arrear, and (ii) rent paid in advance could not be said to be accruing from day to day, unlike rent in arrear. There is no reason to doubt the first reason. As to the second reason, it has obvious force if one treats the statutory reference to a sum accruing as a liability to pay the sum accruing. The conclusion reached in Ellis is also supported by the reference to interest on money lent, because interest has virtually invariably been payable in arrear. In addition, sections 3 and 4 of the 1870 Act, which are consequential provisions expressed to apply to The apportioned part of any such rent, annuity, dividend, or other payment (emphasis added), can only apply to rent or other payments payable in arrear, and not in advance, as they deal with the date when such rent or other payments are to be treated as having become due after the relevant event (ie, in the case of rent, determination of the lease). Even if we were considering the effect of section 2 in the absence of the longstanding decision in Ellis, I would have concluded that the section did not apply to rent paid in advance, essentially for the reasons summarised in para 44 above. However, like Collins LJ who concurred in the conclusion reached in Ellis, I would not have regarded the issue as altogether free from doubt, in the light of the very wide words of the section (All rents, annuities etc). As it is, the conclusion is reinforced by the fact that Ellis has stood for well over 100 years, and has been followed and applied in a number of first instance and Court of Appeal decisions without any expressions of doubt as to its correctness see eg Hildebrand v Lewis [1941] 2 KB 135, where at p 139 the Court of Appeal, citing Ellis in support, described it as well settled that where rent is payable in advance the Apportionment Act does not apply. I find it difficult to accept that this court could properly rule that a statute had a meaning which we thought was simply wrong, however long that meaning had been assumed to be correct. Nonetheless, I consider that, in a case where we had real doubt as to the correct meaning of a statute, we should favour the meaning which has been generally assumed to be correct for a long period, especially when the basis of that assumption is a judicial decision. In this case, however, it is not necessary to go even that far, because, as just explained, I consider that the conclusion reached by the Court of Appeal 115 years ago in Ellis was correct. It follows from this conclusion that neither the common law nor statute apportions rent in advance on a time basis. And this was, correctly, generally understood to be the position when the Deed and the Lease were negotiated and executed. The claimants argument, by contrast, is that a term should be implied into the Lease that the Basic Rent payable in advance on 25 December 2011 should effectively be apportioned on a time basis. The fact that the Lease was negotiated against the background of a clear, general (and correct) understanding that rent payable in advance was not apportionable in time, raises a real problem for the argument that a term can be implied into the Lease that it should be effectively apportionable if the Lease is prematurely determined in accordance with its terms. The point can be taken a little further. It is a very well established rule that a landlord who forfeits a lease under which the rent is payable in advance is entitled to payment of the whole of the rent which fell due on the quarter day preceding the forfeiture. The rule was well described by Lord Denning MR in Canas Property Co Ltd v KL Television Services Ltd [1970] 2 QB 433, 442, where he addressed a case where the rent was payable in advance on the usual quarter days and the landlord forfeited the lease by serving a writ (now a claim form) for instance on 25 April. He said, citing Ellis, that, given that the rent is payable in advance, the writ should claim for the whole quarters rent due in advance on March 25 and mesne profits from June 24 to the date of delivery of possession. (It may well be that the mesne profits should run from the date of service of the writ, but nothing hangs on that for present purposes.) Lord Denning contrasted the position where the landlord forfeited a lease under which the rent was payable in arrear, where, he said, the writ should claim rent at the rate of from March 25 to the date of service of the writ and mesne profits thereafter. Lord Dennings approach was followed and applied by the Court of Appeal in Capital and City Holdings Ltd v Dean Warburg Ltd (1988) 58 P & CR 346. Thus, it is clear that, where a lease provides for payment of rent in advance on the usual quarter days, and the landlord forfeits the lease during the currency of a quarter, he is entitled to retain the whole of the rent due on the quarter day immediately before the forfeiture if it has been paid, and, if it has not been paid, he is entitled to recover and retain the whole of that rent. Conclusions If one concentrates on the factors identified in paras 33 35 above, there appears to be a strong case for the implied term for which Mr Fetherstonhaugh QC powerfully argued on behalf of the claimant. The point made in para 33 supports the contention that, not merely would an implied term be fair, but that clause 8 could be said to work rather unfairly without the implied term. The point made in para 35, supported by what is said in para 34, provides real support for the proposition that, without the implied term, clause 8 would operate in a rather capricious way. On the other hand, as Mr Dowding QC rightly said on behalf of the defendants, the factors identified in paras 38 40 above chime with the warnings given by Sir Thomas Bingham in Philips and his reasons for rejecting an implied warranty in APJ Priti. The Lease is a very full and carefully considered contract, which includes express obligations of the same nature as the proposed implied term, namely financial liabilities in connection with the tenants right to break, and that term would lie somewhat uneasily with some of those provisions. There is little point in resolving the hypothetical question whether, in the absence of the points discussed in paras 43 49 above, I would have concluded that a term should be implied as the claimant contends. Even if I would have reached that conclusion, I consider that it could not have stood once one faced up to the clear and consistent line of judicial decisions which formed the backcloth against which the terms of the Lease, and in particular the provisions of clause 8, were agreed. Save in a very clear case indeed, it would be wrong to attribute to a landlord and a tenant, particularly when they have entered into a full and professionally drafted lease, an intention that the tenant should receive an apportioned part of the rent payable and paid in advance, when the non apportionability of such rent has been so long and clearly established. Given that it is so clear that the effect of the case law is that rent payable and paid in advance can be retained by the landlord, save in very exceptional circumstances (eg where the contract could not work or would lead to an absurdity) express words would be needed before it would be right to imply a term to the contrary. I accept that refusing to accede to the proposed implied term in this case can lead to the operation of clause 8 having the somewhat curious effect discussed in para 35 above. However, while the difference in result between the tenant paying the 919,800 plus VAT before or after 25 December 2011 can fairly be said to be capricious or anomalous, it does not begin to justify a suggestion that the contract is unworkable. Indeed, the result cannot be said to be commercially or otherwise absurd, particularly as it is entirely up to the tenant as to when that sum is paid. Further, the fact that rent payable in advance is not apportionable can always lead to potential unfairness. For instance, a landlord with a right to forfeit on 23 March for a continuing breach of covenant could wait for three days to re enter, in order to be able to receive the whole of the rent due in respect of the quarter to 24 June. It is instructive to see how Morgan J, who accepted the claimants case that there was an implied term, approached the question of apportionment of rent in the event of a forfeiture. At para 38 of his judgment, after referring to Ellis, he said that he consider[ed] that the parties are to be taken to have contracted against the background of the established law, and he would not have been prepared to imply such a term in a forfeiture. However, he held that such a term could be implied where the Lease determined under clause 8, but not where it determined as a result of a forfeiture, because (i) at the date of the Lease , there was no established law to the contrary in the case of a tenants break clause, whereas there was in relation to forfeiture, and (ii) it is significant that the parties agreed that the lessee could only break the Lease if it paid a sum equivalent to one years rent to compensate the lessor for the fact that it is losing its income stream from the break date. I am unconvinced by either of those reasons. The first reason effectively ignores the point that the reasoning in Ellis, Canas and Capital and City applies equally to a case where a lease determines by forfeiture as it does to a case where it determines by exercise of a right to break. The second distinction appears rather to point the opposite way, as explained in para 39 above. The fact that the tenant has to make a payment of over 900,000 plus VAT by 24 January 2012 in order to exercise the right to break, lies uneasily with the notion that one should imply a term that the tenant should be paid around 200,000 plus VAT the following day, but no such problem exists with implying such a term on a forfeiture. Another reason was advanced before us, namely that forfeiture normally arises because of some failure on the part of the tenant. I agree that it does, but not always; more importantly, I do not see that as a justification for rejecting an implied term in relation to a forfeiture if such a term is to be implied in relation to the exercise of a break clause. Further, given that the exercise of the break clause is in the hands of the tenant, and the exercise of a right to forfeit is in the hands of the landlords, any argument for an implied term based on fairness is stronger in relation to forfeiture than in relation to clause 8. Once one discards the two reasons given by the judge for reaching a different conclusion as to an implied term on the exercise of the break clause from that which would apply on a forfeiture, it seems to me that the logic of the analysis of Morgan J, who has considerable experience in this field, is that the claimants case should fail in relation to the Basic Rent, as the Court of Appeal concluded. Finally, I turn to the Car Park Licence Fee and the insurance rent. The reasons for rejecting the appellants argument in relation to the Basic Rent apply equally to the Car Park Licence Fee: indeed, the position is a fortiori as the reservation of the Car Park Licence Fee includes no words such as and proportionately for any part of a year, and the sum involved is very small in relative terms. So far as the insurance rent is concerned, the position is less clear. It is in a sense a payment for a service, and, as Morgan J rightly concluded, the service charge should be apportioned. However, that conclusion is based on the provisions of para 4.6 of Schedule 7 to the Lease, summarised in para 6 above, which enables the service charge to be apportioned, through the medium of a payment to the tenant: the reference to a credit plainly extends to giving effect to the credit, through payment, once the landlord and tenant relationship has come to an end. I do not consider the service charge to be a good analogy, because the service charge is paid for various ongoing services rather than a one off contribution to a single payment, and because there is no such provision in Schedule 5, summarised in para 5 above, in relation to the insurance rent. The appellant argues that the reference to a fair proportion in Schedule 5 coupled with fact that there is no reference to the period for which the landlords should take out the insurance renders it easy to imply the term for which the appellant contends. In my view, however, unless it could be shown to have been unreasonable for the respondents to have insured the Building for the whole of the ensuing year when they did so, the reasons for dismissing this appeal in relation to the Basic Rent and the Car Park Licence Fee apply equally to the insurance rent. After all, the insurance rent is a single annual sum, specifically reserved as rent, with no provision for apportionment, and it became payable in full in July 2011; further, the money involved is, relatively speaking, small. It is almost invariable for a landlord, indeed for any property owner, to insure its property on an annual basis, unless there is a specific reason not to do so, and that was clearly the established practice in the present case. It may be that the landlords could not have recovered the insurance rent for a full year in a case where it would have been unreasonable for them to have expected the tenant to pay for a full years cover. However, no such argument was advanced in this case, and it was probably too late to do so in any event, as the insurance rent had been paid for the year in question. Accordingly, I would dismiss this appeal. LORD CARNWATH: I agree that the appeal should be dismissed for the reasons given by Lord Neuberger so far as addressed to the issues between the parties. I add some brief comments only on the issue of implied terms, and in particular Lord Neubergers comments on the status of the Privy Council judgment in the Belize case. Unlike him, I would have been content to take my starting point not in the 19th century cases (such as The Moorcock), but in the most modern treatment at the highest level. That is undoubtedly to be found in the judgment of the Privy Council in the Belize case (Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988). It is important to remember that this was not an expression of the views of Lord Hoffmann alone, as is implied in some commentaries, but was the considered and unanimous judgment of the Board as a whole (including Lady Hale, and Lord Rodger, Lord Carswell, Lord Brown, none of them known for lack of independent thought). In the leading textbook on the subject (Lewison, Interpretation of Contracts 5th ed (2014)), the judgment is realistically taken to represent the current state of the law of England and Wales (p 284, para 6.03). The rest of that chapter contains an illuminating discussion of the working out of the principles stated by Lord Hoffmann, as applied by the courts in different contractual contexts and different factual situations. We would need very good reasons for treating the judgment as less than authoritative, and we have not been asked by the parties to do so. In the present case, there has been no dispute as to the authority of the Belize judgment, only as to its interpretation. The appellants seek to interpret it as supporting a more liberal approach than the traditional necessity test (in the words of their printed case): those courts which purport to follow Belize, but in so doing apply the tests of business efficacy, absolute necessity and the officious bystander, are departing from the test decided by the Privy Council. The issue, therefore, is whether the type of necessity that is required for the implication of a term is what may be termed (a) absolute necessity (ie the contract simply will not operate without the term); or (b) reasonable necessity (ie the contract will not operate as it must reasonably have been intended by the parties to operate). (para 59) The respondents by contrast submit that, properly understood, the judgment should not be read as involving any watering down of the traditional tests. To my mind there is no doubt that the respondents interpretation is correct. This is so, whether one looks to the words of Lord Hoffmann alone, or to subsequent authority in the higher courts of this country. The appellants have sought to support their submission by a commendably thorough review of the many cases in which Belize has been cited, in this country and in other common law jurisdictions. In my view, with the possible exception of the Singapore case referred to by Lord Neuberger to which I will come, such support is lacking. Very soon after it was given, the Belize judgment was subject to detailed consideration by Lord Clarke MR in the Court of Appeal in Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc [2009] EWCA Civ 531 (10 June 2009); [2010] 1 All ER (Comm) 1. The judgment was adopted also by Rix LJ (para 48). As the third member of the court, I was more cautious at that early stage, deciding the appeal on the narrow basis that the implied term had not been shown by the owners to be necessary, and their case was not improved by substituting any of the other formulations of the test discussed in the cases (para 63). Lord Clarke began by predicting (accurately as it has turned out) that Lord Hoffmanns analysis will soon be as much referred to as his approach to the construction of contracts in Investors Compensation Scheme [1998] 1 WLR 896, 912 913 (para 8). He observed that the implication of a term is an exercise in the construction of the contract as a whole (para 9, citing the two House of Lords authorities referred to by Lord Hoffmann). He then quoted extensively from the judgment, including its citation of Lord Simons summary of the tests for implication of a term (see Lord Neuberger para 18). He did not see the judgment as involving a loosening of the traditional tests: It is thus clear that the various formulations of the test identified by Lord Simon are to be treated as different ways of saying much the same thing. Moreover, as I read Lord Hoffmanns analysis, although he is emphasising that the process of implication is part of the process of construction of the contract, he is not in any way resiling from the often stated proposition that it must be necessary to imply the proposed term. It is never sufficient that it should be reasonable. (para 15) In support he cited also the speech of Lord Wilberforce in Liverpool City Council v Irwin [1977] AC 239, 253 254, rejecting the more flexible approach proposed in the Court of Appeal by Lord Denning MR. Lord Clarke also noted (para 17) the contrast drawn by Sir Thomas Bingham MR in Philips Electronique (a passage cited by Lord Neuberger at para 29) between the courts usual role in contractual interpretation of finding the true meaning of the words actually used by the parties, and the more ambitious undertaking involved in the interpolation of terms to deal with matters for which [they] have made no provision. Lord Clarke concluded this passage by noting the stress laid by the authorities on the importance of the test of necessity. Is the proposed implied term necessary to make the contract work? (para 18). The appellants cite a number of later cases in the Court of Appeal in which the Belize judgment has been discussed in some detail (notably Crema v Cenkos Securities plc [2011] 1 WLR 2066, para 42ff per Aikens LJ; Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd [2011] Pens LR 223, para 36ff per Arden LJ; Jackson v Dear [2014] 1 BCLC 186, para 15ff per McCombe LJ, adopting the summary of the cases by Briggs J at first instance). None of these involves any material departure from Lord Clarkes analysis. More significantly it gains direct support from the succinct observation by Lady Hale (herself a party to the Belize judgment) in Geys v Socit Gnrale [2013] 1 AC 523, para 55 (paraphrased by Lord Neuberger at para 15), where she referred to: those terms which are implied into a particular contract because, on its proper construction, the parties must have intended to include them: see Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988. Such terms are only implied where it is necessary to give business efficacy to the particular contract in question. The appellants refer also to the treatment of the Belize judgment in other common law countries, including Canada, Australia, New Zealand and Hong Kong. None of these citations raises any doubt as to the authority of the Belize judgment, nor any reason to question Lord Clarkes interpretation of it. The one exception appears to be the Singapore Court of Appeal, in which (as Lord Neuberger points out: para 24) the judgment has been subject to detailed and critical analysis in Foo Jong Peng v Phua Kiah Mai [2012] 4 SLR 1267 (followed in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] SGCA 43). Their analysis draws, inter alia, on criticisms made by Paul Davies, Recent developments in the law of implied terms [2010] LMCLQ 140. I note that there is no criticism in that article of Lord Clarkes judgment as such. Rather it is cited as a supposed example of the less than wholly enthusiastic reception which the Belize judgment is thought to have received in later cases. That and other academic articles, as well as the judgment of the Singapore Court of Appeal, have themselves been subject to critical examination in a recent article by Professor Richard Hooley, Implied terms after Belize Telecom [2014] CLJ 315, in which he welcomes the doctrinal coherence to interpretation and implication brought by the Belize judgment. Other academic views, before and since, are cited by Lord Neuberger (para 24). I see no purpose in reviewing the respective academic contributions in any detail, given the weight of judicial authority for the proposition (with which I understand we all agree) that the judgment is not to be read as involving any relaxation of the traditional, highly restrictive approach to implication of terms. Once that point is established, then I am not convinced with respect that the other points made by the Singapore court are sufficient to justify undermining the authority of the Boards reasoning. The passage from the courts conclusion quoted by Lord Neuberger (para 24) needs to be read in its full context: In summary, although the process of the implication of terms does involve the concept of interpretation, it entails a specific form or conception of interpretation which is separate and distinct from the more general process of interpretation (in particular, interpretation of the express terms of a particular document). Indeed, the process of the implication of terms necessarily involves a situation where it is precisely because the express term(s) are missing that the court is compelled to ascertain the presumed intention of the parties via the business efficacy and the officious bystander tests (both of which are premised on the concept of necessity). In this context, terms will not be implied easily or lightly. Neither does the court imply terms based on its idea of what it thinks ought to be the contractual relationship between the contracting parties. The court is concerned only with the presumed intention of the contracting parties because it can ascertain the subjective intention of the contracting parties only through the objective evidence which is available before it in the case concerned. In our view, therefore, although the Belize test is helpful in reminding us of the importance of the general concept of interpretation (and its accompanying emphasis on the need for objective evidence), we would respectfully reject that test in so far as it suggests that the traditional business efficacy and officious bystander tests are not central to the implication of terms. On the contrary, both these tests (premised as they are on the concept of necessity) are an integral as well as indispensable part of the law relating to implied terms in Singapore. (emphasis added) This summary is useful because it draws together in short form the threads of an elaborate and carefully considered judgment. As I read it the key points come down to three: i) Although the implication of terms is one aspect of the concept of interpretation, it should be treated as separate and distinct from the more general process of interpretation; ii) The court is concerned not with what it thinks ought to be the contractual relationship between the contracting parties, but rather with their presumed intention as ascertained through objective evidence; iii) The central place of the business efficacy and officious bystander tests should be affirmed as an integral as well as indispensable part of the law of Singapore. The first point is an interesting debating point, but to my mind of little practical significance. It is not a point addressed by the parties before us understandably, if they regarded it (as I would) as settled, if not by the Belize judgment itself, then by the authorities relied on by Lord Hoffmann (noted by Lord Neuberger at para 25). Lord Neuberger (para 28) prefers a sequential approach: first interpretation, then implication. However, as he accepts (para 26) both processes are parts of the exercise of determining the scope and meaning of the contract. On this point also I see no reason to depart from what was said in Belize. While I accept that more stringent rules apply to the process of implication, it can be a useful discipline to remind oneself that the object remains to discover what the parties have agreed or (in Lady Hales words) must have intended to agree. In that respect it remains, and must be justified as, a process internal to the relationship between the parties, rather than one imposed from outside by statute or the common law (see the distinction noted by Lord Neuberger: para 15). Nor do I agree that support for such a division can be found in the judgments referred to by Lord Neuberger: that is, the judgments of the Master of the Rolls in the Philips case (already cited), and of this court in Aberdeen City Council. The passage from the former is useful as emphasising the narrow constraints on implication. But I do not read the Master of the Rolls as treating it as a notionally separate exercise from that of interpretation. (Nor did Lord Clarke MR when quoting the same passage in Mediterranean Salvage: see above.) The contrast rather is between two aspects of the courts task in respect of contractual interpretation: the usual role involving the resolution of ambiguities in the language used by the parties, and the extraordinary power involving interpolation of terms that they have not used. In the same way the passages cited from Aberdeen City Council do not appear to support a sharp distinction between interpretation and implication, still less for the necessity of a sequential approach. No one thought it necessary to refer to Belize. Lord Clarke preferred implication, but acknowledged that the two processes achieved the same result. There is no indication that he had changed his view since Mediterranean Salvage. He seems to have treated them as two sides of the same coin. Lord Hope who gave the lead speech (which also had majority support) clearly saw them as part of a single exercise: the implied term was the product of interpretation. The case seems if anything to illustrate an iterative, rather than sequential, process (see Lord Grabiner, The iterative process of contractual interpretation (2012) 128 LQR 41). The results of different interpretative techniques were considered and compared, in the light of the language used and its business context, to achieve a result which best represented the assumed intentions of the parties. On the second point, in so far as there is a difference from the Singapore court, I prefer the approach of Lord Neuberger which seems to me entirely consistent with Belize. As he says (para 21), one is concerned not with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting, or in other words of Lord Hoffmanns reasonable addressee (Belize, para 18). On the third point, there is no doubt as to the continuing significance of the traditional tests, as summarised by Lord Simon. If however the Singapore court intended thereby to prescribe a more rigid application of those tests, whether individually or cumulatively, I prefer the approach of the Board in Belize (para 27): The Board considers that this list is best regarded, not as [a] series of independent tests which must each be surmounted, but rather as a collection of different ways in which judges have tried to express the central idea that the proposed implied term must spell out what the contract actually means, or in which they have explained why they did not think that it did so. This passage is also cited, albeit with only qualified approval, by Lord Neuberger (para 21). In conclusion, while I accept that Lord Hoffmanns judgment has stimulated more than usual academic controversy, I would not myself regard that as a sufficient reason to question its continuing authority. On the contrary, properly understood, I regard it as a valuable and illuminating synthesis of the factors which should guide the court. Applying that approach to the present case leaves me in no doubt that the appeal should be dismissed. LORD CLARKE: I agree that the appeal should be dismissed for the reasons given by Lord Neuberger. I only add a few words of my own because of the debate between Lord Neuberger and Lord Carnwath on Lord Hoffmanns view on the relationship between the approach to construction and the approach to the implication of a term which he expressed on behalf of the Judicial Committee of the Privy Council in Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988. I do so in part in order to clarify what I said in the cases referred to by Lord Carnwath, especially Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc [2009] EWCA Civ 531, [2010] 1 All ER (Comm) 1 and Aberdeen City Council v Stewart Milne Group Ltd [2012] SLT 240. As Lord Carnwath says at para 62, I did not doubt Lord Hoffmanns observation that the implication of a term is an exercise in the construction of the contract as a whole. I recognise, however, in the light of Lord Neubergers judgment, especially at paras 22 to 31, that Lord Hoffmanns view involves giving a wide meaning to construction because, as Lord Neuberger says at para 27, when one is implying a word or phrase, one is not construing words in the contract because the words to be implied are ex hypothesi and not there to be construed. However, like Lord Neuberger (at para 26) I accept that both (i) construing the words which the parties have used in their contract and (ii) implying terms into the contract, involve determining the scope and meaning of the contract. On that basis it can properly be said that both processes are part of construction of the contract in a broad sense. I agree with Lord Neuberger and Lord Carnwath that the critical point is that in Belize the Judicial Committee was not watering down the traditional test of necessity. I adhere to the view I expressed at para 15 of my judgment in the Mediterranean Salvage & Towage case (which is quoted by Lord Carnwath at para 62) that in Belize, although Lord Hoffmann emphasised that the process of implication was part of the process of construction of the contract, he was not resiling from the often stated proposition that it must be necessary to imply the term and that it is not sufficient that it would be reasonable to do so. Another way of putting the test of necessity is to ask whether it is necessary to do so in order to make the contract work: see the detailed discussion by Lord Wilberforce in Liverpool City Council v Irwin [1977] AC 239, 253 254. |
On 20 October 2010, following a trial before a judge and jury at Belfast Crown Court, Angeline Mitchell was convicted of the murder on 11 May 2009 of Anthony Robin. Ms Mitchell and Mr Robin had been partners and had lived together for about three years. They had separated some time before May 2009 but they continued occasionally to meet and spend time together. On 10 May 2009 they met at a Belfast hotel at about 3pm. They had something to eat and they drank alcohol there during the remainder of the afternoon and into the evening. They then went to Mr Robins flat in Fitzroy Avenue, Belfast, where they continued to drink alcohol. A friend of Mr Robin, Michael McGeown, and Mr McGeowns girlfriend, Jacqueline Cushnan, were also staying at the flat. All four watched a film on television together and then played some music. At about 12.15am on 11 May 2009. Mr Robin received a telephone call from the home of a former partner, Rosena Oliver. She and Mr Robin were the parents of two sons, Anthony junior and Thomas. The sons lived with their mother. After receiving the telephone call, Mr Robin went to Ms Olivers home. Ms Mitchell accompanied him. While they were there, Anthony junior was arrested by police officers. Apparently, this was because of a dispute that he had had with his mother. It was then decided that Mr Robin and Ms Mitchell should return to the flat at Fitzroy Avenue and that they should bring the younger son, Thomas, with them. On their return to the flat, Mr Robin and Ms Mitchell discussed Anthony juniors arrest with Mr McGeown and Ms Cushnan for a short time. After that Mr McGeown and Ms Cushnan went to bed. Ms Mitchell continued to talk to Mr Robin about his sons arrest and repeatedly told him that he should go to the police station to which Anthony junior had been taken. He told her to mind her own business. Exchanges between them became more heated. There is a dispute as to what happened next but it is accepted that, at some stage, Ms Mitchell obtained a knife. It is also accepted that she stabbed Mr Robin. He sustained five knife wounds, one of which caused his death. This was a wound to the left side of the chest which was approximately 20 centimetres deep. Other wounds suffered by Mr Robin were to the left side of the scalp, to the right parietal area of the scalp and to the upper thoracic region of the back. Mr Robins son, Thomas, claimed to have witnessed the attack on his father. He said that he saw Ms Mitchell going with a knife at Mr Robin and that he was crying out as she did so. Thomas said that his father turned away from Ms Mitchell and she continued to attack him. When questioned by police at the scene of the killing, Ms Mitchell claimed that there had been a fight between Mr Robin and a Swedish girl who had just left the flat. After speaking to others present, however, police officers arrested Ms Mitchell on suspicion of the attempted murder of Mr Robin. She was cautioned. In response she said that she had tried to help Mr Robin and now she was getting the blame. The trial During her trial, the story about the Swedish girl was not repeated. Ms Mitchell did not dispute that she had stabbed Mr Robin but said that she had acted in self defence. She also claimed that she had been provoked and that she did not have the intention to kill or cause really serious harm to Mr Robin. Before the trial began, the prosecution had intimated an intention to apply to the judge for permission to lead evidence of Ms Mitchells previous bad character. This was said to be for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. None of the episodes to which the proposed evidence related had resulted in a conviction. In relation to two of the incidents, it was agreed between the prosecution and the defence that statements settled between them should be read to the jury. The first of these involved an incident in 2003. The agreed statement contained the following sentence, During the course of a dispute about mobile telephones, Angeline Mitchell chased Andrew McAuley and James People with two knives and tried to stab them. The second agreed statement related to an incident in December 2007 and was in these terms: On 7 December 2007 a dispute arose between Donna Clarke and Angeline Mitchell whilst both were present at flat two, 78 Fitzroy Avenue. During that dispute Angeline Mitchell produced a knife and was disarmed. Angeline Mitchell then obtained two knives and during a struggle stabbed Lorraine Gallagher in the left calf and the left thigh. She also stabbed Donna Clarke in the right leg. As well as allowing the agreed statements to be read to the jury, the trial judge permitted the prosecution to adduce evidence of five other incidents involving Ms Mitchell. Two of these related to attempts to attack Michael McGeown with a knife. Two concerned the concealment of knives to prevent possible use of them by her. Evidence was also given about a conversation between Ms Mitchell and Mr McGeown in which she was alleged to have told him that she was going to stab Mr Robin and that before she did so, she would stab Mr McGeown because she knew that he would try to intervene and go to Mr Robins aid. Despite having authorised her legal advisers to agree that the statements be read to the jury, in the course of giving evidence, Ms Mitchell did not accept that events had occurred in the way described in the statements. The judge dealt with this part of her evidence in the following passage from his charge to the jury: Now, when the accused was in the witness box she appeared to renege on [the statements] and didnt agree that these things had happened or had happened in that way, or that she had stabbed these people. And she refused to accept any fault on her part in connection with these On the question of how the jury should treat the bad character evidence, it is agreed that the judge did not direct them on whether they required to be satisfied of the truth of the evidence. Nor did he indicate to the jury that they had to be satisfied that the bad character evidence had established the particular propensity on the part of Ms Mitchell which the prosecution had alleged. It appears that counsel who appeared for the prosecution and the defence at the trial did not invite the judge to give any particular form of direction on these topics. Perhaps understandably, therefore, his charge contained no reference to these matters. This is what he said to the jury about the evidence: that [evidence] may or may not help you. Take it into account or leave it out of account as you consider appropriate. But do not make an assumption because a person behaves that way that that means that shes guilty of murder and had the necessary intent just because of those events. The appeal Some three years and three months after her trial, Ms Mitchell applied for leave to appeal against her conviction. An extension of time within which to appeal was granted on 6 March 2014 and subsequently Maguire J gave Ms Mitchell permission to appeal on one ground only viz that the trial judge had failed to direct the jury properly on the purpose of the bad character evidence or the standard of proof to which the jury had to be satisfied before any member of the jury could take the bad character evidence into account in any way. She was refused leave to appeal on other grounds. Ms Mitchell renewed her application for leave to appeal on those grounds but that application was refused by the Court of Appeal in Northern Ireland (Girvan, Coghlin and Gillen LJJ) on 30 April 2015. The grounds on which leave to appeal was refused have not featured in the appeal before this court and nothing need be said about them. The Court of Appeal allowed Ms Mitchells appeal on the single ground on which she had been given leave to appeal and quashed her conviction. Subsequently they ordered that she should face a retrial. This took place in April 2016. Ms Mitchell pleaded not guilty to murder on the ground of diminished responsibility and pleaded guilty to manslaughter. She was acquitted of murder and sentenced to ten years imprisonment for the manslaughter of Mr Robin. Gillen LJ, who delivered the judgment of the Court of Appeal, said, at para 50 of his judgment, that the correct legal position had been stated by the authors of the 2015 edition of Archbold, Criminal Pleading Procedure and Practice at para 13 68: Where non conviction evidence is being relied on to establish propensity and the evidence is disputed, the jury must be directed not to rely on it unless they are sure of its truth: R v Lafayette [2009] Crim LR 809 and R v Campbell [2009] Crim LR 822, CA. This passage does not distinguish between two distinct but potentially overlapping issues: the need, on the one hand, to establish to the requisite criminal standard the facts said to provide evidence of propensity and, on the other, the existence of such a propensity. Should the jury be directed that they have to be satisfied beyond reasonable doubt of the veracity and accuracy of the individual facts which, it is claimed, provide evidence of misconduct on the part of the defendant? Alternatively, is the real issue not this: what requires to be proved is that the defendant did have a propensity? Or must both issues be addressed? Subsidiary questions arise which will be discussed later in this judgment. These include: should a preliminary evaluation be carried out by the jury of the truth and accuracy of the matters alleged before the question of the existence of propensity is examined or is the proper approach to consider all the evidence about the various instances of misconduct before deciding whether (i) they have been individually established; and (ii) particular instances of misconduct can serve as supportive of evidence in relation to other incidents. The Court of Appeal in this case referred to two decisions of the English Court of Appeal which, it was suggested, supported the statement in Archbold. The first was R v Ngyuen [2008] EWCA Crim 585; [2008] 2 Cr App R 9. In that case only one incident of previous misconduct was involved, so that proof of propensity might be said to have merged with proof of the facts involved in that incident. The second case was R v ODowd [2009] EWCA Crim 905; [2009] 2 Cr App R 16. Three alleged incidents of previous misconduct were involved in ODowd. The Court of Appeal in that case, at para 65, paraphrased with approval a statement by Moses LJ in R v DM [2008] EWCA 1544; [2009] 1 Cr App R 10 that the jury would need to consider with as much detail and concentration all the facts in relation to the three allegations as they would in relation to the offences of which the appellant was charged. It concluded, at para 83, that because it had proved necessary to scrutinise the evidence concerning the three disputed allegations the trial had been unnecessarily prolonged and rendered unduly complex. The convictions were therefore quashed. This was essentially a decision prompted by the view that the trial judge should not have admitted the evidence because allowing it to be given made the jurys task too difficult. Beatson Js judgment certainly assumed that the jury was required to examine separately the question whether facts relevant to each incident of misconduct had been established But to say that the jury must examine the evidence of each previous incident relied upon does not answer the question asked in this case, namely whether it must consider in independent compartments whether each such incident has been proved to the criminal standard, or whether it is enough that, having examined all the evidence, it is satisfied that a propensity to behave as charged has been established. Both Ngyuen and ODowd will be considered in greater detail below. It is sufficient to say at this stage that the Court of Appeals endorsement of them in this case would appear to indicate their approval of an approach which involves the individual consideration of the facts of each specific instance of misconduct said to establish a propensity on the part of the defendant. The correctness of that approach will also be considered. The Court of Appeal was asked by the Crown to give permission to appeal to this court and to certify a question for this courts opinion. Permission to appeal was refused but the following question was certified: Is it necessary for the prosecution relying on non conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury can take them into account in determining whether the defendant is guilty or not? The way in which this question is framed reinforces the impression that the Court of Appeal considered that the facts of each incident said to establish propensity had to be proved to the criminal standard before the jury could have regard to it. The hearing in this court Mr McCollum QC, who appeared for the prosecution (the appellant before us), submitted that evidence in relation to propensity did not call for any special examination by the jury. In particular, it should not be placed in a special compartment requiring consideration in isolation from other evidence in the case. It was in the nature of this form of trial that all relevant evidence should be assessed by the jury so as to allow them to determine whether they had been brought to the point of conviction of the defendants guilt. It was inimical to that fundamental aspect of jury trial that a particular issue be segregated from the generality of the evidence and a pre emptive decision be made in relation to that issue, before the question of the guilt or innocence of the accused was tackled. Dealing with all the evidence together was, Mr McCollum said, not only the principled way to proceed, it was necessary in order to avoid the unsatisfactory situation encountered in the ODowd case where a number of incidents required the jury to conduct what was in effect a series of individual trials. Moreover, there was nothing in the legislation authorising the admission of bad character evidence (in this case the Criminal Justice (Evidence) (Northern Ireland) Order 2004 (SI 2004/1501)) which expressly or by necessary implication required the incidents which are said to have constituted evidence of propensity to be proved beyond reasonable doubt. For Ms Mitchell (the respondent in this court) Mr ODonoghue QC claimed that before the enactment of the 2004 Order the common law rule was that where evidence of bad character was disputed, it had to be proved beyond a reasonable doubt before it could be taken into account by a court or jury. That rule was not abolished by the 2004 Order, he suggested; to the contrary, the Order clearly contemplated that it was the function of the jury to evaluate the evidence of bad character in a conventional way. Facts supporting the claim that the defendant had a particular propensity had to be proved beyond reasonable doubt. It was inconceivable, Mr ODonoghue argued, that a jury could entertain a reasonable doubt as to the accuracy or veracity of the evidence said to underpin such a propensity and, nevertheless, accept that evidence as sufficient to establish its presence. The law before the 2004 Order At common law, as a general rule, evidence of the bad character of an accused person was not admissible in a criminal trial. There were exceptions to this. One of these was similar fact evidence. An early and notable example of the admission of this type of evidence was the case of Makin v Attorney General for New South Wales [1894] AC 57. In that case, the Lord Chancellor, Lord Herschell, while acknowledging the general rule that the prosecution may not adduce evidence that tended to show that an accused person was guilty of criminal acts other than those with which he had been charged, stated that, in appropriate circumstances it was legitimate to allow evidence to be admitted which was relevant to an issue in the case. Thus, in Makin where the accused had been charged with the murder of an infant who had been given into their care by the childs mother after payment of a fee, evidence that several other infants had been received by the accused persons from other mothers and that their bodies were found buried in gardens of houses occupied by the prisoners, was admissible. Makin, together with the later cases of R v Kilbourne [1973] AC 729, R v Boardman [1975] AC 421 and Director of Public Prosecutions v P [1991] 2 AC 447, established the common law rule that, in order to be admissible, similar fact evidence had to go beyond simply demonstrating a criminal tendency (or propensity). It had to show sufficient pattern of behaviour, underlying unity or nexus to exclude coincidence and thus have probative force in proving the indicted allegation. In Scotland the same distinction was long recognised: see Moorov v HM Advocate 1930 JC 68. Clearly, the evidence in Makin was relevant in that, if accepted, it had, at least, the potential to show that the defendants were more likely to have killed the child. The decision in that case does not address the issue which is central to this appeal, however, since the question of how evidence of similar facts, if properly admitted, should be treated, did not arise. The case is of interest only as part of the background to the exception to the general common law rule that evidence of antecedent misconduct is not admissible unless shown to be directly relevant to an issue in the trial. Since, as I shall discuss below, evidence of propensity or similar fact evidence is, essentially, extraneous to that which is directly probative of the accuseds guilt of the charges on which he stands trial, the case can be made that it should be subject to the conventional criminal standard requirement of proof beyond reasonable doubt. And, it may be said, this is especially so where the claims in relation to similar fact evidence or propensity are disputed. In R v Armstrong [1922] 2 KB 555 the accused, a solicitor, was charged with the murder of his wife by giving her arsenic. His defence was that he had not administered the poison, although he admitted that he had arsenic which, he said, he used as a weed killer. He claimed that his wife had either committed suicide or had taken the arsenic by accident. The prosecution was permitted to call evidence that another solicitor, a Mr Martin, had visited the accuseds home eight months after his wifes death and had suffered an episode of arsenic poisoning that evening. The purpose of calling evidence about the attempt to poison Mr Martin was, the prosecution said, to rebut the suggestion that Mrs Armstrong had either committed suicide or taken the arsenic by accident. The trial judge, Darling J. directed the jury that, unless it was proved that Armstrong had given arsenic to Martin with intent to injure him, the evidence had no bearing whatever upon this case. That direction was not disapproved by the Court of Appeal when it affirmed the accuseds conviction. It was argued on behalf of the present respondent, therefore, that this case supported the proposition that the common law rule was that the prosecution had to prove to the criminal standard the truth of all similar fact evidence irrespective of the purpose for which it was admitted. This claim must be viewed against the background that Armstrong involved a single instance of similar fact evidence. If there was doubt about the truth or accuracy of the evidence relating to the Martin episode, one can readily understand why it would have to be disregarded by the jury. The purpose of introducing the evidence was to show that Armstrong was prepared to use arsenic on another individual. If the jury was not convinced that he had administered poison to Mr Martin, self evidently, that incident could not be used as proof of a propensity on the part of Armstrong to use arsenic to poison others. What of the situation where there are several disparate instances of alleged antecedent conduct, said to demonstrate propensity or evidence of similar facts? Must each incident be the subject of a compartmentalised examination designed to determine whether the constituent elements of each have been established beyond reasonable doubt? Or should consideration of these various instances partake of a rounded evaluation to see whether, taken as a whole, the antecedent evidence establishes a propensity or that the alleged similar facts may properly be described as such and that they tend to support the prosecutions case that the defendant is guilty of the charges which he or she faces? It will be necessary to explore these issues later in this judgment. Hints of a different approach can be detected in R v Kilbourne [1973] AC 729. In that case the respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first group. At p 741, Lord Hailsham of St Marylebone LC said: A considerable part of the time taken up in argument was devoted to a consideration whether such evidence of similar incidents could be used against the accused to establish his guilt at all, and we examined the authorities in some depth from Makin v Attorney General for New South Wales [1894] AC 57, through Lord Sumners observations in Thompson v The King [1918] AC 221, to Harris v Director of Public Prosecutions [1952] AC 694. I do not myself feel that the point really arises in the present case. Counsel for the respondent was in the end constrained to agree that all the evidence in this case was both admissible and relevant, and that the Court of Appeal was right to draw attention [1972] 1 WLR 1365, 1370 to the striking features of the resemblance between the acts alleged to have been committed in one count and those alleged to have been committed in the others and to say that this made it more likely that John was telling the truth when he said that the appellant had behaved in the same way to him. In my view this was wholly correct. With the exception of one incident. each accusation bears a resemblance to the other and shows not merely that [Kilbourne] was a homosexual, which would not have been enough to make the evidence admissible, but that he was one whose proclivities in that regard took a particular form [1972] 1 WLR 1365, 1369. I also agree with the Court of Appeal in saying that the evidence of each child went to contradict any possibility of innocent association. As such it was admissible as part of the prosecution case, and since, by the time the judge came to sum up, innocent association was the foundation of the defence put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was beyond question. The word corroboration by itself means no more than evidence tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration. The primary issue in Kilbourne was, of course, whether evidence which required, as a matter of law, corroboration could be verified by other evidence which itself, again as a matter of law, had to be corroborated. The case is interesting in the present context, however, because of the assertion by Lord Hailsham LC that evidence which is admissible and relevant, if believed, could properly be taken into account as corroborative of the case against the accused. Counsel for the respondent in this appeal accepted that the use of the phrases if believed and when believed in the passage quoted did not suggest that Lord Hailsham LC was proposing that proof beyond reasonable doubt of each of the other incidents was required. But, nor did it mean, he suggested, that it could be left to the jury to treat the evidence, once admitted, in whatever manner they chose. The jury was required, he submitted, to make some evaluation of the truth of the similar fact evidence and the speech of Lord Hailsham LC was not necessarily inconsistent with that evidence having to meet a requirement of proof beyond reasonable doubt before it could play a part in their deliberations. Lord Hailsham LC dealt again with the issue of similar fact evidence in R v Boardman [1975] AC 421. He made a passing reference (at p 453) to its being a matter for the jury to decide on the degree and weight to attach to such evidence, if admitted. This does not provide much in the way of authoritative guidance as to the standard of proof to be applied to similar fact evidence. Likewise, in R v Scarrott [1978] QB 1016 Scarman LJ referred to the need for similar fact evidence to be believed and the need for the jury to accept the evidence. These allusions cannot begin to constitute a statement of commanding clarity as to how a jury should assess such evidence. Consideration of these authorities (and R v Z [2000] 2 AC 483 to which the respondent also referred) leads inevitably to the conclusion that before the enactment of the 2004 Order (and its England and Wales counterpart, the Criminal Justice Act 2003) there was no clear, definitive statement on the issue now raised as to how juries should treat evidence of similar facts or propensity. The 2004 Order Article 4(1) of the 2004 Order (mirroring section 99 of the 2003 Act) abolished the common law rules governing the admissibility in criminal proceedings of evidence of bad character. The Order significantly expanded the circumstances in which bad character evidence could be admitted and the rules which previously restricted admission of such evidence now have no part to play in the decision as to whether it should be received. Article 6(1) sets out a number of what have come to be known as gateways for the admission of evidence of a defendants bad character. It provides: 6(1) In criminal proceedings evidence of the defendants bad character is admissible if, but only if all parties to the proceedings agree to the it is important explanatory evidence, it is relevant to an important matter in issue (a) evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it, (c) (d) between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co defendant, (f) by the defendant, or (g) persons character. the defendant has made an attack on another it is evidence to correct a false impression given Article 8 deals specifically with propensity. It relates back to gateway (d) of article 6(1). Article 8(1) provides: Matter in issue between the defendant and the prosecution 8. (1) For the purposes of article 6(1)(d) the matters in issue between the defendant and the prosecution include (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendants case is untruthful in any respect. (2) Where paragraph (1)(a) applies, a defendants propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of an offence of the same description as the one with (a) which he is charged, or (b) which he is charged. an offence of the same category as the one with (3) Paragraph (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case. (4) For the purposes of paragraph (2) (a) two offences are of the same description as each other if the statement of the offence in a complaint or indictment would, in each case, be in the same terms; (b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this article by an order made by the Secretary of State. (5) A category prescribed by an order under paragraph (4)(b) must consist of offences of the same type. (6) Only prosecution evidence is admissible under article 6(1)(d). Thus mere propensity to commit offences of the kind charged may now be admissible. It may be proved by convictions for offences of the same description or category, but also by other evidence, such as that of complainants or observers, or by past admissions where there has not been a conviction. In this case the grounds on which the admission of evidence of the respondents bad character was sought to be introduced were stated to be that (i) it was relevant to an important matter between the defendant and the prosecution (article 6(1)(d)). The important matter was said to include the propensity of the respondent to use knives to wound others; (ii) it was important explanatory evidence of the character of the respondent (article 6(1)(c)); (iii) it corrected a false impression given by the respondent about herself (article 6(1)(f)); and (iv) it was admissible because the respondent had attacked the character of another person, namely, the victim, Anthony Robin. We have not seen the trial judges ruling on the application to admit evidence of bad character. The Court of Appeal dealt with the matter shortly in para 28 where Gillen LJ observed that counsel for the respondent had accepted that the prosecution was entitled to call evidence of her bad character under article 6(1)(d) and 6(1)(g). He also said that Mr ODonoghue had accepted that it was at least arguable that the evidence [of bad character] may have been capable of establishing that the [respondent] had a propensity to arm herself with a knife and to use the knife for the purpose of and with the intention of inflicting serious bodily harm. If admission had been solely under articles (c), (f) or (g), it would have been necessary to consider at the end of the evidence whether propensity had become a legitimate issue, and how the jury should be directed as to the use which could be made of it. But whether or not it was also admitted under article 6(1)(f), this evidence was plainly admissible under article 6(1)(d), and thus propensity to offend as charged was a relevant matter which the Crown could seek to establish. It was no part of the respondents case that the evidence was wrongly admitted. What the respondent does assert, however, is that the law before the enactment of the 2003 Act and the 2004 Order was that the prosecution was required to prove to the criminal standard the truth and accuracy of evidence said to constitute similar facts or propensity. For the reason given in para 31 above, I do not accept that claim. The respondent is unquestionably right in the submission that neither the 2003 Act nor the 2004 Order stipulates that only the common law rules as to the admissibility of bad character evidence have been abrogated. Common law rules as to how such evidence should be evaluated have not been affected, the respondent says. But, for the reasons earlier given, there are no clear rules on that question. The debate as to how evidence of bad character admitted under the relevant legislation should be regarded by the jury is not assisted by a consideration of the common law position. It is common case between the parties that the legislation concerning the admission of bad character evidence is silent on the question of whether that evidence must meet the requirement of proof beyond reasonable doubt before it can be taken into account. On one view, this is indicative of a legislative intention that this species of evidence should not be subject to a special regime of independent proof. That it should simply combine with the other evidence in the case for evaluation as to whether the guilt of the accused has been established to the requisite standard. The contrary view is that whether someone has a propensity to engage in activity such as that which constitutes the crime charged or whether they have been involved in acts of a similar nature stands apart from direct evidence of their actual involvement in the crime charged. On that account, so the argument runs, the question whether they have such a propensity or have been involved in events claimed to comprise similar facts, calls for consideration separate from the evidence which directly implicates the accused in the offence for which they are being tried. Propensity the correct question/what requires to be proved? A distinction must be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists. In a case where there are several incidents which are relied on by the prosecution to show a propensity on the part of the defendant, is it necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred? Must the facts of each individual incident be considered by the jury in isolation from each other? In my view, the answer to both these questions is no. In the case of Ngyuen [2008] 2 Cr App R 9 the appellant had been convicted of murder. On 23 December 2005 in a public house in Woolwich he had struck the victim in the neck with a glass and this caused fatal injuries. The prosecution alleged that this had been a deliberate attack. The appellant claimed that he was acting in self defence. On 7 December 2005 he had been involved in a similar incident at a different public house which was called The Great Harry. On that occasion he had broken a glass and used it to cause injuries to three men. The Crown applied for leave to admit evidence of the incident in The Great Harry. In acceding to that application, the judge said that the jury will have to be sure of the facts before they can use them, applying the criminal burden and standard of proof. In directing the jury about the earlier incident, she said that the prosecution relied on three relevant matters that the appellant had deliberately broken a glass; that he used it with the intention of causing really serious harm; and that he had done so unlawfully. The judge then said, If you are not sure of any of those facts, the events in The Great Harry are irrelevant to your deliberations on the charge of murder. The propriety of the judges charge was confirmed by the Court of Appeal. It should be noted, of course, that no challenge to its wording was made by the prosecution or the defence. The appeal, so far as concerns the judge, was based on the claim that she had been wrong to admit the evidence of The Great Harry incident and that the direction on that incident, although fair, was too much for the jury to apply faithfully and conscientiously. It is significant that the only bad character evidence in Ngyuen related to a single previous incident. In order to be convinced that the appellant in that case was possessed of the propensity which the prosecution alleged, it is not surprising that the judge considered that it was necessary for the jury to be persuaded that The Great Harry incident had taken place as alleged. If the jury needed to be sure that the appellant had the alleged propensity (and I am of the view that this was certainly required, if they were to take it into account), how could they, in the circumstances of that particular case, be brought to the necessary point of conviction unless they were convinced that the incident had indeed taken place in the manner that the Crown said that it had? Otherwise, there was simply no factual basis on which to found a conclusion that a propensity existed. The proper issue for the jury on the question of propensity in a case such as Ngyuen and the present appeal is whether they are sure that the propensity has been proved. In Ngyuen the only way in which they could be sure was by being convinced that the sole incident said to show propensity had been proved to the criminal standard. That does not mean that in cases where there are several instances of misconduct, all tending to show a propensity, the jury has to be convinced of the truth and accuracy of all aspects of each of those. The jury is entitled to and should consider the evidence about propensity in the round. There are two interrelated reasons for this. First the improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jurys deliberations on whether propensity has been proved. Secondly, obvious similarities in various incidents may constitute mutual corroboration of those incidents. Each incident may thus inform another. The question impelled by the Order is whether, overall, propensity has been proved. As I have said, the existence of a propensity must be proved to the conventional criminal standard. I do not accept the appellants argument that it does not call for special treatment, if by that it is meant that the existence of a propensity need not be established beyond reasonable doubt. This issue stands apart from the evidence which speaks directly to the defendants guilt or innocence of the offences charged. Evidence about a propensity or tendency to commit a specific type of crime or engage in a particular species of misconduct is not in pari materia with testimony that touches on the actual events said to constitute the particular crime involved. It is right, therefore, that the jury should be directed that before they take this into account, they must be convinced that propensity has been proved. That is not to say that the jury must be unanimous on the question of whether it exists. As the judge said in Ngyuen, jurors are at liberty to follow their own evidential track. But the jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established. In the case of R v Lafayette [2008] EWCA Crim 3238; [2009] Crim LR 809 the defendant was convicted of murder, having stabbed his victim with a knife. He claimed that the victim had produced the knife and that, in self defence, he had grabbed the victims hand and accidentally caused the knife to enter his body. Cross examination of some of the eye witnesses called by the prosecution about their criminal records led to an application by the prosecution for permission to cross examine the defendant about his own previous convictions including one in 2003 for criminal damage to a window in a flat occupied by his partner. The application was granted. The partner had made a statement to the police that during this incident he had threatened to slit her throat. He had not been charged with making that threat. He denied having made it. As it happened, his partner gave evidence on the defendants behalf on his trial for murder. She was asked about the threat alleged to have been made in 2003. She claimed that she was not able to remember it. On the appeal against his conviction for murder, counsel for Lafayette accepted that the jury would have been entitled to conclude that the partner had adopted the written statement that she had made in 2003 in which reference to the threat to kill had been made. The Court of Appeal said (in para 36 of its judgment) that the judge should have directed the jury that they should not rely on the allegation that he had threatened to kill his partner unless they were sure that [he] had made the threat. One can understand why this conclusion was reached. A very specific threat had been imputed to the defendant and the evidence about it was, at best, equivocal. The incident to which the evidence related was not similar to other instances of criminal conduct which were referred to by the Crown, in support of its claim that the defendant had a general propensity to crimes of violence. If the judgment of the Court of Appeal can be interpreted as suggesting that the jury should consider this item of evidence completely separately from other alleged incidents of violence in the defendants past and should leave it entirely out of account unless satisfied that all aspects of the incident were proved to the criminal standard, I would not agree with it. The evidence relating to the threat required to be considered by the jury along with other evidence which was called to establish propensity and a determination ought to have been made on whether all that testimony, taken in combination, proved the claimed propensity. Each item of evidence in relation to individual instances of alleged propensity must be examined and conclusions on the primary facts should be reached but, in its deliberations as to whether propensity has been proved, the jury should consider the evidence on the subject as a whole rather than in individual compartments. The practical difficulties in dealing with each avowed instance of bad character tending to show propensity or similar facts are well demonstrated in the case of ODowd [2009] 2 Cr App R 16. In that case the trial of a single defendant on charges relating to one victim lasted six and a half months. He had been convicted of falsely imprisoning, raping, sexually assaulting and poisoning a woman. The Court of Appeal stated that a major reason for the length of the trial was the introduction of bad character evidence. This concerned three allegations of rape, two of which related to events that had occurred 22 and 17 years before the indicted charges. The first of the allegations resulted in an acquittal, the second in a conviction and the third was stayed on the ground of abuse of process. Interestingly, it had originally been argued on behalf of the defendant that the trial judge was wrong to have directed the jury that the bad character allegations were capable of mutually supporting the truth of other allegations. Beatson J, who delivered the judgment of the court, dealt with that argument in para 6 of his judgment: The second ground upon which leave to appeal was granted concerned the judges directions as to the use the jury could make of the bad character evidence. This ground has two limbs. The first concerns the direction that the bad character allegations were capable of mutually supporting the truth of the other allegations. [Counsel] did not pursue the first limb. He was right not to do so. It was unarguable in the light of the decisions of this court in [R v Wallace [2007] 2 Cr App R 30; R v DM [2009] 1 Cr App R 10, and R v Freeman [2009] 1 WLR 2723]. In light of what I have said at para 43 above, I obviously agree with this. It would be misleading and confusing for a jury to be instructed that they should ignore the significance of one incident tending to show propensity when they come to form their views about another. Indeed, it would be unrealistic to expect that they perform the counter intuitive intellectual exercise of segregating various incidents for separate consideration without considering the possible impact of one on the other. Decisions about propensity should not be the product of a review of facts about separate episodes in hermetically sealed compartments. In para 32 of his judgment Beatson J set out the case made by the defendant that the evidence of bad character should not be admitted. He said this: At the pre trial hearing the defence submitted that admitting evidence of the bad character allegations by the three women would make a simple case complicated and would expand it out of all proportion and would be unjust. It would expand the case because the appellant denied the allegations, two of which had not resulted in a conviction, and the Crown would have to prove them. It would be unjust to admit the allegations because the defence would be handicapped in dealing with them. What Beatson J characterised as the most serious difficulty in acceding to the Crowns application to have the bad character evidence admitted was described in para 55 of his judgment. He said that proof of the alleged misconduct would require the trial of three collateral or satellite issues as part of the trial . This perceived difficulty led to the Court of Appeals conclusion (at para 65) that a trial of those collateral issues was required. It was in this context that the statement of Moses LJ in DM (referred to in para 16 above) was quoted with approval. Beatson J said that the jury would have to be sure those allegations were true before relying on them in relation to the index offence. Because, in effect, the trial was lengthened by a considerable period because of the perceived need to conduct what were in effect three mini trials, the Court of Appeal considered that the fairness of the proceedings was irredeemably compromised and the convictions were quashed. I can understand why the Court of Appeal reached the decision that it did. Three trials of the earlier incidents were in fact conducted and the appellate court had to deal with that unalterable fact. But I am of the clear view that it was inappropriate for the jury to be directed that it had to examine in insulated compartments the evidence in relation to each previous incident and that it had to be sure that each incident had been proved before it could take any account of it. It was, of course, necessary to lead evidence of the three incidents. The jury should have been directed to consider whether the sum of that evidence established to the criminal standard that the defendant was possessed of the propensity which was alleged. The evidence in relation to those incidents should have been considered cumulatively, not as separate aspects of the case for a propensity, isolated one from the other. ODowd nevertheless illustrates an important consideration which must be borne in mind by trial judges when determining applications to adduce evidence of propensity under articles 6(1)(d) and 8(1)(a). The jury is not asked to return a verdict on any previous allegations relied upon, and indeed should be reminded that the defendant is not on trial for them. It should be told to focus on the indicted offence(s). Reliance on cumulative past incidents in support of a case of propensity may indeed illuminate the truth of the currently indicted allegations, but excessive recourse to such history may skew the trial in a way which distracts attention from the central issue. Article 6(3) requires the judge to consider actively whether the effect of admitting the bad character evidence will have such an adverse effect on the fairness of the trial that it ought to be excluded. That species of adverse effect can arise through the sheer weight of disputed evidence on other uncharged allegations. And that can happen even though the jury will in due course be directed to consider propensity cumulatively, if the volume of evidence received is sufficiently strong to support a conviction. It is a truism that satellite litigation is often inimical to efficient trial. Conclusions In so far as the Court of Appeal in the present case has suggested that each incident claimed by the prosecution to show a propensity on the part of the defendant required to be proved to the criminal standard. I would not agree with it. For the reasons that I have given, the proper question to be posed is whether the jury is satisfied that a propensity has been established. That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt. It is necessary to emphasise, however, that propensity is, at most, an incidental issue. It should be made clear to the jury that the most important evidence is that which bears directly on the guilt or innocence of the accused person. Propensity cannot alone establish guilt and it must not be regarded as a satisfactory substitute for direct evidence of the accuseds involvement in the crime charged. It is clear in the present case, however, that the trial judge failed to give adequate directions as to how the question of propensity should be approached by the jury. On that account the conviction was unsafe and it was properly quashed. The current Bench Books for Northern Ireland and England and Wales contain specimen directions which might be considered to suggest that juries require to be directed that they need to be satisfied of the truth of every allegation of propensity before they may take it into account. For the reasons that I have given, I consider that such a suggestion is misconceived. It will be for the authors of those works to reflect on whether an amendment to the relevant sections of the Bench Books is required. |
These two cases raise a number of important issues in relation to the detention pending deportation of foreign national prisoners (FNPs) following the completion of their sentences of imprisonment. Section 3(5)(a) of the Immigration Act 1971 (the 1971 Act) provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Schedule 3 to the 1971 Act provides in certain specified circumstances for the detention of such a person pending his deportation. Walumba Lumba is a citizen of the Democratic Republic of Congo (DRC) who entered the UK on 10 April 1994. He was convicted of a number of offences culminating in an offence of wounding with intent for which he was sentenced to 4 years imprisonment on 12 January 2004. On 3 April 2006, the Secretary of State informed Mr Lumba of his intention to deport him under section 3(5)(a) of the 1971 Act. He was due to be released from prison on 23 June 2006, but by letter dated 22 June 2006 was notified that he was to be detained pending deportation. He left the United Kingdom voluntarily on 13 February 2011. Kadian Mighty is a citizen of Jamaica. He arrived in the United Kingdom on 4 December 1992 and was given 6 months leave to enter as a visitor. Thereafter, he made various unsuccessful applications for leave to remain. On 10 February 2003, however, he was granted indefinite leave to remain. He had been convicted of a number of offences, including possession of a Class A drug with intent to supply, for which on 27 June 2003, he was sentenced to 42 months imprisonment. Following his release on licence, he committed a driving offence and was recalled to prison. He was finally released on 31 March 2006. On 10 May 2006, the Secretary of State informed Mr Mighty of his intention to deport him under section 3(5)(a) of the 1971 Act. On 19 May 2006, he was detained pending deportation because he was likely to abscond and his release was not conducive to the public good. He was released on bail on 28 July 2008. Schedule 3 of the 1971 Act provides, so far as material: 2. (1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail. (1A) Where (a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and (b) he appeals against his conviction or against that recommendation, the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation. (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise). Between April 2006 and 9 September 2008, the Secretary of States published policy on detention of FNPs under her immigration powers was that there was a presumption in favour of release, although detention could be justified in some circumstances. In fact, during this period the Secretary of State applied a quite different unpublished policy which was described as a near blanket ban by the Secretary of State, Ms Jacqui Smith, to the Prime Minister, Gordon Brown, on 19 September 2007 in a document entitled Bail Proposal for Foreign National Prisoners in which she said: Since April 2006, the BIA [(the Border and Immigration Agency)] has been applying a near blanket ban on release, regardless of whether removal can be achieved and the level of risk to the public linked to the nature of the FNPs original offence. By currently having no discretion to grant bail, the BIA has to regularly transfer FNPs around the Estate. On 9 September 2008, the Secretary of State published a policy which included a presumption of detention and withdrew all references to a presumption of release. On 22 January 2009, following the decision of Davis J in the current proceedings, this policy was amended again to omit the reference to a presumption of detention and substitute a policy in favour of release from detention. It will be necessary to describe the policies and practices adopted from time to time in more detail later in this judgment. The proceedings Mr Lumba issued proceedings on 18 October 2007. He challenged the lawfulness of his detention on the grounds that he was no longer being detained pending deportation and that his continued detention was in breach of the principles stated by Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles). He also claimed a declaration that his detention was unlawful, a mandatory order that he be released and damages. On 4 July 2008, Collins J gave an interlocutory judgment on part of the claim: [2008] EWHC 2090 (Admin). He did not make a decision in relation to Mr Lumbas past detention and reserved for a further hearing inter alia the questions of whether the operation of an unpublished policy had been unlawful and the past detention had been unlawful as a consequence. On 28 July 2008, Mr Lumbas claim was joined to four other cases in which the same points arose. One of these was the claim of Mr Mighty which had been issued on 29 May 2008. The five cases were heard by Davis J on 11 14 November 2008. In an impressive judgment given on 19 December 2008 [2008] EWHC 3166 (Admin), he granted the claimants declarations that (i) paragraph 2 of Schedule 3 to the 1971 Act prohibits the Secretary of State from operating any policy in relation to the detention of FNPs which contains a presumption in favour of detention and (ii) it was unlawful for the Secretary of State to operate the policy introduced in April 2006 in that it was not sufficiently published or accessible until its publication on 9 September 2008. He dismissed the other claims, in particular the claims for damages for unlawful detention. The appellants appealed and the Secretary of State cross appealed against the first declaration. In a judgment of the court delivered by Stanley Burnton LJ, the Court of Appeal (Lord Neuberger MR, Carnwath and Stanley Burnton LJJ) ([2010] 1 WLR 2168) allowed the cross appeal and set aside the first declaration. They also varied the second declaration. Otherwise the appeals were dismissed. The issues The principal issues are as follows. (i) Were the detention policies that were applied to the appellants after April 2006 unlawful because (a) they were blanket policies (para 21 below) and/or (b) they were inconsistent with the published policies (para 26 below) and/or (c) they were not published policies (paras 27 38 below) and/or (d) they contained a presumption in favour of detention (paras 40 55 below)? (ii) If unlawful policies were applied to the appellants, was their detention unlawful in consequence (paras 56 89)? (iii) If their detention was unlawful, are the appellants entitled to more than nominal damages (paras 90 101 below)? (iv) Is Mr Lumba entitled to damages for unlawful detention on the grounds that, in his case, there has been a breach of the Hardial Singh principles? (paras 102 148 below) (v) Are the appellants entitled to an award of exemplary damages (paras 150 168 below)? The policies in more detail The published policies The presumption of release had been entrenched in the Secretary of States published policies since at least 1991. It appeared in the White Paper Fairer, Faster and Firmer: a Modern Approach to Immigration and Asylum (1998) (Cm 4018), which was published in 1998 and again in 2002 in the White Paper Secure Borders, Safe Haven: Integration Diversity in Modern Britain (2002) (Cm 5387) which stated at para 4.76: Our 1998 White paper set out the criteria by which Immigration Act powers of detention were exercised and confirmed that the starting point in all cases was a presumption in favour of granting temporary admission or release. The criteria were modified in March 2000 to include detention at Oakington Reception Centre if it appeared that a claimants asylum application could be decided quickly. The modified criteria and the general presumption remain in place. Chapter 38 of the Operational Enforcement Manual (OEM), which was a published document in force until April 2008, stated in its introductory section that the 1998 White Paper confirmed that there was a presumption in favour of temporary admission or release and that, whenever possible, we would use alternatives to detention. Para 38.3 stated: 1. There is a presumption in favour of temporary admission or temporary release. 2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 3. All reasonable alternatives to detention must be considered before detention is authorised. Identical wording was contained in Chapter 55 of the Enforcement Instructions and Guidance (EIG) which replaced Chapter 38 of the OEM and came into force on 19 June 2008. On 9 September 2008, Chapter 55 of the EIG was amended. With regard to FNPs, para 55.1.2 stated: Due to the clear imperative to protect the public from harm and the particular risk of absconding in these cases, the presumption in favour of temporary admission or temporary release does not apply where the deportation criteria are met. Instead the person will normally be detained, provided detention is, and continues to be lawful. The EIG then gave guidance to caseworkers as to the factors which might make further detention unlawful. In particular, it stated that the presumption of detention will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal. Following the decision of Davis J in the current proceedings, on 22 January 2009 this policy was changed again so as to replace a presumption in favour of detention with a presumption in favour of release from detention. The unpublished policies The true picture during the period from April 2006 until September 2008 was very different. Following the public disclosure on 25 April 2006 that 1,013 FNPs had been released from prison before consideration had been given to the question of whether they should have been deported, the Secretary of State adopted a new policy which he did not publish. I have already referred at para 5 above to the description of it contained in the 19 September 2007 Bail Proposal as a near blanket ban. The policy of blanket detention admitted of exceptions only on compassionate grounds. No formal guidance was given to caseworkers to give effect to this policy until on 8 November 2007 they were issued with a document (known as Cullen 1) which set out criteria and guidance for the identification and release of FNPs who were considered to pose the lowest risks to the public and the lowest risks of absconding. Cullen 1 was not published to the outside world. It led at most to the release of a handful of FNPs. In March 2008, an amended guidance document (known as Cullen 2) was issued to the caseworkers. It too was not published to the outside world. Attached to Cullen 1 and Cullen 2 was an extensive list of offences entitled List of recorded crimes where release from immigration detention or at the end of custody will not be appropriate. In practice, almost all FNPs who had been sentenced to imprisonment were likely to have committed one or more of such offences. Both Mr Lumba and Mr Mighty had done so. The evidence of David Wood, Strategic Director of the Criminality and Detention Group, was that between December 2006 and July 2008, 15 FNPs were released from detention. On 22 May 2008, the existence of an unpublished policy or practice was belatedly disclosed by the Secretary of State to Mitting J after he had given judgment in the case of R (Ashori) v Secretary of State for the Home Department [2008] EWHC 1460 (Admin). More detail as to the circumstances in which the policy came to be disclosed is given by Davis J at paras 21 to 26 of his judgment. The unpublished policies were applied to Mr Lumba and Mr Mighty It is now common ground that the unpublished policies were applied to the two appellants throughout their detention. It is, therefore, unnecessary to consider para 203 of the judgment of Davis J (where the judge stated that there was nothing to show that Mr Lumba was detained by application of the unpublished policy) or para 100 of the judgment of the Court of Appeal which upheld Davis J on this point. Were these policies unlawful? Here too, there is little dispute between the parties. Mr Beloff QC rightly accepts as correct three propositions in relation to a policy. First, it must not be a blanket policy admitting of no possibility of exceptions. Secondly, if unpublished, it must not be inconsistent with any published policy. Thirdly, it should be published if it will inform discretionary decisions in respect of which the potential object of those decisions has a right to make representations. As regards the first of these propositions, it is a well established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision makers. Davis J held that the unpublished policy was not a blanket policy. The Court of Appeal disagreed. Basing themselves on the review by David Wood of the failure to publish a revised FNP detention policy following the April 2006 crisis approved on 3 August 2009, the Court of Appeal concluded that the policy, as applied at least from the time of Cullen 1 in November 2007, effectively operated on a blanket basis rather than (as held by the judge) one of presumption. I agree with this assessment by the Court of Appeal but would go further. It seems clear to me that a blanket policy was also applied from April 2006 until the introduction of Cullen 1 in November 2007. During this earlier period, the only exceptions made to the policy of universal detention were on compassionate grounds and these were few and far between. Importantly, there were no releases on the basis of Hardial Singh principles. Indeed, Cullen 1 represented a modest relaxation of the previous position. It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46 correctly encapsulates the principles as follows: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. Lord Phillips says that the first two of these principles cannot properly be derived from Hardial Singh. Since their correctness has not been put in issue by the parties to these appeals, I propose to deal with the points shortly. As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips includes the following: as the power is given in order to enable the machinery of deportation to be carried out I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose(emphasis added). The first principle is plainly derived from what Woolf J said. As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible within a reasonable period. It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation. It seems to me that, in relation to both the first and second principles, Lord Phillips is suggesting a different interpretation of paragraph 2(3) of Schedule 3 to the 1971 Act from that enunciated by Woolf J. I do not agree with this interpretation. But what is perhaps of more importance in the context of these appeals is that in my view it is not appropriate to depart from a decision which has been followed repeatedly for almost 30 years unless it is obviously wrong (which I do not believe to be the case), still less to do so without the benefit of adversarial argument. As regards the second proposition accepted by Mr Beloff, a decision maker must follow his published policy (and not some different unpublished policy) unless there are good reasons for not doing so. The principle that policy must be consistently applied is not in doubt: see Wade and Forsyth Administrative Law, 10th ed (2009) p 316. As it is put in De Smiths Judicial Review, 6th ed (2007) at para 12 039: there is an independent duty of consistent application of policies, which is based on the principle of equal implementation of laws, non discrimination and the lack of arbitrariness. The decision of the Court of Appeal in R (Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139 is a good illustration of the principle. At para 68, Lord Phillips MR, giving the judgment of the court, said that the Secretary of State could not rely on an aspect of his unpublished policy to render lawful that which was at odds with his published policy. As for the third proposition, the Court of Appeal dealt with the issue of whether there is a general rule of law that policies must be published at paras 70 to 79 of their judgment. Disagreeing with Davis J, they concluded that there is no such general rule and said that the fact that the appellants were detained pursuant to unpublished policies was not in itself a reason for holding that the decisions to detain them were unlawful. Mr Beloff did not feel able to support this conclusion. It is unfortunate that the Court of Appeal embarked on this topic at all, since it was not before them and was not, therefore, the subject of argument or citation of authority. As the point is of general importance, I need to say why in my view the judge was right and the Court of Appeal were wrong on this issue both as a matter of common law and ECHR law. The Court of Appeal referred to a statement of Sedley LJ in R v Secretary of State for Education and Employment Ex P Begbie [2000] 1 WLR 1115, 1132C that there were cogent objections to the operation of undisclosed policies affecting individuals entitlements or expectations and said at para 72 that they had no difficulty in accepting this as (no more than) a statement of good administrative practice. They also said that the judge was wrong to rely on Sunday Times v United Kingdom (1979) 2 EHRR 245 and criticised the reasoning in Nadarajah at paras 64 67 which relied on the Sunday Times case in support of the proposition that a relevant policy is part of the law that must be accessible, so as to enable those affected by it reasonably to foresee the consequences of their actions. At para 73, they said that the relevant passage in the judgment of the ECtHR at para 49 of the judgment in the Sunday Times case is not, as we read it, about policy as such, but is rather directed to the need for accessibility and precision, as requirements of law in the strict sense. They went on to say that, in the present context, the requirement for an accessible and precise statement of the relevant law is satisfied by paragraph 2 of Schedule 3 to the 1971 Act, taken with the Hardial Singh guidelines. In short, policy is not the same as law (para 57). In support for their conclusion, they referred to what Laws LJ said in R (SK Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 1204; [2009] 1 WLR 1527, para 33. In that case, the Secretary of State had failed to carry out regular reviews following detention, as required by the Detention Centre Rules. As regards the requirement that any deprivation of liberty be in accordance with a procedure prescribed by law in article 5(1) of the ECHR, Laws LJ said that this was to ensure that any interference is not random and arbitrary, but governed by clear pre existing rules. He continued: Here the rules are the Hardial Singh principles. Their fulfilment in any given case saves a detention from the vice of arbitrariness. A system of regular monitoring is, no doubt, a highly desirable means of seeing that the principles are indeed fulfilled. But it is not itself one of those principles. But all that the Hardial Singh principles do is that which article 5(1)(f) does: they require that the power to detain be exercised reasonably and for the prescribed purpose of facilitating deportation. The requirements of the 1971 Act and the Hardial Singh principles are not the only applicable law. Indeed, as Mr Fordham QC points out, the Hardial Singh principles reflect the basic public law duties to act consistently with the statutory purpose (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030B D) and reasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). But they are not exhaustive. If they were exhaustive, there could be no room for the public law duty of adherence to published policy, which was rightly acknowledged by the Court of Appeal at paras 51, 52 and 58 of their judgment. I therefore accept the submission of Mr Husain QC and Mr Fordham that the Court of Appeals criticisms of Nadarajah were misplaced. I should interpolate that there is in any event an obvious difference between rules which require the review of a detention to be undertaken at prescribed intervals and rules which prescribe the criteria by which a person is to be released or to be subjected to continuing detention. The fact that a policy states that only persons of a specified category will be considered for release is at least as substantively important as the Hardial Singh principles which determine, for example, that a person may not be detained for an unreasonable period. There is further support in the ECtHR jurisprudence for the proposition that paragraph 2 of Schedule 3 to the 1971 Act and the Hardial Singh principles are not exhaustive of the law. In Medvedyev v France (Appln no 3394/03, 29 March 2010), the Grand Chamber said at para 80: where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined. The case of Gillan v United Kingdom (2010) 50 EHRR 45 concerned the stop and search powers conferred on the police by the Terrorism Act 2000. For present purposes, the relevant issue was whether the powers were in accordance with the law within the meaning of article 8(2) of the ECHR. A Code of Practice was issued by the Secretary of State to guide police officers in the exercise of their powers of stop and search. The ECtHR said: 77Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. The ECtHR noted at para 83 that the Code of Practice governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officers decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the hunch or professional intuition of the officer concerned. In the opinion of the court, there was a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. At para 87, they concluded that, despite the existence of the Code of Practice, the statutory powers were not in accordance with the law because they were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay [1985] AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. In R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604, para 26 Lord Steyn said: Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision. I would endorse the statement made by Stanley Burnton J in R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 at para 52 that it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute. At para 72 of the judgment of the Court of Appeal in the present case, this statement was distinguished on the basis that it was made in the quite different context of the Secretary of States decision to withhold from the individuals concerned an internal policy relating to a statutory scheme designed for their benefit. This is not a satisfactory ground of distinction. The terms of a scheme which imposes penalties or other detriments are at least as important as one which confers benefits. As Mr Fordham puts it: why should it be impermissible to keep secret a policy of compensating those who have been unlawfully detained, but permissible to keep secret a policy which prescribes the criteria for their detention in the first place? There was a real need to publish the detention policies in the present context. As Mr Husain points out, the Cullen policies provided that certain non serious offenders could be considered for release. The failure to publish these policies meant that individuals who may have been wrongly assessed as having committed a crime that rendered them ineligible for release would remain detained, when in fact, had the policy been published, representations could have been made that they had a case for release. The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision maker before a decision is made. For all these reasons, the policies which were applied to Mr Lumba and Mr Mighty were unlawful. But Mr Husain submits (with the support of Mr Rabinder Singh QC and Mr Fordham) that the policies were also unlawful because they included a presumption of detention. Presumption of detention Davis J held at paras 114 to 116 of his judgment that the provisions of paragraph 2 of Schedule 3 to the 1971 Act operate to prevent the Secretary of State from operating a policy of a presumption in favour of detention of FNPs pending deportation. He applied R (Sedrati) v Secretary of State for the Home Department [2001] EWHC 210 (Admin) in which, by consent, Moses J had granted a declaration that the terms of paragraph 2 of Schedule 3 do not create a presumption in favour of detention upon completion of the sentence. On the Secretary of States cross appeal against the declaration, the Court of Appeal said at para 65: . . there is no reason in principle why paragraph 2.1 of Schedule 3 to the 1971 Act, which clearly does require continued detention unless the Secretary of State otherwise orders (i.e. a presumption of detention), should not be construed as a presumption of detention pending deportation. Equally, the Secretary of State may lawfully adopt a policy for the purposes of paragraph 2(2) or (3) that involves a presumption. A presumption that those who have committed serious crimes (e.g. most of those listed in Cullen 1 and 2) should be detained is unobjectionable. They went on at para 66 to say that for these reasons the declaration granted by Moses J was wrong and allowed the Secretary of States cross appeal. Mr Husain, supported by Mr Singh and Mr Fordham, say that the judge was right and the Court of Appeal wrong on this issue. The primary case advanced by Mr Husain is that the policy that was applied between April 2006 and September 2008 was not properly described as a presumptive policy at all, but rather was a blanket policy. But whether that is right or not, Mr Lumba continued to be detained between September 2008 (when the Secretary of State published a policy in favour of detention) and 22 January 2009 (when the order of Davis J was implemented). It follows that even if, as I have accepted, the Court of Appeal was justified in holding that the policy was a blanket policy until September 2008, the presumption of liberty issue is of more than academic interest in this appeal. It is important at the outset to define clearly what a presumption means in this context. It is the Secretary of States case that paragraph 2 of Schedule 3 to the 1971 Act permits the operation of a policy in which she states that a FNP will normally be detained in certain prescribed circumstances. Such a policy serves as a guide to the caseworkers who make the decisions on the ground and as an indication to the FNPs of what they can normally expect in the circumstances specified in the policy. I shall refer to such a policy as normal practice. It need not, and usually does not say anything about the burden of proof. Normal practice is to be distinguished from presumptions in the strict sense. Phipson on Evidence 17th ed (2009) at 6 16 to 6 31 categorises presumptions in this sense into rebuttable presumptions of law, irrebuttable presumptions of law and rebuttable presumptions of fact. Such a presumption usually regulates the burden of proof in legal proceedings. Thus, a presumption that a deprivation of liberty is unlawful regulates the burden of proof in relation to that issue: the burden is on the detainer to show that there was a power to detain. I shall refer to a presumption in the strict sense as a legal presumption. The distinction between normal practice and a legal presumption is fundamental to the present issue. The fact that in legal proceedings the burden of proving a certain issue is allocated to one party rather than the other does not assist in deciding whether the Secretary of State may, in principle, lawfully give guidance that when certain factors are present, the decision should normally be to detain. This distinction was not articulated in the courts below. A further preliminary point needs to be made. The legality of a decision may be considered at two stages: first at the administrative stage when the decision is taken and secondly, if the decision is challenged, at the stage of legal proceedings. At the administrative stage, the individual against whom the decision is taken often plays no part. It is not appropriate to talk of a burden of proof at this stage: see, for example, R v Lichniak [2003] 1 AC 903 at para 16 per Lord Bingham. At the stage of legal proceedings, the Secretary of State rightly accepts that the burden of proof is on her to justify the detention. This has long been established: Allen v Wright (1838) 8 C & P 522 and Lord Atkins dissenting speech in Liversidge v Anderson [1942] AC 206, 245 every detention is prima facie unlawful and that it is for a person directing imprisonment to justify his act. Mr Husain submits that there is a presumption of liberty both under the jurisprudence of the ECtHR or at common law. I shall start with the jurisprudence on article 5 of the ECHR which Mr Husain submits establishes that there is such a presumption. He refers to Ilijkov v Bulgaria (Application No 33977/96) (unreported) 26 July 2001 where the ECtHR said: 84. The court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with article 5(3) of the Convention. Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention. the existence of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated. 85. Moreover, the court considers that it was incumbent on the authorities to establish those relevant facts. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases. This was a decision in relation to an alleged violation of article 5(3) which provides: Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Mr Husain submits that, although these principles were articulated in the context of detention pending trial, they are more widely applicable as expressions of the right to liberty protected by article 5: see also Bykov v Russia (Application No 4378/02, 10 March 2009) at para 61 and Bordikov v Russia (Application no 921/03, 9 October 2009) at para 88. However, these cases only concern legal presumptions that regulate burdens of proof in legal proceedings. They are not concerned with normal practice contained in a policy of the kind with which these appeals are concerned. In Ilijkov, the national courts rejected a series of applications for bail pending trial. They did so relying on the Bulgarian Code of Criminal Procedure, which provided that, for certain crimes, detention on remand was mandatory in the absence of exceptional circumstances. The ECtHR held that the initial decision to detain was lawful, but that the continuing application of the presumption of detention by the national judicial authorities was unlawful (paras 78 9 and 87). The case was not concerned with the lawfulness of any decision to detain taken at an administrative stage. It is clear from para 84 of the judgment that the court held that there was a breach of article 5(3). There is, however, no provision in article 5(1)(f) corresponding with article 5(3) and there is nothing to indicate that the court intended its ruling in relation to article 5(1)(c) and 5(3) to apply to article 5(1)(f). The decisions in Bykov and Bordikov do not advance the argument. Para 61 of the judgment in Bykov merely reiterates what the court has repeatedly said in relation to article 5(3). The reference to the presumption of release under article 5 is a reference to the second limb of article 5(3). The case is concerned with the decisions of judicial authorities and not administrative decision makers. Similarly, para 88 of the judgment in Bordikov makes it clear that the court in that case too was only concerned with the decisions of the courts. The principal ECtHR authority on article 5(1)(f) is Saadi v UK (2008) 47 EHRR 427. The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast track processing. The decision was made pursuant to a policy under which all asylum claimants falling within defined criteria (usually by nationality) were normally detained at Oakington while their claims were determined in an accelerated process. This was a normal practice case and not a case about legal presumptions. The ECtHR held inter alia that deprivation of liberty must not be arbitrary. It must comply with the substantive and procedural rules of national law and the detention must be in good faith. At para 69, the court said: The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub paragraph of article 5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. And at para 72: Similarly, where a person has been detained under article 5(1)(f), the Grand Chamber, interpreting the second limb of this sub paragraph, held that, as long as a person was being detained with a view to deportation, that is, as long as action [was] being taken with a view to deportation, there was no requirement that the detention be reasonably considered necessary, for example, to prevent the person concerned from committing an offence or fleeing. The Grand Chamber further held in Chahal (1997) 23 EHRR 413 that the principle of proportionality applied to detention under article 5(1)(f) only to the extent that the detention should not continue for an unreasonable length of time It was this statement which led the Court of Appeal to conclude at para 62 that a national law that authorises detention with a view to deportation may be compatible with article 5 even if it imposes a presumption of detention pending deportation. It is not clear in what sense the Court of Appeal was using the phrase presumption of detention in this passage. But if it is construed as a reference to normal practice, I agree with it, provided that it requires the Government to justify the detention with reasons that are closely connected to the statutory purpose of effecting deportation. I turn to the position at common law. It is not in dispute that the right to liberty is of fundamental importance and that the courts should strictly and narrowly construe general statutory powers whose exercise restricts fundamental common law rights and/or constitutes the commission of a tort. The Court of Appeal said at para 63 that there is no rule of our domestic law that precludes the application of a presumption in favour of detention pending deportation, subject, of course, to the limitations in Ex P Hardial Singh [1984] 1 WLR 704, none of which involves consideration of risk of reoffending or absconding. Such risks, they said, are relevant to the reasonableness of the period during which it is lawful to detain a FNP, but the absence of such a risk does not of itself render detention unlawful. If by presumption in favour of detention the Court of Appeal meant the normal practice as to the circumstances in which a FNP will be detained, then I would agree with them, provided that it is understood that (i) the Hardial Singh principles are observed and (ii) each case is considered individually. The Court of Appeal set aside the declaration granted by Davis J. They were right to do so. For the reasons I have given, it is lawful for the Secretary of State to operate a policy which sets out the practice that she will normally follow in deciding whether or not to detain FNPs pending their deportation provided that the criteria that I have set out at para 53 above are satisfied. Such a policy is not prohibited by paragraph 2 of Schedule 3 to the 1971 Act. The Court of Appeal also held at para 66 that the declaration granted by Moses J in Sedrati [2001] EWHC Admin 418 was wrong in law. I find this somewhat puzzling. The declaration stated that the terms of paragraph 2 of Schedule 3 do not create a presumption in favour of detention. Whatever the position may be in relation to paragraph 2(1) and the parenthesis in paragraph 2(3), paragraph 2(2) and the remainder of paragraph 2(3) do not create any presumption at all. They simply give the Secretary of State a discretion to detain. In relation to paragraph 2(2) and (3), therefore, so far as it goes, the declaration granted by Moses J is correct. Were the detentions unlawful? In summary, the appellants case is that their claims in false imprisonment should have succeeded: the Secretary of States unlawful unpublished policy which operated between April 2006 and September 2008 influenced the initial decisions to detain them and the subsequent decisions to continue to detain them. Davis J accepted the argument advanced on behalf of the Secretary of State that, where the unlawful policy was of no causative effect because the claimants could and would have been lawfully detained if the published policy had been applied, their detention was not unlawful. The Court of Appeal agreed. They distinguished Christie v Leachinsky [1947] AC 573 and Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 on the footing that in those cases there was no lawful authority to detain the plaintiff. In the present case, however, they said at para 87: there is no doubt that the statutory powers relied on by the Secretary of State were apt for the purpose, and the case is not based on the breach of any specific regulation on which the legality of detention was dependent. Rather it is about the manner in which the power was exercised. And at para 89: The mere existence of an internal, unpublished policy or practice at variance with, and more disadvantageous to the FNP than, the published policy will not render a decision to detain unlawful. It must be shown that the unpublished policy was applied to him. Even then, it must be shown that the application of the policy was material to the decision. If the decision to detain him was inevitable, the application of the policy is immaterial, and the decision is not liable to be set aside as unlawful. In short, since Mr Lumba and Mr Mighty would inevitably have been detained even if the published policy had been applied to them, their detentions were lawful. The court therefore applied what it is convenient to call the causation test. Davis J and the Court of Appeal were right to hold that the detention of the appellants would have been inevitable in the light of the risk of absconding and re offending that they both posed. This appeal therefore raises the important question of whether it was right to apply the causation test and for that reason to hold that the detentions were lawful. A somewhat similar problem arose in R (SK Zimbabwe) v Secretary of State for the Home Department. In that case the unlawfulness lay in the failure of the Secretary of State to comply with her policy which prescribed the procedural requirements for reviews of FNPs who are already in detention. The present case concerns the substantive requirements for the initial detention of FNPs as well as their continued detention. What follows is to a considerable extent based on the submissions of Mr Husain. The introduction of a causation test in the tort of false imprisonment is contrary to principle both as a matter of the law of trespass to the person and as a matter of administrative law. Neither body of law recognises any defence of causation so as to render lawful what is in fact an unlawful authority to detain, by reference to how the executive could and would have acted if it had acted lawfully, as opposed to how it did in fact act. The causation test entails the surprising proposition that the detention of a person pursuant to a decision which is vitiated by a public law error is nevertheless to be regarded as having been lawfully authorised because a decision to detain could have been made which was not so vitiated. In my view, the law of false imprisonment does not permit history to be rewritten in this way. The Court of Appeal were right to say at para 89 that the mere existence of an unlawful policy is not sufficient to establish that any particular exercise of a statutory discretion is unlawful. The decision to detain and/or continue detention will not be vitiated on the grounds of an unlawful policy unless the policy has been applied or at least taken into account by the decision maker. But this does not shed any light on the correctness of the causation test. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned: see, for example, Murray v Ministry of Defence [1988] 1 WLR 692, 703A where Lord Griffiths refused to redefine the tort of false imprisonment so as to require knowledge of the confinement or harm because The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage. By contrast, an action on the case (of which a claim in negligence is the paradigm example) regards damage as the essence of the wrong. All this is elementary, but it needs to be articulated since it demonstrates that there is no place for a causation test here. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C D: The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self direction, rather than on the claimants right not in fact to be unlawfully detained. There is no warrant for this. A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police [1999] 2 AC 143, 158D E. Mr Beloff submits that there are inherent problems in what I consider to be the correct and principled approach. First, it fails to take account of the nature or extent of the public law error. For example, he suggests that it treats for the purposes of liability as equally unlawful a decision to detain made by an official one grade lower than that specified in the detention policy (but which is otherwise unimpeachable) and a decision to detain for which there is no statutory authority at all. Secondly, it allows what is in essence a public law challenge to be made under the guise of a private law action without any of the procedural safeguards which apply in a judicial review application. In particular, the normal time limits for judicial review proceedings are circumvented. Thirdly, judicial review is a discretionary remedy. A minor public law error may result in no substantive relief being granted at all in judicial review proceedings, whereas a claimant can bring proceedings for false imprisonment as of right. I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr Beloffs first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain. Lord Walker and Lord Hope would prefer the more demanding test of the wrongful use of a statutory power amounting to an abuse of power. It is true that the phrase abuse of power is used in certain contexts in public law. For example, it has been held that the court will in a proper case decide whether to frustrate the legitimate expectation of a substantial benefit is so unfair that to take a different course will amount to an abuse of power: see R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 para 57. In that context, the phrase abuse of power denotes a degree of unfairness. It is not clear to me in what sense the phrase abuse of power is being suggested in the present context. Suppose that a detention policy states that no FNP who has been sentenced to less than 12 months imprisonment is to remain in detention pending deportation for more than 6 months. Suppose further that, by an administrative oversight, a FNP who has been sentenced to 9 months imprisonment is detained for 12 months. There can be little doubt that the FNP would have a good claim for substantial damages for false imprisonment in respect of the period of 6 months when he should not have been detained. It would be odd to say that his detention during that period was the result of an abuse of power. I would say that the FNP would be the victim of a material public law error. The error was one which was relevant to the decision to detain him. It was capable of affecting the decision to continue to detain him and did in fact do so. As for Mr. Beloffs other points, such force as they have derives from the fact that the detention in these cases is unlawful because it is vitiated by a public law error. The significance and effect of that error cannot be affected by the fortuity that it is also possible for a victim to challenge the decision by judicial review proceedings (which are subject to tighter time limits than private law causes of action) and that judicial review is a discretionary remedy. It is well established that a defendant can rely on a public law error as a defence to civil proceedings and that he does not need to obtain judicial review as a condition for defending the proceedings: see, for example, Wandsworth London Borough Council v Winder [1985] AC 461. The same applies in the context of criminal proceedings: see Boddington v British Transport Police [1999] 2 AC 143. Mr Beloff submits that the position of a claimant who relies on a public law error to found his cause of action and a defendant can sensibly be differentiated. But it is difficult to see how or why. I can see that at first sight it might seem counter intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed. Both Mr Husain and Mr Beloff have referred to much authority. I shall refer to some of it. But there is nothing in the cases which shows that the conclusion which I consider is dictated by principle is questionable, still less that it is wrong. Mr Husain relies on dicta of Lord Diplock in Holgate Mohamed v Duke [1984] AC 437. Lord Diplock recognised that a claim for false imprisonment may be made out where police powers of arrest are unlawfully exercised by reference to common law principles. The statutory power for an arrest without warrant (section 2(4) of the Criminal Law Act 1967)) made it a condition precedent that the constable should have reasonable cause to suspect the person to be guilty of the arrestable offence in respect of which the arrest was being made. On the facts, the condition precedent was made out. Lord Diplock said at p 443B that this left the officer with an executive discretion whether to arrest or not. The lawfulness of the way in which the discretion had been exercised could not be challenged except on Wednesbury grounds. He then continued: The Wednesbury principlesare applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought. (emphasis added) Lord Diplock then applied the Wednesbury principles and concluded that the officers action was not unlawful. It follows that his comments about false imprisonment were obiter dicta. Nevertheless, it is clear that, if he had concluded that the officer had exercised his statutory discretion unlawfully, Lord Diplock would have held that he was liable in tort for false imprisonment. I accept, however, that these are no more than dicta, albeit from a source of high authority, and that the issue does not seem to have been the subject of much if any argument in the House of Lords. Other authorities relied on by Mr Husain as rejecting the causation test include Christie v Leachinsky [1947] AC 573, Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 and Langley v Liverpool City Council [2006] 1 WLR 375. In addition, Mr Singh relies on Cooper v The Board of Works for the Wandsworth District (1863) 14 C.B. (N.S) 180. In Christie v Leachinsky, Viscount Simon explained that where an arrest was unlawful because it did not comply with the procedural requirements imposed by the common lawcommunication of the true and good ground of arrest to the detaineethere would be a false imprisonment notwithstanding that the arrest could have been effected in a proper manner. At p 588H he said: I entertain no doubt that in the present case the appellants are not exonerated from liability for false imprisonment by satisfying the judge that they had a reasonable suspicion that the respondent had been guilty of theft or of receiving stolen goods knowing they had been stolen, when they never told the respondent that this was the ground of his arrest. Instead of doing so, they gave a different ground which, as Christie admitted, was not a good excuse for arresting him at all. Mr Beloff submits that this case should be distinguished on the basis that it concerned the giving of reasons for detention which was a condition precedent to a lawful arrest. He argues that it says nothing about the causation test in cases where the alleged error is not a failure to satisfy a condition precedent. I do not see why the failure to provide a detainee with the reasons for the arrest should be regarded as a failure to satisfy a condition precedent to lawful arrest rather than an unlawful exercise of the power to arrest. In any event, it would be remarkable if the question whether a cause of action in false imprisonment exists should depend on such fine distinctions of classification. More fundamentally, such distinctions have no justification in the light of Anisminic. In Roberts v Chief Constable of the Cheshire Constabulary, the Court of Appeal held that a failure by the custody officer to conduct a review as required by section 40 of the Police and Criminal Evidence Act 1984 rendered the plaintiffs continued detention unlawful until the next review. The defence was raised that the plaintiff could only prove false imprisonment if he could show that, if the review had been carried out at the appropriate time, he would have been released. This causation defence was rejected by Clarke LJ (with whom Stuart Smith and Schiemann LJJ agreed) at p 667B as being nothing to the point. Mr Beloff emphasises the fact that the plaintiff was not being detained in accordance with the relevant statutory provisions and that the statute stipulated an express condition precedent to the lawful continuation of the detention, namely a review of detention, and that condition was not satisfied. This argument has no more force than Mr Beloffs corresponding argument in relation to Christie. Langley v Liverpool City Council [2006] 1 WLR 375 concerned child protection. The Court of Appeal held that a constable who had wrongfully removed a child under section 46 of the Children Act 1989 was liable in false imprisonment. He should instead have facilitated the exercise of a different power of removal through the execution of an emergency protection order (EPO) obtained by the local authority under section 44 of the 1989 Act. I gave the main judgment (with which Thorpe and Lloyd LJJ agreed). I held (para 32) that the power to remove a child under section 46 can be exercised even where an EPO is in force. I said (para 36) that where a police officer knows that an EPO is in force, he should not exercise the power of removing a child under section 46 unless there are compelling reasons to do so. On the facts of the case, there were no compelling reasons for the constable to exercise the section 46 power. The constable was in error in failing to ask himself whether there were compelling reasons why he should invoke section 46 rather than leave it to the council to execute the EPO. I held, therefore, that the removal of the child was unlawful. It was not in issue that, if the removal of the child was unlawful, the Chief Constable was liable to the child in false imprisonment. Mr Beloff submits that the effect of my reasoning was that the constable had no jurisdiction (in the narrow pre Anisminic sense) to do what he did. As an EPO was in force, it was in effect mandatory to invoke section 44 rather than section 46. I do not accept this analysis. I drew a clear distinction between the existence of the statutory authority to use the section 46 powers (which the constable had) and the exercise of those powers (which was wrongful on the facts of that case). In Cooper v The Board of Works for the Wandsworth District 14 CB (NS) 180, the defendant board had the statutory power to demolish a house that was in the course of construction. It was held that this power was subject to the common law qualification that it should not be exercised without giving the builder notice and an opportunity to be heard. It was held that the board had exercised its statutory power unlawfully and that the builder was entitled to damages for trespass to property. But I agree with Mr Beloff that this decision does not shed any light on the question whether detention pursuant to an unlawful exercise of a power to detain is itself unlawful. As Byles J put it at p 195, the board contravened the words of the statute. In effect, therefore, the court held that the decision to demolish the house was one which the board had no jurisdiction to make in the narrow pre Anisminic sense. I should deal with the authorities relied on by Mr Beloff. In R (Saadi) v Secretary of State for the Home Department [2002] 1 WLR 3131 as I have set out at para 50 above, the issue was whether the policy of detaining certain categories of asylum seekers whose claims could be processed quickly at the Oakington detention centre was lawful. The House of Lords held that it was. At first instance, Collins J had also considered the fact that when detaining the claimants the Home Office had used standard forms which did not reflect the new policy, and that therefore the true reasons for the detention had not been given. Collins J said that this did not affect the lawfulness of the detention. Lord Slynn at para 48 agreed that the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention. But para 48 is not part of the ratio of the decision of the House. In any event, in so far as it was argued at all that the giving of untrue reasons for the detention rendered the detention unlawful, the Secretary of State did not advance a causation defence and contend that the giving of untrue reasons was immaterial because the true reasons were lawful. In Nadarajah v Secretary of State for the Home Department [2004] INLR 139, the Secretary of States published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that proceedings were about to be initiated would be disregarded, however credible that information might be. At paras 68 and 69 of the judgment of Lord Phillips MR, the Court of Appeal said that the Secretary of State could not rely on the unpublished policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public and for that reason the detention of N was unlawful. There is no hint of the causation test here. But the court went on to say that, if Ns solicitors had been aware of the unpublished policy, they would have instituted proceedings sooner. N therefore suffered because his solicitor could not foresee the consequences of her conduct and his detention did not satisfy the requirement of lawfulness imposed by article 5(1)(f) of the ECHR. I accept that this was a causation point. But it was unnecessary for the court to adopt this additional reason for holding that the detention was unlawful. Further, it requires a huge leap to argue from this that the causation test must be satisfied as an element of the tort of false imprisonment. In short, neither Saadi nor Nadarajah bears the weight that Mr Beloff seeks to place on them. Recognising that the court might reject the causation test, Mr Beloff suggested a number of alternative approaches. The first is that false imprisonment should be confined to no authority cases ie cases in which there was in fact no authority to detain, without recourse to the legal fiction that, because of a public law error, an authority to detain which was in fact given should be treated as if it had no legal effect because it was ultra vires. The second is that detention should be vitiated only by pre Anisminic error of law. The third is that vitiating circumstances should be restricted to bad faith and improper purpose. The fourth is that authority to detain should be vitiated only by failure to have regard to a material consideration which had an effect on the detention. The fifth is that it should be a requirement that the claimant shall have successfully applied in judicial review proceedings for the decision to detain to be quashed. The first two of these suggestions seek to put the clock back to the pre Anisminic era. For reasons given earlier, this is unwarranted. As regards the third and fourth suggestions, I have accepted at paras 68 and 69 above that the detention must be vitiated by an error which is material in public law terms and have attempted to explain there what I mean by that. The fifth seeks unjustifiably to impose a procedural hurdle where none currently exists either at common law or in statute. To accede to this suggestion would be to engage in an unacceptable exercise of judicial legislation. To summarise, therefore, in cases such as these, all that the claimant has to do is to prove that he was detained. The Secretary of State must prove that the detention was justified in law. She cannot do this by showing that, although the decision to detain was tainted by public law error in the sense that I have described, a decision to detain free from error could and would have been made. Overall conclusion on liability on the basis that the policies applied were unlawful I conclude, therefore, that since it is common ground that the unlawful policies in force between April 2006 and September 2008 were applied to Mr Lumba and Mr Mighty, they were unlawfully detained and their claims in false imprisonment must succeed. I turn to consider the assessment of damages. Compensatory or nominal damages? Having found that there was no liability in false imprisonment, the Court of Appeal did not need to decide whether the claimants were entitled to damages. They did, however, say at para 96: If, on the evidence, it was clear that, even assuming a lawful consideration, there was no realistic possibility of a different decision having been reached, and no realistic possibility of earlier release, then we do not see why that should not be reflected in an award of nominal damages only. Mr Husain and Mr Westgate submit that, even if it was inevitable that the appellants would have been detained if the statutory power to detain had been lawfully exercised, they are nevertheless entitled to substantial and not merely nominal damages. They emphasise that false imprisonment is a tort of strict liability which is actionable without proof of special damage. The focus is on the claimants right rather than the culpability of the defendants conduct. They rely on two authorities in support of their argument. The first is Roberts v Chief Constable of the Cheshire Constabulary to which I have already referred at para 75 above. The plaintiff issued proceedings for false imprisonment arising from his detention by the police between 5.25 a.m. (when his detention should have been reviewed as required by statute) and 7.45 a.m. the same morning when it was reviewed and his continued detention authorised. It was found by the judge that the detention between 5.25 a.m. and 7.45 a.m. was unlawful, but that, if a review had taken place at 5.25 a.m., his continued detention would have been authorised. The judge awarded the plaintiff 500. The defendants appeal on both liability and damages was dismissed by the Court of Appeal. Clarke LJ gave the leading judgment. He said at p 668 D that there was an infringement of the plaintiffs legitimate right to have his case reviewed and that, although the outcome may not have been affected by the failure to review in time, this infringement cannot be regarded as a purely nominal matter or a matter compensatable by entirely nominal damages. There are rules, the police must stick to them. He added at p 668G: As a matter of general principle such a plaintiff is entitled to be put into the position in which he would have been if the tort had not been committed. It is therefore important to analyse what the tort is. The plaintiffs claim was not for damages for breach of duty to carry out a review at 5.25 a.m. but for false imprisonment. As I tried to explain earlier, the reason why the continued detention was unlawful was that no review was carried out. The wrong was not, however, the failure to carry out the review but the continued detention. If the wrong had not been committed the plaintiff would not have been detained between 5.25 a.m. and 7.45 a.m. I do not consider that this case was correctly decided on the issue of damages. I agree that the plaintiff was entitled to be put into the position in which he would have been if the tort of false imprisonment had not been committed. But I do not agree that, if the tort had not been committed, the plaintiff would not have been detained between 5.25 a.m. and 7.45 a.m. On the judges findings, if the tort had not been committed, he would have been detained during this period. It seems to me that the fallacy in the analysis in Roberts is that it draws no distinction between a detainee who would have remained in detention if the review had been carried out (and therefore no tort committed) and a detainee who would not have remained in detention if the review had been carried out. But the position of the two detainees is fundamentally different. The first has suffered no loss because he would have remained in detention whether the tort was committed or not. The second has suffered real loss because, if the tort had not been committed, he would not have remained in detention. The second authority relied on in support of the appellants case is Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883. It was held there that it is no answer to a claim in conversion of goods for a defendant to say that the goods were or would have been subsequently converted by a third party: see the discussion by Lord Nicholls at paras 81 to 84 of his speech. But questions of causation in relation to cases of successive conversion by different tortfeasors have no application in the present context. The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied (an issue which I discuss at paras 129 148 below), it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages. I should add that this approach is consistent with the observation by Lord Griffiths in Murray v Ministry of Defence [1988] 1WLR 692, 703A B: if a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more than nominal damages. Vindicatory damages Mr Westgate submits that, if the appellants are entitled to no more than nominal damages, then they should also be awarded vindicatory damages. It has been said that the award of compensatory damages can serve a vindicatory purpose: see, for example, Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] AC 962 per Lord Scott at para 22 and Lord Rodger at para 60. But vindicatory damages serve a wider purpose than simply to compensate a successful claimant. The phrase vindicatory damages seems to have been coined by Sharma CJ in the Court of Appeal of Trinidad and Tobago in Attorney General of Trinidad and Tobago v Ramanoop as a head of loss in claims for breach of constitutionally protected rights and freedoms: see address given by the President of the Caribbean Court of Justice to a Symposium entitled Current Developments in Caribbean Community Law in Port of Spain on 9 November 2009. Lord Collins has traced the history of the use of the phrase in other contexts. The concept of vindicatory damages was explained and endorsed by the Privy Council in the appeal in the Ramanoop case [2005] UKPC 15, [2006] 1 AC 328. Lord Nicholls said: 18. When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of constitutional right will not always be coterminous with the cause of action at law. 19. An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements had a place in this additional award. Redress in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions punitive damages or exemplary damages are better avoided as descriptions of this type of additional award. It will be seen, therefore, that the Privy Council endorsed the principle of vindicatory damages for violation of constitutional rights. Should this principle be extended further? In Ashley at para 22 Lord Scott obiter said that vindicatory damages might be awarded for the tort of battery or trespass to the person by the police resulting in the death of the victim. But the issue in that case was whether a claimant should be allowed to continue with an action in order to establish whether an assault had been committed, where there could be no award of further compensatory damages because these had already been paid in full as a result of a concession by the police. Lord Scotts view that vindicatory damages have a role in the compensation for civil wrongs and the breach of ECHR rights was endorsed, at least to some extent, in Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB). In awarding damages for breach of the claimants right to privacy, after recognising the compensatory nature of damages for infringements of privacy, Eady J said at paras 216 7 that there was another factor which probably had to be taken into account, namely vindication to mark the infringement of the right. It is one thing to say that the award of compensatory damages, whether substantial or nominal, serves a vindicatory purpose: in addition to compensating a claimants loss, it vindicates the right that has been infringed. It is another to award a claimant an additional award, not in order to punish the wrongdoer, but to reflect the special nature of the wrong. As Lord Nicholls made clear in Ramanoop, discretionary vindicatory damages may be awarded for breach of the Constitution of Trinidad and Tobago in order to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach and deter further breaches. It is a big leap to apply this reasoning to any private claim against the executive. McGregor on Damages 18th ed (2009) states at para 42 009 that It cannot be said to be established that the infringement of a right can in our law lead to an award of vindicatory damages. After referring in particular to the appeals to the Privy Council from Caribbean countries, the paragraph continues: the cases are therefore far removed from tortious claims at home under the common law. I agree with these observations. I should add that the reference by Lord Nicholls to reflecting public outrage shows how closely linked vindicatory damages are to punitive and exemplary damages. The implications of awarding vindicatory damages in the present case would be far reaching. Undesirable uncertainty would result. If they were awarded here, then they could in principle be awarded in any case involving a battery or false imprisonment by an arm of the state. Indeed, why limit it to such torts? And why limit it to torts committed by the state? I see no justification for letting such an unruly horse loose on our law. In my view, the purpose of vindicating a claimants common law rights is sufficiently met by (i) an award of compensatory damages, including (in the case of strict liability torts) nominal damages where no substantial loss is proved, (ii) where appropriate, a declaration in suitable terms and (iii) again, where appropriate, an award of exemplary damages. There is no justification for awarding vindicatory damages for false imprisonment to any of the FNPs. Application of Hardial Singh principles to the appeal of Mr Lumba In addition to the issues that are raised which are common to both appeals, it is submitted on behalf of Mr Lumba (but not Mr Mighty) that his detention is unlawful on the grounds that there has been a breach of the Hardial Singh principles. This part of the appeal raises a number of points about the reach of those principles. I refer to the encapsulation of the principles set out in my judgment in R (I) [2003] INLR 196 at para 22 above. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful. How long is a reasonable period? At para 48 of my judgment in R (I), I said: It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences. So far as I am aware, subject to the following qualifications, the relevance of these factors has not been questioned. The qualifications are first that the relevance of the risk of offending on release is challenged on behalf of the appellants in the present case. Secondly, the nature of the obstacles begs two questions that have been raised on this appeal, namely what is the relevance, if any, of delays attributable to the fact that a detained person (i) is challenging the decision to deport him by appeal or judicial review and will generally not be deported until his challenges have been determined; and (ii) has refused to return voluntarily to his country of origin? Risk of re offending Mr Husain accepts that, where there is a risk that the detained person will abscond, the risk of re offending is relevant to the assessment of the duration of detention that is reasonably necessary to effect deportation. But he submits that, where there is no real risk of absconding, the risk of re offending cannot of itself justify detention. Where there is no such risk, detention is not necessary to facilitate deportation, because it will be possible to effect the deportation without the need for detention. The underlying purpose of the power to detain is not to prevent the commission of criminal offences, but to facilitate the implementation of a deportation order. I have some difficulty in understanding why the risk of re offending is a relevant factor in a case where there is a risk of absconding, but not otherwise. It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by a deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804. Toulson LJ said at para 55: A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view, that is over simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because he has a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure. Para 78 of Keene LJs judgment is to similar effect. I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in R (A) to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in R (I) at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee re offending is an obviously relevant circumstance. But the risk of re offending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger pointed out in argument, if a person re offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his re offending will impede his deportation. The risk of re offending is, therefore, a relevant factor. Delay attributable to challenges to deportation Mr Beloff submits that the time taken to resolve legal challenges brought by an individual against deportation should generally be left out of account in considering whether a reasonable period of detention has elapsed. He concedes that this general rule should be subject to two qualifications: (i) if the Secretary of State has caused delay in the resolution of the legal challenge, then that time may be taken into account; and (ii) the time during which a legal challenge is being resolved should be taken into account if removal is not possible for reasons unrelated to the legal challenge. I shall call this general rule the exclusionary rule. In support of this submission, Mr Beloff makes the following points. First, it is the individuals choice to challenge the removal and, if the time taken to resolve legal challenges were taken into account, the length of detention would be outside the control of the Secretary of State and would be entirely within the control of the detained person. Secondly, if the position were otherwise, those who (if at large) would be a danger to the public or who would be likely to thwart a deportation order by absconding, would be able to increase their prospects of release by pursuing every conceivable point by way of legal challenges and by doing everything possible to delay the legal process. Thirdly, if the legality of detention is capable of depending on the merits of a challenge to the decision to deport, it will be necessary for the High Court to decide for itself the merits of the underlying challenge, in advance of consideration of the case by the specialist tribunal appointed by Parliament to undertake that task. That is undesirable. At para 102 of their judgment, the Court of Appeal said: In our judgment, the fact that a FNP is refusing to return voluntarily, or is refusing to cooperate in his return (for example, by refusing to apply for an emergency travel document, as initially did WL) is relevant to the assessment of the legality of his continued detention: see R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804. So is the fact that the period of his detention had been increased, and his deportation postponed by his pursuit of appeals and judicial review proceedings seeking to challenge his deportation order or his application for asylum or leave to remain, particularly if his applications and appeals are obviously unmeritorious. In our judgment, as a matter of principle, a FNP cannot complain of the prolongation of his detention if it is caused by his own conduct. It is not clear whether the Court of Appeal were accepting the exclusionary rule in its entirety. To say that the fact that the length of the detention is attributable to the pursuit of legal proceedings is relevant to the assessment of the legality of the detention suggests a rejection of the exclusionary rule. But to say that FNPs cannot complain of the prolongation of their detention caused by their own conduct suggests an acceptance of it. The question of the relevance of the pursuit of legal proceedings has been considered in a number of authorities. I do not propose to analyse them. None is binding on this court. The discussion of the issue which I have found most helpful is that of Davis J in R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin). In that case, the exclusionary rule (with the same two exceptions) was urged on the court on behalf of the Secretary of State. In rejecting it, Davis J pointed out at para 25 of his judgment, that it was undesirable, where the core question is an assessment of what is reasonable in all the circumstances, to be astute to look for mandatory restrictions or rules in what ought to be a fact specific exercise. I agree. The Hardial Singh principles should not be applied rigidly or mechanically. There are several problems with the exclusionary rule. First, it seems to require the exclusion of consideration of the individual circumstances of an applicant pending what may be a long appellate process. Suppose two FNPs who both embark on a meritorious appeal process which takes a number of years. The only difference between them is that A poses a very high risk of absconding and re offending and B poses a very low risk. If the exclusionary rule is applied, no difference can be drawn between them from the time proceedings are commenced. In both cases, the several years during which they are detained while the appeal process is continuing are to be disregarded in assessing whether the period of detention is reasonable. Or suppose that the effect of detention on A is to cause serious damage to his health or that of members of his family, whereas there is no such effect in the case of B. I can see no warrant for such a mechanistic approach to the determination of what is reasonable in all the circumstances. Secondly, the exclusionary rule seems to involve the exclusion from consideration of any delays occurring within the appeal process which are not the fault of the applicant or (as is conceded by Mr Beloff) the Secretary of State. I see no reason why such delays, for example, delays on the part of the tribunal or court, should be disregarded in a determination of whether the period of detention is reasonable. Thirdly, the consequence of the exclusionary rule is that a person can be detained for many years while pursuing a prima facie meritorious appeal but he cannot by judicial review or habeas corpus challenge his detention on Hardial Singh or related article 5(1)(f) of the ECHR principles. It precludes such judicial scrutiny (i) however long the detention and appeals have lasted and (ii) regardless of the effects of prolonged detention on the detainee, provided that (iii) the appeals are being diligently pursued and there is no concurrent independent reason why deportation cannot be effected. I accept the submission of Mr Husain that bail is not a sufficient answer to the fundamental objection that the exclusionary rule constitutes an impermissible restriction on judicial oversight of the legality of administrative detention. Paragraph 29 of Schedule 2 to the 1971 Act gives the First Tier Tribunal power to grant bail pending an appeal, but this is subject to the restrictions stated in paragraph 30. Paragraph 30(1) provides that an appellant shall not be released under paragraph 29 without the consent of the Secretary of State if removal directions are currently in force. There is nothing in the schedule which requires the tribunal to apply the Hardial Singh principles in deciding whether or not to grant bail and, in particular, to have regard to the past and likely future length of a detention. Bail is not a determination of the legality of detention, whether at common law or for article 5(4) purposes. Fourthly, the exclusionary rule is inconsistent with the decision of the ECtHR in Chahal v United Kingdom (1996) 23 EHRR 413. In deciding whether the detention complied with the requirements of article 5(1)(f), the court had regard to the length of the detention, including the time taken for the various domestic proceedings to be completed: see paras 114, 115 and 123 of the judgment of the court. There is a close analogy between the Hardial Singh principles and the article 5 requirement that detention for the purposes of deportation must not be of excessive duration. I would reject Mr Beloffs in terrorem argument that, unless the exclusionary rule applies, detained FNPs will be able to procure their release from detention by the simple expedient of pursuing hopeless legal challenges. Time taken in the pursuit of hopeless challenges should be given minimal weight in the computation of a reasonable period of detention. Nor do I accept that it is undesirable (or indeed unduly difficult) to identify hopeless or abusive challenges. There exist statutory mechanisms to curb unmeritorious appeals. If a claim is clearly unfounded, certification under section 94(2) of the Nationality, Immigration and Asylum Act 2002 precludes an in country appeal. If a claim relies on a matter which could have been raised earlier in response to an earlier immigration decision or in response to a one stop notice, certification under section 96 of the 2002 Act precludes any appeal at all. In any event, a court considering the legality of a detention will often be able to assess the prima facie merits of an appeal. Where, as in the case of Mr Lumba, there have been orders for reconsideration, or where there has been a grant of permission to appeal to the Court of Appeal, the court will easily recognise that the challenge has some merit. Conversely, there may be one or more determinations from immigration judges dismissing claims as wholly lacking in credibility. To summarise, I would reject the exclusionary rule. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re offending, which would compel an appellants release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and re offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one. Non cooperation with return The most common examples of non cooperation are (i) a refusal by a person who does not have a valid passport to cooperate with the obtaining of travel documents to enable him to return and (ii) a persons refusal to avail himself of one of the Home Office schemes by which he may leave the United Kingdom voluntarily. Most of the discussion in the cases has centred on (ii). It is common ground that a refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. But I would warn against the danger of drawing an inference of risk of absconding in every case. It is always necessary to have regard to the history and particular circumstances of the detained person. What is, however, in issue is whether a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful. In R (I), I said in the Court of Appeal: 50. As regards the significance of the appellants refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight. [Counsel for the Secretary of State] submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention. It is this second feature which has weighed heavily with Mummery LJ. 51. I cannot accept that the first of [the Secretary of States] reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable. If [the Secretary of State] were right, the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation. 52. I turn to [the Secretary of States] second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance namely the likelihood that the detained person will abscond if released. 53. But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake. 54. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case. It is not at all surprising that this appellant has refused voluntary repatriation. He has not yet exhausted the asylum process, which, if successful, would permit him to remain in the United Kingdom. In these circumstances, why should one infer from the refusal of voluntary repatriation that, if released, he would abscond? In my judgment, the most that can be said is that there is a risk that if he is released the appellant will abscond. But that can be said of most cases. I do not consider that the fact that he has refused the offer of voluntary repatriation adds materially to the evidence that such risk is present in the instance case. Simon Brown LJ adopted a somewhat different approach at para 31. He said that, since in Hardial Singh Woolf J had regarded it as a factor in the applicants favour that he was quite prepared to go to India, he could not see why the converse should not be relevant. The court should not ignore entirely the applicants ability to end his detention by returning home voluntarily. The point was considered again by the Court of Appeal in R (A) Somalia v Secretary of State for the Home Department [2007] EWCA Civ 804 Toulson LJ (with whom Longmore LJ agreed) said: 54. I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a persons detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individuals continued detention is a product of his own making. Keene LJ said at para 79: I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation, just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return. What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a trump card which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R (I), the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation. If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R (I) and Keene LJ in R (A) and I agree with them. The appeal of Mr Lumba I can now turn to the particular case of Mr Lumba. He entered the United Kingdom unlawfully on 10 April 1994 and claimed asylum on the same day. His claim was refused on 20 February 2000. He was, however, granted exceptional leave to remain until 20 February 2004. He has a bad criminal record which includes convictions for assault occasioning actual bodily harm (six months imprisonment); two offences of using threatening and abusive behaviour (twelve months probation); two offences of shoplifting (non custodial sentences); assault occasioning actual bodily harm (six months imprisonment); assaulting a constable (four months imprisonment); and wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 (4 years imprisonment). He married MP, another national of the Democratic Republic of Congo (DRC). Their son, PAS, was born on 5 July 2003. As I have already said, on 3 April 2006, the Secretary of State decided to deport Mr Lumba. Notwithstanding that his son is a British citizen, the Secretary of State also decided to deport his wife and son, although the orders against them were subsequently revoked. He was notified of the decision to detain him under the 1971 Act on 22 June 2006, the day before his release date. His first detention review was in February 2007. He appealed against the decision to deport him. On 7 September 2006, while the appeal was still pending, he refused to attend a travel document interview with the immigration authorities to facilitate his return to the DRC. His appeal against deportation was dismissed by the Asylum and Immigration Tribunal (AIT) on 15 December 2006. In about January 2007, he was transferred from prison to Dover Immigration Removal Centre, since when he remained in detention. On 1 March 2007, he attended an interview with an immigration officer at which he explained that his passport was missing. He was asked to complete an application for an Emergency Travel Document (ETD) but refused to do so, stating that he did not wish to be returned to the DRC because the problem which formed the initial basis of his asylum claim is still true. By 20 March 2007, the Secretary of States caseworkers had discovered that they had a copy of Mr Lumbas passport on file. His indefinite leave to remain was terminated only after service on him of the signed deportation order on 21 March 2007. The discovery of the copy of his passport on file obviated the need for his cooperation in completing a travel document application. On 29 March, a completed application for an ETD, accompanied by copies of his passport and identity card, was sent to the Embassy of the DRC. The Embassy claimed to have lost the initial application and the application for an ETD was resubmitted on 26 April 2007. The application was granted by the DRC Embassy on 25 July 2007 and on the following day directions were set for Mr Lumbas removal from the United Kingdom on 20 August 2007. On 15 August 2007, his new solicitors submitted fresh representations challenging his deportation. These noted that a country guidance case (BK (DRC)) concerning the safety of returns to the DRC of failed asylum seekers/ deportees was to be heard by the AIT on 17 September 2007. On 16 August 2007, the Secretary of State refused to treat those representations as a fresh asylum claim and on the following day, Mr Lumba issued judicial review proceedings challenging that refusal. On 14 September 2007, these proceedings were stayed by consent until the outcome of the pending country guidance case before the AIT was known. On 23 October 2007, Mr Lumba issued the claim for judicial review challenging his detention which has given rise to the present appeal. On 18 December 2007, the AIT promulgated its determination in BK (Democratic Republic of Congo) v Secretary of State for the Home Department and decided that failed asylum seekers were not, as such, at risk in the DRC: [2007] UKAIT 98. Mr Lumba made applications for bail on 23 January 2008, 4 February 2008 and 4 March 2008. They were all rejected by the immigration judge principally on the ground that there was a real risk that if he was released he would re offend. On 23 April 2008, permission was granted to appeal the AITs decision in BK (DRC) to the Court of Appeal. Mr Lumbas claim for judicial review in respect of his detention was heard by Collins J on 4 July 2008. His judgment is reported at [2008] EWHC 2090 (Admin). He concluded that the detention was lawful on Hardial Singh principles and that it would continue to be so until the Court of Appeal gave judgment in BK (DRC), on the assumption that judgment was given by the end of December 2008. In fact judgment was given by the Court of Appeal on 3 December 2008 after the hearing before Davis J, but before he gave judgment: [2008] EWCA Civ 1322. Davis J agreed with the reasoning and conclusion of Collins J as to the lawfulness of the detention. The findings made by Davis J are set out in full by the Court of Appeal at para 99 of their judgment. There is no need to repeat them in this judgment. In summary, Davis J said at para 203 that (i) Mr Lumba posed a high risk of absconding and a high risk of serious reoffending; (ii) at all stages there was a prospect of removing him within a reasonable period; and (iii) there had been no lack of due expedition on the part of the Secretary of State. On 11 February 2009, Mr Lumbas solicitors made fresh representations on his behalf to the Secretary of State, and applied for the revocation of the deportation order. They said that his marriage had broken down and that he was seeking contact with his son. He relied on article 8 of the ECHR. This application was rejected by the Secretary of State on 1 July 2009. Mr Lumba appealed on 8 July 2009. The appeal was dismissed by the AIT on 28 September 2009. A reconsideration was ordered by a senior immigration judge on 26 October 2009. At the reconsideration, the Secretary of State conceded that the original tribunal had erred in law. By a judgment given on 19 February 2010, the Court of Appeal dismissed Mr Lumbas appeals against the decisions of Collins J and Davis J. The Court of Appeal said at para 100 that they had seen nothing to justify interfering with Davis Js findings at para 203 of his judgment. They said in relation to the application of the Hardial Singh principles that the real attack was on the judgment of Collins J. There had been no material error in the approach or conclusions of Collins J who had taken into account the high risk of absconding and re offending, the fact that Mr Lumba could have returned to the DRC voluntarily, and that his deportation had been delayed by his pursuit of several unsuccessful applications for asylum or leave to remain and appeals against their refusal. The Court of Appeal had been asked to consider the period which had elapsed since the judgment of Davis J and subsequent evidence, including a psychiatric report, and to determine the legality of Mr Lumbas current detention in the light of it. They said at para 108 that it would be inappropriate for them to consider as a first instance decision whether Mr Lumbas mental condition rendered his continued detention unlawful. Apart from that, they said that: having reviewed the history of [Mr Lumbas] detention and the reasons given for continuing it, and for the refusals of bail, and his several hitherto unmeritorious appeals and applications, we are satisfied that his detention for the purposes of his deportation continues to be lawful. On behalf of Mr Lumba it is submitted that the Court of Appeal should have concluded that his detention was unreasonably long by the time of the hearing before Collins J on 4 July 2008; alternatively by the time of the hearing before Davis J on 11 14 November 2008; alternatively by the time of the hearing before them between 30 November and 2 December 2009. By the time of the appeal, of particular importance were the facts that (i) Mr Lumba had been in detention for 41 months; (ii) he could not be deported while he was pursuing his appeal against the Secretary of States refusal to revoke the deportation order; and (iii) there was evidence from the Croydon Mental Health Team and consultant psychiatrist Dr Dinakaran which showed that the risk of re offending and psychotic relapse could be managed in the community. Mr Lumba has now been in detention for 54 months. At first sight, his detention seems to have been of unreasonable duration. There must come a time when, however grave the risk of absconding and however the grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation. Moreover, in certain respects the courts below have not applied the Hardial Singh principles correctly. In particular, they have wrongly regarded the fact that Mr Lumba has been able to delay his deportation by pursuing applications and appeals which, thus far, have been unsuccessful as being relevant to the assessment of a reasonable period of detention. It has not been suggested by the Secretary of State that any of these applications or appeals have been hopeless and abusive. For the reasons given above, the fact that the applications and appeals delayed the deportation should have been regarded as irrelevant. The courts below also appear to have taken into account Mr Lumbas refusal of voluntary return without making it clear how this is relevant to the assessment of a reasonable period. As I have said, it is of limited relevance as a free standing reason (see paras 122 128 above). It would be legitimate to infer from the refusal of voluntary return that there is a risk of absconding. But it is not clear that Collins J or Davis J drew such an inference in this case. Mr Husain submits that it was incumbent on the Court of Appeal to consider the legality of the continuing executive detention by reference to the situation current at the time of the appeal and that they erred in failing to do so. He says that they should have considered what the prospects were of removal within a reasonable period. I accept that, where the facts are the same as they were before the first instance judge and the only difference is the passage of further time, there is no reason why the Court of Appeal should not decide for themselves whether a continuing detention is unlawful. I also accept that, where there is fresh evidence, the Court of Appeal are entitled to apply the Hardial Singh principles and consider for themselves on the basis of all the up to date material whether a continuing detention is lawful. Indeed, that was the course that the Court of Appeal took in R (I). But there are some circumstances where that course is not appropriate. In the present case, the Court of Appeal took the view that such a course was inappropriate. They said at para 108 that they should not embark on a first instance decision on matters, such as whether the deportation order should be revoked on account of [Mr Lumbas] mental condition, that Parliament has entrusted to a specialist tribunal. That was an entirely proper reason for the Court of Appeal not making a first instance decision in this case. Mr Husain submits that the Supreme Court should allow Mr Lumbas appeal. I would allow the appeal of both appellants for the generic reasons that I have stated earlier. But I would not decide whether the detention of Mr. Lumba for almost 56 months was in breach of the Hardial Singh principles. The reasons which led the Court of Appeal to refuse to make a first instance decision apply with even greater force in an appeal to the Supreme Court. It is only in the most exceptional case that this court should embark on a task that is normally to be performed by a court of first instance. In view of the passage of further time since the decision of the Court of Appeal as well as the fact that the courts below failed to apply the Hardial Singh principles correctly, I would remit Mr Lumbas claim for damages for breach of those principles to the High Court for reconsideration in the light of all the evidence as to the current position. The case of Mr Mighty As I have already said, Mr Mighty was detained between 19 May 2006 and 28 July 2008. He issued proceedings on 29 May 2008 alleging that his detention was for longer than a reasonable period and inter alia that, on a proper application of the Hardial Singh principles, he should have been released. His Hardial Singh case was rejected by Davis J. There was no appeal on this aspect of the case to the Court of Appeal and the point has not been raised on behalf of Mr Mighty before this court. Exemplary damages The relevant principles are not in doubt. Exemplary damages may be awarded in three categories of case: see per Lord Devlin in Rookes v Barnard [1964] AC 1129. The category which is relevant for present purposes is that there has been an arbitrary and outrageous use of executive power (p 1223) and oppressive, arbitrary or unconstitutional action by servants of the government (p 1226). In this category of case, the purpose of exemplary damages is to restrain the gross misuse of power: see AB v South West Water Services Ltd [1993] QB 507, 529F per Sir Thomas Bingham MR. It must be shown that the conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiffs rights so contumelious, that something more [than compensatory damages] is needed to show that the law will not tolerate such behaviour as a remedy of last resort: see per Lord Nicholls Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at para 63. Both Davis J and the Court of Appeal addressed the question of exemplary damages, although in view of their findings on the issue of liability, it was not necessary for them to do so. Davis J said at para 205 of his judgment that: I add, briefly, that, even if I had concluded there was unlawful detention in any of these cases justifying an award of damages, I would not in any event have awarded exemplary damages on the footing of unconstitutional, oppressive or arbitrary conduct, in so far as sought. While the Home Office has, to put it mildly, not covered itself in glory in this whole matter of the new policy, I think the failings were in essence one of failing, promptly and directly, to confront and address a perceived legal difficulty: whether through concerns at being bearers of unwelcome news to the Ministers or through an instinct for ducking an apparently intractable problem or through institutional inertia or some other reason, I cannot really say. I am not prepared, however, to conclude on the material before me that there was a conscious decision within the Home Office to operate tacitly an unpublished policy, known to be highly suspect, in the hope it would not be uncovered or, if it was uncovered, against a plan, if the courts intervened, to present that reversal as being due solely to the courts or the Human Rights Act. In my view what happened here, in any of these five cases, cannot fairly, I think, be described as sufficiently outrageous to justify an award of exemplary damages. In any event, I emphasise that individual consideration was given to the cases of each of the claimants. By the time of the appeal, the Secretary of State had disclosed more material than was before the judge. The Court of Appeal said that, even taking account of the additional material, they agreed with the assessment of the judge. They said: 122. We give weight to that assessment by the judge at the end of his very careful and comprehensive judgment. It also accords with our own view, even taking account of the additional material which has been disclosed. We consider that there was a failure, which to put it very mildly indeed, was very regrettable, on the part of the department to face up to the basic problem that the published policy had not caught up with the much more restrictive approach implicit in ministerial statements on the subject. However, we find it difficult to describe such conduct as unconstitutional, oppressive or arbitrary, in circumstances where the Home Secretary had an undoubted power to detain for the purposes in question, and it has been held that on the facts of the case he could lawfully have exercised that power with the same effect; at any rate, if it can be so described, these circumstances mean that the conduct is at the less serious end of unconstitutional, oppressive or arbitrary. We also bear in mind also that the claimants had the right to apply for bail to an independent tribunal, at which it was possible for the continuing reasonableness of their detention to be challenged. An award of exemplary damages would be an unwarranted windfall for them, and it would have little punitive effect since it will not be borne by those most directly responsible. Rather it would be a drain on public resources which in itself is unlikely to add significantly to the remedial effect of a declaration of unlawfulness. 123. Moreover, it is difficult to see on what basis exemplary damages could be assessed in lead cases such as these. The conduct of the Home Secretary complained of in the present case was common to a large number of detainees who have brought proceedings against him. The selection of lead claimants such as [Mr Lumba] and [Mr Mighty] does not depend on the merits of their individual cases, which have not been assessed other than for the purposes of the grant of permission to apply for judicial review or permission to appeal. Other claimants may have equally or even more meritorious claims to damages, and if appropriate exemplary damages, than the present claimants. There would be no principled basis, therefore, to restrict an award of exemplary damages to the present lead claimants. If an award of exemplary damages is made to the present lead claimants, a similar award would have to be made in every case. Exemplary damages are assessed by reference to the conduct of the tortfeasor. The court would, we think, have to assess an appropriate sum as exemplary damages and divide it between all successful claimants. But we do not know how many successful claimants there will ultimately be. These considerations demonstrate that exemplary damages, in a case such as the present, may be ill suited to be a remedy in judicial review proceedings, and would be in the present cases. Yet further material has been disclosed by the Secretary of State since the hearing before the Court of Appeal. Mr Westgate submits that it can now be seen that this is indeed one of those exceptional cases where awards of exemplary damages are merited. His submissions are detailed and elaborate. I shall endeavour to concentrate on the essential points. He submits that the conditions for an award of exemplary damages have been established because (i) from April 2006 until September 2008 the Secretary of State operated a hidden blanket policy which did not give effect to the Hardial Singh principles; (ii) the Secretary of State actively discouraged disclosure of her true detention policy with the consequence that the integrity of written reasons for detention was compromised; (iii) there was a deliberate decision not to publish the hidden policy; and (iv) the Secretary of State and/or her officials knew that, or were reckless as to whether, their actions were unlawful, preferring for political reasons to leave it to the courts to remedy the illegality. In addition, Mr Westgate submits that the Secretary of State in this litigation has fallen short of the duties of candour owed to the courts in that (v) the courts have been intentionally or recklessly misled by the Secretary of States officials; (vi) elementary safeguards necessary to promote compliance with a public authoritys duty of candour in judicial review proceedings have not been observed: in particular, the Deputy Chief of Staff of the Chief Executive of the UK Border Agency was selected as the person responsible for overseeing disclosure, when the responsibility for disclosure was that of the Treasury Solicitor; and (vii) there remain significant lacunae in the disclosure. I find it convenient to take (i) to (iv) together. I have already referred at paras 16 39 above to the hidden blanket policy which did not give effect to the Hardial Singh principles. There is no doubt that such a policy was operated between April 2006 and November 2007 when a slight relaxation was effected by the introduction of Cullen 1. To a large extent, the policy that was applied until September 2008 was a blanket policy. It certainly remained a hidden policy during the whole period. But that of itself comes nowhere near being sufficient to justify an award of exemplary damages. It is the reasons why the policy was not published that are the matters of real concern. There is undoubtedly evidence to support submissions (ii) to (iv). I shall refer to some of it. A more detailed description of the internal material relating to the period between April 2006 and September 2008 that was disclosed to Davis J appears at para 43 of his judgment. At least from 17 May 2006, senior officers within the Home Office, including lawyers of the Home Office Legal Advisers Branch (HOLAB), expressed concern to, among others, Lin Homer (Chief Executive of the Border and Immigration Agency) (BIA) that the policy was unlawful on the grounds that it did not satisfy the Hardial Singh principles and that it differed from the published policy. Thus, for example, on 20 July 2006, Ms Rogerson (Head of Policy for the BIA) said in an email we are increasingly vulnerable and we should probably publish revised criteria. She suggested that they should review the criteria and consider being prepared to release FNPs in some cases, with public protection as a priority. She added that Ministers preferred position may be to continue to detain all FNPs and let immigration judges take any hit which is to be had by releasing on bail. On 19 January 2007, Joy Munro (Deputy Director, Border Control) wrote to Ms Rogerson asking for written evidence of the lawfulness of detaining FNPs whom they were unable to remove. She referred to there being unrest in the CCD about the power in law to detain some of those held if they are not removable. Ms Rogerson replied: We shouldnt be dealing with thisor any such policy discussionson email in this way. I believe a meeting would be the most profitable way forward. On 13 March 2007, Stephen Braviner Roman of HOLAB wrote to Ken Sutton (Deputy Director of the Immigration and Nationality Directorate) saying: if the courts were to find we had not been following our policy in these cases we would face criticism, but also claims for compensation. He also referred to the fact that Simon Harker (from the Treasury Solicitors Department) had pointed out that they have a duty of candour to the court and cannot mislead. First hand evidence of the attitude of the Secretary of State herself is to be found in an email dated 16 July 2007 sent to Lin Homer in response to a draft bail proposal: Is this an issue primarily about legal vulnerability rather than capacity? If so, what is the reason for worrying about this now? Have we been threatened with legal action? This prompted a series of internal emails, some of which referred to the test case of R (A) (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 804. In an email dated 17 July 2007, Mr Braviner Roman referred to the impending hearing and said that there was an on going legal vulnerability. If it materialised, we would face a liability in damages as well as severe criticism if it was said that we have maintained a policy of detaining people which was unlawful (as opposed to having a lawful policy but just getting it wrong on the facts from time to time, which is inevitable). But the unpublished policy was not disclosed in that litigation. The response to the Secretary of States question was given in an email dated 19 July 2007 which stated that the issue was one of legal vulnerability. To this the Private Secretary of the Secretary of State replied that there did not seem to be a strong enough or immediate enough reason to be releasing or not detaining people at this point. A further insight into the thinking of the senior officers can be derived from the draft policy submission that had been circulated in May 2007. It referred to the legal advice that the Secretary of State was open to legal challenge for the reasons to which I have earlier referred. It also said: if we were to lose a test case, we could present any change in FNP detention practice as having been forced on us by the courts. I agree with what Davis J said about this document at para 43.12 of his judgment: That may or may not be good politics: but it is deplorable practice, especially when it is seen that almost from day one the new unpublished policy was perceived in virtually all quarters within the department to be at least legally vulnerable and in some quarters positively to be untenable and legally invalid. The tone of this draft is further confirmed by the subsequent comments that the longer the delay the more likely it would be that a court judgment would force us to pay out significant sums in compensation to FNPs whose detention was held to be unlawful as well as exposing the department to criticism in the media and to reputational damage. Mr Westgate is able to point to clear evidence that caseworkers were directed to conceal the true reason for detention, namely the unpublished policy, and to give other reasons which appeared to conform with the published policy. This material was disclosed seven days before the start of the hearing before the Court of Appeal. It comprises an exchange of emails in relation to a Liverpool case. On 21 March 2007, Philip Muirhead of the Criminal Casework Directorate (CCD) in Liverpool said of the FNP under consideration that there was no valid reason to detain him. Nichola Samuel, a lawyer of HOLAB, said that if detention was appropriate in that case, this suggested that they were applying a different policy, ie that all FNPs should be detained pending deportation. Gareth Lloyd (Assistant Director of the CCD) responded that he had an email from Mandie Campbell (Director of CCD) telling me that we must detain all FNPs until removal. In an email dated 22 March 2007, Mr Lloyd said that this was not only a Liverpool issue and in an email sent on the following day, he said: We just detain as instructed and choose the most defendable option in our opinion. From the above, it seems to me to be clear that there was a deliberate decision not to publish the hidden policy. The material that has now been disclosed suggests that the assessment made by Davis J at para 205 may have been somewhat generous to the Secretary of State and her senior officials. It is true that they did not know and could not have known that the policy that was being applied was bound to be struck down as unlawful, but they certainly knew that it was vulnerable to legal challenge and that it did not accord with the published policy. Nevertheless, the question remains whether, regrettable though the behaviour of the Secretary of State and her senior officials may have been, it was sufficiently outrageous and sufficiently unconstitutional, oppressive or arbitrary to merit awards of exemplary damages. I approach this question without regard to the allegations of lack of candour in the litigation. This is because the role of exemplary damages is to punish the commission of the underlying tort and not the subsequent conduct of the litigation. Any disapproval of the conduct of the litigation can be marked by an appropriate order for costs or by an increased award of (compensatory) aggravated damages: Thompson v Commissioner of Police of the Metropolis [1998] QB 498, 517D per Lord Woolf MR. Whether the high threshold for the award of exemplary damages has been crossed in any particular case is ultimately a matter of judgment. Opinions can reasonably differ on whether a defendants conduct has been so outrageous and so unconstitutional, oppressive or arbitrary as to justify the imposition of the penalty of exemplary damages. An appellate court should not interfere with the judgment of the court below unless that judgment is plainly wrong. On the material that was before him, Davis J was entitled to reach the conclusion that he reached. In my view, the Court of Appeal were also entitled to reach the conclusion that they reached on the more extensive material that was before them. Both the judge and the Court of Appeal applied the correct test. In particular, the Court of Appeal were right to place some weight on the fact that the Secretary of State had the statutory power to detain the appellants pending deportation and that, although she in fact exercised that power unlawfully, she could have done so lawfully. They were also right to say that, if her conduct is properly to be described as unconstitutional, oppressive or arbitrary, it was at the less serious end of the scale. It is material that there is no suggestion that officials acted for ulterior motives or out of malice towards the appellants. Nevertheless, there was a deliberate decision taken at the highest level to conceal the policy that was being applied and to apply a policy which, to put it at its lowest, the Secretary of State and her senior officials knew was vulnerable to legal challenge. For political reasons, it was convenient to take a risk as to the lawfulness of the policy that was being applied and blame the courts if the policy was declared to be unlawful. The Court of Appeal identified at para 123 of their judgment a further point which militated against awards of exemplary damages to the appellants. Where there is more than one victim of a tortfeasors conduct, one award of damages should be made which should be shared between the victims, rather than separate awards of exemplary damages for each individual: see Riches v News Group Newspapers Ltd [1986] QB 256. This is because the purpose of the award is to punish conduct rather than compensate the claimants. In Riches, the victims of the tort were a small class who were all before the court. But where (as in the present case) there is potentially a large number of claimants and they are not all before the court, it is not appropriate to make an award of exemplary damages: see AB v South West Water Services Ltd [1993] QB 507, 527B D per Stuart Smith LJ and p 531D E per Sir Thomas Bingham MR. Unless all the claims are quantified by the court at the same time, how is the court to fix and apportion that punitive element of the damages? If the assessments are made separately at different times for different claimants, how is the court to know that the overall punishment is appropriate? The Court of Appeal were right to regard this a further reason why it was not appropriate to award exemplary damages in the present case. There is yet one further point. It is unsatisfactory and unfair to award exemplary damages where the basis for the claim is a number of serious allegations against named officials and Government Ministers of arbitrary and outrageous use of executive power and those persons have not been heard and their answers to the allegations have not been tested in evidence. In a private law action, they would almost certainly have been called to give evidence. But oral evidence is rarely adduced in judicial review proceedings and, understandably, it was not adduced in the present case. Overall conclusion I would, therefore, allow these appeals. For the reasons that I have given, the Secretary of State is liable to both appellants in the tort of false imprisonment on the narrow ground that she unlawfully exercised the statutory power to detain them pending deportation because she applied an unpublished policy which was inconsistent with her published policy. The appellants are, however, only entitled to nominal damages because, if the Secretary of State had acted lawfully and applied her published policy, it is inevitable that both appellants would have been detained. As regards the discrete question whether the detention of Mr Lumba was in any event unlawful on the grounds of a breach of the Hardial Singh principles, I would remit this to a High Court judge. Finally, neither appellant is entitled to exemplary damages. LORD HOPE In agreement with Lord Walker, Lady Hale, Lord Collins, Lord Kerr and Lord Dyson I would hold that the Secretary of State is liable to the appellants in the tort of false imprisonment because she applied to them an unpublished policy which was inconsistent with her published policy, and I too would remit to a High Court judge the question whether Mr Lumbas detention was unlawful as being in breach of the Hardial Singh principles. As I am anxious to avoid adding to the length of the courts judgment, I shall simply say that I am in full agreement with all the reasons that Lord Dyson has given on these issues except that I do not have the same difficulty as he has with the use of the phrase abuse of power by Lord Walker (see para 69, above). There are only three points on which I wish to comment. First, as Lord Phillips has noted (see para 258, below), it was common ground in these appeals that Lord Dyson correctly summarised the effect of Woolf Js judgment in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704. Nevertheless he has indicated that he does not consider that the first and second principles that Lord Dyson has extracted from it can properly be derived from what Woolf J said in that judgment. For my part, I think that Lord Dysons summary, which he has taken from his judgment in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46, is accurate and I would endorse it. We can, of course, read what Woolf J said for ourselves, and there are no doubt various ways of expressing what Lord Dyson has taken from it. The essential point, as Lady Hale has explained (see para 199, below), is that the detention must be for the statutory purposes of making or implementing a deportation order and for no other purpose. Lord Phillips says that he can see no justification for reading the terms of the statute in this way, that it places an unjustified restriction on the Secretary of States power of detention and that he does not believe that Woolf J intended to say what Lord Dyson has attributed to him. He would read Hardial Singh as concerned only with the length of time that was reasonably necessary to effect deportation and not the purpose of the detention. I am unable, with respect, to agree with this interpretation of Woolf Js judgment. There are two points that need to be considered. The first is, what do the words that Woolf J used actually mean? The second is whether, if they have the meaning that Lord Dyson has attributed to them, this limitation on the statutory power can properly be read into the statute. As to the first point, in the second sentence of the relevant paragraph (see para 262 of Lord Phillipss judgment) Woolf J makes it plain that in his view the statutory power can only authorise detention if the individual is being detained pending the making of a deportation order or pending his removal and for no other purpose. I think that his judgment could not be clearer on this issue, and that Lord Dyson has captured the essential points that Woolf J made accurately in his summary. As for the second, it must be recognised that until now Woolf Js statement of the limitations to the statutory power has never been questioned. I think that there are good reasons for this. To confine the limitation to the period of the detention only and release the Secretary of State from the limitation as to purpose which Woolf J identified would greatly reduce the protection which, as I read it, his judgment was designed to give to the detainee. For obvious reasons that, if it were to happen, would be regrettable. It would, as Lord Phillips indicates in para 269, enable the Secretary of State to exercise the power to detain simply because he believed that the detainee would, if released, pose a threat to national security. I do not think that article 5(1)(f) of the European Convention on Human Rights permits this interpretation of the statutory power. If Parliament had intended that the power to detain could be used for a purpose other than the making or effecting of a deportation order, it would have had to have said this expressly and it has not done so. It is hard also to see how the limitation as to time which Lord Phillips accepts can be read into the statute can be tested without having regard to the purpose for which the detainee is being held. The limitation as to time and the limitation as to purpose are really two sides of the same coin. They cannot be separated from each other. I think that Woolf J was right to recognise this and that there are sound reasons for all that he said about the limitations that must be understood to qualify the statutory power. Second, I cannot accept Lord Phillipss conclusion that the application of the secret policy did not render the detention of the appellants unlawful. The basis for that view is that, if the published policy had been applied they would have been detained anyway and that, had they challenged their continued detention, they would have had no legitimate expectation of obtaining an order for their release. This is the causation argument which, for the reasons Lord Dyson gives in paras 62 68 with which I agree, he rejects. The key point, as I see it, are that we are dealing in this case with the tort of false imprisonment. Torts of this kind are actionable per se regardless of whether the individual suffers any harm. While not every breach of public law will give rise to a cause of action on this ground, the history of this case shows that there was here a serious abuse of power which was relevant to the circumstances of the appellants detention. If the rule of law is to be sustained, the detention must be held to have been unlawful. The appellants were being detained without regard to the purpose for which the Secretary of State was authorised to exercise the power by the statute. The court must insist that powers of detention are exercised according to law. If they are not, those who have abused their powers must accept the consequences. It is no answer for them to say that they could, had they put their mind to it, have achieved the same result lawfully by other means. Third, I agree that this is not a case for exemplary damages. But, for the reasons given by Lord Walker and Lady Hale, I would hold that the breach of the appellants fundamental rights that has occurred in these cases should not be marked by an award only of nominal damages. An award on ordinary compensatory principles is, of course, out of the question. It is plain that the appellants would not have had any prospect of being released from detention if the Secretary of State had acted lawfully. So they cannot point to any quantifiable loss or damage which requires to be compensated. But the conduct of the officials in this case amounted, as Lord Walker says (see para 194, below), to a serious abuse of power and it was deplorable. It is not enough merely to declare that this was so. Something more is required, and I think that this is best done by making an award of damages that is not merely nominal. The principles on which damages for breaches of fundamental rights are to be assessed in situations such as this are not greatly developed, as Elias CJ pointed out in the Supreme Court of New Zealand in Taunoa and others v Attorney General and another [2007] 5 LRC 680, para 108. But some guidance is available from judgments which the Judicial Committee of the Privy Council has given where a constitutional right has been infringed. In Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 Lord Nicholls of Birkenhead added his own words to those of the Board in Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265 as to how an award of damages should be assessed in such a case. In para 18 he observed that when exercising its constitutional jurisdiction the court is concerned to uphold, or to vindicate, the constitutional right. In para 19 he said that an award, not necessarily of substantial size, might be needed to reflect the sense of public outrage, emphasise the gravity of the breach and deter further breaches. The law on this matter is still in the process of being worked out, so I should like to say just a little more about it. Although such an award is likely in financial terms to cover much the same ground as an award by way of punishment in the sense of retribution, punishment in that sense is not its object. The expressions punitive damages or exemplary damages are therefore best avoided. Allowance must be made for the importance of the right and the gravity of the breach in the assessment of any award. Its purpose is to recognise the importance of the right to the individual, not to punish the executive. It involves an assertion that the right is a valuable one as to whose enforcement the complainant has an interest. Any award of damages is bound, to some extent at least, to act as a deterrent against further breaches. The fact that it may be expected to do so is something to which it is proper to have regard. As for the amount to be awarded, an award is referred to as a conventional award when it is incapable of being calculated arithmetically as there is no pecuniary guideline which can point the way to a correct assessment: Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, 189G H, per Lord Scarman. In most cases the sum to be awarded can be derived from experience and from awards in similar cases: Ward v James [1966] 1 QB 273, 303, per Lord Denning MR. But that cannot be said of this case. So I would turn for guidance to what Lord Bingham of Cornhill said in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309, para 8. The conventional award that he had in mind in that case to mark the injury and loss due to the unwanted child was not, and was not intended, to be compensatory. It was not the product of calculation, nor was it derived from awards in other similar cases. But it was not a nominal, let alone a derisory, award. Its purpose was to afford some measure of recognition of the wrong done. In agreement with Lord Steyn, I regarded the idea of a conventional award under the tort system in that case as contrary to principle: Rees v Darlington Memorial Hospital NHS Trust paras 46, 70 77. But I do not think that it is open to the same objection in the present context. In this case the factors referred to by Lord Nicholls in Ramanoop must be the primary consideration. There must be some recognition of the gravity of the breach of the fundamental right which resulted in false imprisonment, and account should be taken of the deterrent effect of an award lest there be the possibility of further breaches. But account should also be taken of the underlying facts and circumstances which indicate that it should not be more than a modest one. It should do no more than afford some recognition of the wrong done, without being nominal or derisory. Lord Walker has suggested that an award of 1,000 to each appellant would be appropriate. We have no yardstick by which that sum can be measured to test its accuracy. Given the purpose of the award, I see no reason to disagree with his assessment although I, for my part, would have arrived at a substantially lower figure. LORD WALKER The issue on which Lord Brown differs from Lord Dyson is one of high importance and great difficulty. Its high importance is obvious. Lord Dyson cites Lord Bridge in R v Deputy Governor of Parkhurst Prison Ex p Hague [1992] 1AC 58, 162, The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. It is a species of trespass to the person and as such a tort actionable without the need for proof of special damage. The notion that no more than nominal damages should ever be awarded for false imprisonment by the executive arm of government sits uncomfortably with the pride that English law has taken for centuries in protecting the liberty of the subject against arbitrary executive action. It would in Lord Browns view seriously devalue the whole concept of false imprisonment. The difference of opinion between two Justices with so much expert knowledge in the field of public law, on a point of such high importance, demonstrates its difficulty. I hardly need say that it is with diffidence that I make any contribution to the debate. Lord Browns approach to the solution to the problem is to distinguish between cases where there is no lawful authority to detain a person (including cases where a precondition to lawful detention has not been satisfied) and cases where there is a power to detain, but in the exercise of that power the decision maker has been in breach of some public law duty. In cases (or at any rate some cases) of the flawed exercise of a power to detain there is (so the argument goes) no false imprisonment at all, and so the question of awarding damages, whether nominal or otherwise, simply does not arise. This solution has considerable attractions. The proposed distinction is based on the difference between the existence (or rather non existence) of a lawful authority to detain, and a defective exercise of an authority which does exist: see the observations of Lord Brown in R (Khadir) v Secretary of State for the Home Department [2006] 1AC 207, para 33. The difficulty that I feel is whether the distinction, though clear enough in theory, can cope with the variety and complexity of the problems that arise in practice, as illustrated by the numerous decided cases cited to the court. I also have difficulty (or perhaps this is another way of putting the same point) in reconciling the basic existence/exercise distinction with the four categories which Lord Brown extracts from his analysis of successful claims for false imprisonment by executive action. His four categories are (1) no power to detain; (2) failure to satisfy a precondition to exercising the power to detain; (3) detention beyond the scope of the power to detain; and (4) power to detain limited by published official policy. The distinction is clear enough in extreme cases. R v Governor of Brockhill Prison Ex p Evans (No 2) [2001] 2AC 19 was a case (in Lord Browns category (1)) in which there was simply no lawful authority for the claimants detention after the date of expiration of her term of imprisonment, when properly adjusted for time spent on remand (the complicated statutory provisions as to allowances for multiple periods spent on remand had been misinterpreted). At or near the other extreme was the breach of a public law duty to see that an asylum seeker detained at a detention centre received a medical examination within 24 hours. The omission to provide a medical examination was an administrative failing but it did not render the detention unlawful: R (HK (Turkey)) v Secretary of State for the Home Department [2007] EWCA Civ 1357. Lord Brown supplements his category (1) by category (2) so as to let in a range of cases in which there is for the time being no lawful authority to detain because some precondition has not been satisfied. A well known example of this is Christie v Leachinsky [1947] AC 573, where a man arrested without a warrant was not correctly informed of the offence which gave rise to the power of arrest without a warrant. Moreover categories (1) and (2) must be expanded to cover cases in which detention, although initially lawful, has become unlawful because of a failure to carry out some procedure or satisfy some condition of precedent fact required by statute. A procedural example is Roberts v Chief Constable of the Cheshire Constabulary [1999] 1WLR 662, where the provisions of the Police and Criminal Evidence Act 1984 required detention in police custody to be reviewed every six hours. The claimant had been detained at 11.25pm and the police officers failure to review his detention by 5.25 am on the next day made his detention unlawful until it was reviewed (and his detention continued) at 7.45 am, and the Court of Appeal refused to overturn or reduce the award of 500 damages, even though it accepted that his detention would have continued if a review had been carried out at the right time. By contrast in R (Saadi) v Secretary of State for the Home Department [2002] 1WLR 3131 the statement of incorrect and inappropriate reasons on an official form handed to detained asylum seekers was not treated as a failure to satisfy a condition precedent affecting the legality of their continued detention. The distinction between these two cases is that the relevant statutes were interpreted in one case as imposing a condition which had to be satisfied if continued detention was to be lawful, and as not imposing such a condition in the other case. It is, as Laws LJ emphasised in R (SK (Zimbabwe)) v Secretary of State for the Home Department [2009] 1WLR 1527, paras 21 and 25, an issue of statutory construction. In that case the Court of Appeal held that compliance with rule 9 of the Detention Centre Rules 2001 (calling for a monthly review of detention with written reasons given to the detained person) was not a precondition to the continuation of lawful detention. (See Laws LJ at paras 31 35 and Keene LJ agreeing, with some hesitation, at para 47.) Lord Browns category (3) is detention beyond the scope of the relevant power. Laws LJ in SK (Zimbabwe), para 21, referred to the reach of the power. These expressions, as I understand them, approximate to the object or purpose for which Parliament has conferred the power. The importance of the statutory purpose has been recognised since Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 and (as Lord Dyson notes in para 30 of his judgment) the Hardial Singh principles (see R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 704) reflect the application of the wide general principle of not deviating from the statutory purpose to the particular field of the detention of foreign nationals pending deportation. Woolf J made this clear in Hardial Singh itself at p 706. The wide general principle of not deviating from the statutory purpose is of such fundamental importance in public law that it can be seen as going to the existence of the power, rather than merely to its exercise. In law the power exists only for the purposes for which Parliament has conferred it on the executive. In Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, 113, the Privy Council put it very simply: If removal is not pending . the director has no power at all. So I would see Lord Browns category (3) as fitting reasonably comfortably into his basic existence/exercise classification. Determining the purpose for which Parliament has conferred a power is also a process of statutory construction. That process should not, in my opinion, be minutely elaborated. I entirely accept the exposition of the Hardial Singh principles by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46. It goes no further than spelling out clearly what is necessarily implicit in the purpose of detention with a view to deportation, and it has been widely cited and followed. I have more of a problem in seeing Langley v Liverpool City Council [2006] 1 WLR 375 as a case where the police departed from the statutory purpose in exercising their power of removal under section 46 of the Children Act 1989 when an emergency protection order under section 44 of that Act had already been made. The purpose of both statutory powers (one conferred on the police, the other on the court) was child protection in an emergency situation. I regard Langley as a finely balanced decision in which the Court of Appeal held that well intentioned police action, directed to child protection and taken under pressure of circumstances, was nevertheless an unlawful manner of exercising the section 46 power. Thorpe LJ (at para 79) reached that conclusion with some reluctance. It is with Lord Browns category (4), however, that I have the greatest difficulty. Here the issues are concerned with official policies how rigid or flexible they may be, whether and in how much detail they should be published, whether (in these appeals) a policy with a presumption towards detention is permissible. Official decision makers need policies for obvious reasons. Although decisions in the field of immigration law are all taken in the name of the Secretary of State, only a tiny handful of cases are actually decided by the Secretary of State personally. Decisions are taken by a small army of officials at different levels, and they need guidance in order to achieve consistency in decision making. Members of the public, or those of the public liable to be affected, should know where they stand, and so they are entitled to know, at least in general terms, the content of the official policies. This is not a matter of being faithful to the purposes of statutory powers, but of seeing that they are exercised consistently and fairly. There is a helpful discussion of these points in the judgment of the Court of Appeal in these appeals, prepared by Stanley Burnton LJ, at paras 53 58. It is here that Lord Diplocks dictum in Holgate Mohammed v Duke [1984] AC 437 calls for consideration. In a passage (at p.444) quoted by both Lord Brown and Lord Dyson, Lord Diplock expressed the view that Wednesbury principles are applicable to determining the lawfulness of the exercise of a statutory power of arrest not only in proceedings for judicial review but also in an action for damages for false imprisonment. As Lord Dyson says, there seems to have been little argument on this point in the House of Lords. Nor has there been much discussion of it in later authorities. It was cited and followed by the Court of Appeal in D v Home Office (Bail for Immigration Detainees intervening) [2006] 1 WLR 1003 (see especially Brooke LJ at para 111). In SK (Zimbabwe), Holgate Mohammed was cited by counsel but not referred to in the judgments in the Court of Appeal. Holgate Mohammed and D v Home Office (Bail for Immigration Detainees intervening) were both discussed at some length in the Court of Appeal in these appeals (paras 50 52, and, in relation to causation, paras 82 84). The Court of Appeal rightly regarded itself as bound by the latter decision. This court is not bound to follow the Court of Appeals acceptance of Lord Diplocks dictum, and for my part I would refrain from giving it unequivocal approval. Mr Beloff QC (appearing for the Secretary of State in this court) put forward some persuasive submissions in favour of an alternative approach. They are noted in paras 76 and 86 of Lord Dysons judgment. The first two submissions would make a qualification or exception, for the purposes of a private law claim for damages for false imprisonment, to the Anisminic equation of any significant public law error with lack of jurisdiction (see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147). Lord Dyson, in para 87, dismisses these in a single sentence as putting the clock back to pre Anisminic days. With great respect, I think there may be more to be said about it. Anisminic was one of the seminal cases in the development of modern public law. But its full implications are still open to debate. The context in which it equated wrongful exercise of jurisdiction with excess of jurisdiction (the courts response to an ouster clause in the Foreign Compensation Act 1950) was far removed from a private law claim for damages for false imprisonment. It is a big step to extend the principle to a claim for damages for false imprisonment, where a defendant may have his professional reputation at stake and may not enjoy the procedural protections which attend judicial review (strict time limits, and the discretionary nature of the remedy granted). I would prefer a more demanding test, that in a case where an extant statutory power to detain has been wrongly used there would be a private law claim only if the misuse amounted to an abuse of power (including but not limited to cases of misfeasance or other conscious misuse of power). However, it is in my opinion unnecessary to decide the point in these appeals because the conduct of officials, including some senior officials, of the Home Office between April 2006 and September 2008 amounted to a serious abuse of power. Lord Dyson has in paras 154 165 of his judgment described in restrained language how senior officials were well aware of the risk (indeed the likelihood) of challenge and decided to run the risk, (including the proposal to let immigration judges take any hit), and how further damaging facts were disclosed by stages, some before Davis J, some before the Court of Appeal, and some only in this Court. Wherever the line is to be drawn (if, as I think, a line does need to be drawn between public law errors in detention policies which do or do not give rise to an action for false imprisonment) these appeals must in my view fall on the wrong side of the line from the Secretary of States point of view. I agree with Lord Dyson (paras 165 168) that despite the deplorable official conduct this is not a case for exemplary damages. But in my view it is not a case for nominal damages either. Apart from cases concerned with constitutional rights in the Caribbean, (the line of authority starts with Attorney General of St Christophers, Nevis and Anguilla v Reynolds [1980] AC 637), the common law has always recognised that an award of more than nominal damages should be made to vindicate an assault on an individuals person or reputation, even if the claimant can prove no special damage. (See Mayne & McGregor on Damages, 18th ed. (2009) paras 42 008 to 009). In these appeals, each claimant had a very bad criminal record and would undoubtedly have been kept in custody under the Secretary of States published policies. They cannot therefore establish a claim to special damages. But the argument on causation does not completely defeat their claims. I would award each claimant the sum of 1,000 damages. I would remit the case of Mr Lumba as Lord Dyson proposes. On every point on which I have not expressed disagreement or doubt I am in respectful agreement with the judgment of Lord Dyson. LADY HALE I agree entirely with Lord Brown that far and away the most important issue in this case, as it is in the case of SK (Zimbabwe) [2009] 1 WLR 1527, is whether the breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful. If it is, the second question is which breaches of public law duties have that consequence; and the third question is whether it makes any difference that the person authorising the detention both could and would have done so lawfully, without breaching the public law duty in question, had the point been drawn to his attention. If that does not make a difference to liability, a fourth question is whether the fact that the person detained both could and would have been lawfully detained is of any relevance to the assessment of his damages for false imprisonment. But I differ from Lord Brown in his view that the answer to the last of these questions should govern the answer to the first, second or third question: in other words, that if we take the view that no compensatory damages are payable in a case such as this it should follow that there is no liability in the first place. Forcefully and attractively though that argument is made, it does put the cart before the horse. It also fails to acknowledge that false imprisonment is a trespass to the person, actionable per se without proof that the claimant has suffered any harm for which the law would normally grant compensation. As to the first question, this is a stronger case than is still before the Court in SK (Zimbabwe) because the illegality alleged (and now admitted) went to the criteria for detention rather than to the procedure for authorising it. The statutory power to detain under paragraph 2(2) and (3) of schedule 3 to the Immigration Act 1971 (quoted by Lord Dyson at paragraph 4 of his judgment) is, on its face, very broad. Provided that the detainee has been notified of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained pending the actual making of the order (para 2(2)). Once the deportation order is made, he may be detained pending his removal or departure from the United Kingdom (para 2(3)). However, since at least the case of R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, it has been recognised that there are limitations implicit in these powers: the detention must be for the statutory purpose of making or implementing a deportation order and for no other purpose; hence it cannot be continued once it becomes clear that it will not be possible to effect deportation within a reasonable period; the Secretary of State must act with reasonable diligence and expedition to bring this about; and in any event the detention cannot continue for longer than a period which is reasonable in all the circumstances. These limitations were devised long before the Human Rights Act and have been accepted without question ever since. They stem from the long established principle of United Kingdom public law that statutory powers must be used for the purpose for which they were conferred and not for some other purpose: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. They were not inspired by article 5(1)(f) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and it does not follow that, because detention would be permissible under article 5(1)(f), it is also permissible under United Kingdom law. The last restriction referred to above has not hitherto been questioned but it is the most questionable, for the Secretary of State may genuinely be doing all that she can to effect deportation, and deportation may still be a realistic possibility, but even so the deportee may have been detained for so long that it is no longer lawful to keep him there. That this has never until now been questioned indicates how strong are the objections to indefinite detention by order of the executive. But it undoubtedly gives rise to some difficult questions, as is amply shown by Lord Dysons discussion, in paragraphs 102 to 128 of his judgment, of the matters to be taken into account in deciding whether or not the period of detention is reasonable. In addition to such substantive limitations, the law has also imposed procedural requirements upon apparently open ended statutory powers. In common with Lord Dyson, I do not think that it matters whether these are characterised as implied conditions precedent or implied procedural requirements. The effect is the same. The best known example is Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 143 ER 414. The Board had power to alter or demolish a house if the builder had not given 7 days notice of his intention to build. The Court held that the common law imposed upon the Board a requirement to notify the builder before they decided to demolish the house, so that he could present arguments why they should not. As the Board had not given the builder such an opportunity before demolishing the house, they were liable to him in damages for trespass. It is true that Byles J founded his opinion partly on the basis that the Board had also failed in their express statutory duty to notify the builder of their demolition order: but the majority based their opinions on the broader principle that he had a right to be heard before the order was made: in other words, there were public law duties inherent in the apparently open ended statutory power. Another example of the same principle is Christie v Leachinsky [1947] AC 573 where the common law implied a duty, when exercising a power of arrest, to tell the arrested person the power under which he was being arrested, so that he might know whether or not he could resist arrest. Once again, the police were liable in false imprisonment. The question is whether the same principles apply where the requirement in question is the duty, imposed by the common law, for the Secretary of State and his officials to comply with a published policy, unless there is good reason not to do so. As I understand it, Lord Brown accepts that they may indeed do so, for he agrees that if the published policy further narrows and defines the circumstances in which the power will be exercisable, the Secretary of State may not lawfully depart from that. It is on that basis that he considers R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139 to have been correctly decided. Support for the proposition that the ordinary requirement to observe public law duties may restrict the lawful exercise of a statutory (or common law) power which would otherwise authorise a trespass can be found in the dictum of Lord Diplock in Holgate Mohammed v Duke [1984] 1 AC 437, 443, quoted by Lord Dyson at para 73 of his judgment. On the face of it, this was a lawful arrest. The argument was that the police officer had arrested the claimant for the wrong reason: to get her to confess. There can be little doubt that, had the House of Lords concluded that this was indeed an impermissible consideration, they would have held that the arrest was unlawful and that the claimant was entitled to the damages she sought. This was, after all, an action for damages for false imprisonment in which the claimant had succeeded in the county court. If the House had thought that she would not have been entitled to damages in any event, it would surely have said so. I agree with Lord Walker that it is not necessary to hold that every single departure from policy, or even failure in the decision making process, attracts these consequences in order to hold that they apply in this case. The discrepancy between what the policy said should happen in these cases and what was actually happening is stark. The claimants were being dealt with, not under the published, lawful policy, but under an unpublished, unlawful policy or practice. Yet it is difficult not to have some sympathy for the officials involved. The Government had been hit by a perfect storm in April 2006 when the popular press discovered that foreign national prisoners were being released after serving their sentences without any consideration being given to whether or not they should be deported. It had cost the then Home Secretary his job. The immediate answer was not to let any of them go. This was at odds with the published policy, which presumed against the use of detention powers. Officials knew this and they also knew that the policy needed amendment. But they found it very difficult to devise a policy for publication which would be both lawful and acceptable to ministers. Ministers wanted a near blanket ban on release, whereas the law requires some flexibility to respond to the circumstances of the particular case. So the situation dragged on for many, many months. These are just the sort of circumstances, where both Ministers and their civil servants are under pressure to do what they may know to be wrong, in which the courts must be vigilant to ensure that their decisions are taken in accordance with the law. To borrow from the civil servants correspondence, the courts must be prepared to take the hit even if they are not. The law requires that decisions to detain should be made on rational grounds and in an open and transparent way and not in accordance with arbitrary rules laid down by Government and operated in secret. One of the most disturbing features of this sorry tale is that the case handling officials had to give reasons for their decisions which were not what their real reasons were. The European Convention on Human Rights and the Strasbourg Court have not imposed the same requirements of proportionality upon detention with a view to deportation under article 5(1)(f) as they have upon detention under other provisions in article 5(1). But any deprivation of liberty has to be in accordance with a procedure prescribed by law. Unless the law has certain essential characteristics, there is a risk that detentions may be arbitrary. That is why the open ended common law power to detain people who lack the capacity to make decisions for themselves on grounds of necessity was found incompatible with article 5(1)(e): see L v United Kingdom (2005) 40 EHRR 32. There is every reason to think that Strasbourg would find a secret policy which presumed in favour of the detention of every foreign national prisoner open to the same objections. The common law is just as respectful of the liberty of the person, and just as distrustful of arbitrary and secret decision making by officials acting on behalf of Government, as is the Convention. I would therefore answer yes to the first question. I would also answer the second question in the way proposed by Lord Dyson. In other words, the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach. The third question is whether it makes any difference that, in these particular cases, if the officials had been operating the published policy they both could and would have authorised the detention of these appellants. This would not normally make any difference. In Christie v Leachinsky, the officers could have made a lawful arrest and only chose to make an unlawful arrest for convenience, but they were still liable for false imprisonment. In Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, the custody officer could have reviewed the case when he should have done and would no doubt have authorised the continued detention then, but there was still liability in false imprisonment. For all the reasons given by Lord Dyson, there is no basis for drawing a distinction according to the reason why the detention is unlawful, permitting what has been referred to as a causation defence in some cases but not in others. The most difficult question is whether this should make any difference to the measure of damages awarded. I quite agree with Lord Brown that the importance of strict adherence to the law when depriving people of their liberty should not be devalued. Awarding the same measure of damages, irrespective of whether or not the person could and would have been lawfully detained, serves to reinforce the importance of this principle. Also, if no distinction, according to the reason why the detention is unlawful, is to be drawn in relation to the second question, there should be no such distinction in relation to damages. If we are to hold that a person who could and inevitably would have been detained lawfully had the correct criteria or procedures been applied is not to be compensated for the loss of liberty, then this must apply irrespective of the reason why depriving him of his liberty was unlawful. We cannot single out these public law cases for special treatment. In most cases of false imprisonment, the problem will not arise, because the detainer does not have a choice between acting lawfully and acting unlawfully. The prison governor in R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 had no power to detain the prisoner beyond the properly calculated term of her imprisonment: the fact that he was acting in compliance with the law as it had previously been thought to be was neither here nor there. The police officer in Langley v Liverpool City Council [2006] 1 WLR 375 had, as the Court of Appeal found in what I agree with Lord Walker was a finely balanced decision, no power to use his power to take a child into police protection under section 46 of the Children Act 1989 when the child could and should have been protected by social workers implementing an emergency protection order under section 44. The immigration officers in Kuchenmeister v Home Office [1958] 1 QB 496 had no power to detain the claimant in such a way as to prevent his transiting from one aircraft to another at London airport. However, where the defendant has failed to comply with a procedural requirement, there is always the possibility that the deed might have been done lawfully. But the whole point of procedural requirements, such as those in Cooper v Wandsworth Board of Works or Christie v Leachinsky, is that the person whose rights are being infringed should have an opportunity of challenging this. So it will rarely be possible to be confident that, had the correct procedure been followed, the outcome would have been the same. Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 is an example where it was possible. This case is another, because it would appear that, had the decision makers applied the published, lawful policy rather than the unpublished, unlawful policy, they would inevitably have reached the same conclusion. Insofar as damages for false imprisonment are meant to compensate for the loss of liberty, it is difficult to see why a claimant should be compensated for the loss of something which he would never have enjoyed. But, left to myself, I would not regard this as the end of the story. Trespass, whether to person or property, has always been actionable per se, without proof of anything which the law regards as damage. The tort is complete when a direct interference with person or property without lawful justification is established. Usually, there will also be some harm done which the wrongdoer must remedy, either by damages or in some other way. Take, for example, the case of the neighbour who put a row of ridge tiles on his neighbours roof. They did no harm to the roof; they did not diminish the value of the house in any way; indeed many might think them an enhancement; but the claimant did not want them there and successfully sued for trespass. The obvious remedy was to remove the tiles or pay the cost of the claimants doing so. But suppose there is no such harm. The claimant has nevertheless been done wrong. Let us also assume, as is the case here, that the circumstances are not such as to attract punitive or exemplary damages. Is our law not capable of finding some way of vindicating the claimants rights and the importance of the principles involved? A way which does not purport to compensate him for harm or to punish the defendant for wrongdoing but simply to mark the laws recognition that a wrong has been done? As Lord Collins explains, the concept of vindicatory damages has been developed in some Commonwealth countries with written constitutions enshrining certain fundamental rights and principles and containing broadly worded powers to afford constitutional redress (and also in New Zealand, which has no written Constitution but does have a Bill of Rights: Taunoa v Attorney General [2008] 1 NZLR 429). In an early article on the Canadian Charter, Damages as a remedy for infringement of the Canadian Charter of Rights and Freedoms (1984) 62(4) Canadian Bar Review 517, Marilyn Pilkington argued that an award of damages under section 24(1) of the Charter should not be limited by the common law principles of compensation. In a proper case it might be designed to deter repetition of the breach, or to punish those responsible or to reward those who expose it. In Attorney General of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 607, the Privy Council upheld a modest award of exemplary damages for breach of a constitutional right. But there can be a middle course between compensatory and exemplary damages. In Jorsingh v Attorney General (1997) 52 WIR 501, de la Bastide CJ and Sharma JA in the Court of Appeal of Trinidad and Tobago both said, albeit obiter, that the remedies available under section 14(2) of the Constitution were not limited by common law principles. Sharma JA said, at p 512, that The court is mandated to do whatever it thinks appropriate for the purpose of enforcing or securing the enforcement of any of the provisions dealing with the fundamental rights. Not only can the court enlarge old remedies; it can invent new ones as well, if that is what it takes or is necessary in an appropriate case to secure and vindicate the rights breached. Since then, the concept of vindicatory damages for breach of constitutional rights has been recognised by the Judicial Committee of the Privy Council, in Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328 and Merson v Cartright and Attorney General [2005] UKPC 38 (Bahamas); applied to breach of constitutional provisions other than the fundamental rights and freedoms, in Fraser v Judicial and Legal Services Commission [2008] UKPC 25 (St Lucia) and Inniss v Attorney General [2008] UKPC 42 (St Kitts), which involved the dismissal of respectively a magistrate and a High Court registrar in breach of the procedures laid down in the Constitution; and applied to the breach of fundamental rights in Takitota v Attorney General [2009] UKPC 11 (Bahamas), where the Board quoted from Lord Nicholls in Ramanoop, at para 19: An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter future breaches. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions punitive damages or exemplary damages are better avoided . We are not here concerned with a written constitution with a broadly drawn power to grant constitutional redress. But neither are we concerned with a statutory provision, such as section 8(3) and (4) of the Human Rights Act 1998, with a narrowly drawn power to award damages. We are concerned with a decision taken at the highest level of Government to detain certain people irrespective of the statutory purpose of the power to detain. The common law has shown itself capable of growing and adapting to meet new situations. It has recently invented the concept of a conventional sum to mark the invasion of important rights even though no compensatory damages are payable. In the view of the majority of the House of Lords in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309, there were sound reasons of public policy why damages should not be recoverable for the cost of bringing up a healthy child born as a result of a negligent sterilisation. Nevertheless, an award limited to the stress and trauma associated with the pregnancy and birth was insufficient to mark the legal wrong which had been done to the mother. This should be marked by a fixed, non negligible, conventional sum (in that case 15,000). Rees was concerned with the rights to bodily integrity and personal autonomy, the right to limit ones family and to live ones life in the way planned: see Lord Bingham of Cornhill at paragraph 8. These are important rights indeed. But no one can deny that the right to be free from arbitrary imprisonment by the state is of fundamental constitutional importance in this country. It is not the less important because we do not have a written constitution. It is a right which the law should be able to vindicate in some way, irrespective of whether compensatable harm has been suffered or the conduct of the authorities has been so egregious as to merit exemplary damages. Left to myself, therefore, I would mark the false imprisonment in these cases with a modest conventional sum, perhaps 500 rather than the 1000 suggested by Lord Walker, designed to recognise that the claimants fundamental constitutional rights have been breached by the state and to encourage all concerned to avoid anything like it happening again. In reality, this may well be what was happening in the older cases of false imprisonment, before the assessment of damages became such a refined science. I therefore agree, and (subject to the additional points made above) for the reasons given by Lord Dyson, that both these appeals should be allowed. When considering what was a reasonable period for which to detain Mr Lumba in accordance with the Hardial Singh principles, however, I would stress that his psychiatric condition must be among the factors to be taken into account. LORD COLLINS I agree with Lord Dyson that the appeals should be allowed, substantially for the reasons which he gives. This is a case in which on any view there has been a breach of duty by the executive in the exercise of its power of detention. Fundamental rights are in play. Chapter 39 of Magna Carta (1215) said that no free man shall be seized or imprisoned except by the law of the land and the Statute of Westminster (1354) provided that no man of what state or condition he be, shall be imprisoned without being brought in answer by due process of the law. That the liberty of the subject is a fundamental constitutional principle hardly needs the great authority of Sir Thomas Bingham MR (see In re S C (Mental Patient: Habeas Corpus) [1996] QB 599, 603) to support it, but it is worth recalling what he said in his book The Rule of Law (2010), at p 10, about the fundamental provisions of Magna Carta: These are words which should be inscribed on the stationery of the Home Office. The evidence shows that concern was expressed in the Home Office from an early stage about the lawfulness of the policy, and that a deliberate decision was taken to continue an unlawful policy. As Lord Dyson says, caseworkers were directed to conceal the true reason for detention, namely the unpublished policy, and to give other reasons which appeared to conform with the published policy. Home Office officials recognised that Ministers preferred position may be to continue to detain all FNPs and let the immigration judges take any hit which is to be had by releasing on bail. The draft policy submission circulated in May 2007 recommended a change in policy, but also set out continued detention as one of the options, recognising that legal advisers considered that the department would lose on any legal challenge. The draft added: we could present any change in our approach as having been forced on us by the courts. I am satisfied that the serious breach of public law in this case has the result that the detention of the appellants was unlawful. Any other result would negate the rule of law. Christie v Leachinsky [1947] AC 573 shows that where an arrest was unlawful because it did not comply with the requirements imposed by the common law there would be a false imprisonment even if the arrest could have been effected in a proper manner. Holgate Mohammed v Duke [1984] AC 437, 443, is high authority for the proposition that breach of principles of public law can found an action at common law for damages for false imprisonment. Are they entitled to more than nominal damages? In particular are they entitled to vindicatory damages? The expression vindicatory damages has been in common use in the context of proceedings for violation of constitutional rights since Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328 and Merson v Cartright and Attorney General [2005] UKPC 38. It would seem that the expression had its origin in the United States, where it was sometimes used as a synonym for exemplary or punitive damages (e.g. Cole v Tucker, 6 Tex 266 (1851); Blair Iron & Coal Co v Lloyd, 3 WNC 103 (Pa (1874)), but at other times used to mean damages designed to vindicate a right but which were compensatory in nature (e.g. McBride v McLaughlin, 5 Watts 375 (Pa 1836); Hallmark v Stillings, 648 SW 2d 230 (Mo 1983)). In England the expression first emerged in a sense somewhat different from, but in a sense related to, that in which it is now used. In Broome v Cassell & Co Ltd [1972] AC 1027, 1071, Lord Hailsham of Marylebone LC said: In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J well said in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 115, 150: It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two waysas a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. See also, e.g. Sutcliffe v Pressdram Ltd [1991] 1 QB 153; Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670; Purnell v Business F1 Magazine Ltd [2007] EWCA Civ 744, [2008] 1 WLR 1. Any consideration of the Privy Council decisions on vindicatory damages must be prefaced by three points. First, they were concerned with alleged violations of constitutional rights. Second, the constitutions contained provision in relation to such violations for redress (Trinidad and Tobago, section 14(1) (without prejudice to any other action which is lawfully available); Bahamas, article 28(1) (but not if adequate means of redress are available under any other law), or relief together with such remedy as the court considers appropriate (Saint Christopher & Nevis, section 96(1), (3); Saint Lucia, section 105(1), (3)). Third, although the distinction has sometimes been blurred (as perhaps in Takitota v Attorney General [2009] UKPC 11, 13), the decisions are concerned with two heads of damage, compensatory damages and vindicatory damages. In Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328, at 18 19 Lord Nicholls, speaking for the Board, dealt with both heads of damages in this way: [18] When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be coterminous with the cause of action at law. [19] An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. Redress in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions punitive damages or exemplary damages are better avoided as descriptions of this type of additional award. In Merson v Cartright and Attorney General [2005] UKPC 38 the gravity of police misconduct was such as to attract an award of $100,000 for violations of the Constitution in addition to $90,000 in damages for assault, battery and false imprisonment, and $90,000 for malicious prosecution. It was held by the Privy Council that the awards were not duplicative. Lord Scott said (at 18): The purpose of a vindicatory award is not a punitive purpose. It is not to teach the executive not to misbehave. The purpose is to vindicate the right of the complainant to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression. The sum appropriate to be awarded to achieve this purpose will depend upon the nature of the particular infringement and the circumstances relating to that infringement. It will be a sum at the discretion of the trial judge. In some cases a suitable declaration may suffice to vindicate the right; in other cases an award of damages, including substantial damages, may seem to be necessary. A vindicatory award of $50,000 was made in Inniss v Attorney General [2008] UKPC 42. In Subiah v Attorney General of Trinidad and Tobago [2008] UKPC 47, at 11 Lord Bingham noted that when deciding whether to award vindicatory damages, the answer is likely to be influenced by the quantum of the compensatory award, as also by the gravity of the constitutional violation in question to the extent that this is not already reflected in the compensatory award. See also Durity v Attorney General of Trinidad and Tobago [2008] UKPC 59, 35. But in Suratt v Attorney General of Trinidad and Tobago (No 2) [2008] UKPC 38 and James v Attorney General of Trinidad and Tobago [2010] UKPC 23 declaratory relief was sufficient. The availability of damages for constitutional wrongs, and in particular, exemplary or vindicatory damages, is, or has been, controversial in many countries. In the United States, nominal damages can be awarded for the deprivation of a constitutional right without proof of actual injury, but substantial damages can be awarded only to compensate for actual injury: e.g. Elkins v District of Columbia, 710 F Supp 2d 53, 63 64 (DDC 2010), citing Carey v Piphus, 435 US 247 (1978); Memphis Community School District v Stachura, 477 US 299 (1986). In Ntandazeli Fose v Minister of Safety and Security in the Constitutional Court of South Africa [1998] 1 LRC 198 Ackermann J considered whether appropriate relief for infringements of the Interim Constitution of South Africa justified, in addition to compensatory damages for assault, an award for vindication of the rights and for punitive damages. After a full account of the law in other countries he said that he had considerable doubts whether, even where the infringement of the right caused no damage, an award of constitutional damages in order to vindicate the right would be appropriate, and suggested that the court might conclude that a declaratory order combined with a suitable order for costs would be a sufficiently appropriate remedy to vindicate the right even in the absence of an award of damages. But in any event there was no place for constitutional punitive damages: 68, 69. In Taunoa v Attorney General [2008] 1 NZLR 429 the Supreme Court of New Zealand was more sympathetic to vindicatory damages. Elias CJ said (at para 109) that damages in such cases should be limited to what is adequate to mark any additional wrong in the breach and, where appropriate, to deter future breaches. See also Tipping J at 317 (the interests of the victim require the court to consider what compensation is due, but society is a victim also, and the court must consider also what is necessary by way of vindication to protect fundamental rights and freedoms); also Blanchard J at 258; McGrath J at 370. The most recent consideration of the question was by the Supreme Court of Canada in Vancouver (City of) v Ward [2010] 2 SCR 28, in relation to damages for breach of the Canadian Charter of Rights and Freedoms. McLachlin CJ said that Charter damages had the functions of compensation, vindication and deterrence. By vindication she meant the affirmation of constitutional values, focusing on the harm which breach of the Charter did to society. The fact that the claimant had not suffered personal loss did not preclude an award of damages where the objectives of vindication or deterrence clearly called for an award, and the view that constitutional damages were only available for pecuniary or physical loss had been widely rejected in other constitutional democracies: 28, 30. The present claims are not, of course, for constitutional damages. Exemplary damages are available where the executive has acted in a way which is oppressive, arbitrary or unconstitutional. In Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2002] 2 AC 122, 63 Lord Nicholls said: The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate. The nature of the defendants conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard for the plaintiffs rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what would otherwise be a regrettable lacuna. But this is not a case for exemplary damages falling within the first head of Rookes v Barnard [1964] AC 1129. Nor do I consider that the concept of vindicatory damages should be introduced into the law of tort. In truth, despite the suggestions to the contrary in the Privy Council in Ramanoop and Merson, vindicatory damages are akin to punitive or exemplary damages (as in Attorney General of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 607). In Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] AC 962 the question was whether there was an abuse of process to allow a claim against the police for the wrongful death of James Ashley to proceed where the police admitted liability for all damages. The House of Lords held by a majority that for the claim to proceed was not an abuse. Lord Scott (obiter) suggested that the claim should proceed in order that vindicatory damages could be available. He referred to Lord Hopes observation in Chester v Afshar [2004] UKLH 41, [2005] 1 AC 134, 87 that the function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Lord Scott said at para 22: Although the principal aim of an award of compensatory damages is to compensate the claimant for loss suffered, there is no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose. But it is difficult to see how compensatory damages can could ever fulfil a vindicatory purpose in a case of alleged assault where liability for the assault were denied and a trial of that issue never took place. Damages awarded for the purpose of vindication are essentially rights centred, awarded in order to demonstrate that the right in question should not have been infringed at all. In Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 the Privy Council upheld an award of vindicatory damages in respect of serious misbehaviour by a police officer towards the claimant. These were not exemplary damages; they were not awarded for any punitive purpose. They were awarded, as it was put in Merson v Cartwright [2005] UKPC 38, another case in which the Privy Council upheld an award of vindicatory damages, in order to vindicate the right of the complainant to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression: para 18. The rights that had been infringed in the Ramanoop case and in Merson v Cartwright were constitutional rights guaranteed by the respective constitutions of the countries in question. But the right to life, now guaranteed by article 2 of the European Convention [on Human Rights] and incorporated into our domestic law by the Human Rights Act 1998, is at least equivalent to the constitutional rights for infringement of which vindicatory damages were awarded in Ramanoop and Merson v Cartwright. But what Lord Hope said in Chester v Afshar was not said in the context of damages, and it seems clear that neither Lord Bingham nor Lord Rodger agreed. In particular Lord Rodger said that the right to bodily integrity was protected by the tort actionable per se of trespass to the person, where the law vindicates that right by awarding nominal damages (para 60). To make a separate award for vindicatory damages is to confuse the purpose of damages awards with the nature of the award. A declaration, or an award of nominal damages, may itself have a vindicatory purpose and effect. So too a conventional award of damages may serve a vindicatory purpose. That is the basis of Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309. As a result of a failed sterilisation negligently performed, the claimant gave birth to a child. The House of Lords held by a majority that although the health authority was not liable to compensate for the childs upbringing, compensation in respect of stress, trauma and the costs associated with pregnancy and birth were recoverable. In addition the claimant was awarded an additional sum of 15,000 of which Lord Bingham said: [the] award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done (para 8). See also Lords Nicholls, Millett, and Scott: at 17, 123, 148, and the critical views expressed in McGregor, Damages 18th ed (2009), paras 35 29735 299. Neither the minority dicta in Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] 1 AC 962 nor the award in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309 justify a conclusion that there is a separate head of vindicatory damages in English law. Consequently I do not consider that there is any basis in the present law for such an award. Nor do I consider that there is a basis in policy for the creation of a head of vindicatory damages at common law, distinct from the existing law of compensatory or exemplary damages. I would therefore restrict the remedy in this case to nominal damages for the reasons given by Lord Dyson. LORD KERR For the reasons given by Lord Dyson, with which I agree, I too would allow this appeal. A causation test False imprisonment is established if there has been a detention and an absence of lawful authority justifying it. The question whether lawful authority exists is to be determined according to an objective standard. It either exists or it does not. It is for this elementary but also fundamental reason that a causation test can have no place in the decision whether imprisonment is false or lawful. By a causation test in this context I mean a test which involves an examination of whether the persons held in custody could have been lawfully detained. The fact that a person could have been lawfully detained says nothing on the question whether he was lawfully detained. The Court of Appeal in the present case decided that, since the claimants could have been detained lawfully had the published policy been applied to them, the fact that an unpublished and unlawful policy was in fact applied was immaterial. With great respect, this cannot be right. The unpublished policy was employed in the decision to detain the appellants. It was clearly material to the decision to detain. Indeed, it was the foundation for that decision. An ex post facto conclusion that, had the proper policy been applied, the appellants would have been lawfully detained cannot alter that essential fact. The inevitability of the finding that the detention was unlawful can be illustrated in this way. If, some hours after making the decision to detain the appellants (based on the application of the unpublished policy), it was recognised that this did not constitute a legal basis on which they could be held, could their detention be said to be lawful before any consideration was given to whether the application of the published policy would have led to the same result? Surely, at the moment that it became clear that there was no lawful authority for the detention and before any alternative basis on which they might be detained was considered, their detention was unlawful. It is, I believe, important to recognise that lawful detention has two aspects. First the decision to detain must be lawful in the sense that it has a sound legal basis and, secondly, it must justify the detention. This second aspect has found expression in a large number of judgments, perhaps most succinctly in the speech of Lord Hope in R v Governor of Brockhill Prison Ex p Evans (No 2) [2001] 2 AC 19, 32 D where he said it is of the essence of the tort of false imprisonment that the imprisonment is without lawful justification. It seems to me to be self evident that the justification must relate to the basis on which the detainer has purported to act, and not depend on some abstract grounds wholly different from the actual reasons for detaining. As Mr Husain QC put it, the emphasis here must be on the right of the detained person not to be detained other than on a lawful basis which justifies the detention. Detention cannot be justified on some putative basis, unrelated to the actual reasons for it, on which the detention might retrospectively be said to be warranted. Simply because some ground for lawfully detaining may exist but has not been resorted to by the detaining authority, the detention cannot be said, on that account, to be lawful. This point was clearly made in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662. In that case the plaintiff had been lawfully arrested and detained in a police cell. A review of his detention as required by statute was not carried out within the prescribed time. At p 667 B the submission of counsel for the Chief Constable was recorded as being that if circumstances existed which were or would be sufficient to justify continued detention the plaintiff could not fairly be said to be detained without lawful excuse. That submission was roundly and, in my view, rightly rejected, Clarke LJ saying, As I see it, it is nothing to the point to say that the detention would have been lawful if a review had been carried out or that there were grounds which would have justified continued detention. Likewise it is nothing to the point in this case that if the decision had been taken on the basis of the published policy, it would have been immune from challenge. As Professor Cane put it in The Temporal Element in Law (2001) 117 LQR 5, 7 imprisonment can never be justified unless actually [as opposed to hypothetically] authorised by law. (The emphasis and the words enclosed in square brackets are mine). The matter might be considered on the following hypothetical basis. Suppose that there were two policies, one lawful published policy for the detention of foreign national prisoners sentenced to more than 5 years imprisonment, the other an unlawful secret policy for detention of those sentenced to more than 2 years imprisonment. On the respondents case an individual detained under the second policy, who would have been detained under the first policy if it had been applied, has not been detained unlawfully. I do not consider that such an argument is viable. A policy may lawfully be devised for the purpose of dealing generally with a regularly occurring species of case but it must always be possible to depart from the policy if the circumstances of an individual case warrant it. As the author of Wade & Forsyth on Administrative Law 10th ed (2009) at page 270 states: It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its own merits and decided as the public interest requires at the time. In the mooted example, consideration would be given to departing from a policy which is different from that which the individual is entitled to have applied to him. The possible justification for departing from the policy would be considered on a different basis from that which ought properly to determine the question. This is, in my view, impermissible in public law terms. A minister exercising his discretion by applying a published policy is acting lawfully. But if the policy which is applied is unlawful, the exercise of discretion is unlawful. The individual has not had applied to his case the proper exercise of discretion to which he is entitled. The application of an unlawful policy will therefore ipso facto render the decision to detain unlawful. In this context, I consider that it matters not whether the decision is said to be in violation of a public law principle or ultra vires the power to make the decision. To draw such a distinction would mark a radical departure from how error of law has long been understood. Again, a short extract from Wade & Forsyth at p 255 makes the point decisively: Void or voidable was a distinction which could formerly be applied without difficulty to the basic distinction between action which was ultra vires and action which was liable to be quashed for error of law on the face of the record. That distinction no longer survives since the House of Lords [in Anisminic and subsequent cases] declared all error of law to be ultra vires. The nature of the public law breach required to invalidate the detention In R (SK Zimbabwe) v Secretary of State for the Home Department [2009] 1 WLR 1527 it was accepted by the appellant that not every type of public law breach, committed after an initially valid detention, would render continued detention unlawful. On the present appeal the argument on behalf of the detained persons is put thus: a public law error that bears directly on the decision to detain will mean that the authority for detention is ultra vires and unlawful, and will sound in false imprisonment. But breaches which have no direct bearing on the decision to detain do not have that effect. Since, therefore, for instance, statutory obligations to permit a detainee to consult with his legal advisers (Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763) or to be provided with food or clothing, or to be held in certain conditions (R v Deputy Governor of Parkhurst Prison Ex p Hague [1992] 1 AC 58) did not bear on the legality of detention, breach of those obligations did not render detention unlawful nor did it give rise to a claim for false imprisonment. Lord Walker has analysed the existence/exercise of power to detain dichotomy in a way that I find compelling. This has led him to the conclusion that the essential test as to the validity of continued detention which is said to be beyond the scope of the power to detain is whether there has been a departure from the statutory purpose. Again, I find his reasoning on this wholly convincing. I do not agree, however, that it is necessary to establish abuse of power in order to show that the decision is beyond the scope of the power to detain, if by abuse of power it is meant that some deliberate misuse of power is required. If a review of a persons detention was inadvertently overlooked and it subsequently became clear that, had the review taken place, he would certainly have been released, it surely could not be suggested that the detention that had in the meantime occurred did not constitute false imprisonment. The statutory purpose of the power to detain foreign nationals after the expiry of their sentence is to facilitate their deportation. (In this connection I agree fully with Lord Dyson in his analysis of the Hardial Singh (R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704) principles and with what he had to say about those principles in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46.) Where the statutory purpose no longer exists, the power to detain falls away. The means of ascertaining whether the statutory purpose remains achievable is the system of review. Where that system is operated on the basis of a policy, it is of obvious and critical importance that the policy be transparent and that those who may be detained on foot of it have the opportunity to make informed representations on its application. Breach of a public law duty which has the effect of undermining the achievement of the statutory purpose will therefore, in my opinion, render the continued detention invalid. A claim of false imprisonment is the natural, indeed inevitable, entitlement of a person whose detention is no longer justified. Since the appellants in the present case were detained by the operation of a secret, unpublished policy, an effective system of review of the justification for their detention was not possible. As a consequence their detention could no longer be said to be justified. As it seems to me, this approach approximates to the way in which the case was put for the appellants but links it more closely to the vital consideration of the statutory purpose of the power to detain. Does the award of nominal damages devalue the tort of false imprisonment? As various members of the court have pointed out, the fact that false imprisonment is a species of trespass to the person and is actionable without proof of special damage must be carefully taken into account in deciding whether nominal damages can ever be considered appropriate. The impact of a finding that the State has been guilty of false imprisonment (whether or not it is also ordered to pay compensation) should not be underestimated, however. Such a finding has the effect, in the words of Lady Hale, of mark[ing] the laws recognition that a wrong has been done. And it is in the unambiguous recognition and declaration by the law that an individual has been falsely imprisoned that the essential value of the entitlement to assert that claim lies. I do not believe, therefore, that the award of nominal damages will, of itself and as a matter of automatic consequence, bring about a devaluation of the tort. On the question whether the award of nominal damages or some other measure of compensation is required in false imprisonment claims, I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed. Because false imprisonment is a trespassory tort, it is said that the vindicatory dimension to the assessment of compensation is important. I shall examine that claim presently but, whatever may be said about its correctness, it is surely right that the actual impact on the individual who has been falsely imprisoned (or perhaps more importantly, the impact that could have been avoided) should feature prominently in the assessment of the appropriate amount of compensation. Traditionally, the primary function of damages has been to compensate the individual for the loss that he or she has suffered (compensatory damages). More recently the concept of restitutionary damages has been recognised where damages for the tort are measured according to the gain that the defendant has obtained or the value that the right infringed might have had to the claimant where, for instance, unknown to the claimant, the defendant has used the claimants property. This category of damages is not relevant here. A third type of damages (vindicatory damages) may be. In a number of recent decisions the Judicial Committee of the Privy Council has awarded what might be classified as vindicatory damages where there has been a breach of constitutional rights. Attorney General for Trinidad and Tobago v Ramanoop [2006] 1 AC 328 is perhaps the leading of these cases. At para 19 Lord Nicholls, delivering the judgment of the Committee, said : An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach and deter further breaches. All these elements have a place in this additional award. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions punitive damages or exemplary damages are better avoided as descriptions of this type of additional award. Lord Nicholls recognition that this type of award covered much the same ground as that involved in exemplary or punitive damages is reflected in the more recent decision of the Privy Council in Takitota v Attorney General [2009] UKPC 11 where, at para 15, Lord Carswell said : it would not be appropriate to make an award both by way of exemplary damages and for breach of constitutional rights. When the vindicatory function of the latter head of damages has been discharged, with the element of deterrence that a substantial award carries with it, the purpose of exemplary damages has largely been achieved. For the reasons given by Lord Dyson an award of exemplary damages is not warranted in these cases. If there is any scope for the award of vindicatory damages where exemplary damages are not appropriate, it must be, in my opinion, very limited indeed. Such an award could only be justified where the declaration that a claimants right has been infringed provides insufficiently emphatic recognition of the seriousness of the defendants default. That situation does not arise here. The defendants failures have been thoroughly examined and exposed. A finding that those failures have led to the false imprisonment of the appellants constitutes a fully adequate acknowledgement of the defendants default. Since the appellants would have been lawfully detained if the published policy had been applied to them, I agree that no more than a nominal award of damages is appropriate in their cases. DISSENTING JUDGMENTS LORD PHILLIPS Introduction The appellants are foreign nationals who have served sentences of imprisonment in this country (FNPs) They were detained pursuant to Schedule 3 of the Immigration Act 1971 (Schedule 3). They challenge the legality of their detention. At the times of the decisions to detain them there existed a policy published by the Secretary of State setting out the circumstances in which her power to detain immigrants would be exercised. Had the decision maker applied this policy he would have detained each of the appellants. In the event, however, he decided to detain each by the application of a policy which Mr Beloff QC for the Secretary of State has conceded was unlawful. Whether the lawful or unlawful policy had been applied the decision would have been the same. The principal common issues raised by these appeals are first whether, in these circumstances, the detention of each of the appellants was unlawful; secondly whether, if it was unlawful, the result was that the detention of each of the appellants constituted the tort of false imprisonment and; if so, thirdly, whether and on what basis the appellants are entitled to damages. I have placed the words lawful and unlawful in parentheses because these appeals raise the question of whether there is a material difference between a policy, or a decision, or an act which is unlawful because it violates principles of public law and a policy, or a decision, or an act which is unlawful because it is ultra vires. In the case of Mr Lumba there is a second issue. This is whether his detention was or became unlawful because it infringed what have become known as the Hardial Singh principles which date back to the decision of Woolf J in the case of that name over a quarter of a century ago. Lord Dyson at para 22 of his judgment rightly states that it has been common ground in these appeals that he correctly summarised the effect of Hardial Singh in the four principles which he set out in R (I) v the Secretary of State for the Home Department [2003] INLR 196. As I shall explain I have reservations about the first two principles which, so far as I am aware, have never been the subject of debate. Lord Dyson has set out the relevant facts and statutory provisions and I can turn immediately to the common issues raised by these appeals. Lord Dyson has held that the Secretary of State committed the tort of false imprisonment in relation to each appellant because the decision to detain him was reached in violation of public law. The violation was the failure to apply the Secretary of States published policy and the application of a policy to which there were various objections of public law. He has concluded that, because the reasoning offended the requirements of public law, the acts that the decision maker decided upon were beyond his powers, or ultra vires. I have come to a different conclusion. I propose in this judgment to address the following questions. First, what restrictions are implicit, as a matter of statutory interpretation, in the power to detain conferred on the Secretary of State by Schedule 3? Second, what were the policies published by the Secretary of State in relation to the detention of immigrants? Third, what were the practical implications of those policies? Fourth, what were the legal implications of those policies? Fifth, was the detention of each of the appellants contrary to those policies? Sixth, what were the defects in the policy applied when deciding whether the appellants should be detained? Seventh, what were the circumstances in which this policy was applied? Eighth, did the application of that policy render the detention of the appellants unlawful? If so, ninth, are the appellants entitled to damages for false imprisonment? Implied limitations on the power to detain conferred by Schedule 3 I refer to the four principles that Lord Dyson states at para 22 of his judgment are derived from Hardial Singh. The third and fourth principles were an essential part of the reasoning that led Woolf J to the decision that he reached in that case. They are not open to question. This is not true of the first two. The first is that the Secretary of State must intend to deport the person and can only use the power to detain for that purpose. Lord Dyson explains that by this he means that the power to detain must be exercised for the prescribed purpose of facilitating deportation. The second principle is that the deportee may only be detained for a period that is reasonable in all the circumstances. Neither of these principles was stated in these terms in Hardial Singh, although I accept that they are possible interpretations of the words used by Woolf J. Neither of these principles was essential to the conclusion that he reached. I do not myself consider that either principle can properly be derived from his judgment. The applicant in Hardial Singh sought a writ of habeas corpus. He was an Indian who had entered the United Kingdom lawfully and been granted indefinite leave to remain. He had been convicted of offences of burglary and been sentenced to a total of two years imprisonment. Before he was due to be released he was served with a deportation order on behalf of the Secretary of State. He was due for release on 20 July 1983 but was then detained by the Secretary of State pursuant to paragraph 2(3) of Schedule 3. The reason given for his detention was the risk that, if released, he would abscond. Because of delay on the part of the Secretary of State in making arrangements for his return to India he was still detained in December 1983. In these circumstances Woolf J, at p 706, said this about the power of detention under Schedule 3: Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Second, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. There is a degree of ambiguity in the earlier part of this passage. Pending the making of a deportation order is not a purpose. Nor is pending his removal. What then did Woolf J mean when he said that the power to remove cannot be used for any other purpose? He goes on to say that the power is given to enable the machinery of deportation to be carried out and that the power of detention is limited to such period as is reasonably necessary for that purpose. If one takes these two passages together it is possible to interpret Woolf J as saying that you can only detain a person for the purpose of facilitating deportation, as Lord Dyson has done. It is, however, also possible to read him as saying that you can only detain a person while you are pursuing the objective of deporting him and that is how I interpret what he said. I believe that the interpretation given by Lord Dyson places an unjustified restriction on the Secretary of States power of detention. It is obvious that detention will almost always make the practical task of deporting the detainee easier to arrange. Most deportees will be in this country through choice and cannot reasonably be expected to do anything to facilitate their deportation even if they do not try actively to prevent this. It is open to the Secretary of State to detain a person in order to facilitate his deportation and this is often the, or one of the, reasons for doing so. But, as I shall explain, I do not consider that detention of a deportee will only be lawful if used for this purpose. The second principle identified by Lord Dyson is that the deportee may only be detained for a period that is reasonable in all the circumstances. This I understand to be derived from Woolf Js statement The period which is reasonable will depend upon all the circumstances. But that sentence was immediately preceded by the statement that the power to detain was impliedly limited to a period that was reasonably necessary for the purpose of enabling the machinery of deportation to be carried out. Thus I believe that the circumstances that Woolf J had in mind were restricted to those that related to the task of effecting deportation. I am fortified in this belief by the fact that Woolf J went on to cite R v Governor of Richmond Remand Centre, Ex p Asghar [1971] 1 WLR 129. In that case the Secretary of State had detained two persons who were awaiting removal with the object that they should testify in a pending criminal trial. Lord Parker CJ rejected the suggestion that the detention could be justified as reasonable in these circumstances, stating at p 132 it does seem to me that while a reasonable time is contemplated between the giving of the directions and the final removal, that is a reasonable time necessary to effect the physical removal. In Hardial Singh Woolf J was concerned only with the length of time that was reasonably necessary to effect deportation and the relationship that this bore to the power to detain. He was not concerned with the question of whether there were further implied restrictions on the power to detain during that period. The extent of the power to detain pending deportation was an important, albeit not the most important, issue in Chahal v United Kingdom where the nature of the domestic proceedings is apparent from the judgment of the European Court of Human Rights when the case reached Strasbourg (1996) 23 EHRR 413. Mr Chahal was a Sikh separatist leader who had been granted indefinite leave to remain in the United Kingdom. On 14 August 1990 the Secretary of State decided that he ought to be deported because his continued presence in the United Kingdom was unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism. Two days later he was served with a notice of intention to deport. He was then detained pursuant to Schedule 3 and remained in detention up to the time of the judgment of the Strasbourg Court. During this time he pursued an unsuccessful attempt to be granted asylum. He also, by an application for judicial review, challenged his proposed deportation on the ground that this would violate article 3 of the Convention because it would expose him to the risk of torture and persecution if returned to India. He was unsuccessful in the Divisional Court and the Court of Appeal and was refused leave to appeal to the House of Lords. He then applied to Strasbourg, alleging breaches of articles 3 and 5 of the Convention. In November 1995, while he was awaiting a hearing at Strasbourg, he challenged his continued detention by seeking from the Divisional Court a writ of habeas corpus and judicial review. The Secretary of State opposed his application on the grounds that he could not safely be released because of the substantial threat that he posed to national security. It does not appear to have been suggested that his lengthy detention was necessary to facilitate his deportation. His application was refused on the ground that there was no reason to believe that the Secretary of State did not have good reason for his apprehension. MacPherson J ruled that the detention per se was plainly lawful because the Secretary of State [had] the power to detain an individual who [was] the subject of a decision to make a deportation order ( para 43). It is relevant to see how the Strasbourg Court addressed this matter, if only because any interpretation of Schedule 3 must, if possible, be compatible with the requirements of the Convention. Article 5(1) of the Convention provides, in so far as material: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful arrest or detentionof a person against whom action is being taken with a view to deportation The court said this as to the effect of that provision: 112. The court recalls that it is not in dispute that Mr Chahal has been detained with a view to deportation within the meaning of article 5(1)(f). Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect article 5(1)(f) provides a different level of protection from article 5(1)(c). Indeed all that is required under this provision is that action is being taken with a view to deportation. It is therefore immaterial, for the purposes of article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law. 113. The court recalls, however, that any deprivation of liberty under article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under article 5(1)(f). These observations echo the Hardial Singh principles, as I would interpret them. The court went on to consider whether the asylum proceedings, which had delayed the stage at which Mr Chahal would have been deported, had taken an excessive length of time, and concluded that they had not. This indicates that the Strasbourg Court, when considering the time reasonably needed for deportation, accepted that this would be prolonged by delay reasonably attributable to attempts to obtain asylum. The court then considered the requirement that the detention should be lawful. It observed at para 119 that there was no doubt that it was lawful under national law but that, because of the extremely long period during which Mr Chahal had been detained it was also necessary to consider whether there existed sufficient guarantees against arbitrariness. At para 122 the court concluded that the domestic procedure under which Mr Chahals appeal against deportation had been considered by an advisory panel provided an adequate guarantee that there were at least prima facie grounds for believing that if Mr Chahal were at liberty, national security would be put at risk and thus, that the executive had not acted arbitrarily when it ordered him to be kept in detention. I am not able to accept that under domestic law it had been an implicit requirement of Schedule 3 that Mr Chahals detention was necessary to facilitate his deportation. Provided that he was being detained with a view to his removal as soon as reasonably possible I consider that the Secretary of State was entitled to detain him pending that removal on the ground that he would pose a terrorist threat if released. The Hardial Singh principles were applied by analogy by the Judicial Committee of the Privy Council when considering the legitimacy under Hong Kong legislation of the detention of four boat people from Vietnam in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97. Tens of thousands of these people had arrived unlawfully in Hong Kong. They were steadily being repatriated, but this was taking a long time. Section 2 of the Immigration (Amendment) Ordinance 1991 added to the relevant legislation a provision designed expressly to deal with this situation: The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that persons detention, including (a) in the case of a person being detained pending a decision under section 13A(1) to grant or refuse him permission to remain in Hong Kong as a refugee (i) the number of persons being detained pending decisions under section 13A(1) whether to grant or refuse them such permission; and (ii) the manpower and financial resources allocated to carry out the work involved in making all such decisions; (b) in the case of a person being detained pending his removal from Hong Kong (i) the extent to which it is possible to make arrangements to effect his removal; and (ii) whether or not the person has declined arrangements made or proposed for his removal. (p 106). Lord Browne Wilkinson, giving the advice of the Board, said this, at p 111, under the heading The Hardial Singh principles: Section 13D(1) confers a power to detain a Vietnamese migrant pending his removal from Hong Kong. Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain pending removal their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time. This accords with my reading of Hardial Singh. His Lordship went on to say, however: Their Lordships are unable to agree with the Court of Appeal of Hong Kong that there is any conflict between the Hardial Singh principles and the provisions of section 13D. Section 13D(1A), which was inserted in 1991, expressly envisages that the exercise of the power of detention conferred by section 13D(1) will be unlawful if the period of detention is unreasonable. It expressly provides that The detentionshall not be unlawful by reason of the period of the detention if that period is reasonable having regard to (Emphasis added.) What section 13D(1A) does is to provide expressly that, in deciding whether or not the period is reasonable, regard shall be had to all the circumstances including (in the case of a person detained pending his removal from Hong Kong) the extent to which it is possible to make arrangements to effect his removal and whether or not the person has declined arrangements made or proposed for his removal. Therefore the subsection is expressly based on the requirement that detention must be reasonable in all the circumstances (the Hardial Singh principles) but imposes specific requirements that in judging such reasonableness those two factors are to be taken into account. The shorthand summary of the Hardial Singh principles as detention must be reasonable in all the circumstances was made in the context of those circumstances that affected the time reasonably necessary to effect removal and, just as in the case of Hardial Singh itself, I would restrict its ambit to those circumstances. This I believe was, and remained, the understanding of some, at least, of the judges dealing with claims in respect of the detention of immigrants in the Administrative Court. Thus in R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin) Collins J, who had appeared as counsel in Hardial Singh, held at para 21: The power to detain pending removal is not dependent on a fear of absconding or of any other misconduct by the person in question. Provided it is exercised for the purpose of removal, it is lawful. It must be exercised reasonably, but reasonableness in this context relates to whether removal can be achieved within a reasonable time: see R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 and Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 as applied in R (Saadi) v Secretary of State for the Home Department [[2002] 1 WLR 356]. R (Saadi) v Secretary of State for the Home Department [2001] EWCA Civ 1512; [2002] 1 WLR 356 raised the question of the legality of the detention at Oakington Reception Centre for up to 10 days of aliens seeking leave to enter whose cases appeared susceptible of speedy processing. The power to detain that was relied on was that afforded by paragraph 16(1) of Schedule 2 to the 1971 Act. Paragraph 2 provides that an immigration officer may examine any person arriving in the United Kingdom to determine whether he should be given leave to enter. Paragraph 16(1) provides: A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter. The Court of Appeal, in a judgment which I delivered, considered both the scope of the power to detain afforded by this paragraph and the effect of article 5(1)(f) of the Human Rights Convention. As to the former the court made the following observations: 14. Collins J concluded that the only limitation on the power to detain pending examination and the decision whether to grant or refuse leave to enter is that the detention must be for a reasonable time. For the Secretary of State, the Attorney General supported this conclusion. He argued that the power to detain persisted for so long as was reasonably necessary to conduct the examination and to reach a decision whether or not to grant leave to enter. As a matter of statutory interpretation we accept this submission. Were it not correct, the power to grant temporary admission would also be liable to come to an end before an examination could reasonably be completed and a decision whether to grant or refuse leave to enter reasonably be taken. 15. We are not aware that it has ever been the policy of the Secretary of State that applicants for leave to enter should be detained pending the decision of their applications, however long that might take. A more liberal policy has been adopted whereby he has approved the exercise of the power to grant temporary admission in place of detention. If the basis upon which immigration officers are detaining asylum seekers at Oakington is in conflict with this policy, then, under established principles of public law, they are acting unlawfully. As to the Convention the court held: 66. We consider that the test of proportionality required by article 5(1)(f) requires the Court simply to consider whether the process of considering an asylum application, or arranging a deportation, has gone on too long to justify the detention of the person concerned having regard to the conditions in which the person is detained and any special circumstances affecting him or her. Applying that test no disproportionality is demonstrated in this case. This was not a test of proportionality that the Strasbourg Court had laid down in Chahal and it received no support from that Court when Saadi reached it, as I shall show. Giving the only reasoned speech in a unanimous decision of the House of Lords [2002] UKHL 41; [2002] 1 WLR 3131 Lord Slynn of Hadley referred at para 18 to a statement by the Oakington Project Manager that he accepted that an important consideration in relation to detention powers was that no detention should be longer than reasonably necessary. Lord Slynn went on to express the view at para 22: As the judge and the Court of Appeal stressed, paragraph 16 of Schedule 2 gives power to detain pending examination and a decision; that in my view means for the period up to the time when the examination is concluded and a decision taken. There is no qualification that the Secretary of State must show that it is necessary to detain for the purposes of examination in that the examination could not otherwise be carried out since applicants would run away. Nor is it limited to those who cannot for whatever reason appropriately be granted temporary admission. The period of detention in order to arrive at a decision must however be reasonable in all the circumstances. The last sentence reflected Government policy, as accepted by the Project Manager. One of the applicants in Saadi took his case to Strasbourg (2008) 47 EHRR 427. He claimed that his detention at Oakington had infringed article 5(1)(f). Liberty, and other interveners, contended that a test of necessity and proportionality should be applied to article 5(1)(f), so that an asylum seeker could only be detained if, but for such detention, he would attempt to effect an unauthorised entry into the country. The Grand Chamber rejected this submission. Dealing first with the interpretation of the express provisions of article 5(1)(f) it said: 64. Whilst the general rule set out in article 5(1) is that everyone has the right to liberty, article 5(1)(f) provides an exception to that general rule, permitting states to control the liberty of aliens in an immigration context. As the court has remarked before, subject to their obligations under the Convention, states enjoy an undeniable sovereign right to control aliens entry into and residence in their territory. It is a necessary adjunct to this right that states are permitted to detain would be immigrants who have applied for permission to enter, whether by way of asylum or not. It is evident from the tenor of the judgment in Amuur that the detention of potential immigrants, including asylum seekers, is capable of being compatible with article 5(1)(f). 65. On this point, the Grand Chamber agrees with the Court of Appeal, the House of Lords and the Chamber, that until a state has authorised entry to the country, any entry is unauthorised and the detention of a person who wishes to effect entry and who needs but does not yet have authorisation to do so, can be, without any distortion of language, to prevent his effecting an unauthorised entry. It does not accept that, as soon as an asylum seeker has surrendered himself to the immigration authorities, he is seeking to effect an authorised entry, with the result that detention cannot be justified under the first limb of article 5(1)(f). To interpret the first limb of article 5(1)(f) as permitting detention only of a person who is shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the state to exercise its undeniable right of control referred to above. As to the argument that a test of proportionality applied to the detention, the Court, referring to Chahal, held: 72. Similarly, where a person has been detained under article 5(1)(f), the Grand Chamber, interpreting the second limb of this sub paragraph, held that, as long as a person was being detained with a view to deportation, that is, as long as action [was] being taken with a view to deportation, there was no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing. The Grand Chamber further held in Chahal that the principle of proportionality applied to detention under article 5(1)(f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held that [A]ny deprivation of liberty under article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible. 73. With regard to the foregoing, the court considers that the principle that detention should not be arbitrary must apply to detention under the first limb of article 5(1)(f) in the same manner as it applies to detention under the second limb. Since states enjoy the right to control equally an aliens entry into and residence in their country (see the cases cited in para 63 above), it would be artificial to apply a different proportionality test to cases of detention at the point of entry than that which applies to deportation, extradition or expulsion of a person already in the country. 74. To avoid being branded as arbitrary, therefore, such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that: [T]he measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country; and the length of the detention should not exceed that reasonably required for the purpose pursued. This passage reinforces the conclusions of the court in Chahal. Where a person is detained pending deportation, the only proportionality requirement that Strasbourg imposes, if indeed it is right so to describe it, is that the detention should not be for longer than is reasonably necessary to effect the deportation. Added to this, however, is the important requirement that the exercise of the power to detain must not be arbitrary. Applying this principle the European Commission of Human Rights held manifestly inadmissible an application of infringement of article 5 by a man who had been detained for five years while he used every means to avoid extradition to Hong Kong. See Osman v United Kingdom (Application No 15933/89) (unreported) 14 January 1991. The most recent pronouncement of the Grand Chamber on article 5(1)(f) is to be found in A v United Kingdom (2009) 49 EHRR 625, where it was held that article 5(1)(f) did not justify detention of the famous Belmarsh detainees. At para 164 the Grand Chamber stated: To avoid being branded as arbitrary, detention under article 5(1)(f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued. Against this background of Strasbourg jurisprudence, I return to domestic consideration of the Hardial Singh principles. In R(I) v Secretary of State for the Home Department [2003] INLR 196 the appellant was an Afghani asylum seeker who had been given exceptional leave to remain. He was then convicted of indecent assaults and sentenced to 3 years imprisonment with a recommendation for deportation. The Secretary of State made a deportation order and detained him pursuant to paragraph 2(3) of Schedule 3 from February 2001 to May 2002. The delay occurred because practical difficulties had caused the Secretary of State to cease removing nationals to that country. He claimed that his further detention was unlawful as there was no reasonable possibility of his being deported within a reasonable period. This raised the question of how such a reasonable period fell to be calculated. Simon Brown LJ addressed three issues of principle that had arisen. The first was the relevance of the fact that he was likely to go to ground and re offend if released. His counsel contended that this was irrelevant to the question of whether removal would be possible within a reasonable time. Simon Brown LJ disagreed. He held at para 29: The likelihood or otherwise of the detainee absconding and/or re offending seems to me to be an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainee would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainees removal abroad. The second issue was whether it was relevant that the appellant refused to accept voluntary repatriation. Simon Brown LJ held that it was. The third issue was whether the calculation of the reasonable period should take account of the fact that the appellant had been making asylum applications. Simon Brown LJ held that it should not, because it would not have been possible to deport him in any event. The conclusion that he formed at para 37 was that because the Secretary of State could not establish more than a hope of being able to remove him by the summer substantially more in the way of a risk of re offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period. Mummery LJ gave a short dissent on the facts rather than the applicable principles. Dyson LJ agreed with Simon Brown LJ. He set out the four principles that he derived from Hardial Singh in the same form as he has in his judgment in the present case. He then made the following observations about the application of those principles. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person pending removal for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences. 49. Simon Brown LJ has identified the three main points of principle which were in issue in the present appeal, namely, the risk of absconding and reoffending, the appellants refusal to accept voluntary repatriation, and the asylum claim and appeal. As I have already stated, the risk of absconding and offending or reoffending is relevant to the reasonableness of the length of a detention pending deportation. It is, as Simon Brown LJ says an obviously relevant circumstance (at para 29): see also per Lord Phillips of Worth Matravers MR in R v (Saadi) v Secretary of State for the Home Department [2001] EWCA Civ 1512, [2002] 1 WLR 356, at paras 65 67. I have accepted that it is possible to derive Lord Dysons first two principles from the language used by Woolf J in Hardial Singh, and explained why I would not do so. The passage from the judgment of the Court of Appeal in Saadi that he cites was dealing with the effect of article 5(1)(f) of the Convention and, as I have shown, advanced a test of proportionality which Strasbourg did not endorse. The problems that have been raised by these appeals suggest that Strasbourg may have had very good reason not to do so. The conceptual difficulty inherent in the first two principles identified by Lord Dyson is apparent in the passage that he has quoted at para 107 from the judgment of Toulson LJ in A. If the risk of re offending can be the determinant factor in deciding how long it is reasonable to detain a FNP why should it not be the determinant, or even the sole reason for detaining him in the first place? Why should it be a pre condition to the power to detain that its use is to facilitate deportation, even if this is not the real reason for detention, as in the case of Chahal? It is that logical inconsistency that underlies the challenge that is made on behalf of Mr Lumba in the present case to the legitimacy of having regard to the risk of his re offending. The interpretation that I would give to the power to detain conferred by the 1971 Act is as follows. The scheme of the Act is simple, and reflects article 5(1)(f) of the Convention. The Secretary of State is not required to permit an immigrant who has unlawfully entered this country to roam free. Schedule 3 permits her to detain the immigrant for as long as she reasonably requires in order to decide whether he should have leave to enter. If he is not given leave to enter she may detain him for as long as she reasonably requires to effect his deportation, provided always that deportation is a practical possibility. If the 1971 Act confers powers as wide as this on the Secretary of State, she has not availed herself of them. She adopted a policy under which, on her calculation, only 1.5% of those who were liable to detention under her immigration powers were actually detained, see para 285 below. Having chosen to discriminate between those whom she detains and those whom she does not, she is subject to the established principles of public law in choosing between the two. It is these principles which constrain the exercise of her power to detain rather than restrictions to be implied into the 1971 Act as a matter of statutory interpretation. They include the obligation to act rationally, an obligation also imposed by article 5 of the Convention. It is rational and lawful to detain a FNP pending deportation to prevent his re offending or because he would pose a security risk if at large, just as it is rational and lawful to detain him because of the risk of his absconding. Public law principles include the restraint that a published policy imposes on executive action, a topic that I am about to consider. As I shall show, the guidance published by the Secretary of State includes a requirement to comply with Lord Dysons first two principles, so that to that extent their enunciation has been self fulfilling. The policies published by the Secretary of State in relation to the detention of immigrants. Lord Dyson has referred to the two White Papers in which in 1998 and 2002 the Secretary of State published her policies in relation to detention. The first of these, Fairer, Faster, Firmer informed the reader at the beginning of Chapter 12 dealing with Detention that at any one time, only about 1.5% of those liable to detention under immigration powers were actually detained. The White Paper dealt with the criteria to be adopted in identifying this small minority of immigrants who were to be detained. FNPs awaiting deportation will have formed only a tiny proportion of those liable to detention under those powers. It is, perhaps, not surprising that the White Paper predominantly addressed the position of the vast majority of immigrants who were not criminals. Thus, in the passage quoted by Lord Dyson at para 11 of his judgment the White Paper spoke of a presumption in favour of granting temporary admission or release, terms that were not appropriate to those recommended for deportation. In dealing with Detention Criteria at 12.3 the White Paper identified three circumstances where detention would normally be justified. The first was where there was a reasonable belief that the individual would fail to keep to the terms of temporary admission or temporary release. The second was to clarify a persons identity and the basis of their claim on entry. The third was where removal was imminent. 12.11 dealt with detention in relation to removals. It focussed entirely on detention to facilitate removals. Nothing in that White Paper gave any suggestion that those awaiting deportation might be detained because of concern as to the way they might behave if permitted to be at large. There was no focus on the provisions of Schedule 3. These comments are equally true of the second White Paper, Secure Borders, Safe Haven, save that this had the following statement in para 4.80 under the heading Serious Criminals: We will explore what more we can do, as other countries have done, to stop serious criminals abusing our asylum system by seeking to remain in the UK having completed a custodial sentence. There is there no indication that such criminals would be liable to detention pending deportation. The two White Papers dealt in broad terms with detention. They were supplemented by Chapter 38, headed Detention and Temporary Release, of the Operational Enforcement Manual, which was a published document, available to the public on the internet. The court was provided with the version that was current in April 2006. This included guidance on the law as it was understood to be. Para 38.1.1.1 gave the following summary of the effect of article 5 and the domestic case law: (a) The relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation). Detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with article 5 and would be unlawful in domestic law; (b) The detention may only continue for a period that is reasonable in all the circumstances; (c) If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised ; and (d) The detaining authority (be it the immigration officer or the Secretary of State), should act with reasonable diligence and expedition to effect removal (or whatever the purpose of the power in question is). This summary of the law reflected aspects of the decision of the Court of Appeal in I with which I have differed. None the less the principles that it expounded were consonant with the general policy of the Secretary of State that there was a presumption against detention. Para 38.3 set out the factors that influenced a decision to detain. Those in favour of detention were all matters that bore on the likelihood that the individual would abscond or go to ground if not detained. The manual set out the contents of a standard form IS9IR. This set out 6 possible reasons for detention, with instructions that the Immigration Officer should tick the relevant reasons. In contrast to the general focus on the likelihood of absconding, one of these stated Your release is not considered conducive to the public good. Factors forming the basis of the reasons also had to be ticked. These included You are excluded from the United Kingdom at the personal direction of the Secretary of State. You are detained for reasons of national security, the reasons are/will be set out in another letter. Your previously unacceptable character, conduct or associates. Para 38.5.2 was headed Authority to detain persons subject to deportation action. It summarised the effect of Schedule 3 and required that decisions whether to detain pursuant to the provisions of the Schedule should be made at senior caseworker level in CCT. No specific guidance was given, however, as to the criteria that should be applied when making those decisions. In summary, the general message of these published policies was that detention should be used sparingly and, in the case of detention pending removal or deportation, only where necessary to facilitate this in order to prevent individuals from absconding or otherwise evading the immigration system. Officials were instructed that the law was as held by the Court of Appeal in I and, in particular, that detention could only continue for a period that was reasonable in all the circumstances. Form IS9IR raised, however, the possibility that detention could be used for reasons of national security or where the individuals previous character, conduct or associates were unacceptable. Despite this, there was no specific guidance as to the approach to be adopted to criminals whom the Secretary of State had decided to deport. Not only was it open to the Secretary of State to decide to deport, and to detain pending deportation, criminals in respect of whom the court had made no recommendation, she also had to decide whether to accept recommendations for deportation made by the courts. Under paragraph 2(1) of Schedule 3 those subject to a recommendation remained detained pending the Secretary of States decision whether to deport them unless released by the court or granted bail pursuant to section 54 of the Immigration and Asylum Act 1999, which came into force in February 2003. It may have been thought that paragraph 2(1) created a presumption in favour of detention of FNPs pending deportation but in R (Sedrati) v Secretary of State for the Home Department [2001] EWHC Admin 418, with the agreement of counsel for the Secretary of State, Moses J made a declaration that there was no such presumption. What then, under the Secretary of States published policies, was the position of FNPs whom the Secretary of State decided to deport? It seems to me that many of these were likely to tick the boxes of those who, exceptionally, could properly be detained in accordance with those policies. They were in this country because this was where they had chosen to live. They had committed offences that had led the Secretary of State to conclude that their continued presence was no longer conducive to the public good. Most would be unlikely willingly to submit to deportation. There would be a risk both of re offending and of absconding. As Lord Dyson has explained at paras 14 and 15 of his judgment, on 9 September 2008 the Enforcement Instructions and Guidance, which had replaced the Operational Enforcement Manual, was amended so as to lay down a presumption in favour of detaining immigrants where the deportation criteria were met in order to protect the public from harm and the particular risk of absconding in these cases. I agree with the Court of Appeal and with Lord Dyson that this amendment to her policy was one that it was open to the Secretary of State to make. However, Davis J, at first instance, ruled to the contrary and this led the Secretary of State to withdraw this amendment. The UK Borders Act 2007 has since made provision by section 32 for automatic deportation of foreign criminals in specified circumstances. Section 36 requires the Secretary of State to exercise a power of detention of those being deported under section 32 unless in the circumstances the Secretary of State considers it inappropriate. These provisions were not in force at the time of the events that have given rise to these appeals. There is thus a picture of a series of changes to policy, and of legislation, that has been influenced by decisions of the courts, not all of which have been sound. The practical implications of the policies Under this heading I propose to consider the practical implications of complying with the Secretary of States published policies, including her directions as to the effect of article 5 and our domestic case law. Compliance with the Hardial Singh guidelines, even as I have interpreted them, gives rise to some practical difficulties. Detention pending deportation is permissible for a lengthy period provided that the Secretary of State is taking reasonable steps to effect deportation and provided that there is a reasonable prospect that deportation will be possible. It is the latter proviso that raises particular difficulties for the possibility of deportation may vary from time to time. R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39; [2006] 1 AC 207 illustrates this problem. In the case of each detainee it is necessary to keep the practicability of deportation under review. This problem is made more difficult if there is a requirement to detain for no longer than is reasonable in all the circumstances, where those circumstances include the nature of the crimes committed by the FNP and the degree of risk of re offending. The assessment of what period of detention is reasonable in all the circumstances is not an easy one and there will inevitably be cases where, if subjected to judicial review, it will be held not to have been correctly answered. Furthermore the material circumstances are likely to be subject to frequent change, so that frequent reviews will be necessary. This last fact was reflected by the requirements in relation to Detention reviews imposed under para 38.8 of the Operational Enforcement Manual which lie at the heart of the appeal in SK (Zimbabwe). Where there are concerns about the risk of absconding, it may be possible to meet these by measures which fall short of detention. The Secretary of State may release a FNP who is subject to deportation under a restriction order setting out terms as to residence, employment or occupation and reporting to the police pursuant to paragraph 2(5) of Schedule 3. The court has the same power in respect of those recommended for deportation under paragraphs 4 to 6 of Schedule 3. Detainees also have the right to apply for bail. In para 12.8 of Fairer, Faster, Firmer the Government explained that it believed that there should be a more extensive judicial element in the detention process and proposed that this should be by way of bail hearings, commenting on the resource implications that this would have. Para 4.83 of Secure Borders, Safe Haven stated that Part III of the Immigration and Asylum Act 1999 had created a complex system of automatic bail hearings at specific points in a persons detention, that this had never been brought into force and that most of it was to be repealed. There is now a comprehensive statutory scheme for release on bail produced through a series of amendments to Schedule 2 to the 1971 Act. All of this illustrates the practical problems implicit in the implementation of a regime that attempts to give effect to the policy of using the power to detain only as a last resort. Despite efforts to implement this policy there will inevitably be cases where individuals are detained when, under the policy, they should not be. The question arises of whether those who find themselves in this position are entitled to claim damages for false imprisonment. What are the legal implications of the Secretary of States published policies? The appellants in this case should have been detained had the Secretary of States published policy been applied. They claim to be entitled to damages for false imprisonment because those considering their cases reached the right conclusions by applying the wrong policy. Their complaint is as to the manner in which the decisions to detain them were taken, not as to the substance of those decisions. Thus, the question of the legal effect of the Secretary of States published policies is not directly in issue. Nonetheless, underlying the appellants case is the premise that it would not have been lawful for the Secretary of State to reach a decision that was in conflict with her published policy. For this reason she was required to reach her decision by applying her published policy, not some other policy. It follows that it is material to consider the effect of the Secretary of States published policies. I agree with Lord Dyson that, under principles of public law, it was necessary for the Secretary of State to have policies in relation to the exercise of her powers of detention of immigrants and that those policies had to be published. This necessity springs from the standards of administration that public law requires and by the requirement of article 5 that detention should be lawful and not arbitrary. Decisions as to the detention of immigrants had to be taken by a very large number of officials in relation to tens of thousands of immigrants. Unless there were uniformly applied practices, decisions would be inconsistent and arbitrary. Established principles of public law also required that the Secretary of States policies should be published. Immigrants needed to be able to ascertain her policies in order to know whether or not the decisions that affected them were open to challenge. What is the effect of a decision to take action that falls within a power conferred by statute but which conflicts with a published policy as to the manner in which that power will be exercised? This is no easy question. It overlaps with the question of the nature and effect of a legitimate expectation. Is a decision that is contrary to policy unlawful, so that action taken pursuant to it is ultra vires? If so a published policy has the same effect as delegated legislation. Is this result dictated by the jurisprudence that has its origin in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147? Mr Husain QC for the appellants submitted that it is. He relied on the oft cited catalogue of matters rendering the decision of a tribunal void propounded by Lord Reid in Anisminic at p 171. This included: It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. The words that I have emphasised are significant. Lord Reids proposition cannot necessarily be extended to the situation where the decision maker fails to have regard to his own policy. Anisminic is, however, only the start of the story. The effect of Anisminic was the subject of observations by Lord Diplock, which have been treated as authoritative. In In re Racal Communications Ltd [1981] AC 374, at pp 382 383 he described Anisminic as a legal landmark. It established that when Parliament conferred on an administrative authority the power to decide particular questions defined by the Act conferring the power, and the authority asked itself and answered the wrong question, it did something that the Act did not empower and its decision was a nullity. In OReilly v Mackman [1983] 2 AC 237, at p 278 he observed that if a tribunal mistook the law it must have asked itself the wrong question and one that it had no jurisdiction to determine, so that its decision was a nullity. In R v Hull University Visitor, Ex p Page [1993] AC 682, at pp 701 702 Lord Browne Wilkinson endorsed his comment, adding that any error of law made by an administrative tribunal or inferior court in reaching its decision could be quashed for error of law. Earlier at p 701 he had observed that it was to be taken that Parliament had only conferred the decision making power on the basis that it was to be exercised on the correct legal basis with the effect that an error of law rendered the decision ultra vires. This reasoning cannot readily be extended to a decision which departs from executive policy. It would be totally unrealistic to postulate that when Parliament passes an Act conferring a discretionary power it does so with the intention that if the decision maker publishes a policy in relation to the exercise of that power he will abide by that policy unless he has good reason not to do so. In Boddington v British Transport Police [1999] 2 AC 143 the House of Lords took Anisminic a significant step further. The issue was whether the appellant could raise by way of defence to a criminal charge a contention that the bye law, or an administrative decision taken under it, pursuant to which he was prosecuted, was ultra vires. Lord Irvine of Lairg LC, giving the leading speech, said at p 155 that an order made by the Secretary of State in the purported exercise of a statutory power would be regarded as void ab initio if it had been made in bad faith, or as a result of taking into account an irrelevant, or ignoring a relevant, consideration. At p 158 he said: The Anisminic decision established, contrary to previous thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. Lord Irvine added, at p 159: Also, in my judgment the distinction between orders which are substantively invalid and orders which are procedurally invalid is not a practical distinction which is capable of being maintained in a principled way across the broad range of administrative action. Other members of the House were not prepared to reject the possibility that an ultra vires act might have legal consequences before its invalidity was recognised by the court: see Lord Browne Wilkinson, at p 164 and Lord Slynn, at p 165. Boddington no longer judged the vires of the exercise of a discretionary power by the assumed intention of Parliament. It held that if a decision was vitiated by procedural impropriety it was ultra vires and a nullity. In the light of Boddington these appeals raise two issues: (i) is a decision of the Secretary of State that, without good reason, conflicts with her published policy outside her powers, so that it is a nullity? (ii) is a decision reached by the Secretary of State by the application of a policy that conflicts with her published policy a nullity, even if the decision itself accords with her published policy? I am currently concerned with the first question. The proposition underlying the appellants case is that if a minister, without good reason, acts in a way that is contrary to her published policy she acts outside her powers. Her action is unlawful and can found a claim for damages if it infringes a private law right. It is time to look at the law relating to policy and legitimate expectation. Where a public authority gives an undertaking to an individual that a discretionary power will be used in a particular way, this creates a legitimate expectation in the individual that the authority will comply with that undertaking. The courts will require the authority to give due consideration to that legitimate expectation when exercising its power: see R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237. In an extreme case the courts can require the authority to comply with its undertaking: see R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213. The same principle applies where a minister publishes a policy that sets out the way in which he intends to exercise a discretionary power. This also creates a legitimate expectation in those affected by the power as to the manner in which it will be exercised. In either case the court can intervene in performance of its duty to ensure that the executive acts fairly and does not abuse the powers conferred on it by Parliament. These principles have quite often been applied in relation to immigration decisions. I have already quoted my invocation of them in Saadi: see para 271 above. Lord Dyson at para 85 has referred to my judgment in Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768. In that case the Court of Appeal held that Ns detention was unlawful because it was in conflict with the Secretary of States policy. The court further held that as the detention was contrary to law, it infringed article 5(1)(f) of the Convention. The Court had earlier stated at para 15 that the consequence of these findings would be that N would be entitled to damages for unlawful detention. The Secretary of State had sought to show that Ns detention was not contrary to his policy. He had not challenged the proposition that if the detention was contrary to his policy it would be unlawful, nor that this would lead to liability in damages. There was no discussion of the nature and effect of the doctrine of legitimate expectation in the context of detention under the 1971 Act. There was, however, a sequel to the case in which the nature of the doctrine of legitimate expectation received detailed consideration. The development of the law of legitimate expectation was pellucidly set out at some length by Laws LJ, giving the only reasoned judgment in the Court of Appeal in R (Nadarajah) v Secretary of State for the Home Department, [2005] EWCA Civ 1363, a decision which, amazingly, does not seem to have found its way into the law reports. At the end of his judgment, in paras 68 and 69, Laws LJ set out his conclusions on the principles to be derived from these authorities. This merits citation at length: The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement to describe what may count as good reason to depart from it as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public bodys promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public bodys legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances. This approach makes no distinction between procedural and substantive expectations. Nor should it. The dichotomy between procedure and substance has nothing to say about the reach of the duty of good administration. Of course there will be cases where the public body in question justifiably concludes that its statutory duty (it will be statutory in nearly every case) requires it to override an expectation of substantive benefit which it has itself generated. So also there will be cases where a procedural benefit may justifiably be overridden. The difference between the two is not a difference of to a principle. Statutory duty may perhaps more often dictate the frustration of a substantive expectation. Otherwise the question in either case will be whether denial of the expectation is in the circumstances proportionate legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. On the other hand where the government decision maker is concerned to raise wide ranging or macro political issues of policy, the expectations enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individual's fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact. This passage in Laws LJs judgment was obiter, as is my approval of it as setting out a compelling analysis of the law. I have, however, some concerns as to the consequences of this extension of the principles of judicial review if a ministers unjustified failure to comply with his policy is to be treated as an unlawful act that subjects him to potential liabilities in private law independently of the discretionary remedies of judicial review. The facts of this case illustrate my concern. Assume that I am correct in concluding that Schedule 3 gives the Secretary of State wide ranging powers to detain those who are illegally in this country, whether pending the processing of their applications for permission to enter or pending their removal when such applications have been refused. The Secretary of State did not choose to exercise those powers to their full extent. The policy of only detaining immigrants as a last resort is a benevolent policy. That policy carries with it, however, as I have explained, the risk that, as a result of erroneous decisions in the application of a difficult test, some immigrants may be detained in breach of that policy. Not all would agree that it is fair that they should be entitled to compensation, in the form of damages for false imprisonment, on the same scale as those whose detention falls outside any statutory power. Notwithstanding these concerns, I have concluded that the detention of a person in circumstances where, under the Secretary of States published policies he should not have been detained, was both a violation of principles of public law and unlawful so as to exclude any justification for the detention under article 5(1)(f) of the Convention and to give rise to liability for false imprisonment. Was the detention of each of the appellants contrary to the Secretary of States published policies? On this question all members of the court are agreed. Each of the appellants, by reason of the risk of re offending and of absconding, fell into the exceptional category of those who were liable to detention under the Secretary of States published policies. Had the decision maker applied those policies each of the appellants would have been detained. On this topic I have nothing to add to the judgment of Lord Dyson. What were the defects in the policy applied when deciding whether the appellants should be detained? Mr Beloff conceded that the policy, which I shall call the secret policy, applied by the decision maker when deciding to detain the appellants was unlawful on three counts. The meaning of the word unlawful in this context needs clarification. It is not having a policy but implementing a policy that may infringe the law. A policy can be described as unlawful if action taken pursuant to it will, or may, be unlawful under private or public law. The first reason why the policy that was applied was unlawful was that it was a blanket policy. It brooked of no exceptions save rare ones that might be made for compassionate reasons. It was a blanket policy in that it was applied to any FNP recommended for deportation. Thus it paid no regard to the severity of the offence for which the FNP had been convicted nor to the likelihood and consequence of his re offending. In this I do not consider that it was open to objection on public law grounds. On my interpretation of Schedule 3 it was open to the Secretary of State to decide her own criteria for determining those she wished to detain pending deportation. Secondly the policy was a blanket policy in that it gave no scope for the application of discretion, save on compassionate grounds. I do not consider that this was objectionable on public law grounds. There is a principle of public law that a minister who is granted a discretionary power must not improperly fetter the exercise of his discretion. In a case such as this, however, a minister has to lay down a firm policy in order to ensure consistency of decision making. The Secretary of State was laying down an exception to the general rule that there was a presumption against detention. I can see no reason why she should not lay down a policy under which all those whom she chose to deport should be detained pending their deportation save in circumstances where there were compassionate reasons for departing from the policy. Where the secret policy was objectionable was that it was to be applied without consideration of whether detention would violate the Hardial Singh principles. Under the secret policy FNPs were liable to be detained even if they were nationals of a country to which deportation was not a practical possibility. Thus application of the secret policy would, in some cases, result in detention that was outside the power conferred by the 1971 Act. The second reason why Mr Beloff conceded that the secret policy was unlawful was that it was inconsistent with the Secretary of States published policy. Inasmuch as the application of the secret policy would result in the detention of some who would not have been detained on the application of the published policy it was plainly open to objection on this ground. The third reason why Mr Beloff conceded that the secret policy was unlawful was that it was secret. This concession was also properly made, for the reasons given by Lord Dyson. What were the circumstances in which the secret policy was applied? Lord Dyson has summarised the circumstances in which the secret policy was applied. Lord Walker and Lord Collins have described these as a serious abuse of power. Lady Hale has expressed some sympathy for the predicament in which the civil servants found themselves. Having considered the voluminous discovery, some of it very belated, I share both the concern expressed by Lord Walker and Lord Collins and the sympathy expressed by Lady Hale. It was clear to officials that the Secretary of State wished all FNPs to be deported, and to be detained pending deportation. They were concerned at the legality of such a policy, particularly because it conflicted with the published policy. There was a protracted period preparing and circulating draft advices to ministers in which each of a lengthy circulation list was given the chance to comment. Many did, whereupon the draft would be re circulated. There seems to have been a reluctance to grasp the nettle of presenting advice that would be unpalatable. There were considerable delays caused by the perceived need to obtain counsels opinion. The picture is of bureaucracy at its worst with the best proving constantly the enemy of the good. The lamentable fact is that approximately two years elapsed between the identification of the need to publish a revised policy on detention and the publication of such a policy in the new Enforcement Instructions and Guidance in September 2008. Although it was suggested that ministers might favour a policy that would appear to make the courts responsible for the release from detention of FNPs, this course was neither advocated nor adopted. There was muddle galore, but I am not persuaded having considered the considerable discovery that there was a deliberate attempt to deceive the courts as to the policy that was being applied. Did the application of the secret policy render the detention of the appellants unlawful? It is now accepted by the Secretary of State that the decision maker in the case of each of the appellants decided that he should be detained by applying to him the secret policy. The power to detain that he purported to apply was that conferred by Schedule 3. Had the appellants been persons whose deportation would not be possible within a reasonable period, so that they fell outside the lawful application of Schedule 3, the application of the secret policy would have resulted in their detention none the less. Had the appellants been persons whose detention would have conflicted with the Secretary of States published policy, so that their detention would be unlawful under the principles of public law discussed above, the application of the secret policy would have resulted in their detention none the less. In the event each appellant fell within the group of FNPs for whom detention was appropriate, indeed inevitable, if the Secretary of States published policy was applied to them. Was their detention none the less unlawful because of the process of reasoning that had brought it about? Mr Husain submits that it was. The Court of Appeal held that it was not, because the application of the secret policy was not material; it produced the result that would have been produced had the right policy been applied. This is I believe a novel question, not to be answered by the simple answer that the detention was unlawful because the decision that produced it was unlawful. It is also a complex question because of the novel feature of the existence of a published policy that would have predetermined the decisions in relation to the two appellants had it been applied. It is helpful to unpick the secret policy and consider its effect if each objection to it had been the only objection. I take first the objection that it was a blanket policy. Imagine the Secretary of State had publicly announced that all FNPs who were given deportation orders would henceforth be detained pending deportation, subject to exceptions on compassionate grounds. The application of this policy would have been objectionable in that it would have resulted in the detention of those FNPs whose deportation would not be possible within a reasonable period. Would this fact have rendered unlawful the detention of the majority of FNPs whose deportation was possible? I see no reason of principle why it should. Next I take the objection that the policy was in conflict with the published policy. Had the secret policy not been secret, this objection would have melted away. The public policy would simply have been publicly altered. This would not have been objectionable. What of the objection that the policy was secret? Had this been the only objection to it I do not see how this could have availed the appellants. They were already subject to a policy that would result in their detention. They had no legitimate expectation of being permitted to remain at large. If the secret policy had extended the category of those FNPs who would be detained, those who, without knowing it, were brought within the category of detainees might have had cause to object to their detention, but I do not see how those who were going to be detained under the previous published policy could legitimately complain. If none of the individual objections to the secret policy would have afforded the appellants legitimate grounds for challenging their detention, does the position change when the objections are considered cumulatively? I can see no reason why it should. Both logically and intuitively my conclusion is that the introduction of the secret policy gave those whose detention resulted from it cause to challenge the legality of their detention, but not those whose legitimate expectation was that they would be detained under the application of the published policy. This was also the reaction of those officials who questioned the application of the secret policy. Their concern was that those whose detention infringed the Hardial Singh guidelines or the published policy would have claims for illegal detention, not that every detainee would have such a claim. I now turn to some of the authorities relied upon by the appellants to see how they bear on the unusual problem raised by these appeals. In Christie v Leachinsky [1947] AC 573 the plaintiff, who claimed damages for false imprisonment, had been arrested by police officers on a charge of unlawful possession under the Liverpool Corporation Act 1921. That Act did not give a power to arrest for this offence. The defendants raised by way of defence a plea that, at the time of the arrest they reasonably suspected him of receiving stolen goods, which provided a valid ground for his arrest. The House of Lords held that this was no defence as at the time of his arrest he had been given a different ground of arrest. This decision is normally cited for the proposition that an arrest will be unlawful if the person arrested is not told the reason for his arrest at the time that he is arrested. It is also authority for the proposition that if a person is arrested for a reason which is not a valid statutory ground of arrest it is no defence to an action for false imprisonment that he could have been validly arrested on alternative grounds. I do not see that this decision bears on the very different facts of the present case. In Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 the Court of Appeal held that detention by the police without the review required by section 40(1)(b) of the Police and Criminal Evidence Act 1984 was unlawful and the fact that, if the review had taken place authorised detention would have continued was no answer to a claim for substantial damages for false imprisonment. That decision has no bearing on the issue that I am considering, which is whether the detention of the appellants was unlawful. In Langley v Liverpool District Council [2005] EWCA Civ 1173; [2006] 1 WLR 375 a constable had purported to exercise a discretionary power under the Children Act 1989 in removing a child from its family. The Court of Appeal held that his exercise of discretion had been wrongful in that, in the circumstances prevailing, it ran counter to the statutory scheme. It followed that the removal of the child was unlawful and the constable had committed the tort of false imprisonment. I have found this decision of no assistance in deciding whether, on the unusual facts of this case, the detention of the appellants was unlawful. One of the cornerstones of the appellants case was the speech of Lord Diplock, with which all other members of the House agreed, in Holgate Mohammed v Duke [1984] AC 437. A police officer had arrested the plaintiff on suspicion of the theft of jewellery. He did so pursuant to section 2(4) of the Criminal Law Act 1967, which gave him a discretionary power to arrest her. She alleged, however, that the exercise of this power had been unlawful because, when deciding whether to exercise his discretion the officer had been influenced by a consideration which was irrelevant, namely the likelihood that the fact that she had been arrested would be more likely to induce her to confess to her crime when interviewed. Lord Diplock held that this consideration was not irrelevant to the proper exercise of the officers discretion. It was a matter to which he could legitimately have regard having regard to the objectives of the statutory power to arrest. Thus the comments upon which the appellants have relied were obiter. Those comments, at p 443 of Lord Diplocks speech, were as follows: The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought. The first of the Wednesbury principles is that the discretion must be exercised in good faith. The judge in the county court expressly found that Detective Constable Offin in effecting the initial arrest acted in good faith. He thought that he was making a proper use of his power of arrest. So his exercise of that power by arresting Mrs Holgate Mohammed was lawful, unless it can be shown to have been unreasonable under Wednesbury principles, of which the principle that is germane to the instant case is: He [sc the exerciser of the discretion] must exclude from his consideration matters which are irrelevant to what he has to consider. The way in which the appellants argue that this passage impacts on the facts of the present case is, as I understand it, as follows. The decision to detain the appellants was taken by application of the secret policy. This infringed the Wednesbury principles because it failed to have regard to relevant considerations, namely whether the Hardial Singh principles precluded detention and whether the appellants detention complied with the published policy. The answer given by the Court of Appeal to this point is that, so far as the appellants were concerned, the failure to consider these matters was not material because, had they been considered, the conclusion would have been that neither matter posed an impediment to the appellants detention and had they been considered the decision would inevitably have been the same. The approach of the Court of Appeal involves a refinement of the Wednesbury principles. It is an application of the following reasoning of May LJ in R v Broadcasting Complaints Commissioner, Ex p Owen [1985] QB 1153, 1177: Where the reasons given by a statutory body for taking or not taking a particular course of action are not mixed and can clearly be disentangled, but where the court is quite satisfied that even though one reason may be bad in law, nevertheless the statutory body would have reached precisely the same decision on the other valid reasons, then this court will not interfere by way of judicial review. I believe that at least in this new area of the effect of public policy, the approach of the Court of Appeal is a sound one. Where a minister publishes a policy as to the circumstances in which he will exercise a statutory power and then he or his officials apply a different policy which results in the exercise of that power in circumstances which range wider than those published, I do not consider that those whose cases fell within the published policy can automatically contend that the application of the power to them has been unlawful. If the facts are that no reasonable decision maker applying the published policy could have done other than reach the decision which the decision maker arrived at, the fact that he applied a more expansive, but unpublished, policy when reaching his decision will not invalidate that decision. For these reasons, which accord I believe with the reasoning of both the Court of Appeal and Lord Brown, I have concluded that the application of the secret policy did not render the detention of the appellants unlawful. Damages In view of my conclusions on liability, the issue of damages does not arise. Had I agreed with Lord Dyson on liability, I would have shared his approach to damages. I also endorse Lord Collins conclusions in relation to vindicatory damages. Reviews A word about reviews. If the majority are correct in concluding that the application of the secret policy rendered all decisions taken pursuant to it unlawful, then it seems to me that the moment that the secret policy was applied to reviews of the lawfulness of those detained, their continued detention would have been rendered unlawful, even if they were lawfully detained under the published policy before the secret policy was introduced and even if they remained subject to detention within the terms of the published policy. This would be an extraordinary result. MR LUMBAS HARDIAL SINGH APPEAL Mr Lumba has now voluntarily left the country, but the question remains of whether his detention became unlawful in the period before he left. Because of the view that I take of the scope of the Hardial Singh principles, I find the issues in relation to this part of Mr Lumbas appeal easier to resolve than has Lord Dyson. The lengthy period during which Mr Lumba was detained largely resulted from his own efforts to avoid deportation. For most of the period his deportation had been a practical possibility. The Secretary of State had not been dragging her feet in her effort to deport Mr Lumba. I agree with the Court of Appeal that Mr Lumba could not be heard to say that it was impossible to deport him within a reasonable time when the difficulty in doing so resulted from his own attempts to avoid deportation and not from extrinsic problems in effecting his deportation. On my view of the interpretation of Schedule 3, whether Mr Lumba posed a risk of re offending was not relevant to the period for which he could lawfully be detained. It seems to me that para 107 of Lord Dysons judgment lends support to my belief that the power to detain is not dependent upon an object of the detention being to facilitate deportation. The question remains, however, in Mr Lumbas case of whether his continued detention, having particular regard to his mental condition, remained consistent with the Secretary of States published policy. He has now voluntarily left the country, but if the issue of the lawfulness of his detention is to be pursued I agree with Lord Dyson that this is a matter to be considered by the Administrative Court on remission. Subject to this, for the reasons that I have given I would dismiss these appeals. LORD BROWN (with whom Lord Rodger agrees) Amongst the many issues to be decided on these appeals far and away the most important concerns the true nature of the tort of false imprisonment. Lord Dyson having set out all the relevant facts and the detailed legal context in which the many issues here arise for determination, I shall proceed without more to what I recognise is to be a dissenting judgment on this crucial question. Freedom from executive detention is arguably the most fundamental right of all. Thus Lord Bingham of Cornhill in his 2002 Romanes lecture. The tort of false imprisonment is, of course, the remedy provided by law for the violation of this freedom, for the unlawful deprivation of a persons liberty. The outcome of the appeals proposed by the majority of the court is to hold the appellants and, indeed, a large number of others similarly placed to have been unlawfully detained, in many instances for a period of years, and yet to compensate them by no more than a nominal award of damages. They are to be held unlawfully detained because, in his (or her) exercise of the undoubted power to detain them, the Secretary of State breached certain public law duties. But they are to be awarded only nominal damages because, whatever approach had been taken to the exercise of the detaining power, the appellants must inevitably have been detained in any event. Whilst I share to the full the majoritys conclusion that it would be quite wrong in the circumstances of these cases to award the appellants any substantial compensation in respect of their detention, for my part I would reach that conclusion by a very different route. I would hold that a public law breach of duty in the course of exercising an executive power of detention does not invariably, and did not here, result in the subsequent detention itself being unlawful in short, that these appellants were not the victims of false imprisonment. Naturally I recognise the beguiling simplicity and apparent purity of the majoritys approach. Ever since the House of Lords decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, decisions made within the decision makers jurisdiction but containing a public law error have generally been regarded as precisely equivalent to decisions made entirely without jurisdiction. Thus, it is said, a decision to detain which is flawed by a public law error is ultra vires and the detention which follows is necessarily unauthorised and therefore unlawful. Logically, indeed, this must be so however minor the public law error involved in the making of the decision and however inevitable it is that the decision to detain would have been made in any event. (At one stage in the argument Mr Husain QC for the appellants accepted that some public law failures might be too inconsequential to require this conclusion but unsurprisingly he was unable to formulate any test by which to determine such cases and, indeed, he had argued before this court on behalf of the appellant in R (SK (Zimbabwe)) v Secretary of State for the Home Department [2009] 1WLR 1527 that false imprisonment must follow inexorably even from periodic failures to comply with the Secretary of States self imposed monthly review process.) Given, moreover, that the tort of false imprisonment is actionable per se that it is of the essence of the tort of false imprisonment that the imprisonment is without lawful justification (Lord Hope in R v Governor of Brockhill Prison ex parte Evans [2001] 2 AC 19, 32) logic also suggests that the notion of nominal damages should have no part to play in determining the compensation payable. Why should someone imprisoned without lawful justification be paid nominal damages only? If the answer is that they would have been imprisoned anyway, under the same power and in just the same way, then in reality the Court is saying that the tort may be committed merely in a technical way. I have to say that such an approach would to my mind seriously devalue the whole concept of false imprisonment. It is true that in Murray v Ministry of Defence [1988] 1 WLR 692, whilst confirming that an action for false imprisonment lies even if the detainee does not know that he has been imprisoned, Lord Griffiths added (p703 A B): If a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more than nominal damages. In my opinion, however, there is a very real difference between a detainee who is in fact unaware of being under physical restraint (perhaps because he is asleep or because he simply does not know that the door has been locked) and a detainee who is fully aware of his loss of freedom. To award the latter nominal damages only, on the basis that, even had he been dealt with lawfully he would still have been deprived of his freedom anyway, is really to say that he was in truth rightly in detention. That seems to me very different from saying that he was wrongly imprisoned but happily unaware of it. I have difficulty, therefore, with Lord Dysons criticism (at paras 92 and 93) of the passage on damages in Clarke LJs judgment in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 668. To compensate (or rather to deny compensation) on the basis that the detainee has suffered no loss because he would have remained in detention whether the tort was committed or not is in my opinion the very negation of the tort: it is to hold that the detainee was at one and the same time both rightly and wrongly imprisoned. Search as one may in the judgments both of the Court of Appeal and of the House of Lords in Christie v Leachinsky (respectively [1946] KB 124 and [1947] AC 573), there is no hint of a suggestion that the false imprisonment which followed upon the unlawful arrest in that case might properly attract only a nominal award of damages. I do not say that those falsely imprisoned should be compensated identically irrespective of how deserving they were of liberty rather than restraint during the relevant period of detention; I do say, however, that rather than hold a detainee simultaneously both rightly detained and falsely imprisoned, the law should instead recognise that, notwithstanding a flaw in the decision making process such as to involve the breach of a public law duty, the decision maker has not in those circumstances committed the tort of false imprisonment. A court which speaks with two voices risks bringing the law into disrepute. Is this court then bound by established law to reach so unsatisfactory a conclusion as the majority of the court suggest: tortious liability but for nominal damages only? To my mind it is not. Assuming that a power to detain exists, that any preconditions to its exercise have been satisfied and any limitations upon its scope observed, I know of no case which holds the detainee to have been falsely imprisoned merely because, in the course of exercising the power, the decision maker committed some public law breach of duty. On the contrary, and to my mind hardly surprisingly, the courts have consistently shied away from such a conclusion as is amply and consistently demonstrated by the series of Court of Appeal judgments in this very line of cases. Such was the decision of the Court of Appeal (Laws, Keene and Longmore LJJ) in SK (Zimbabwe), the Court of Appeal (Lord Neuberger of Abbotsbury MR, Carnwath and Stanley Burnton LJJ) in the cases from which the present appeals are brought, and the Court of Appeal (Maurice Kay, Longmore and Black LJJ) more recently still in Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140. In Anam, indeed, Black LJ in giving the leading judgment characterised the appellants argument thus at para 17: At its most radical, the submission advanced by [counsel] is that a failure by the Secretary of State to apply his published policy in making a decision to detain necessarily renders that decision a nullity and the resulting detention unlawful. Have all these Lords Justices, many of them distinguished public law jurists, lost sight of the clear and basic principles of public law which, it is said, necessarily compel such a radical conclusion? So far from the authorities supporting such a surprising conclusion they can and should, I suggest, be analysed rather to the following effect. (1) False imprisonment is the inescapable result of detention absent any power to detain R v Governor of Brockhill Prison (No 2) Ex p Evans [2001] 2 AC 19 is itself a good illustration of this basic proposition: the appellant having been kept in prison beyond the date when her custodial sentence, properly calculated, expired, there could hardly have been a clearer case of false imprisonment. Such would also be the position were someone arrested for a non arrestable offence. Analysed in the way I analysed the power of detention under Schedule 2 to the Immigration Act 1971 (directly analogous to the Schedule 3 power under consideration in these appeals) in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207, these are cases not about the exercise of the power, but rather about its existence. (2) The tort of false imprisonment is committed too if someone is detained in breach of a condition precedent to the existence of the detention power. Christie v Leachinsky [1947] AC 573 illustrates the common laws imposition of such a condition precedent: a right of arrest only arises when the citizen is told why he is being arrested. Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 illustrates the imposition of such a precondition by statute (in that case the requirement for review as a precondition of continued detention beyond six hours). R v Secretary of State for the Home Department Ex p Khawaja [1984] AC 74 provides another such illustration, the House of Lords there deciding that the power to detain and remove an immigrant as an illegal entrant under Schedule 2 to the 1971 Act was dependent upon establishing such illegality as a precedent fact. (3) Detention beyond the scope of a detaining power similarly constitutes false imprisonment. For example, the limitations imposed by the courts following Woolf Js decision in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles) undoubtedly operate to constrain the power of detention under paragraph 2 of Schedule 3 and it has long been recognised that detention in breach of the Hardial Singh principles gives rise to tortious liability. (Categories 2 and 3, I recognise, may not always be easily distinguishable. It could, for example, be said that the first Hardial Singh principle constitutes a precondition for the exercise of the detention power. It has seemed to me nonetheless worth attempting the distinction.) I would accept too that in certain circumstances a power of detention may (4) be narrowed by a published policy as to how it will be exercised. The Court of Appeals decision in R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139 is, I think, an illustration of that in the present context. The Secretary of State had in that case adopted a published policy which in substance narrowed the grounds on which the detaining power (in that case under schedule 2 to the 1971 Act) would be exercisable (the stated policy there being to release anyone whose removal was not imminent). Certainly it is on that basis alone that I would regard Nadarajah as correctly decided. And it must, of course, be recognised that, as with any other statement of policy (a policy being, by definition, no more than an advance indication of how it is proposed to exercise the particular discretionary power in question) it is always open to the holder of the power to change that policy see, for example, in relation to the Immigration Rules themselves, MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1230. Every false imprisonment case on which the appellant relies can, in my opinion, be seen to fall within one or other of the above four categories. Besides those already mentioned, two cases in particular call for brief special mention. Kuchenmeister v Home Office [1958] 1 QB 496 concerned a German national who landed at Heathrow en route to Dublin. The immigration officers, instead of refusing him leave to land (as they had been instructed to do), detained him at the airport until it was too late for him to catch the Dublin flight. Holding him to have been wrongfully imprisoned, Barry J said this (p 512): His liberty was restricted to a greater degree than the immigration authorities were entitled to restrict it under [the particular power they sought to rely upon]. The fact that they might have restricted his mobility by employing the powers conferred upon them by other articles of the Order seems to me to be immaterial. It is no answer, when a man says I have been unlawfully arrested without a warrant, to say Well, had I (the person making the arrest) taken the trouble to go and ask for a warrant, I would undoubtedly have got it. That would be no answer to a claim for unlawful arrest. Similarly here, although the [immigration officers] could have detained the plaintiff by refusing him leave to land, that does not entitle them to detain him on the grounds on which they did. The case was to my mind correctly decided and can be seen to fall squarely under the first of the above four categories: the immigration officers simply had no power to restrict the plaintiffs movements in the way they did. Langley v Liverpool City Council [2006] 1 WLR 375 concerned a child in obvious need of protection. Two relevant powers existed, respectively under sections 44 and 46 of the Children Act 1989. Section 44 provides for the grant of an emergency protection order (EPO) authorising the council to remove a child into the care of foster carers; section 46 gives the police power to take a child into police protection. The police officer there having removed the child in purported exercise of his power under section 46, the Court of Appeal held that he had been wrong to do so and accordingly that the child had been falsely imprisoned. Dyson LJ in giving the leading judgment said that the statutory scheme clearly accords primacy to section 44 [which] is sanctioned by the court and . involves a more elaborate, sophisticated and complete process than removal under section 46 (para 38); that section 46 should be invoked only where it is not practicable to execute an EPO (para 40); and that in the result, albeit the officer had jurisdiction to remove [the child] pursuant to section 46, he could not lawfully invoke that power unless there were compelling reasons for exercising this power when, to his knowledge, an EPO was in force which authorised the council to remove [the child] into the care of foster carers (paras 44 and 46). Again, I have no difficulty in accepting the correctness of this decision: just as the Hardial Singh line of cases imposed restrictions upon the power of detention under the 1971 Act, so the court in Langley thought it right to place a limitation upon the scope of the section 46 power. The case falls neatly into category 3 (or perhaps into category 2, on the basis that the impracticality of executing a concurrent EPO was held to be a precondition to the lawful exercise of the section 46 power). In what circumstances, then, does the breach of a public law duty in the exercise of a power to detain result in the detainee being falsely imprisoned? I have already indicated, at paragraph 347(4) above, one such circumstance, namely when the Secretary of State by his published policy indicates that he will not exercise his power to its fullest extent but rather will confine its exercise within certain limits (for example, as in Nadarajah, by releasing anyone whose removal is not imminent). Such a published policy, unless and until it is changed, as a matter of public law requires the decision maker to decide cases (subject always to reasoned exceptions) in accordance with it. It is my clear present view (subject to any further argument on the point) that SK (Zimbabwe) provides a good illustration of circumstances where, the breach of a public law duty notwithstanding, the detainee should not be regarded as falsely imprisoned. The Secretary of State there breached what was his undoubted public law duty to review all detention cases monthly in accordance with his published policy on procedure. As it seems to me, however, it is one thing to breach a policy under which a detainee is entitled to be released; quite another to breach a policy under which he is entitled merely to be reviewed for release. Whereas the former will result in false imprisonment, the latter will not. Obviously, if the detainee on review would have been entitled to be released under the Hardial Singh principles (or, if more favourable, the published policy statements) then he has a claim for false imprisonment. But the claim in those circumstances arises from his continued detention beyond the date of such entitlement, not from the failure to review his case. What, however, is the position in a case like the present when the Secretary of States breach of public law duty consists of applying, in place of his published policy, an unpublished policy less favourable to those subject to the detaining power? On the appellants case, of course, that automatically results in the false imprisonment of every single detainee whose continued detention has been considered under the wrong policy, irrespective of whether or not they would have had the least prospect of release whatever policy had been applied. Applying the wrong policy, the argument runs, means that the Secretary of State failed to have regard to a material consideration, instead had regard to an immaterial consideration, and therefore reached his decision in an unlawful manner. This renders it a nullity with the result that there was no lawful authority for the ensuing detention. The closest this thesis comes to finding high level support in the authorities is in a much quoted dictum of Lord Diplock in Holgate Mohammed v Duke [1984] 1 AC 437. Following Mrs Holgate Mohammeds arrest on suspicion of theft and her detention for six hours at a police station for questioning, she was found at first instance to have been wrongfully arrested and was awarded 1,000. This was on the basis that the arresting officer, in deciding that there would be a better prospect of her confessing if she were arrested and detained rather than merely interviewed under caution, wrongfully exercised his power of arrest. Upholding the Court of Appeals decision to allow the Chief Constables appeal, the House of Lords held that the better prospect of the plaintiff confessing her guilt if arrested and questioned at a police station was in fact a relevant matter so that the arrest was not after all unlawful. In the course of the only reasoned speech, Lord Diplock (at p443) observed that, the condition precedent to the officers powers of arrest and detention having been fulfilled by his having reasonable cause to suspect the plaintiff to be guilty of an arrestable offence, this left him with an executive discretion whether to arrest her or not. It is the next passage in the speech that is so strongly relied upon by the appellants: Since this is an executive discretion expressly conferred by statute upon a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except upon those principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, that have become too familiar to call for repetitious citation. The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought. Lord Diplock then noted that amongst the Wednesbury principles was that whoever exercises the discretion must (in Lord Greenes words) exclude from his consideration matters which are irrelevant to what he has to consider. It is, to my mind, critical to a proper understanding of Lord Diplocks speech to recognise that the relevant matter in question there, the matter which the judge at first instance held the officer to have wrongly taken into consideration, was a consideration clearly decisive of the way he had exercised his discretion. The whole reason for the officer exercising his power to arrest and detain the plaintiff was so that she would then be more likely to confess. If that had been an unlawful consideration, nothing could be clearer than that without it the officer would not have exercised the power at all. In short, on the facts of the case, the power would have been exercised for an improper reason and the resultant detention necessarily unlawful. Certainly it would in my opinion be quite wrong to regard the case as authority for any wider proposition, least of all a thesis so absolute and unsatisfactory as that contended for here. There had been no argument on the point: the Chief Constable was not even called upon. Small wonder that in the quarter century following, despite the hugely increased scope of public law challenges, not a single case appears to have held an arrested detainee falsely imprisoned on Wednesbury grounds save where the arresting officer acted either in bad faith or for an improper purpose. Perhaps the way to put the point is this. Classically most public law challenges go to the decision making process rather than to the substance of the decision taken. The substantive decision is for the public body and not for the court to take and generally a successful challenge requires that the impugned decision be taken afresh. Obviously, if the substantive decision reached is outside the powers conferred upon the public body purporting to make it (ultra vires in the traditional, literal sense), then it must be nullified. So too if it is irrational in the public law (Wednesbury) sense i.e. outside the range of permissible decisions which the public body is empowered to make. But if, as here, the challenge is to the process whereby decisions to continue a detainees detention were taken or, indeed, as in SK (Zimbabwe), if what is challenged is a failure to take decisions (as often as promised by the policy) as to whether a detainees detention should continue then the appropriate remedy is to require the decision maker to act lawfully: to re decide decisions that resulted from a flawed decision making process or, as in SK (Zimbabwe), to take decisions that earlier the decision maker had omitted to take. It simply does not follow from a flawed decision making process that the detainees continued detention immediately thereupon becomes unlawful so as to make him a victim of false imprisonment until a fresh decision comes later to be lawfully taken so that, for example, a detainee whose detention is reviewed every second month instead of monthly as the published policy dictates, alternates yo yo like between lawful detention and false imprisonment. Nor does it seem to me that the absolutist approach to the consequences of public law error espoused here by the majority of the Court has received universal endorsement over recent years. The decision of the House of Lords in Boddington v British Transport Police [1999] 2 AC 143 is often cited as a modern example of the Anisminic principle being applied in the ordinary course of proceedings (there in the context of a criminal trial). But there are important dicta in the judgments which expressly leave open the question whether legal consequences may nonetheless follow from unlawful action. Consider this passage from the speech of Lord Slynn of Hadley, an acknowledged master in the field of public law: In our jurisdiction the effect of invalidity may not be relied on if limitation periods have expired or if the court in its discretion refuses relief, albeit considering that the Act is invalid. These situations are of course different from those where a court has pronounced subordinate legislation or an administrative act to be unlawful or where the presumption in favour of their legality has been overruled by a court of competent jurisdiction. But even in these cases I consider that the question whether the acts or byelaws are to be treated as having at no time had any effect in law is not one which has been fully explored and is not one on which it is necessary to rule in this appeal and I prefer to express no view upon it. The cases referred to in Wade & Forsyth, Administrative Law, 7th ed. (1997), pp.323 324, 342 344 lead the authors to the view that nullity is relative rather than an absolute concept (p.343) and that void is meaningless in any absolute sense. Its meaning is relative. This may all be rather imprecise but the law in this area has developed in a pragmatic way on a case by case basis. (p.165 C F) (Wade & Forsyth, now in its tenth edition (2010), continues to recognise the relativity of the concept of nullity in this context.) All I am saying is that if the law is to continue to develop in this area in a pragmatic way on a case by case basis, then in this particular case it should expressly recognise that not every decision to detain affected by a public law breach necessarily carries in its wake an unanswerable claim for false imprisonment. That said, I readily acknowledge that the power of executive detention is one to be exercised with the greatest care and sensitivity and that it is of the first importance that those who exercise it should be ever mindful not merely of the legal limits of the power but also of such public law duties as surround its proper exercise. Where, as here, a wrong and less favourable policy has been applied in deciding whether a person should be, or continue to be, detained, I accept that it must be for the Secretary of State as decision maker to establish that this breach of his or her public law duty did not in fact prejudice the detainee. In short, it is for the Secretary of State in these circumstances, in order to avoid liability for the tort of false imprisonment, to establish that the detainee would have been detained in any event even, that is, had the lawful published policy been followed. Assuming, however, that the inevitability of detention in any event can be established, it seems to me nothing short of absurd to hold the tort of false imprisonment nevertheless made out. After all, had a detainee in such circumstances sought to challenge his continued detention by judicial review (or habeas corpus), the court would have been likely to grant declaratory relief only, declining in its discretion to order the detainees release. Assuming, indeed, that the Secretary of States lawful policy in effect dictates the detainees detention, why, one wonders, would a decision to release him not itself be in breach of the Secretary of States public law duty? Given, as the Court of Appeal held, and as I understand each member of this court to accept, that there was no realistic prospect whatever of these appellants having been released even had the Secretary of State applied his more favourable published policy, it follows that for my part, whilst, of course, deeply regretting the public law breaches of which the Secretary of State was here guilty, I would dismiss the appeals. The bulk of this judgment was written upon my understanding that the essential choice facing the court was between (a) no false imprisonment and (b) false imprisonment but nominal damages only. It now appears that some members of the court favour a third outcome: (c) false imprisonment with damages of perhaps 500 1,000 by way of a vindicatory or conventional award. Describe such an award how one will, to my mind it cannot sensibly be justified here. Is the court really to award substantial damages to those conceded to have been rightly detained? I have made clear my difficulties with a nominal award of damages. A substantial award would appear to me more objectionable still. Lord Hope (at para 177 of his judgment) refers to Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 a constitutional challenge based upon some quite appalling misbehaviour by a police officer (Lord Nicholls at para 2) and calls here for some recognition of the gravity of the breach of the fundamental right which resulted in false imprisonment. Properly critical though our judgments may be of the conduct of Home Office officials in these and similar cases, I find it quite impossible to recognise in them any breach (grave or otherwise) of the detainees fundamental rights. The detainees, I can only repeat, were rightly detained and it would have been wrong to release them. Save insofar as this judgment indicates the area of my disagreement with Lord Dysons judgment, I wish to say that I am in respectful agreement with it and feel unable to add anything of value on the various other issues arising for decision. |
These appeals raise a number of points, some technical, others fundamental, relating to the requirements of and consequences of non compliance with the short and inflexible time limits introduced by the Extradition Act 2003. Parts 1 and 2 of that Act deal with extradition to respectively category 1 territories in practice other member states of the European Union party to the Council Framework Decision of 13 June 2002 (2002/584/JHA) introducing the European Arrest Warrant, to which Part 1 gives effect and category 2 territories in relation to which a different and more traditional scheme applies. Each of the schemes contained in Part 1 and 2 leads to the person whose extradition is requested being brought before a judge. The judge then decides, by considering a series of questions laid down in the Act, whether or not, in the case of Part 1, to order extradition or, in the case of Part 2, to send the case to the Secretary of State for his decision whether to extradite. Depending upon the judges decision, there are rights of appeal to the High Court on law and fact. These are given under Part 1 to the individual (section 26) or to the authority issuing the warrant (section 28) and under Part 2 to the individual (section 103) or the authority acting on behalf of the category 2 territory seeking extradition (section 105). Rights of appeal also exist under Part 2, if the Secretary of State orders extradition (sections 108(1) and 110(1)). These rights of appeal must all be exercised within short time limits, described as the permitted periods. Thus, section 26(4) provides in the case of an order for extradition to a Part 1 territory that: Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made. Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven day permitted period starting with the day on which the order for the persons discharge is made. Sections 103, 105, 108 and 110 provide for appeals from a judges order sending a case to the Secretary of State for his decision whether a person is to be extradited and from any order subsequently made by the Secretary of State for extradition. In each case the permitted period within which notice of an appeal must be given in accordance with rules of court is 14 days starting with the day on which the Secretary of State informs the person affected or the person acting on behalf of the category 2 territory (as the case may be) of the order. In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276, the House of Lords held by a majority (Lord Rodger dissenting) that the requirement in sections 26(4) and 103(9) that notice of an appeal be given within the relevant permitted period meant that it had both to be filed in the High Court and served on all respondents to the appeal within such period. A similar requirement must necessarily exist under sections 28, 105, 108 and 110. The Supreme Court was asked on the present appeal to revisit and reverse that decision. The House in Mucelli distinguished between the requirement to give notice of an appeal within the permitted period and the requirement that such notice should be given in accordance with the rules. Failure to comply with the mandatory requirement (interpreted in Mucelli as involving both filing and service) is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can, on the other hand, be cured by the court in the exercise of its discretion under (in England) CPR 3.9 and 3.10. The result is similar to that achieved in Pollard v The Queen [1995] 1 WLR 1591, where the Privy Council held that a notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice. The House in Mucelli further held that the rules of court were incapable of cutting down the statutory permitted period; thus, CPR 3.6 providing (at the relevant time) that any document served after 16.00 should be deemed to be served on the next day was incapable of rendering out of time a notice of appeal served by Mr Moulai after 16.00 on the seventh and last day of the permitted period. Subsequent case law in the High Court shows the distinction between requirements of the statute and of the rules to have proved contentious. One line of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a wrong date of arrest (the effect of such endorsement being that, on the face of the notice, the 40 day period allowed for the court to begin to hear the substance of the appeal would have expired a month early). In a series of further cases, the court accepted that service of an unsealed notice of appeal was, at most, a procedural error: Pawel Sciezka v Court in Sad Okregowy, Poland [2009] EWHC 2259 (Admin), Dunne v High Court Dublin [2009] EWHC 2003 (Admin), Arunthavaraga v Administrative Court Office [2009] EWHC 18921 (Admin) and R (Kane) v Trial Court No 5 Marbella, Spain [2011] EWHC 824 (Admin); [2012] 1 WLR 375. In Kaminski v Judicial Authority of Poland [2010] EWHC 2772 (Admin) the court refused to strike out appeals where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the court also thought that the rules made no provision for grounds). Other courts have taken a more stringent line. In Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin); [2012] 1 WLR 363, service of an unsealed copy notice of appeal was held insufficient to satisfy the statutory requirement under section 28 a decision which meant that it was the Polish authority that was out of time to appeal. In R (Bergman) v District Court in Kladno, Czech Republich [2011] EWHC 267 (Admin), a notice of appeal was prepared by an unrepresented defendant who had been remanded in custody, and was then faxed in draft to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or indeed received back by the defendant, until much later. Following Walerianczyk, it was held that there could be no appeal, although Irwin J, at para 10, recorded his "concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff". In Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), a clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellants notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal. There was held to be no valid appeal. Sullivan LJ observed (para 18) that: this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear. In the cases of Lukaszewski, Pomiechowski and Rozanski [2011] EWHC 2060 (Admin); [2012] 1 WLR 391, now before the Supreme Court, each of the appellants is a Polish citizen who is the subject of a European Arrest Warrant issued by the Polish court on the basis that he is wanted in order to serve an existing sentence, and, in the case of Mr Lukaszewski, that he is also wanted to stand trial on ten charges of fraud. The appellants were arrested and brought before the City of Westminster Magistrates Court, where their extradition was ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Mr Lukaszewski and Mr Rozanski had each only been arrested on the day before such order. Mr Pomiechowski was also brought before the court on the day after his arrest, but his case was twice adjourned and he was remanded in custody until 2nd March 2011. He was then refused a further adjournment, and his extradition was ordered. Westminster Magistrates Court is the dedicated court for extradition proceedings, with three of its ten court rooms apparently being devoted to that purpose. It is a busy court. Article 11(2) of the Framework Decision stipulates that a person arrested for the purpose of the execution of a European Arrest Warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. At the City of Westminster Magistrates Court, such legal assistance is provided by duty solicitors before though not, it appears, after an extradition order is made by a magistrate. On Mr Lukaszewskis (untested) account, he was able to speak to the duty solicitor only briefly for two or three minutes through the glass of the dock immediately before the hearing with the security guard by him, and was not aware that the matter would proceed straight to a decision. Mr Pomiechowski was, in contrast, provided after his first appearance with a solicitor, and wished to oppose extradition on the grounds of delay, but on his account the solicitor had not produced a skeleton on this point by the 2nd March 2011, when a further adjournment was refused. In the event, none of these three appellants argued any substantive points before the magistrate in opposition to extradition. It is not difficult to see how, under such circumstances, the statutory right of appeal might prove relevant. Having regard to the dates on which their extradition was ordered, the permitted periods for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski to give notices of an appeal expired at midnight on respectively 3rd February, 8th March and 10th March 2011. Each appellant was remanded in custody (Mr Rozanski because he was unable to meet a condition of bail that he lodge security of 1,500), and taken to HMP Wandsworth. All three had been made aware, by the magistrate and/or the relevant duty solicitor or legal representative, at least in general terms of the permitted period of 7 days for appealing. Each had at this point no legal assistance, but each was assisted by a prison officer working in the prisons Legal Services Department to complete a Form N161 notice of appeal. Officers working in the prison legal services department have no legal background, but have completed a three day training course, which does not include extradition training. They seek to help unrepresented prisoners and to facilitate their appeals against extradition. For completeness, I record that Mr Lukaszewski sought to raise issues relating to his mental health, put later as involving a risk of suicide and as entitling him to protection from extradition under sections 25 and 21 of the 2003 Act. Mr Pomiechowskis grounds are not before the court, but appear to have invoked the delay elapsed since he left Poland in 2000. Mr Rozanski invoked compassionate grounds and inhuman conditions that he said that he would face in a Polish prison. However, no point arises or has been raised at this stage on the contents or merits of these appellants notices of appeal. The points before the Supreme Court are points of principle, which affect the admissibility of appeals, however good or bad. The legal services department faxed the notices of appeals to the Administrative Court for filing and stamping. The Administrative Court faxed a copy of the sealed front page back to the legal services department. The legal services department then faxed to the Crown Prosecution Service (as the legal representatives of the judicial authority of the state requesting surrender) a copy of the sealed front page together with a cover sheet. In the case of each of these three appellants all this occurred within the seven day permitted period. In the case of Mr Lukaszewski, the cover sheet faxed on 2nd February 2011 bore the words Sealed copy and his name with the explanation extradition appeal, and in the case of Mr Pomiechowski the cover sheet faxed on 8th March 2011 identified the copy as sealed and said see attached front page of Extradition paperwork for Mr Pomiechowski. Objection was not at once taken to the service only of a sealed front page. But, once taken, it was accepted by the High Court. It was also only after the course of events recounted in the previous paragraphs that the solicitors now acting for Mr Lukaszewski, Mr Pomiechowski and Mr Rozanski first became involved. In the cases of Lukaszewski and Pomiechowski, [2012] 1 WLR 391, para 20, Laws LJ and Kenneth Parker J held on 15th June 2011 that, in order [to] be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminksi v Judicial Authority of Poland [2010] EWHC 2772, set out at least the gist of the basis on which the appeal is sought to be presented. Laws LJ reasoned that: So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests. The case of Rozanski came on later, on 17th November 2011, before Moore Bick LJ who followed the decision in Lukaszewski and Pomiechowski. The fourth appellant before the court is Mr Halligen, a British citizen whose extradition is sought to the United States of America under Part 2 of the 2003 Act to face allegations of wire fraud and money laundering. He was arrested and brought before the City of Westminster Magistrates Court which on 4th November 2010 ordered that the case be sent to the Secretary of State for her to decide whether Mr Halligen should be extradited, and remanded Mr Halligen in custody. Mr Halligens extradition was ordered by the Secretary of State under section 93 on 22nd December 2010. The order and a letter setting out the Secretary of States reasons were sent not only by post, but also by fax (timed at either 15.48 or 16.48) to Mr Halligens solicitors on the same day. The Secretary of States letter addressed an objection which Mr Halligen had raised with reference to alleged national security grounds (see section 208 of the 2003 Act). It also informed Mr Halligen of his right under section 108 to give notice of appeal within 14 days to the High Court, pointing out explicitly that the giving of such notice requires both filing and service of the appellants notice within such 14 days and that under the rules any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. Mr Halligen had solicitors. Evidently, they were quick to prepare grounds of appeal, since those attached to the notice of appeal are dated 23rd December 2010. The notice of appeal (by which he sought to pursue his alleged national security points by reference to the Secretary of States failure to exercise her powers under section 208 of the 2003 Act) was filed and stamped on prescribed form N161 on 29th December 2010. This was well within the fourteen day permitted period. If one takes 22nd December 2010 as the date on which the Secretary of State informed Mr Halligen of his decision, that period expired at midnight on 4th January 2011. Also on 29th December 2010, Mr Halligen himself wrote from prison by fax to the Home Office, asking them to accept this letter as notice & service of my intent to appeal that decision, and adding that My solicitors have been duly instructed and this letter is only necessitated by the imposed due date of 4th January 2011 and my inability to make contact with them given the restrictions imposed by HMP Wandsworth. His apparent concern was justified, since his solicitors let him down. It was only on 5th January 2011 that they sent the notice of appeal to the Crown Prosecution Service by fax and to the Home Office by post, reaching the latter on 6th January 2011. On 25th February 2011 the Treasury Solicitor wrote stating that there would be an application to have the appeal dismissed accordingly. In the ensuing High Court proceedings and before the Supreme Court, Mr Halligen has been represented by different solicitors to those to whom reference has been made in this paragraph. The High Court on 19th April 2011 accepted it had no jurisdiction to hear Mr Halligens appeal. Applying Mucelli Stadlen J, giving a judgment with which Laws LJ agreed, rejected a submission that the court had power to dispense with service. The High Court rejected a submission that Mr Halligens letter dated 29th December 2010 constituted or purported to constitute a notice of appeal to the Secretary of State. It rejected a submission that, assuming that the fax of 22nd December 2010 was sent at 16.48 (rather than 15.48), the Secretary of State should be treated as having informed Mr Halligen of her decision only on 23rd December 2010, with the result that the fax sent to the Crown Prosecution Service on 5th January 2011 would have been in time. This submission was advanced on the basis that it was only open to the Secretary of State to inform someone of an extradition decision within normal working hours, which could in turn be regarded as ending at 16.30, by analogy with CPR 6.26, governing documents to be served in accordance with the CPR or any Practice Direction. Finally, it rejected more general submissions that the court should under section 3 of the Human Rights Act 1998 read the mandatory requirements of section 108(4) of the 2003 Act as subject to an implied qualification and/or to the power of relief contained in CPR 3.10, in order to cater for the large number of public holidays that occurred during the relevant 14 day period and/or to avoid the loss of the right of appeal which would otherwise follow from Mr Halligens solicitors failings. Nevertheless Stadlen J commented (para 31): It would seem to offend basic principles of fairness that a person served with a notice of extradition should be deprived of a statutory right of appeal through no fault of his own. The first question is whether the Supreme Court should apply or decline to follow the Houses decision in Mucelli. Lord Rodgers dissenting approach in that case was that all that the statute required was filing, and not service, within the statutory period. I understand the attraction of preferring this dissenting approach, in so far as to do so would enable all the current hard cases to be resolved quite easily in the appellants favour. That would not itself be a good reason for adopting such an approach. It would also not resolve other hard cases, for example those which could well arise if a negligent solicitor failed to file notice of appeal with the court within the permitted period, or if a prison riot or a defendants collapse and illness following receipt of information about an extradition decision prevented him giving any instructions to lodge notice of appeal (see in this connection para 70 of Lord Neubergers speech in Mucelli). Further, it would not address the very real considerations which led the majority in Mucelli to their decision. The structure of the relevant sections, with the distinctions drawn between appealing, or bringing an appeal, to the High Court and giving notice of an appeal within the relevant permitted periods, is itself difficult to reconcile with any conclusion that some form of notice to the respondents is not required (a point to which Lord Neuberger referred at para 65). I would not therefore depart from Mucelli in so far as it requires not merely filing of an appeal, but also some form of notice of an appeal being given to the respondents, both within the permitted period. The question remains what form of notice of an appeal is required. In Mucelli the argument and majority judgments proceeded on the basis that what was required was service of the notice of appeal. It was however recognised, and was one plank of Lord Rodgers dissent, that in Scotland the requirement is that a note of appeal should be served (necessarily in draft) before lodging with the court (Mucelli, para 19). Mucelli concerned the question whether the statute (as opposed to the rules) required notice of an appeal to be given to all respondents within the permitted period. The House spoke of a statutory requirement of service. But the question what sort of notice was required by the statute (as opposed to the rules) was not the focus of decision. The statute requires notice of an appeal to be given in accordance with rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question what constitutes giving notice of an appeal to the respondents which, if not in accordance with the rules, nonetheless satisfies the statutory requirement and is capable of being cured. In my view, a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal. This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the courts permission to cure the position under the rules. However, it follows from the foregoing that I cannot agree with Laws LJs reasoning in the cases of Lukaszewski and Pomiechowski. To have any prospect of success an appeal must at some point be supported by grounds. Rules may provide that such grounds must be stated or summarised in the appeal notice, and do in fact do so: CPR 52.4, read with note 52.4.4, prescribed form N161 section 6 and Practice Direction Appeal, para 3.2 at 52PD.5. Non constat however that a purported notice of appeal is a nullity unless accompanied from the outset by grounds. If, contrary to rules of court, it is not, that is an irregularity, but one which can in an appropriate case be cured under CPR 3.9 and 3.10. This is the position in principle. As a matter of practice also, there is no attraction in a conclusion whereby a notice without any grounds would be a nullity incapable of grounding any appeal, whereas a notice with palpably inadequate grounds would be merely irregular and capable of cure by amendment. The front page of the notices of appeal returned by the court and served by fax in the cases of Lukaszewski, Pomiechowski and Rozanski showed the relevant High Court references and stamps with the dates of filing as well as the names and addresses of the appellants and the respondent Polish court. The subsequent pages which were not returned or served identified matters such as the decision appealed (though in current extradition practice this would be a decision of the Westminster Magistrates Court), its date, the grounds and a statement of belief. The irregularity involved in their absence was capable of cure, and on the present facts certainly merited this. The Crown Prosecution Service can have had no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison Legal Services Department should lead to these appellants losing any right of appeal. I would therefore allow the appeals in all three Polish cases, and remit the appeals against the relevant extradition decisions to the High Court to be heard there. The position in Halligen is more problematic. Again his notice of appeal was filed with the court in time, but notice was required to both the Secretary of State and the Crown Prosecution Service. Taking the Secretary of State first, Mr Halligen has to rely on his letter dated 29th December 2010, which he asked the Home Office Extraditions Section to accept as notice & service of my intent to appeal. In terms of the rules, this was a highly irregular notice of any appeal, and, although it was dated the same date as his solicitors in fact filed notice of appeal with the court on his behalf, it was framed as notice of my intent to appeal, rather than as notice of an actual appeal. Nonetheless, the statute is capable of embracing the Scottish practice, whereby a draft note of an appeal is served before being lodged with the court. It follows that notice of an intent to appeal must be within the statutory language. I would regard Mr Halligens letter as notice to the Secretary of State of an appeal within the statute, albeit that the letter was highly irregular in terms of the rules. Provided it counts as a notice within the statute, the court is able to cure the irregularity if it thinks fit. The circumstances again militate strongly in favour of doing this. However, Mr Halligen faces the further difficulty that he has to show that notice of an appeal was given to the Crown Prosecution Service. The first submission made on his behalf in this connection is that the Secretary of State informed him on 23rd rather than 22nd December 2010. Like the High Court, and for the same reasons, I am unable to accept this submission. Making the assumption in Mr Halligens favour, in the absence of any evidence either way, that the relevant fax was timed at 16.48 rather than 15.48 on 22nd December 2010, there is no basis for applying, directly or by analogy, CPR 6.26 which only governs documents to be served in accordance with the CPR or any Practice Direction. I add that, even if it were relevant (which it is not in my view) to consider whether the notice was transmitted at an hour when it would be expected to come to the attention of someone responsible in the receiving solicitors firm, there would be no basis for treating 16.48 as not being such an hour. Indeed, as far as anyone knows, the fax was immediately read and addressed, and some support for this may be found in the dating of the grounds in the notice of appeal on the next day (23rd December 2010). It was also faintly submitted that the fourteen day period should be extended by reference to the large number of public holidays occurring during it. But, contrary to the situation considered by Lord Neuberger in Mucelli at paras 83 84, the last day of the fourteen day period was not a public holiday. Lord Neubergers approach allows for the human propensity to think about things at the last moment, but I do not think that it should be extended to situations where the last moment is a business day on which the intended appellant could have filed and served a notice of appeal. It follows that no notice of an appeal was given to the Crown Prosecution Service within the permitted period, and Mr Halligens appeal is on its face impermissible as against both respondents. It is therefore necessary to consider whether the apparently inflexible time limits for appeals in the 2003 Act are subject to any qualification or exception. The appellants in the cases of Lukaszewski, Pomiechowski and Rozanski have in particular sought to rely on article 5(4) of the Human Rights Convention, read with section 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read the relevant sections in a way which is compatible with the Convention. Article 5(4) reads that Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The appellants submit that, in so far as the 2003 Act provides rights of appeal, such rights cannot consistently with article 5(4) be made subject to limitations which restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired and that any such restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, para 59. Tolstoy was a case concerning appeals in a context to which Article 6(1) applied, but the appellants in invoking article 5(4) rely by analogy upon the case law under article 6(1). The difficulty which these appellants face in relying upon article 5(4) is that their grievance relates to the extradition decision, rather than the fact, incidental to that decision, that they were remanded in custody pending extradition. In MT (Algeria) v Secretary of State for Home Department [2009] UKHL 10; [2010] 2 AC 110, the House was concerned with challenges to deportation decisions upheld in partly closed proceedings before the Special Immigration Appeals Tribunal (SIAC). The appellants were by reason of such decisions detained with a view to deportation, and submitted on that basis that the proceedings before SIAC were subject to article 5(4). The House did not accept the submission. Lord Phillips noted that the European Court of Human Rights had held in Chahal v United Kingdom (1996) 23 EHRR 413 that the lawfulness of the detention of a person with a view to deportation did not depend upon whether the underlying decision to deport could be justified, and that the appellants had not made an independent challenge of [sic] his detention as opposed to the decision to deport him (paras 89 90). Lord Hoffmann noted, at para 173, that the European court in Chahal had decided that an alien who was detained pending deportation was entitled by virtue of article 5(4) to a substantial measure of procedural justice in proceedings to determine the lawfulness of his detention (paragraph 131) but not to a judicial tribunal to review whether the underlying decision to expel could be justified under national or Convention law (paragraph 128). Lord Hope and Lord Brown and I all expressed our agreement with these parts of Lord Phillips and Lord Hoffmanns speeches (paras 226, 252 and 262). In Chahal, para 128, the European Court in fact said this: 128. The Court refers again to the requirements of Article 5 para. 1 (article 5 1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (article 5 4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law. The present appellants suggest that the conclusion and reasoning in MT (Algeria) requires reconsideration in the light of other authority in which article 5(4) has been relied upon as indicating that a court must have jurisdiction to consider whether an extradition decision involves an abuse of process. In R (Kashamu) v Governor of Brixton Prison [2002] QB 887, the Divisional Court (Rose LJ and Pitchford J) was faced with a series of pre Human Rights Act decisions at the highest level: Atkinson v United States of America [1971] AC 197, R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64 and In re Schmidt [1995] 1 AC 339. These cases had held that, despite the development in other fields of a general power on the part of a court to intervene on the grounds of abuse of process, any challenge on such grounds to the lawfulness of a decision ordering a persons extradition and detention with a view to extradition was a matter for the Secretary of State rather than the courts: the courts could become involved at most only on a subsequent application for judicial review of the Secretary of States decision. In Kashamu the Divisional Court relied upon section 6(1) of the Human Rights Act 1998 and upon article 5(4) to hold that such decisions could no longer be applied, and that it was, under schedule 1 to the Extradition Act 1989, incumbent on the district judge to consider whether there had been abuse of process rendering the detention unlawful under article 5(4), rather than to leave this issue for a minister to consider. The abuse of process alleged is only briefly outlined in relation to one of the three persons concerned in Kashamu. In relation to him it consisted of a prior arrest, conceded to have been irregular due to non disclosure (para 11). It seems clear that the abuse asserted would have affected not only any detention pending extradition but also, more fundamentally, any possibility of extradition. Under para 6(1) of Schedule 1 to the Extradition Act 1989, the district judge in Kashamu had had the same powers, as near as may be, . as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales. On a summary trial, those powers would have included considering and applying article 5(4) in relation to any issue whether detention was justified. In these circumstances, I am not surprised that the Divisional Court held that the district judge had the power to investigate the possibility of abuse, which earlier authority had confined to the High Court by way of judicial review. The decision in Kashamu was followed and approved by the Privy Council in Fuller v Attorney General of Belize [2011] UKPC 23. There was in Fuller no equivalent provision to para 6(1) to Schedule 1 to the Extradition Act 1989, and the Board simply treated article 5(4) and its Belizean analogue, section 5(2)(d) of the Constitution, as applicable to detention for the purpose of extradition. As the Board made clear the abuse alleged went, in that case also, to the extradition as much as to any prior detention: paras 5 and 53 54. Indeed, Mr Fuller had been released on bail, although it is established for the purposes of a challenge to extradition under domestic law that an applicant for habeas corpus is to be treated as effectively in custody, even if released on bail: R v Secretary of State for the Home Department, Ex p Launder (No 2) [1998] QB 994, 1000G 1001G and 1011G H. Where detention and the extradition proceedings as a whole stand and fall together, according to whether or not they involve an abuse of process, then Fuller suggests that article 5(4) may be an effective means by which a root and branch challenge to extradition may be pursued. The decision in MT (Algeria) was not however cited in Fuller, and both Kashamu and Fuller were concerned with a question whether the previous restriction on an extradition courts ordinary power to restrain proceedings conducted in abuse of process should continue to be recognised. It is unsurprising that the courts should conclude that this limitation was no longer appropriate. There is no suggestion of any abuse of process at the root of the present extradition proceedings. The present appeals concern the single question whether proceedings to challenge an extradition decision are subject to the procedural guarantee contained in article 5(4). Proceedings to challenge an extradition decision are capable of raising a whole range of issues which have nothing to do with abuse of process or, indeed, with the question whether the person concerned is actually detained in the sense clearly envisaged in article 5(4). For example, they may raise questions whether the alleged offence is an extradition offence (section 10), whether extradition is barred by the rule against double jeopardy, extraneous considerations, the passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom or earlier transfer to the International Criminal Court (sections 11 to 19A) and whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21). The reasoning in Kashamu and Fuller does not suggest, or justify a conclusion, that all such questions engage the procedural guarantee contained in article 5(4). This is so whether the person concerned is in custody or whether, even if he is not, he is to be treated as if he were for the domestic law purposes of a challenge to the proceedings by writ of habeas corpus. I do not therefore consider that either Kashamu or Fuller affects the careful distinction drawn by the European Court of Human Rights in Chahal between challenges to detention and to the underlying decision to remove an alien from the jurisdiction. The same careful distinction was followed in MT (Algeria), which in my view governs the present situation of a challenge made essentially to an extradition decision. I would therefore hold that article 5(4) did not apply and that the present appellants were not entitled to a judicial decision under article 5(4). Article 5(4) is not however the only potential string in the appellants bow. Mr Halligen also invokes article 6(1). The respondent, the Secretary of State, in reply submits that it is clear that article 6(1) has no application to decisions to expel or extradite. She cites a number of decisions of the European Court. H. v Spain (Application no. 10227/82) concerned an American citizen whose extradition from Spain was sought by the United States and who complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional. The Commission held the complaint inadmissible on the ground that extradition proceedings do not involve the determination of a criminal charge within article 6(1), because in this context the word determination involves the full process of the examination of an individuals guilt or innocence of an offence. E.G.M. v Luxembourg (Application No 24015/94) concerned a Colombian national whose extradition from Luxembourg was sought by the United States. He complained that the extradition proceedings in Luxembourg violated the principle ne bis in idem and his rights of defence. The Commission held that the former principle was not guaranteed by the Convention, in the context of different criminal proceedings in different states, and that the rights and freedoms recognised in the Convention do not include any right not to be extradited. It referred in the latter connection to a prior statement to this general effect in G.K. and B.J.F. v The Netherlands (Application No 12543/86), based in turn on a similar general statement in X v Belgium (Application No 7256/75). Another case in which a similar statement appears is Salgado v Spain (Application No 65964/01). These were all again cases concerning aliens, in the first and third complaining that he would be ill treated in the requesting country and in the second that his extradition violated the terms of an extradition treaty. Lastly, the Commission in E.G.M. v Luxembourg referred to its established case law whereby the words determination . of a criminal charge . relate to the full process of the examination of an individuals guilt or innocence, and not merely to the process of determining whether or not a person may be extradited to another country, citing H v Spain and Kirkwood v United Kingdom (Application No 10479/83), (1984) 37 DR 158. In Kirkwood the applicant, a United States national, claimed that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross examine the witnesses against him in the United Kingdom. The Commission held that, although the tasks of the Magistrates' Court included the assessment of whether or not there was, on the basis of the evidence, the outline of a case to answer against the applicant and [t]his necessarily involved a certain, limited, examination of the issues which would be decisive in the applicant's ultim[at]e trial, nevertheless, these proceedings did not in themselves form part of the determination of the applicant's guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concluded that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of Article 6 of the Convention (para 9). The House of Lords cited and applied para 9 of the Commissions ruling in Kirkwood, when rejecting similar claims to rely on article 6(3)(d) by the appellants in R (Al Fawwaz) v Governor of Brixton Prison [2001] UKHL 69 [2002] 1 AC 556. In Maaouia v France (2001) 33 EHRR 42, a Tunisian citizen sought to resist his exclusion from France on the ground that the length of the proceedings had been unreasonable and excessive. He failed emphatically, for reasons which emphasised his position as an alien. The Court said: 37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention. 38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject matter of the present case, do not concern the determination of a "civil right" for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention. 39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not characterised as criminal within the Member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6(1). The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either. 40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. In Mammatkulov and Askarov v Turkey (2005) 41 EHRR 494, in the context of complaints about the fairness of Turkish extradition proceedings, the European Court reiterated, at para 82, that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention. This examination of Strasbourg case law shows that the Commission and Court have stood firm against any suggestion that extradition as such involves the determination of a criminal charge or entitles the person affected to the procedural guarantees provided in the determination of such a charge under article 6(1) or 6(3). The cases involved are all also cases involving the extradition of aliens. The last two decisions emphasise that proceedings for the extradition of aliens do not involve the determination of any civil rights within the meaning of article 6(1). By the same token they underline a potential difference in this respect between aliens and citizens. Both in international law and at common law British citizens enjoy a common law right to come and remain within the jurisdiction, and Mr Halligen is such a citizen. Blackstone (Commentaries on the Laws of England 15th ed (1809) vol 1, p 137) stated: But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal. This passage was cited and approved by Lord Hoffmann in R (Bancault) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 44. In R v Bhagwan [1972] AC 60, 77G Lord Diplock spoke of the common law rights of British subjects . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. In Case 41/74 Van Duyn v Home Office [1975] Ch 358, para 22, the European Court of Justice recognised that: it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence. The principle is the necessary corollary of a states right (subject to obligations undertaken by e.g. the Geneva Refugee Convention and the European Convention on Human Rights) to refuse aliens permission to enter or stay in its territory. Were it otherwise, the Flying Dutchman would be no fleeting phantom. In these circumstances, Mr Halligen enjoyed a common (or civil) law right to enter and remain in the United Kingdom as and when he pleased. The next question is whether proceedings under the Extradition Act 2003, in that they may affect his freedom to remain in the United Kingdom at least for the duration of American criminal proceedings, involve the determination of that civil right. The 2003 Act has the authority of Parliament, and to that extent Mr Halligens right to remain in the United Kingdom is potentially qualified. But under the Act it is only through domestic extradition proceedings that this right can be affected and suspended for the purpose and period of any American proceedings and of any sentence which might thereafter be passed on him, if found guilty. In so far as it may be suspended, the extradition proceedings determine whether Mr Halligen may continue to enjoy his common law right for whatever proves to be the relevant period. A claim to extradite him does not involve the determination of a criminal charge, and he is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common law right to remain within the jurisdiction. In these circumstances, it follows in my view that the extradition proceedings against Mr Halligen fall within article 6(1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, article 6(1) also requires that it be free of limitations impairing the very essence of the right, pursue a legitimate aim and involve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above. I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdoms Extradition Arrangements of 30 September 2011 identified the time limits as an unsatisfactory feature about the appeals process, and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end, however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part 1 from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that On the whole we prefer the former, as this is an area in which certainty and finality is important. Finality and certainty are important legal values. But, although the cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under article 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The very essence of the right may be impaired in individual cases and there may still be no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicators decision on the ground of such advisers negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al Mehdawi [1990] 1 AC 876. Any other decision would, it was said, come at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making: per Lord Bridge, at p 901E. In Ex p Al Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the partys absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al Mehdawi, the Court of Appeal held that there was no universal surrogacy principle which (reformulated) rules would have to depart from in order to operate justly (para 46). The rules were framed so as to be productive of irremediable procedural unfairness. Both the appellants were among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault (para 48). This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention on Human Rights. The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligens case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair the very essence of the right of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. What then does this mean for Mr Halligen? The opposed possibilities are, on the one hand, that the statute can be read in a manner consistently with the Convention rights, pursuant to the courts duty under section 3 of the Human Rights Act so to read it so far as it is possible to do so, and, on the other hand, that the statutory time limits are simply incompatible with article 6(1). The former solution may involve reading in words, provided that they are compatible with the underlying thrust of the legislation and do not go against the grain of the legislation: Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 AC 557, paras 33, per Lord Nicholls, and 121, per Lord Rodger; and see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, where statutory restrictions on cross examination were read as subject to a further implied exception to enable a fair trial under article 6(1), and Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), [2008] 1 WLR 276, para 18, where the High Court was prepared to read a statutory prohibition on sending another person certain material as subject to an implied provision that this was not to apply where the prohibition would involve a breach of the senders Convention rights under article 10. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously. The position of others who are not British citizens of the United Kingdom and do not enjoy the protection of article 6(1) is not, as it happens, relevant to the outcome of any of the appeals now before the Supreme Court. However, their position, as well as that of persons enjoying the protection of article 6(1), would, on the information before the court, appear to deserve attention. This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring. For the reasons I have explained, I would allow Mr Halligens appeal and remit his case, as well as those of Mr Lukaszewski, Pomiechowski and Rozanski (see paragraph 19 above), to the High Court for the hearing of all their four appeals against the relevant extradition decisions. LADY HALE I agree that these appeals should be allowed for the reasons given by Lord Mance. They have highlighted a number of aspects of the present law which may be thought unsatisfactory. First, section 26(4), section 103(9) and section 108(4) of the Extradition Act 2003 lay down tight deadlines within which the requested person must give notice of appeal against, respectively, an extradition order under Part 1 of the 2003 Act, a decision to send the case to the Secretary of State under Part 2, and the Secretary of States extradition order under Part 2. Sections 35 and 117 lay down tight deadlines within which the person must be extradited if no notice of appeal is given before the end of the permitted period. In Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, therefore, the House of Lords proceeded on the assumption that, unless the appellant gave notice to the respondent(s) within the permitted period, the extraditing authorities would not know whether the clock had stopped. We now know that that assumption is incorrect, for two reasons. The first is that the respondent(s) to the appeals are not the extraditing authorities for this purpose. The respondents will be those acting on behalf of the issuing judicial authority (in Part 1) or the requesting authority and the Secretary of State (in Part 2). The extraditing authority is the Serious Organised Crime Agency (SOCA) in Part 1 and the Secretary of State in Part 2. So giving notice to the respondent(s) is not, in itself, sufficient for the extraditing authority to know that the clock has stopped. Secondly, the uncontradicted evidence of Mr Evans, solicitor for the first two appellants, is that Westminster Magistrates Court informs SOCA by email when an extradition order is made and that the High Court emails SOCA when an appeal is filed. That is what alerts SOCA to the fact that it is no longer obliged, or indeed entitled, to extradite the requested person within the required period. This undermines a substantial part of the reasoning of the majority in Mucelli at least in relation to Part 1 cases. The best point remaining is the linguistic difference between an appeal . may be brought in section 26(3), section 103(4), (7) and (8)(b), and section 108(4), and notice of an appeal . must be given in section 26(4), section 103(9) and section 108(4). But there is no magic in those words. Different terms are used for the process of bringing an appeal in the three different jurisdictions which make up the United Kingdom. In Lord Rodgers view, the draftsman has just chosen a familiar form of words for referring to the bringing of an appeal [14]. It would have been so easy for the draftsman to have said filed and served if that is what he had meant but he did not. Be that as it may, this court is not constituted to depart from the decision in Mucelli and there is no need for it to do so in the Polish cases. However, the new information does underline the fact that there is no good practical reason for the court to construe what is meant by giving notice to the respondents in a demanding way. The clock will have stopped, but if the rules about service have not been properly complied with, the court has power either to grant an extension or to impose sanctions, including the sanction of striking out the appeal, as appropriate. Secondly, however, the court does have to contend with Mucelli in the case of Mr Halligen. We can treat his letter to the Secretary of State as notice for this purpose, but we cannot treat his notice to Crown Prosecution Service as arriving in time. There are two possible ways of solving the problem, should we think this result to be unnecessary and unjust. One is to depart from Mucelli. For the reasons indicated earlier, we could conclude that it was not the intention of Parliament that there should be no jurisdiction to entertain an appeal in such circumstances. The other is to employ the obligation of conforming interpretation in section 3(1) of the Human Rights Act 1998 in cases where the ordinary interpretation produces results which are incompatible with the Convention rights of the requested person. Section 3(1) requires that So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. As is now well established, this requires the court (and others) to read (and give effect to) legislation compatibly with the Convention rights even if this is not what, on ordinary principles of construction, Parliament intended, so long as it is possible to do so. The appellants and the Secretary of State consider that it is possible in this case. The respondents consider that it is not, and if (which they do not accept) the strict application of the time limit for service is incompatible, the only course would be a declaration of incompatibility under section 4 of the 1998 Act. The right of a person to enter and remain in the country of which he is a national is the most fundamental right of citizenship. The United Kingdom has signed but not ratified Protocol No 4 to the ECHR, article 3 of which makes this right crystal clear. But, as Lord Mance has demonstrated, it has been part of United Kingdom law for centuries. It is perhaps more questionable whether it counts as a civil right for the purpose of the right to a fair hearing in article 6(1) of the Convention. As originally conceived, this did not apply to the rights enforceable only in public law. But that limitation has been steadily eroded: see the jurisprudence discussed by Lord Hope in Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, [28] to [49]. And in any event, this right is not like a claim to a social security benefit (which is a civil right) or to a social service (which currently is not), for these can only be enforced as provided for by the statute or by judicial review. Should the need arise, this right could be claimed in ordinary civil proceedings against a person who was denying it. I therefore agree with Lord Mance that the extradition proceedings against Mr Halligen involve the determination of his civil rights for the purpose of article 6(1). I also agree that to insist upon the time limit for service in the particular circumstances of his case is a disproportionate limitation upon his right of access to the appeal process. I further agree that it is possible to read and give effect to section 108(4) and, it would necessarily follow, section 26(4) and section 103(9) in the manner which Lord Mance suggests at paragraph 39. However, it does seem to me unsatisfactory that we are taking this course, rather than the more straightforward course of departing from Mucelli. There is very good reason to think that the House decided Mucelli on a mistaken factual assumption. There were very good reasons, trenchantly expressed in Lord Rodgers dissenting opinion, to think that the intention of Parliament was to insist only on filing, rather than on service, of the notice of appeal before the deadline. For my part, I consider it more satisfactory to comply with the actual intention of Parliament than to resort to the obligation of conforming interpretation (whether under the European Communities Act 1972 or the Human Rights Act 1998). Resorting to section 3 of the 1998 Act, although two of the parties consider this possible, produces two distortions in the extradition process. It discriminates between nationals and aliens. It also discriminates between the requested persons and the requesting authorities, for the latter can have no convention rights which mandate a compatible interpretation. Thus section 28(4), section 105 (5) and section 110(5), which impose the same time limits upon appeals against discharge by the first instance court or by the Secretary of State, cannot be read down so as to forgive such trivial failures as these on the part of the requesting authorities. Thirdly, however, whichever of the above courses is taken in this case, recognition that the right of a citizen to remain in this country is a civil right for the purposes of article 6(1) of the ECHR leaves open the possibility that section 26(4) and also section 103(9) and section 108(4) would also have to be read down if the rigid time limits for the filing of a notice of appeal were to be held a disproportionate limitation on a citizens right of access to the appeal process. There was talk during the hearing of riots, strikes or fires at the prison to which the requested person was remanded making the service of notice impossible, but such extraordinary events might also make the filing of a notice of appeal impossible. As things currently stand, a requested person who is remanded in custody does not always have access to a lawyer who can protect his interests. While we know that HMP Wandsworth has a Legal Services Department staffed by prison officers who provide assistance, we do not know whether similar facilities are available to requested persons who are remanded to other prisons. We do know that, given the pace of proceedings, quite properly arguable grounds for resisting extradition or the execution of a European arrest warrant may not have been put before the district judge. I do not, of course, say that it would indeed be possible to read down the legislation in such circumstances, but merely that our decision in this case makes the argument possible. Had other members of the court been of the same mind, therefore, I would have allowed all these appeals, but for reasons other than those given by Lord Mance. But those reasons are not incompatible with the reasons which he gives and with which I am also content to agree. |
From 1922 successive items of legislation authorised the detention without trial of persons in Northern Ireland, a regime commonly known as internment. Internment was last introduced in that province on 9 August 1971. On that date and for some time following it, a large number of persons were detained. The way in which internment operated then was that initially an interim custody order (ICO) was made where the Secretary of State considered that an individual was involved in terrorism. On foot of the ICO that person was taken into custody. The person detained had to be released within 28 days unless the Chief Constable referred the matter to a commissioner. The detention continued while the commissioner considered the matter. If satisfied that the person was involved in terrorism, the commissioner would make a detention order. If not so satisfied, the release of the person detained would be ordered. An ICO was made in respect of the appellant on 21 July 1973. The order was signed by a Minister of State in the Northern Ireland Office. The matter was referred to a commissioner by an Assistant Chief Constable on 10 August 1973 and the commissioner decided that the appellant should continue to be detained. The appellant tried to escape from the place where he was detained on 24 December 1973. He was convicted of the offence of attempting to escape from lawful custody on 20 March 1975 and sentenced to 18 months imprisonment. He tried to escape again on 27 July 1974 and was convicted of a like offence on 18 April 1975 when a sentence of three years was passed, to be served consecutively to that imposed a month earlier. The issue At stake on this appeal is the validity of the ICO made on 21 July 1973. Although an ICO could be signed by a Secretary of State, a Minister of State or an Under Secretary of State, the relevant legislation provided that the statutory power to make the ICO arose where it appears to the Secretary of State that a person was suspected of being involved in terrorism. There is no evidence that the Secretary of State personally considered whether the appellant was involved in terrorism. On the assumption (which is common to the parties to the appeal) that he did not, the question arises whether the ICO was validly made. The reason that this matter has come to light so many years after the appellants convictions is that under the 30 year rule an opinion of JBE Hutton QC (later Lord Hutton of Bresagh) was uncovered. The 30 year rule is the informal name given to laws in the United Kingdom and other countries which provide that certain government documents will be released publicly 30 years after they were created. Mr Hutton was the legal adviser to the Attorney General when he gave his opinion. It was dated 4 July 1974 and responded to a request for directions in relation to a proposed prosecution of the appellant and three others involved in the attempted escape on 24 December 1973. Mr Hutton concluded that a court would probably hold that it would be a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally. The proceedings The appellant became aware of Mr Huttons opinion in October 2009. He had not appealed his convictions before then. Some time after learning of the opinion, he applied for an extension of time in which to appeal his convictions. That application was granted by Gillen LJ on 20 April 2017. The appellants appeal was heard by the Northern Ireland Court of Appeal (Morgan LCJ, Sir Ronald Weatherup and Sir Reginald Weir) on 16 January 2018. On 14 February 2018, the Court of Appeal unanimously dismissed the appeal, the judgment of the court being delivered by Sir Ronald Weatherup: [2018] NICA 8. An application for permission to appeal to this court was dismissed by the Court of Appeal on 16 April 2018 but the court certified the following question as one constituting a point of law of public general importance: Whether the making of an interim custody Order under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 [SI 1972/1632 (NI 15)] required the personal consideration by the Secretary of State of the case of the person subject to the order or whether the Carltona principle operated to permit the making of such an Order by a Minister of State. The reference to the Carltona principle here relates to the decision of the Court of Appeal in Carltona Ltd v Comrs of Works [1943] 2 All ER 560. In that case it had been argued that an order for the requisition of a factory under the Defence (General) Regulations 1939, which was to be made by the Commissioners of Works, should have been made by a commissioner personally. The First Commissioner of Works was the Minister of Works and Planning and the decision was made by the Assistant Secretary in that Ministry on behalf of the Commissioners of Works. The Court of Appeal rejected the argument, Lord Greene MR observing, at p 563: In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministers. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Sir Ronald Weatherup considered that the Carltona principle had been amplified and reinforced in cases which were decided after Mr Hutton had given his opinion. That opinion had been strongly influenced by the consideration that deprivation of liberty was a matter of the utmost gravity and that scrupulous compliance with the precise enjoinder in article 4 of the 1972 Order was required. Sir Ronald noted that subsequent case law suggested that the seriousness of the subject matter was not to be regarded as determinative. It was a factor relevant to whether Parliament had intended to disapply the Carltona principle but was not decisive of that issue. The court relied for that conclusion on In re Golden Chemicals Products Ltd [1976] Ch 300 and R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254. In the Golden case, what was in issue was the provision in the Companies Act 1967 which stated that, if it appeared to the Secretary of State that it was expedient in the public interest that a corporate body should be wound up, he could present a petition for its winding up. That power had been exercised by the Inspector of Companies in the Department of Trade acting for the Secretary of State. It was held that there was no obligation on the Secretary of State to exercise the power personally. It had been argued that the exercise of the power involved a serious invasion of the freedom or property rights of the subject and that it should be exercised only by the Secretary of State in whom it had been invested. Brightman J accepted that the power given to the Secretary of State was of a most formidable nature which may cause serious damage to the reputation or financial stability of the company (p 310). But he rejected the notion that a true distinction required to be drawn as a matter of law between powers which the minister must exercise personally and those which can be exercised by an officer of his department, if that distinction was based on the seriousness of the subject matter. It is important to recognise that Brightman Js judgment was based on his rejection of the claim that a distinction should be drawn as a matter of law between those cases in which the exercise of the power would have serious and grave consequences for those affected by it and cases where such consequences were not expected. Sir Ronald Weatherup said this about Brightman Js judgment at para 30: This court is satisfied that the seriousness of the subject matter is a consideration in determining whether a power must be exercised by the Minister personally, although as Brightman J found, it is not a determining consideration. (Emphasis added) It appears to me that Brightman J did not find that the seriousness of the subject matter was a consideration to which regard must be had in deciding whether a power must be exercised by a Minister personally. To the contrary, he held that that was not a consideration which was relevant at all in deciding whether the power should be exercised by the Minister or by an officer in his department. This, I believe, is clear from the following passage at p 310 of Brightman Js judgment: If there is a true distinction which must be drawn as a matter of law between powers which the Minister must exercise personally and those which can be exercised by an officer of his department, I might well come to the view that the power given by section 35 is so potentially damaging that it falls into the former category, however burdensome that may be to a Secretary of State personally. But is such a distinction to be drawn? I find no warrant for it in the authorities. In fact, the reverse. The accuracy of the breath test equipment with which R v Skinner [1968] 2 QB 700 was concerned was of vital importance to every motorist as indeed the judgment of the Court of Appeal recognised If a motorist fails the breath test he is arrested. So if the equipment over registers, an innocent subject is placed under arrest; if it under registers, a potentially lethal motorist is let loose on the highway. Yet the Court of Appeal decided that although such a vitally important matter might well have occupied the Ministers personal attention there is in principle no obligation upon the Minister to give it his personal attention: p 709. As Mr Chadwick pointed out, there are important cases in which the Minister will exercise a statutory discretion personally, not because it is a legal necessity but because it is a political necessity. Now, as it happens, I consider that the Court of Appeal in this case was right to hold that the seriousness of the consequences is a consideration to be taken into account in deciding whether a power must be exercised by the Minister personally and, to the extent that he suggested otherwise, Brightman J was wrong. I shall return to that debate later in this judgment. But, for reasons that will appear, there are other considerations beyond this issue which are of greater significance in the resolution of this appeal. The next case referred to by Sir Ronald Weatherup was Oladehinde. In that case the Home Secretary authorised certain officials in the immigration department of the Home Office to act on his behalf to decide whether to issue a notice of intention to deport persons under the Immigration Act 1971. It was argued that the structure of the Immigration Act, which differentiates between the powers of immigration officers permanently concerned with entry control and subsequent policing of illegal immigrants and the powers of the Secretary of State in relation to deportation, carried the clear statutory implication that the powers of the Secretary of State were not to be exercised by immigration officers. That argument was rejected. At p 303, Lord Griffiths said: It is well recognised that when a statute places a duty on a minister it may generally be exercised by a member of his department for whom he accepts responsibility: this is the Carltona principle. Parliament can of course limit the ministers power to devolve or delegate the decision and require him to exercise it in person. Three instances in the Immigration Act where the power to delegate was limited were identified. In each case the conferring of the power on the Secretary of State was accompanied by words such as not [to be exercised] by a person acting under his authority. The absence of such a formula in relation to the issue of a notice of intention to deport was considered to be conclusive. Not only was there no express limitation but the presence of express exclusion of delegation in other sections was a clear indication that the implication of such an exclusion in relation to the issue of an intention to deport was inapt. It is clear that the decision in Oladehinde did not address the question whether the exercise of the power had serious consequences for those affected by it. What mattered was the interpretation of the statute. By contrast, in Doody v Secretary of State for the Home Department [1993] QB 157, the issue of the seriousness of the consequences was certainly in play. In that case section 61(1) of the Criminal Justice Act 1967 conferred power on the Secretary of State to release a life prisoner. In effect, this empowered the Home Secretary to fix a tariff period which had to be served before release could be considered. In at least some instances in the Doody case the tariff had been fixed by a minister of state or a Parliamentary under secretary of state. It was argued that the tariff period had to be decided upon by the Secretary of State personally. That argument was rejected by Staughton LJ (whose judgment on this point was subsequently endorsed by the Appellate Committee of the House of Lords [1994] 1 AC 531). At p 196, after discussing the substantial number of mandatory life sentence cases that required to be considered each year, Staughton LJ said this: Every such case demands serious consideration and the burden of considering them all must be substantial. I can see nothing irrational in the Secretary of State devolving the task upon junior ministers. They too are appointed by the Crown to hold office in the department, they have the same advice and assistance from departmental officials as the Secretary of State would have, and they too are answerable to Parliament. Sir Ronald Weatherup quoted this passage at para 34 of his judgment without comment. It appears to me that two observations about the passage may be made. First, it was firmly established in evidence that a considerable burden would fall on the Secretary of State if he was required to consider every tariff case. (In 1990 no fewer than 274 mandatory life sentence cases were considered.) Secondly, as Staughton LJ stated (at 196B), there was no express or implied requirement in the 1967 Act that a decision fixing the tariff period, or for that matter a decision to release a prisoner on licence, must be taken by the Secretary of State personally. On that account, it was not irrational for him to devolve the task to junior ministers. Neither consideration obtains in the present case. On the first point (a possibly excessive burden on the Secretary of State), there was no evidence that at the time of the making of the ICO, it would have been unduly onerous for the Secretary of State, then the Rt Hon William Whitelaw MP, personally to consider each application for an ICO. Indeed, the Rt Hon Merlyn Rees MP (who was Secretary of State in the Labour government which came to power in March 1974) considered all ICOs personally. Sir Ronald Weatherup suggested that this practice was born out of caution based on legal advice para 19 of his judgment. That may be so but the fact that Mr Rees was able to carry out this task himself from March 1974 onwards is a clear indication that it should not have been impossibly difficult for Mr Whitelaw to do the same in July 1973, some eight months earlier. On the second question (whether there was an express or implied requirement in the legislation that the Secretary of State must personally consider if an order should be made) the position under the 1972 Order is quite different from that of the 1967 Act. I will discuss that difference when I come to consider the relevant legislative provisions. There is a further point to be made about Doody. An argument had been made that, in the days of capital punishment, it was the practice for the Home Secretary personally to decide whether to recommend a reprieve and it was pointed out that political memoirs had recorded how seriously that responsibility was regarded. It was suggested that the fixing of a tariff period for life prisoners was likewise of great importance to the individuals affected. That submission was accepted by Staughton LJ but he considered that Parliament must have been well aware of the great burden that would be imposed on senior ministers if they were required to review each case personally see p 196C D. The significance of this is the implicit acknowledgment, contrary to the view of Brightman J in Golden, that the seriousness of the consequences is a consideration to be taken into account. It seems to me, however, that this, in the estimation of Staughton LJ, was as a contribution to the insight that it would provide as to Parliaments intention, rather than ranking as an autonomous factor. After dealing with Doody, Sir Ronald went on to consider a number of authorities from Northern Ireland. The first of these was R v Harper [1990] NI 28. In that case the appellant had been convicted of a number of serious offences, largely as a result of admissions made by him during interviews by the police. Among the grounds of appeal was a claim that extension of the appellants detention had wrongly been authorised by a Parliamentary under secretary of state where the relevant statutory provision (section 12(4) of the Prevention of Terrorism (Temporary Provisions) Act 1984) provided that a person arrested under section 12(1) should not be detained for more than 48 hours but that the Secretary of State may, in a particular case, extend that period. The document extending the period in the appellants case had not been signed by the Secretary of State. The argument was rejected by the Court of Appeal on the basis that there was no reason to conclude that this was a power that could not be devolved to a junior minister. The Court of Appeal in Harper relied on Brightman Js judgment in Golden. For the reasons given earlier, I do not believe that to have been correct, but this does not bear on the decision in Harper. In that case there was nothing in the legislation which gave rise to the possibility of implying any restriction on the power of the Secretary of State to devolve the function of signing the extension order to the under secretary. And there was certainly no express restriction. The decision in Harper therefore involved the straightforward application of the Carltona principle. I consider that it does not assist in the resolution of the present appeal, where, as I shall discuss below, there are substantial reasons for implying a restriction on the power of the Secretary of State to devolve the making of ICOs to a junior minister. Sir Ronald Weatherup also referred to the decision of the Court of Appeal in Northern Ireland in the case of McCaffertys Application [2009] NICA 59. That case involved a prisoner who had been released on licence while serving a sentence for possession of an explosive substance. His licence was revoked, and he was arrested a month after his release. The revocation of the licence was authorised by the minister of state for security in the Northern Ireland Office. He purported to act under section 1(3) of the Northern Ireland (Remission of Sentences) Act 1995 which provided that the Secretary of State could revoke a persons licence if it appeared to him that that individuals continued liberty would present a risk to the safety of others or that he was likely to commit further offences. The prisoner applied for a writ of habeas corpus. Among other arguments presented on his behalf was the claim that his detention was unlawful because it had not been authorised by the Secretary of State but by a junior minister. This argument was rejected. Coghlin LJ, delivering the judgment of the court, observed at para 17: In general, it is to be implied that the intention of Parliament is to permit the Carltona principle to apply rather than to require a personal decision by the named decision maker. For the purpose of deciding whether the power is to be implied factors to be considered include the framework of the relevant legislation and, in particular, whether any specific contrary indications appear in the language, and the importance of the subject matter. a decision taken with regard to the liberty of the subject may attract the Carltona principle. In our view there is nothing in either the framework or the language of the 1995 Act that indicates a contrary Parliamentary intention. It is unnecessary for the purposes of the present appeal to reach a firm conclusion on the question whether it is now established that there is a presumption that Parliament should be taken to have intended that the Carltona principle should apply. It is true that in Oladehinde Lord Griffiths said that a statutory duty placed on a minister may generally be exercised by a member of his department, but I believe that he was not there proposing that there was a legal presumption to that effect. I am not persuaded that the authorities, apart from McCafferty and the decision of the Court of Appeal in the present case, have espoused that position. It is, of course, the case that Parliament legislates against the background that the Carltona principle is well established. And it is also relevant that Parliament has shown itself on occasions willing to register the displacement of the principle in explicit terms. These considerations must influence the judgment as to whether, properly construed, a particular item of legislation is in keeping with the principle or not. But that does not amount, in my opinion, to the creation of a presumption in law that the principle must be taken to apply unless it has been removed by express statutory language. My provisional view is that the matter should be approached as a matter of textual analysis, unencumbered by the application of a presumption, but with the enjoinder of Lord Griffiths well in mind. In this way, whether the Carltona principle should be considered to arise in a particular case depends on an open ended examination of the factors identified by Coghlin LJ in McCafferty, namely, the framework of the legislation, the language of pertinent provisions in the legislation and the importance of the subject matter, in other words, the gravity of the consequences flowing from the exercise of the power, rather than the application of a presumption. But, as I have said, it is not necessary in this case to reach a final view on whether there is such a presumption, not least because, if there is indeed a presumption, the statutory language in this instance is unmistakably clear, and has the effect of displacing it. Coghlin LJ decided that there was nothing in the framework of the legislation or the statutory language that expressly contraindicated the application of the Carltona principle in the McCafferty case. With that conclusion I have no quarrel. But, again, this does not provide an answer in the present case because of what I consider to be the significant difference between the wording of the 1972 Order and the 1995 Act. Unlike the 1972 Order, the 1995 Act does not stipulate one role for the Secretary of State alone and a quite separate role that can be discharged by the Secretary of State or junior ministers. (I shall discuss this further below.) I am of the view, therefore, that, as in Harper, the McCafferty decision does not assist in resolving the central issue in this appeal. The relevant legislation Article 4(1) of the 1972 Order provides: Where it appears to the Secretary of State that a person is suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organisation or training of persons for the purpose of terrorism the Secretary of State may make an order (hereafter in this Order referred to as an interim custody order) for the temporary detention of that person. The language in this paragraph is clear and precise. Its apparent effect is unambiguous. It is the Secretary of State who must consider whether the person concerned is suspected of being involved in terrorism etc. Absent the possible invocation of the Carltona principle, there could be no doubt that resort to the power to make an ICO was reserved to the Secretary of State alone. Article 4(2) provides: An interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State. Considered together, paragraphs 1 and 2 of article 4 have two noteworthy features. First there is the distinct segregation of roles. In paragraph 1 the making of the Order is provided for; in paragraph 2, the quite separate function of signing the ICO is set out. If it had been intended that the Carltona principle should apply, there is no obvious reason that these roles should be given discrete treatment. It would have been a simple matter to provide in paragraph 1 that the Secretary of State may make [and sign] an ICO. The question therefore arises, why was provision made for the different roles in two separate paragraphs of the article. The answer appears to me to be self evident: it was intended that the two functions called for quite distinct treatment. The second noteworthy feature of article 4(2), when read together with 4(1), is that the ICO to be signed is that of the Secretary of State. Why would this stipulation be required if an ICO could be made by a minister of state? Why not simply state that, An interim custody order shall be signed by a Secretary of State, Minister of State or Under Secretary of State? The use of the words, of the Secretary of State surely denotes that the ICO is one which is personal to him or her, not a generic order which could be made by any one of the persons named in paragraph 2. If a minister of state made the ICO and then signed it, could he be said to sign the order of the Secretary of State? Surely not. Pepper v Hart The rule in Pepper v Hart [1993] AC 593 can be succinctly stated. As Lord Browne Wilkinson said (at p 640), reference to Parliamentary materials is permitted where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear. In this case, the Court of Appeal considered that the conditions prerequisite on the invocation of the rule were not satisfied, Sir Ronald Weatherup pithily saying at para 22 of his judgment that the language of the 1972 Order was not ambiguous or obscure nor did its literal meaning lead to absurdity and that, in any event, the statements made in Parliament on which the appellant sought to rely were contradictory. I agree, although I suspect for rather different reasons from those of the Court of Appeal, that the language of the enactment is neither ambiguous nor obscure. Although Sir Ronald did not expressly say so, it seems likely that the Court of Appeal considered that the language of the 1972 Order clearly indicated that the intention of Parliament was that the Carltona principle should be in play in relation to article 4(1) of the 1972 Order. I, on the other hand, for the reasons that I have given, am firmly of the view that, properly construed, article 4(1) unmistakably points to the conclusion that the power that was invested in the Secretary of State by that provision was one which should be exercised by him or her personally. But, in any case, I fully agree that the statements made in Parliament about whether the power in article 4(1) was invested in the Secretary of State alone or whether recourse could be had to that power by a junior minister do not partake of the quality of certainty required to meet the third criterion of the Pepper v Hart test. On that account, I consider that the Parliamentary statements are not admissible. Discussion The Court of Appeal approached the central issue in this case on the basis that there was a presumption that the Carltona principle would apply to article 4(1) of the 1972 Order. In para 25 above, I have questioned whether such a presumption exists. Even if it does, I am satisfied that it is clearly displaced by the proper interpretation of article 4(1) and (2), read together. The segregation of the two functions (the making and the signing of ICOs) cannot have been other than deliberate. When one allies this to the consideration that the power invested in the Secretary of State by article 4(1) was a momentous one, the answer is, I believe, clear. The provision did nothing less than give the Secretary of State the task of deciding whether an individual should remain at liberty or be kept in custody, quite possibly for an indefinite period. In agreement with Staughton LJs view in Doody (see para 21 above), I consider that this provides an insight into Parliaments intention and that the intention was that such a crucial decision should be made by the Secretary of State. This was, after all, a power to detain without trial and potentially for a limitless period. This contrasts with Doody where, at least, the prisoner whose tariff period was to be determined had been convicted after due process. A further factor that militates towards the conclusion that it was intended that the Secretary of State should personally decide on the fate of a person whose detention was sought was that there was no reason to apprehend (at the time of the enactment of the 1972 Order) that this would place an impossible burden on the Secretary of State. Indeed, the subsequent experience with Mr Merlyn Rees scotches any notion that this should be so. This again presents a stark contrast with Doody. For these reasons, I have concluded that it was Parliaments intention that the power under article 4(1) of the 1972 Order should be exercised by the Secretary of State personally. Conclusion The making of the ICO in respect of the appellant was invalid. It follows that he was not detained lawfully. It further follows that he was wrongfully convicted of the offences of attempting to escape from lawful custody and his convictions for those offences must be quashed. |
This appeal by the Secretary of State for the Home Department concerns five individuals, the respondents, who arrived in the United Kingdom illegally and claimed asylum. Inquiries revealed that they had travelled to the United Kingdom via at least one other member state of the European Union in which they had already claimed asylum and so the Secretary of State requested those states to take responsibility for examining the asylum claims pursuant to Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013 (the Dublin III Regulation, Dublin III or the Regulation). Ultimately each such state agreed to take the relevant respondent back for that purpose. The respondents were all detained for a period of time pending their removal pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The Secretary of State had published her policy in relation to detention pending removal in Chapter 55 of her Enforcement Instructions and Guidance (23 October 2015) (the EIG). This appeal now gives rise to important questions concerning the requirements imposed on member states by the Dublin III Regulation, whether the policy in Chapter 55 of the EIG meets those requirements and, so far as it fails to do so, the consequences of that failure. The particular questions which must be decided are: i) whether the detention of each respondent was lawful given that article 28 of the Dublin III Regulation permits detention where there is a significant risk of absconding, risk of absconding being defined in article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond; and, if the detention was not lawful, ii) whether damages are payable either under domestic law for false imprisonment or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Federal Republic of Germany; R v Secretary of State for Transport; Ex p Factortame Ltd No 4 (Joined Cases C 46/93 and C 48/93) [1996] QB 404. The facts Ms Hoda Hemmati, the first respondent, is a national of Iran and arrived in the United Kingdom illegally by lorry. On 11 February 2015 she presented herself to the authorities and claimed asylum. A check revealed that she had already claimed asylum in Bulgaria. The United Kingdom proceeded formally to request Bulgaria under the Dublin III procedure to take responsibility for the asylum claim and on 17 April 2015 Bulgaria agreed to do so. On 8 June 2015 she was detained in order to effect her removal to Bulgaria and, according to the evidence of the Secretary of State, on the basis she posed a risk of absconding. Removal directions were set for 7 July 2015. These were cancelled when she gave notice that she had issued judicial review proceedings to challenge the decision to remove her. She contended that removal would give rise to a real risk of a violation of her rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR). She was released on 17 July 2015. She was therefore detained from 8 June 2015 to 17 July 2015. Mr Fawad Khalili, the second respondent, is a national of Afghanistan. He arrived in the United Kingdom illegally by lorry. On 20 November 2014 he presented himself to the authorities and claimed asylum. He was initially released on temporary admission. On 6 January 2015 he attended a screening interview and made a formal in country claim for asylum. He was detained on the basis that his removal was imminent, that he had behaved deceptively and, according to the evidence of the Secretary of State, that he posed a risk of absconding. A check revealed that he too had already made an asylum claim in Bulgaria. The United Kingdom proceeded formally to request Bulgaria under the Dublin III procedure to take responsibility for the asylum claim and on 12 February 2015 Bulgaria agreed to do so. Removal directions were set for 23 February 2015. In the meantime, on 5 February 2015, the second respondent made submissions to the Secretary of State that his removal would breach his rights under article 3 of the ECHR and on 20 February 2015 he issued a claim for judicial review to prevent his scheduled removal. The removal directions were cancelled and on 9 March 2015 he was granted bail by the First tier Tribunal (the FTT). He claims that his detention became unlawful on 5 February 2015, the date he complained that his removal to Bulgaria would be incompatible with article 3 of the ECHR. The relevant period of his detention was therefore 5 February 2015 to 9 March 2015. Mr Jamal Abdulkadir, the third respondent, is a national of Iraq. On 18 August 2015 he arrived in the United Kingdom illegally by lorry. Upon arrival in Kent, he ran from the lorry but was apprehended and detained. The Secretary of State maintains that the evidence he produced of his identity was inadequate and that there was a risk he would abscond. A check revealed that he had made an asylum claim in Austria in July 2015. At this point he claimed asylum in the United Kingdom. The United Kingdom proceeded formally to request Austria under the Dublin III procedure to take responsibility for the asylum claim and on 15 September 2015 Austria agreed to do so. On 28 September 2015 removal directions were set but later cancelled at Austrias request. Further removal directions were set for 23 October 2015. On 22 October 2015 the third respondent issued judicial review proceedings challenging the decision to remove him on the basis that in Austria he would be exposed to a real risk of violation of his rights under article 3 of the ECHR. He made an application for bail which the FTT refused on 13 November on the basis that there was a risk he would abscond and that it was likely he would be removed in a short time. On 27 November 2015 he was given permission to apply for judicial review and on 8 December 2015, upon review of his detention, he was released. He was therefore detained from 18 August 2015 to 8 December 2015. Mr Jwytar Mohammed, the fourth respondent, is also a national of Iraq. On 8 September 2015 he arrived in the United Kingdom illegally by lorry. He ran off when the lorry doors were opened but was apprehended later that day. He claimed asylum and, according to the evidence of the Secretary of State, was detained on the basis he posed a risk of absconding. A check revealed that he had previously claimed asylum in Austria. The United Kingdom proceeded formally to request Austria under the Dublin III procedure to take responsibility for the asylum claim and on 15 September 2015 Austria agreed to do so. Removal directions were set for 12 October 2015 but on 2 October 2015 he began proceedings for judicial review claiming, among other things, that in Austria he would be exposed to a real risk of violation of his rights under article 3 of the ECHR. He was released from detention on 4 November 2015. He was therefore detained from 8 September 2015 to 4 November 2015. SS, the fifth respondent, is a national of Afghanistan. On 15 September 2015 he arrived in the United Kingdom illegally and by hiding in the back of a train. Upon arrival he claimed asylum and pretended to be a child. A check revealed he had already claimed asylum in Bulgaria, Hungary and Germany. He was detained on that same day on the basis that it was reasonably likely that he would be accepted by another member state under the Dublin III procedure. A month later a notice of detention review stated that it had been decided he should remain in detention because there was reason to believe he would not comply with any conditions of release. The United Kingdom proceeded formally to request Bulgaria, Hungary and Germany under the Dublin III procedure to take responsibility for the asylum claim and on 27 October 2015 Germany agreed to do so. Removal directions were set for 30 November 2015 but were cancelled when he began proceedings for judicial review. He was released from detention on 10 December 2015. He was therefore detained from 15 September 2015 to 10 December 2015. The proceedings The judicial review claims brought by the first and second respondents were listed for hearing together with claims brought by three other individuals. The first and second respondents challenged both the lawfulness of their removal and the lawfulness of their detention. The claims were heard by Garnham J who dealt first with their challenges to removal. He gave judgment on 18 April 2016 dismissing all of the claims ([2016] EWHC 857 (Admin)) and an appeal to the Court of Appeal was subsequently dismissed ([2017] EWCA Civ 1871). There has been no further appeal against that decision. Garnham J gave a further judgment on 15 June 2016 dealing with the claims for unlawful detention ([2016] EWHC 1394 (Admin); [2016] 1 WLR 4243). He allowed two of the claims but not those of the first and second respondents. The judicial review claims brought by the third and fourth respondents were listed for hearing together. Again, they both challenged the lawfulness of their removal and their detention. These claims were heard by Irwin J who dismissed them all for reasons given in his judgment of 28 June 2016 ([2016] EWHC 1504) (Admin)). The judicial review claim brought by the fifth respondent came on for hearing before Mr John Howell QC, sitting as a deputy High Court judge. The original grounds of claim focused on the assertion by the fifth respondent that he was a child and therefore could not be removed to Germany under the Dublin III scheme. But at the hearing he was permitted to amend his claim to introduce a further claim that he was unlawfully detained because his detention was contrary to articles 28(2) and 2(n) of the Dublin III Regulation. The deputy judge gave judgment on 26 May 2017 ([2017] EWHC 1295 (Admin); [2017] 1 WLR 3641). He found that that the fifth respondent was not a child when he was detained. However, he also found that the fifth respondent had been detained to secure his transfer to the responsible member state under the Dublin III scheme; that it had to be established that he posed a significant risk of absconding; and that his detention was unlawful because, even if he posed a significant risk of absconding, his detention was in conflict with articles 28(2) and 2(n). The Court of Appeal The first to fourth respondents in the first four claims and the Secretary of State in the fifth appealed to the Court of Appeal. The principal issues before the court concerned the meaning and effect of articles 28 and 2(n) of the Dublin III Regulation and, in particular, whether the application of the principles explained in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 or the Secretary of States policy set out in Chapter 55 of the EIG satisfied the requirements of those articles; and, if not, whether damages were payable in respect of the respondents detention either under domestic law for false imprisonment or under European Union law pursuant to the Factortame principle. It is important to note that the Court of Appeal was asked to decide these issues on the agreed assumption that the only ground for detaining the respondents was that the Secretary of State wished to remove them using the Dublin III procedure. The position remains the same on this further appeal. The first and second respondents also raised as a separate issue whether their detention was unlawful because of a failure by the Secretary of State to comply with the Hardial Singh principles. The Court of Appeal, by a majority (Sir Terence Etherton MR and Peter Jackson LJ), allowed the appeals of the first to fourth respondents and dismissed the appeal of the Secretary of State in the case of the fifth respondent. Critical to the reasoning of the majority was the decision of the second chamber of the Court of Justice of the European Union (the CJEU) in Policie R, Krajsk editelstv policie steckho kraje, odbor cizineck policie v Al Chodor (Case C 528/15) [2017] 4 WLR 125. This decision post dated the decisions of Garnham J and Irwin J but predated that of Mr John Howell QC. The majority held that the touchstone applied by the CJEU in Al Chodor for assessing compliance with articles 28(2) and 2(n) of the Dublin III Regulation was whether the provisions relied upon for detention had the requisite legal basis and the safeguards of clarity, predictability, accessibility and protection against arbitrariness within a framework of certain predetermined limits. The majority also held that it was clear that neither the Hardial Singh principles nor the Secretary of States published policy in Chapter 55 of the EIG satisfied these requirements. It followed that the detention of all of the respondents was in breach of article 28(2). The majority of the Court of Appeal went on to hold that each of the respondents had established all of the necessary ingredients of the common law cause of action for wrongful imprisonment. They had all been detained and that detention was unlawful because it was effected pursuant to the policy in Chapter 55 of the EIG, and that was itself unlawful in so far as it failed to give effect to articles 28(2) and 2(n) of the Regulation. The respondents were therefore entitled to damages for false imprisonment. The Factortame principle had no relevance because the individual right of each person to liberty existed save in so far as it is legitimately cut down by law. The appeals did not concern infringement of rights which were to be found only in European Union law. Further, it was not necessary to consider the additional and discrete claims by the first and second respondents for false imprisonment based upon the alleged breach by the Secretary of State of the Hardial Singh principles. Sales LJ, dissenting, held that a policy statement such as that contained in Chapter 55 of the EIG was in principle capable of satisfying the requirements of articles 28(2) and 2(n) of the Dublin III Regulation, and that here it did satisfy those requirements. However, conscious that he was in the minority on this issue, he went on to consider whether, on the footing that he was wrong, the respondents were entitled to damages. He concluded that they were not. In his view, the claim turned on the alleged failure by the United Kingdom to adopt a particular form of law when implementing articles 28(2) and 2(n). In these circumstances the proper approach in considering whether the Secretary of State was liable for damages was to ask whether the relevant criteria for an award of damages in respect of a breach of European law had been satisfied and, in particular, whether the breach was sufficiently serious within the meaning of the decision of the CJEU in Factortame, that is to say whether the member state had manifestly and gravely disregarded the limits of its discretion. Here, any breach of articles 28(2) and 2(n) did not satisfy that sufficiently serious test. Sales LJ also addressed the separate claims by the first and second respondents for false imprisonment based upon a breach of the Hardial Singh principles. In his view there was nothing in them, and in this regard he agreed with the decision of Garnham J: the first and second respondents were detained for proper reasons; they were assessed as posing a risk of absconding and that assessment was rational and justified; and throughout the period of their detention, there remained a real prospect that they would be removed eventually. Issues of principle This further appeal therefore raises the following important issues of principle concerning the limits of the permission conferred by the Dublin III Regulation upon member states to detain an applicant for international protection in order to secure the transfer of that applicant to another member state in accordance with the transfer procedures laid down in the Regulation: i) Does the policy published by the Secretary of State in Chapter 55 of the EIG satisfy the requirements imposed by articles 28 and 2(n) of the Regulation for a measure setting out objective criteria defined by law for believing that an applicant for international protection who is subject to a transfer procedure may abscond? ii) If not, are damages payable to an applicant whose detention pursuant to article 28(2) was authorised by the Secretary of State pending such transfer: under domestic law for the tort of false imprisonment, or pursuant to European Union law under the Factortame a) b) principle? European Union law The European Union has for some time sought to establish an area of freedom, security and justice which is open to those who, forced by circumstances, legitimately seek its protection. To this end the Union has harmonised the procedures and substantive rules of refugee law and, as part of that harmonisation, established a body of law within what is known as the Common European Asylum System (the CEAS). A well functioning Dublin system is seen as essential to the CEAS in ensuring the rapid identification of the member state responsible for examining an application for international protection, and in this way guaranteeing effective access to the procedures for determining refugee status. The Dublin III Regulation replaced Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third country national (the Dublin II Regulation). Dublin III lays down, in Chapter III, a hierarchy of criteria for identifying the member state responsible for deciding the claim. If the member state where an asylum claim has been lodged considers that another member state is responsible then it may ask the other member state to take charge of the applicant. If the other member state agrees to this request, the first member state will transfer the applicant there in accordance with the procedure laid down in the Regulation. The Dublin III Regulation permits, subject to strict safeguards, the detention of an applicant for international protection in order to ensure that the Dublin III procedure is implemented effectively. In this regard, recital 20 provides, so far as relevant: The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, member states should apply the provisions of Directive 2013/33/EU also to persons detained on the basis of this Regulation. The terms of this recital are reflected in article 28 of the Regulation which authorises member states to detain applicants subject to various conditions. It provides: 1. Member states shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation. 2. When there is a significant risk of absconding, member states may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively. 3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out. Where a person is detained pursuant to this article, the period for submitting a take charge or take back request shall not exceed one month from the lodging of the application. The member state carrying out the procedure in accordance with this Regulation shall ask for an urgent reply in such cases. Such reply shall be given within two weeks of receipt of the request. Failure to reply within the two week period shall be tantamount to accepting the request and shall entail the obligation to take charge or take back the person, including the obligation to provide for proper arrangements for arrival. Where a person is detained pursuant to this article, the transfer of that person from the requesting member state to the member state responsible shall be carried out as soon as practically possible, and at the latest within six weeks of the implicit or explicit acceptance of the request by another member state to take charge or to take back the person concerned or of the moment when the appeal or review no longer has a suspensive effect in accordance with article 27(3). When the requesting member state fails to comply with the deadlines for submitting a take charge or take back request or where the transfer does not take place within the period of six weeks referred to in the third subparagraph, the person shall no longer be detained. Articles 21, 23, 24 and 29 shall continue to apply accordingly. 4. As regards the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the member state responsible, articles 9, 10 and 11 of Directive 2013/33/EU shall apply. Article 28(2) therefore permits, subject to the other provisions of the article, the detention of applicants in order to secure their transfer in accordance with the Regulation, but only where there is a significant risk of absconding; that risk has been identified on the basis of an individual assessment; and the detention is proportional and other less coercive measures cannot be applied effectively. Article 2(n) defines risk of absconding as: the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond. I must also refer to another of the group of instruments forming the CEAS body of law: Parliament and Council Directive 2013/33/EU of 26 June 2013 (the recast Reception Directive), referred to in recital 20 of the Dublin III Regulation. The United Kingdom has not opted in to this Directive and remains governed by its predecessor, Council Directive 2003/9/EC of 27 January 2003. Nevertheless, its terms do shed some light on the meaning of the relevant terms of the Dublin III Regulation. Recital 15 of the recast Reception Directive provides: The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection, particularly in accordance with the international legal obligations of the member states and with article 31 of the Geneva Convention. Applicants may be detained only under very clearly defined exceptional circumstances laid down in this Directive and subject to the principle of necessity and proportionality with regard to both to [sic] the manner and the purpose of such detention. Where an applicant is held in detention he or she should have effective access to the necessary procedural guarantees, such as judicial remedy before a national judicial authority. Article 8 of the recast Reception Directive provides, so far as relevant: 1. Member states shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 2. When it proves necessary and on the basis of an individual assessment of each case, member states may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: in accordance with article 28 of [the Dublin III (f) Regulation]. The grounds for detention shall be laid down in national law. Al Chodor The meaning of these provisions of the Dublin III Regulation was considered by the CJEU in Al Chodor on a reference from the Nejvy sprvn soud, the Supreme Administrative Court of the Czech Republic. This decision is of great importance to the issues arising on this appeal and so I must deal with it in some detail. The case concerned a family of Iraqi nationals, the Al Chodors, who were stopped by police in the Czech Republic and interviewed. They claimed to be of Kurdish origin and it emerged that they had travelled to the Czech Republic via Turkey, Greece and then Hungary, where they had claimed asylum. The Foreigners Police Section of the Czech police force decided to place the family in detention pending their transfer to Hungary under the Dublin system. They took the view, for perfectly sensible reasons, that there was a serious risk that, unless detained, the Al Chodors would abscond before their transfer. The relevant Czech legislation conferred on the police force the power to detain a foreign national who had entered the Czech Republic illegally for the period of time necessary to secure the transfer of that person in accordance with, among other measures, the Dublin III Regulation. Upon a challenge by the Al Chodors, the Czech Regional Court annulled the decision to detain on the basis that the objective criteria for assessing the risk of absconding were not defined by Czech legislation as required by article 2(n) of the Regulation. The police force then brought an appeal on a point of law before the Supreme Administrative Court, which made the reference to the CJEU. The referring court was unsure whether the relevant Czech legislation, read together with articles 28(2) and 2(n) of the Dublin III Regulation, provided a sufficient legal basis for detention given that it did not lay down any objective criteria for assessing the risk of absconding. The court was also unsure whether the recognition of such criteria in case law which confirmed a consistent administrative practice of the police could meet the requirement of criteria defined by law within the meaning of article 2(n). It was pointed out by the referring court that the various language versions of article 2(n) diverged and that while the French and German versions required a definition, laid down in legislation, of the objective criteria for the purposes of absconding, other versions required a definition of those criteria by law in the general sense. As a result, the meaning of the term defined by law did not follow clearly from the wording of the provision. The referring court therefore asked, in substance, whether articles 2(n) and 28(2) of the Dublin III Regulation require member states to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of article 28(2). The Czech and United Kingdom Governments argued that, according to the case law of the European Court of Human Rights (the ECtHR), the concept of law as referred to in the ECHR was not limited to legislation but also included other sources of law provided they possessed the qualities of precision, foreseeability and accountability. They contended that the Czech case law and relevant administrative practice possessed those qualities in this case. The Greek Government and the Commission disagreed. Advocate General Saugmandsgaard e delivered his Opinion on 10 November 2016 EU:C:2016:865; [2017] 3 CMLR 24. He considered that the concept of law as referred to in article 2(n) of Dublin III, read in context and in light of its purpose, had a meaning which was different from that of the concept of law in the ECHR; that the provisions of the ECHR established a minimum level of protection and did not exclude the possibility that European Union law might provide more extensive protection; that the European Union legislature had indeed chosen to provide more extensive protection than that arising from article 5(1) of the ECHR; and that the criteria had to be laid down in legislation (Opinion, paras 42 45). He then proceeded to explain his reasons for these views. The Advocate General began with his reasons for believing that the Dublin III Regulation and the recast Reception Directive were intended to extend the protection afforded to applicants (Opinion, paras 46 58). He pointed out that before these instruments there was only minimal regulation of applicants detention. By contrast and as stated in recital 15 of the recast Reception Directive, the European Union legislature intended that detention of such persons under the new regime should be limited to exceptional circumstances. He also explained that the freedom of member states to detain applicants was already subject to the restrictions imposed by article 5(1)(f) of the ECHR and that the compliance of a detention measure with this provision was not conditional on there being a risk of absconding or the absence of other less restrictive measures enabling the removal of the person concerned. In his view, in adopting the Dublin III Regulation and the recast Reception Directive, the legislature intended to provide more extensive protection than that arising from article 5(1)(f). His reasons were twofold: first, article 28(2) of Dublin III permitted detention only where there was a significant risk of absconding; and secondly, article 28(2) of Dublin III and article 8(2) of the recast Reception Directive provided that detention was a measure of last resort and might be taken only in the absence of less coercive alternative measures. Two objectives of the requirement that the criteria for assessing the risk of absconding must be defined by law were identified by the Advocate General (Opinion, paras 59 70). The first was to ensure that the criteria offered sufficient guarantees of legal certainty, as that concept is understood in European Union law (Opinion, para 62). The second was to ensure that the discretion enjoyed by the individual authorities responsible for applying the criteria was exercised within a framework of certain pre determined markers (Opinion, para 63). In the Advocate Generals view, the achievement of each of these objectives was dependent on the objective criteria for the assessment of the risk of an applicant absconding being defined in a legislative text. Legal certainty demanded that individuals should be able to ascertain the scope of their rights and obligations and foresee the consequences of their actions. This requirement had not been satisfied in the instant case because the Czech case law was fragmentary, and the relevant administrative practice could be altered at will and had not been publicised (Opinion, paras 72 80). As for the objective of circumscribing the discretion of the administrative and judicial authorities, the adoption of legislation, in addition to providing advantages in terms of legal certainty, offered additional assurances in terms of external control of the discretion of the administrative and judicial authorities responsible for assessing the risk of absconding and, where appropriate, ordering detention (Opinion, para 81). Interference with liberty should be limited to exceptional circumstances; the discretion of the authorities should be circumscribed in such a way as to guard applicants against arbitrary deprivations of liberty; and, from this perspective, it was important that the criteria and their application should be determined by institutionally separate authorities (Opinion, para 82). The twofold requirement inherent in article 2(n), for an individual assessment and for the assessment to be based upon pre defined, objective criteria, required the administrative and judicial authorities to take the circumstances of each case into consideration; and further, it ensured that the discretion of the individual authority was channelled by means of general, abstract criteria that have been determined in advance by a third authority (Opinion, para 83). The CJEU gave judgment on 15 March 2017 [2017] 4 WLR 125. It dealt first with a submission that the Dublin III Regulation was directly applicable in member states and did not require transposition into national law. Thus, it was argued, article 2(n) did not require national legislatures to implement the objective criteria in national law. The court rejected this submission, observing, at para 28, that article 2(n) required that objective criteria defining the existence of a risk of absconding be defined by law. Since these criteria had been established neither by Dublin III nor in any other European Union legal act, the elaboration of those criteria was a matter for national law. The CJEU turned next to the question whether law in article 2(n) included settled case law which confirmed a consistent administrative practice. It explained, at paras 30 to 32, that a textual analysis did not provide an answer and that the provision had to be interpreted by reference to the purpose and the general scheme of the rules of which it formed a part. Here, the court continued, at paras 34 and 35, it was relevant that the Regulation was intended to make improvements to the effectiveness of the Dublin system but also to the protection afforded to applicants. Indeed, the high level of protection now afforded to applicants was apparent from the terms of articles 28 and 2(n), the requirement in article 2(n) that a finding of a risk of absconding must be based upon objective criteria defined by law and applied on a case by case basis, and the fact that its predecessor, the Dublin II Regulation, did not contain any provision relating to detention. The CJEU also thought it relevant that, by authorising the detention of applicants in order to secure their effective transfer under the Dublin III regime, the Regulation was authorising a limitation on the fundamental right to liberty enshrined in article 6 of the Charter of Fundamental Rights of the European Union (the Charter), and account also had to be taken of article 5 of the ECHR as providing the minimum threshold of protection. The court reasoned that any law authorising the deprivation of liberty must therefore be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness (para 38); that there must be no element of bad faith or deception on the part of the authorities (para 39); and that the detention of applicants, constituting, as it does, a serious interference with their liberty, is subject to strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness (para 40). There followed an analysis by the CJEU of the safeguard of legal basis and the type of provision needed to satisfy the other safeguards of clarity, predictability, accessibility and protection against arbitrariness. Here the courts reasoning is of particular importance and so I set it out in full: 41. With regard to the first of those safeguards, it must be recalled that the limitation on the exercise of the right to liberty is based, in the present case, on article 28(2) of the Dublin III Regulation, read in conjunction with article 2(n) thereof, which is a legislative act of the European Union. The latter provision refers, in turn, to national law for the definition of the objective criteria indicating the presence of a risk of absconding. In that context, the question arises as to what type of provision addresses the other safeguards, namely those of clarity, predictability, accessibility and protection against arbitrariness. In that regard, as was noted by the Advocate General in 42. point 63 of his Opinion EU:C:2016:865, it is important that the individual discretion enjoyed by the authorities concerned pursuant to article 28(2) of the Dublin III Regulation, read in conjunction with article 2(n) thereof, in relation to the existence of a risk of absconding, should be exercised within a framework of certain predetermined limits. Accordingly, it is essential that the criteria which define the existence of such a risk, which constitute the basis for detention, are defined clearly by an act which is binding and foreseeable in its application. 43. Taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirements of clarity, predictability, accessibility and, in particular, protection against arbitrariness. 44. The adoption of rules of general application provides the necessary guarantees in so far as such wording sets out the limits of the flexibility of those authorities in the assessment of the circumstances of each specific case in a manner that is binding and known in advance. Furthermore, as the Advocate General noted in points 81 and 82 of his Opinion EU:C:2016:865, criteria established by a binding provision are best placed for the external direction of the discretion of those authorities for the purposes of protecting applicants against arbitrary deprivations of liberty. It follows that article 2(n) and article 28(2) of the Dublin 45. III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In any event, settled case law confirming a consistent administrative practice on the part of the Foreigners Police Section, such as in the main proceedings in the present case, cannot suffice. 46. In the absence of those criteria in such a provision, as in the main proceedings in the present case, the detention must be declared unlawful, which leads to the inapplicability of article 28(2) of the Dublin III Regulation. Accordingly, the CJEU ruled as follows: Article 2(n) and article 28(2) of Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the member state responsible for examining an application for international protection lodged in one of the member states by a third country national or a stateless person, read in conjunction, must be interpreted as requiring member states to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond. The absence of such a provision leads to the inapplicability of article 28(2) of that regulation. It is striking that, although the CJEU plainly adopted aspects of the reasoning of the Advocate General, it did not in terms endorse his conclusion that the criteria for assessing the risk of absconding must be embodied in legislation. I must return to this decision in addressing the issues arising on this appeal but first I must say something about our domestic law. Domestic law Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (the 1971 Act) confers powers on immigration officers to detain an individual who is held within the immigration system pending a decision whether to give directions for his or her removal, and pending removal pursuant to any such directions. Similar powers are conferred on the Secretary of State by section 62(1) and section 62(2)(c) and (d) of the Nationality, Immigration and Asylum Act 2002. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that, in exercising their functions under the 1971 Act, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State. It is rightly accepted by the Secretary of State that there are limits to these powers to detain. First, they are subject to the Hardial Singh principles. These are well known and may be summarised as follows: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the person may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the relevant period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; and (iv) the Secretary of State should act with reasonable diligence and expedition to effect the removal: see R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196; affirmed as common ground in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, paras 22 and 171. These principles reflect the basic public law duties to act consistently with the purpose of the legislation and reasonably in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. But, as Lord Dyson observed in Lumba at para 30, they are not exhaustive. Were it otherwise, there would be no room for a public law duty of adherence to a published policy, to which I will come in a moment. We have also been referred by counsel for the Secretary of State to the decision of this court in R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16; [2016] 1 WLR 1565. There this court accepted (at para 75) that the primary responsibility to comply with the Hardial Singh principles lies with the Secretary of State but that the courts provide supervision of their application and that challenges are brought to secure release and not just for damages after the event. The Secretary of States policy in relation to detention to effect removal was set out in Chapter 55 of the EIG. Paragraph 55.1.1 states: The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate: to effect removal; initially to establish a person's identity or basis of claim; or where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail. To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy. Paragraph 55.1.3 provides: Detention must be used sparingly, and for the shortest period necessary. Paragraph 55.1.4 addresses the implied limitations on the statutory powers to detain and provides: In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitations implied by domestic and ECHR case law. Paragraph 55.1.4.1 then sets out what are, in substance, the Hardial Singh principles: To comply with article 5 [ECHR] and domestic case law, the following should be borne in mind: a) The relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation). Detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with article 5 and would be unlawful in domestic law (unless one of the other circumstances in article 5(1)(a) to (e) applies); b) The detention may only continue for a period that is reasonable in all the circumstances for the specific purpose; c) If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised; and d) The detaining authority (be it the immigration officer or the Secretary of State), should act with reasonable diligence and expedition to effect removal (or whatever the purpose of the power in question is). Paragraph 55.3 is also concerned with decisions to detain: Decision to detain (excluding fast track and criminal casework cases) 1. There is a presumption in favour of temporary admission or temporary release there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 2. All reasonable alternatives to detention must be considered before detention is authorised. 3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of children involved. Of particular significance is paragraph 55.3.1 which provides: Factors influencing a decision to detain All relevant factors must be taken into account when considering the need for initial or continued detention, including: What is the likelihood of the person being removed and, if so, after what timescale? Is there any evidence of previous absconding? Is there any evidence of a previous failure to comply with conditions of temporary release or bail? Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry). Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave). What are the persons ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment? What are the individuals expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14). Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)? Does the subject have a history of torture? Does the subject have a history of physical or mental ill health? Is the subject under 18? (See also sections 55.3.2 Further guidance on deciding to detain in criminal casework cases, 55.6 detention forms, 55.7 detention procedures, 55.9 special cases and 55.10 persons considered unsuitable for detention). Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified. A policy such as that embodied in Chapter 55 of the EIG is published so that an individual affected by it knows the criteria by which the executive has chosen to exercise the power conferred upon it by statute and so that the individual can make appropriate representations in relation to that exercise in relation to him. In Lumba, Lord Dyson explained its importance in these terms at para 34: The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements. It is also submitted on behalf of the Secretary of State, and I accept, that the executive must follow this stated policy unless there are good grounds for not doing so. Further, and as Lord Dyson explained in Lumba, at para 66, a purported lawful authority to detain may be impugned either because the defendant has acted in excess of jurisdiction or because the jurisdiction has been wrongly exercised. Both species of error render an executive act ultra vires, unlawful and a nullity. There is in this context no difference between a detention which is unlawful because there was no statutory power to detain and a detention which is unlawful because the decision to detain, although authorised by the statute, was made in breach of a rule of public law. The same point emerges from the decision of this court in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299. As Lord Hope of Craighead said at para 42, the published policy in that case narrowed the power of the executive to detain by requiring that any detention be reviewed regularly, and so it was an abuse of the power for any person to be detained if that detention was not reviewed at regular intervals. Lord Hope continued, at paras 51 and 52, that the policy was designed to give practical effect to the Hardial Singh principles and to meet the requirement that, to be lawful, the measures had to be transparent and not arbitrary; that the policy contained a set of instructions with which officials were expected to comply; that the policy and the principles went hand in hand; and that the discretion to continue detention had to be exercised in accordance with the principles but also in accordance with the policy. Does Chapter 55 of the EIG satisfy articles 28(2) and 2(n)? To summarise the position under European Union law, a member state may not hold in detention a person who is subject to the Dublin III procedure unless there are reasons in that individual case, based on objective criteria defined by law and an individual assessment, to believe that person may abscond. In addition, detention must be proportional, is justified only where other less coercive alternative methods cannot be applied effectively and must be for as short a period as possible. Further and as interpreted by the CJEU in Al Chodor and consistently with the ECHR and the Charter, articles 28(2) and 2(n) of the Dublin III Regulation demand that the detention of applicants, constituting, as such detention does, a serious interference with their right to liberty, is subject to compliance with the strict safeguards of legal basis, clarity, predictability, accessibility and protection against arbitrariness (Al Chodor, para 40). The first of these safeguards requires national law to define objective criteria indicating the presence of a risk of absconding (Al Chodor, para 41). The others demand that the assessment is carried out within a framework of certain predetermined limits and that the objective criteria are defined clearly by an act which is binding and foreseeable in its application (Al Chodor, para 42) and are established in a binding provision of general application (Al Chodor, para 45). The adoption of such a provision of general application provides the necessary safeguards in so far as its wording sets out the limits of the flexibility of [the] authorities in the assessment of the circumstances of each specific case in a manner which is binding and known in advance (Al Chodor, para 44). The CJEU accordingly ruled that member states are required to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond. These requirements are of great importance. As we have seen, the Dublin III Regulation was intended to improve not only the effectiveness of the Dublin system but also to confer a high level of protection upon those subject to Dublin III transfers and to impose significant limitations on the powers of member states to detain them. The Regulation was also intended to provide greater guarantees in relation to detention than its predecessor, the Dublin II Regulation. The Secretary of State accepts that, within the taxonomy of English law, Chapter 55 of the EIG cannot be described as legislation but contends that it nevertheless includes rules and that decision makers have legal obligations, imposed by settled case law, to comply with them. It is submitted that the policy contained in Chapter 55 constitutes a clear statement by the executive of the circumstances in which the statutory criteria will be exercised; that they are objective and publicly accessible; and that their meaning will, if necessary, be determined by the court. It is also argued that Chapter 55 and domestic case law are integral parts of the law that governs and limits the power to detain and that together they define how the power to detain must be exercised and set out the objective criteria which decision makers must apply when exercising that power. Consequently, the submission continues, the combination of Chapter 55 and domestic case law ensures that any decision to detain is exercised within a framework of certain predetermined limits and according to criteria established by binding provisions of general application which meet the requirements of clarity, predictability, accessibility and protection against arbitrariness explained by the CJEU in Al Chodor. These submissions are all directed to the issues set out in para 18(i) above. The majority of the Court of Appeal addressed those issues in two stages. They considered first, whether the contents of Chapter 55 of the EIG met the requirement that the criteria for the assessment of the risk of absconding must be clear, predictable and accessible, and whether they constituted a framework of certain predetermined limits; and secondly whether Chapter 55, though not legislation and even though capable of being changed at any time by the Secretary of State without being subject to parliamentary scrutiny or consultation, provided the necessary predictability and amounted to a binding provision of general application as referred to by the CJEU in Al Chodor and constituted a defining law as required by article 2(n). I propose to adopt the same course. Does Chapter 55 of the EIG constitute a framework of certain predetermined limits? As we have seen, Chapter 55 of the EIG contains the Secretary of States policy in relation to detention pending removal. However, it is not a policy which is specifically directed to the detention of persons subject to a Dublin procedure. Indeed, as the majority in the Court of Appeal observed, it contains no reference to Dublin III at all. In these circumstances it comes as no surprise that it makes no reference to the requirement that a person is not to be detained for the sole reason that he or she is subject to a Dublin procedure; nor does it say that the only permissible basis for detaining such a person is that there is a significant risk of absconding. Further, there is no direction that detention must be proportional. I accept that paragraph 55.1.1 of Chapter 55 states that, in considering the power to detain, there is a presumption in favour of immigration bail and that, where possible, alternatives to detention should be used. It also states that detention is most usually appropriate to effect removal, initially to establish a persons identity or basis of claim or where there is reason to believe that a person will fail to comply with any conditions attached to the grant of immigration bail. So too, paragraph 55.1.3 makes clear that detention must be used sparingly and for the shortest necessary period; and paragraph 55.1.4 says that detention must be for one of the statutory purposes for which the power is given and must comply with the limitations imposed by domestic and ECHR case law. But all of this amounts to no more than general guidance as to how the power to detain is to be exercised and does not constitute a set of objective criteria against which the risk of absconding is to be assessed. Nor does it set out the limits of the flexibility of the authorities in the assessment of the particular circumstances of each case in a manner which is binding and known in advance. Paragraph 55.1.4.1 of Chapter 55 sets out the Hardial Singh principles but, as the majority of the Court of Appeal explained at paras 167 to 169, by the end of the hearing before them it appeared not to be in dispute that these principles were insufficient to satisfy the requirements of articles 28(2) and 2(n). Nevertheless, the majority in the Court of Appeal went on to explain why that was in any event their view, and it is a view which I share. In short, the Hardial Singh principles require the power to detain to be exercised reasonably and for the prescribed purpose of facilitating deportation: see, for example, Lumba, para 30, per Lord Dyson. But they do not constitute objective criteria on the basis of which an assessment may be made as to the likelihood that a person who is subject to a transfer procedure may abscond. The Secretary of State places particular reliance on paragraphs 55.3 and 55.3.1 of the EIG. Paragraph 55.3 does no more than set out further general guidance to the effect that, for detention to be justified, there must be strong grounds for believing a person will not comply with conditions of temporary admission or temporary release; that all reasonable alternatives to detention have been assessed; and that each case has been considered on its merits, with due regard to the need to safeguard and promote the welfare of any children involved. The Secretary of State therefore focuses on the criteria set out in paragraph 55.3.1 and contends these are objective and publicly accessible and that their meaning will, if necessary, be determined by the court. It is also argued that they have formed the basis of detention decisions for many years and are well known and well understood by asylum seekers and the courts. So too, the argument continues, binding guidance as to the application of these criteria is set out in case law, and the courts have ensured that the decision making process is transparent. The Secretary of State accepts that this list relates not just to Dublin III cases but also to all other cases in which it may be appropriate to consider detention for immigration purposes but contends this is not incompatible with article 2(n). It is submitted that this article does not say that the objective criteria have to be set out in a separate stand alone document focused exclusively on article 28, nor that there has to be an express reference to that provision. Further, an individual who is subject to the Dublin III procedure can readily identify which of the criteria in the list are relevant to any assessment of whether he poses a risk of absconding. I do not find these submissions persuasive. Paragraph 55.3.1 sets out 11 factors which may be relevant in considering the need for initial or continued detention. It does not purport to be a list of criteria for assessing whether a person in a Dublin III procedure may abscond. Further, it is not an exhaustive list for, as its opening words make clear, all relevant factors are to be taken into account. As for the list itself, only one factor, the second, refers in terms to absconding. Some of the others might be relevant to a risk of absconding but might also be relevant to the need for detention for different purposes underpinned by different policy considerations. In the case of the last three (whether the subject is under 18, whether the subject has a history of torture and whether the subject has a history of physical or mental ill health), it is hard to see their relevance to a risk of absconding at all. In the result, persons subject to a Dublin III procedure cannot know which criteria will be used for the basis of an assessment whether they are likely to abscond and cannot identify the limits of the flexibility of the relevant authorities in carrying out their evaluation. In my judgement a provision such as this does not constitute a framework of certain predetermined limits for assessing whether a person in a Dublin III procedure is likely to abscond, does not identify the criteria which are to form the basis of the assessment and does not set out the limits of the flexibility of the authorities in a manner which is binding and known in advance. Nor is there any evidence or finding that asylum seekers were aware of the provisions of the Dublin III Regulation or the existence or significance of the Al Chodor decision and so could in some way factor these matters into their understanding of the assessment processes to which they were subjected. The Secretary of State also points to the subsequent legislative history and submits this shows how little difference formal compliance with any requirement for secondary legislation would make. On the 15 March 2017, the day the CJEU gave judgment in Al Chodor, the Secretary of State made the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017/405) (the 2017 Regulations). These set out, at regulation 4, the criteria to be considered when deciding whether a person (P) poses a significant risk of absconding for the purposes of article 28(2): When determining whether P poses a significant risk of absconding for the purposes of article 28(2) of the Dublin III Regulation, the Secretary of State must consider the following criteria (a) whether P has previously absconded from another participating state prior to a decision being made by that participating state on an application for international protection made by P, or following a refusal of such an application; (b) whether P has previously withdrawn an application for international protection in another participating state and subsequently made a claim for asylum in the United Kingdom; (c) whether there are reasonable grounds to believe that P is likely to fail to comply with any conditions attached to a grant of temporary admission or release or immigration bail; (d) whether P has previously failed to comply with any conditions attached to a grant of temporary admission or release, immigration bail, or leave to enter or leave to remain in the United Kingdom granted under the Immigration Act 1971, including remaining beyond any time limited by that leave; (e) whether there are reasonable grounds to believe that P is unlikely to return voluntarily to any other participating state determined to be responsible for consideration of their application for international protection under the Dublin III Regulation; (f) whether P has previously participated in any activity with the intention of breaching or avoiding the controls relating to entry and stay set out in the Immigration Act 1971; (g) Ps ties with the United Kingdom, including any network of family or friends present; (h) when transfer from the United Kingdom is likely to take place; (i) whether P has previously used or attempted to use deception in relation to any immigration application or claim for asylum; (j) whether P is able to produce satisfactory evidence of identity, nationality or lawful basis of entry to the UK; (k) whether there are reasonable grounds to consider that P has failed to give satisfactory or reliable answers to enquiries regarding Ps immigration status. The Secretary of State contends that these criteria reflect the relevant bullet points referred to in paragraph 55.3.1 and observes that paragraph 55.3.1 could have been drafted in precisely these terms. This, so it is said, shows how technical and formal the following argument of the respondents is: promulgation of the criteria by means of a policy such as the EIG does not comply with articles 28(2) and 2(n), yet the making of secondary legislation in the same terms by the Secretary of State alone and without any Parliamentary scrutiny does comply with them. It will be appreciated that this argument is primarily directed at the second stage of the analysis as explained at para 56 above, and I address this below. But in my view the 2017 Regulations are also relevant to the first stage. The contrast between regulation 4 of the 2017 Regulations and paragraph 55.3.1 of the EIG is striking. Paragraph 55.3.1 contains a non exhaustive list of criteria, only some of which may be relevant to an assessment of the risk of an applicant absconding for the purposes of article 28(2). Regulation 4, on the other hand, says that the Secretary of State must consider the factors which are identified and the potential relevance of them all to such an assessment is plain. In summary and for the reasons I have given, I am satisfied that Chapter 55 of the EIG does not establish objective criteria for the assessment of whether an applicant for international protection who is subject to a Dublin III transfer procedure may abscond; its contents do not constitute a framework with certain predetermined limits; and it does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance. It follows that Chapter 55 of the EIG cannot satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation and the majority of the Court of Appeal were right so to hold. Does Chapter 55 of the EIG constitute a binding provision of general application and amount to a defining law within the meaning of article 2(n)? In the light of the foregoing it is not strictly necessary to deal with this further stage of the analysis. Nevertheless, since we heard argument about it, I will address it. The Secretary of State contends that the circumstances of these appeals are very different from those of Al Chodor. It is argued that Chapter 55 of the EIG is not mere administrative practice and that in reality it is prescriptive and imposes restrictions on the executive power to detain that go beyond the Hardial Singh principles. Compliance with the provisions of Chapter 55 is enforceable by individuals before the courts and an unlawful failure to comply will result in the detention being held to be unlawful and lead to an order for the release of the person concerned or an award of compensation, or both. It is also contended that, in English law, settled case law defines the legal powers which limit the statutory power to detain and permits enforcement of the criteria which restrict the power of the executive to detain and which in other legal systems might exist only in legislation. As such, case law and Chapter 55 EIG are integral components of the law that governs and limits the power to detain and together define how the power to detain must be exercised. Therefore, Chapter 55 constitutes the kind of non legislative instrument that the CJEU contemplated would satisfy article 28(2) and 2(n). Indeed, the submission continues, if a non legislative instrument like Chapter 55 does not constitute the kind of non legislative instrument that the CJEU contemplated would satisfy articles 28(2) and 2(n) then it is difficult to imagine what the CJEU was contemplating when it departed from the Advocate Generals view. The circumstances of the Al Chodor case were plainly very different from those the subject of these appeals. It will be recalled that Czech law conferred on the police force a wide power to detain. Nevertheless, the national court had laid down in a series of judgments some criteria for assessing the risk of absconding. However, as the Advocate General explained, the presentation of these criteria was fragmentary. In addition, there was doubt as to whether that administrative practice had been publicised and it was alterable at will. There can also be no doubt that in this jurisdiction a policy statement such as Chapter 55 of the EIG has significant legal effects. I have referred to these at paras 50 51 above. In broad terms and as Laws LJ explained in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, para 68, where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law requires that promise or practice to be honoured unless there is good reason not to do so. Moreover, the court is the final arbiter of what a policy means: Kambadzi, at para 36, per Lord Hope; Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546, para 31, per Lord Wilson of Culworth. It is also well established that compliance with such a policy is enforceable by individuals before the courts. Moreover, the word law is used in articles 5(1)(f), 8(2), 9(2), 10(2) and 11(2) of the ECHR which require that any interference with the rights affirmed by these provisions be in accordance with a procedure prescribed by law, in accordance with the law or prescribed by law. The meaning of each of these expressions is the same and the word law within them encompasses not only legislation but also case law. As the ECtHR explained in Sunday Times v United Kingdom (1979) 2 EHRR 245, para 47, were it otherwise it would deprive a common law state which was party to the ECHR of the protection of article 10(2) and strike at the roots of that states legal system. Indeed, the applicants in that case did not argue that the expression prescribed by law required legislation in every case; they contended that legislation was required only where the common law rules were so uncertain that they did not satisfy the requirement of legal certainty. The court went on to explain, at para 49, that two of the requirements that flow from the expression prescribed by law are that a law must be accessible and sufficiently precise to enable a person adequately to foresee the consequences of his actions and so regulate his conduct. But, the court continued, the consequences need not be foreseeable with absolute certainty; that was unattainable and might carry with it excessive rigidity, preventing the law from keeping pace with changing circumstances. Similarly, R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148 concerned a policy adopted by an authority for the seclusion of detained psychiatric patients. The House of Lords held any interference with the article 8 rights of patients was justified under article 8(2). Seclusion under the policy was necessary for, among other things, the prevention of disorder, the protection of health and the protection of the rights and freedoms of others, and if properly used it would not be disproportionate. The procedure adopted by the authority did not permit arbitrary or random decision making and the rules were accessible, foreseeable and predictable. In these circumstances, it could not be said that they were not in accordance with or prescribed by law. Lord Bingham of Cornhill, with whom Lord Hope and Lord Scott of Foscote agreed, rejected a submission that the interference was not in accordance with the law because it was not prescribed by a binding general law: 34. I cannot for my part accept this. The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. Nevertheless, in my view it does not follow that Chapter 55 of the EIG and domestic case law constitute law within the meaning of article 2(n) of Dublin III. That is so because a provision can only amount to a law within the meaning of article 2(n) if it has the necessary quality of certainty and that is something that Chapter 55 does not have. To ignore the need for certainty would be impermissibly to remove the word law from its context. As I have explained, the Advocate General identified the two objectives of the requirement that the criteria for assessing the risk of absconding be defined by law as being first, to ensure that those criteria offer sufficient guarantees in terms of legal certainty, that is to say that the measures adopted by member states enable the individuals concerned to ascertain the scope of their rights and obligations and to foresee the consequences of their actions; and secondly, to ensure that the discretion enjoyed by the individual authorities responsible for applying those criteria is exercised within a framework of pre determined limits. All of this reasoning is echoed in the judgment of the CJEU, in particular at paras 41 to 43. The CJEU also explained, at para 44, that the adoption of rules of general application would provide the necessary guarantees in so far as they set out the limits of the flexibility of the authorities in a manner which is binding and known in advance, and further, that the criteria are best placed for the external direction of the discretion of those authorities for the purpose of protecting applicants against arbitrary decision making. In this latter connection it referred, with apparent approval, to the observations of the Advocate General at paras 81 and 82 of his Opinion (see para 33 above). In my judgement and for the reasons I have given at paras 57 65 above, it is clear that Chapter 55 does not satisfy these requirements. It does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance and so lacks the necessary qualities of certainty and predictability. Therefore, it does not constitute a law for the purposes of articles 28(2) and 2(n). A broader question is whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a law within the meaning of article 2(n). The Secretary of State maintains that it can for the reasons summarised at paras 67 71 above. Reliance is also placed on the 2017 Regulations. It is said that the respondents argument that promulgation of the criteria set out in the 2017 Regulations by means of a policy would not comply with articles 2(n) and 28(2) whereas the making of secondary legislation in the same terms would so comply, shows how technical and formal the objection is. The respondents have advanced powerful arguments to the contrary, however. First, it is a feature of the policy adherence principle that the decision maker is entitled for good reason to depart from the policy: see, for example, Lumba at para 54, per Lord Dyson (with whom Lord Hope, Lord Walker of Gestingthorpe and Lord Collins of Mapesbury agreed); at para 202, per Baroness Hale of Richmond; at para 245, per Lord Kerr of Tonaghmore; at para 351, per Lord Brown of Eaton Under Heywood (with whom Lord Rodger of Earlsferry agreed); and at para 312, per Lord Phillips of Worth Matravers. Hence, the respondents continue, a statement of policy cannot be a principle of general application. The respondents second argument focuses on the view expressed by the Advocate General in Al Chodor [2017] 3 CMLR 24, paras 81 and 82 of his Opinion that the discretion of the authorities should be circumscribed in such a way as would best guard applicants against arbitrary deprivations of liberty, and so the content of the criteria and their application in a particular case should be decided by institutionally separate authorities (see para 33 above). Further, in explaining why a provision of general application is required, the CJEU referred to this aspect of the Advocate Generals Opinion with apparent approval (Al Chodor [2017] 4 WLR 125, para 44). The respondents also point out that, under United Kingdom constitutional arrangements, a statement of immigration policy and the common law principle of policy adherence do not involve external direction and that, as a matter of constitutional theory, under the Carltona doctrine (Carltona Ltd v Comrs of Works [1943] 2 All ER 560), the decisions of the Secretary of States officials count as his. It follows, say the respondents, that a statement of policy cannot be a binding general law. The third argument advanced by the respondents is directed at the reliance by the Secretary of State upon the position under the ECHR that interferences with human rights must be prescribed by law, and how this requirement has been interpreted. The respondents contend that this reliance is misplaced because articles 28(2) and 2(n) require more than the conventional ECHR standards of prescription. They also say, fairly in my view, that what is needed is a high level of protection (Al Chodor [2017] 4 WLR 125, paras 34 and 43), that there are to be strict safeguards (Al Chodor, para 40), and that there are to be greater guarantees than applied under Dublin II (Al Chodor, para 35). They contend that, in giving this guidance and contrary to the position taken by the Secretary of State, the CJEU plainly had in mind the settled case law of common law systems and that such is apparent from its reference (Al Chodor, para 21) to the decision of the ECtHR in Kruslin v France (1990) 12 EHRR 547 in which that court discussed the role of case law in both civil law and common law systems. It is not necessary to resolve these rival contentions in this appeal and in my judgement the question whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a law within the meaning of article 2(n) should be decided in a case in which it is necessary to do so. Conclusion on issue 1 For the reasons I have given, the policy published by the Secretary of State in Chapter 55 of the EIG does not satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation. Are damages payable to a person whose detention pursuant to Chapter 55 of the EIG is authorised by the Secretary of State? The right to personal freedom is of fundamental importance and is reflected in the guarantees contained in articles 5(4) and 5(5) of the ECHR. A person who is unlawfully detained in this jurisdiction has (a) a right to be released; and (b) a right to damages for the tort of false imprisonment. This tort has just two ingredients: the fact of imprisonment and the absence of lawful authority to justify it: R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C D per Lord Bridge of Harwich. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally detained by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so: Lumba, para 65, per Lord Dyson. Here the Secretary of State relies upon the discretionary power to detain which is conferred by paragraph 16(2) of Schedule 2 to the 1971 Act. But that reliance can only assist the Secretary of State so far as the power to detain was exercised in accordance with the 1971 Act. As we have seen, the power is limited in various ways. It is limited by the Hardial Singh principles such that a failure by the Secretary of State to comply with those principles will render the detention unlawful. So too, a failure by the Secretary of State to adhere to a published policy under the 1971 Act without good reason can amount to an abuse of power which will render the detention unlawful: Kambadzi, paras 41 42, per Lord Hope. The respondents primary submission, which the majority of the Court of Appeal accepted, is that the exercise by the Secretary of State of the power to detain under the 1971 Act is also constrained by any applicable obligations under European Union law by operation of section 2(1) of the European Communities Act 1972. The respondents were detained pursuant to the policy in the EIG which was unlawful in so far as it failed to give effect to articles 28(2) and 2(n) of the Dublin III Regulation. Put another way, nothing in the 1971 Act authorised an exercise of the power to detain in breach of European Union law. The detention of the respondents under the 1971 Act and pursuant to the policy in the EIG was in breach of Union law. It follows that they were detained without lawful authority and their detention amounted to false imprisonment, and they are entitled to damages. This argument is clear and, in my opinion, compelling. However, the Secretary of State argues that it is simplistic and that, were it to be accepted, it would ride roughshod over the careful balance of interests that is inherent in the principles of European Union law which govern and restrict the availability of damages as a remedy for breach by a member state of Union law, particularly where the precise effect of that law is unclear until it has been established by a decision of the CJEU. There are three limbs to the Secretary of States submissions. The first limb Francovich It is contended first, that there are only two ways in which a claimant in domestic proceedings is entitled to damages payable by a member state for a breach of European Union law: either where the law specifies the penalties to be imposed or the compensation to be provided in the event of breach, or under the principles established by the CJEU in Francovich v Italian Republic (Joined Cases C 6/90 and C 9/90) [1995] ICR 722. Here, the Secretary of State continues, the Dublin III Regulation does not provide for compensation for its breach and so the respondents only possible claim under Union law is for Francovich damages. Francovich was a case concerning the obligation upon a member state to take, within a given period, the measures necessary to implement a Directive. The court explained that it is a principle of European Union law that member states are obliged to pay compensation for harm caused to individuals by breaches of the law for which they can be held responsible, but that the conditions under which that liability gives rise to a right to compensation depend upon the nature of the breach giving rise to the claim. This issue and in particular the approach to be adopted where the legislature of the member state has a wide discretion when acting in a field governed by Union law, was explored further by the court in Factortame. The court explained that Union law confers a right to reparation where: the rule of law infringed is intended to confer rights on individuals; the breach of the obligation resting on the state is sufficiently serious; and there is a direct causal link between the breach and the damage sustained by the injured parties: Factortame, para 51. The decisive test for determining whether the breach is sufficiently serious is whether the member state manifestly and gravely disregarded the limits on its discretion: Factortame, para 55. The factors which the national court may take into consideration include the clarity and precision of the rule breached; the measure of discretion left by the rule to the national authority; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; the fact that the position taken by a European Union institution may have contributed towards the omission; and the adoption or retention of national measures contrary to European Union law: Factortame, para 56. On any view, a breach of European Union law will be sufficiently serious if it is persisted in once it is clear that the impugned conduct constitutes an infringement: Factortame, para 57. The Secretary of State has invoked all of these principles on this appeal. It is contended that European Union law was impenetrable before the decision of the CJEU in Al Chodor and that this is highly relevant to the question whether any breach by the United Kingdom of Union law was intentional or voluntary, or excusable or inexcusable, and therefore sufficiently serious to trigger a liability for Francovich damages. The Secretary of State also points to the wide margin of discretion given to member states in giving effect to articles 28(2) and 2(n), and contends that in circumstances such as those of this appeal a manifest and grave disregard of the limits of the discretion must be established before damages are available; and that the same criteria should inform, if not govern, a claim for damages for false imprisonment under common law. There can be no dispute about the correctness of the principles of European Union law which I have summarised in para 86. I accept too that it is by reference to these principles that any claim by the respondents for damages under Union law must be judged. But it does not follow that the same principles constrain the claim by the respondents for damages for wrongful imprisonment and in my judgement and for the reasons which follow, they do not. First, the consequence of a failure by a member state to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a Dublin III procedure may abscond, is that article 28(2) of the Regulation does not apply. This in turn means that the detention of such an applicant in such a state is unlawful and he or she must be released: see Al Chodor, paras 17 and 46. In this appeal, it has the consequence that the decision to detain the respondents lay outside the boundaries of any permissible exercise of the power to detain conferred by paragraph 16(2) of Schedule 2 to the 1971 Act. Secondly and as I have explained, the right to liberty is a fundamental human right enshrined in article 5 of the ECHR. Immigration detention is only in accordance with article 5(1)(f) in so far as it is in accordance with a procedure prescribed by law. Moreover, a person who is detained unlawfully must be released: article 5(4); and is entitled to compensation: article 5(5). These principles are also general principles of European Union law: article 6(3) of the Treaty on European Union. Thirdly, the right to compensation is provided in domestic law by the right at common law to claim damages for false imprisonment. Generally, damages for false imprisonment are awarded as compensation and so the level of damages will depend on the circumstances and degree of harm the claimant has suffered by reason of his or her wrongful detention. There is no reason to believe that the impact of loss of liberty is likely to be affected by whether lack of legal authority for the detention is the consequence of a failure to comply with European Union or domestic legislation, and in my judgement the source of the lack of legal authority does not justify treating those who have been wrongfully detained differently from one another. The second limb Lumba The second limb to the Secretary of States submissions is founded on the decision of this court in Lumba. It is argued that in Lumba this court rejected the submission that any public law error in a decision to detain would result in the subsequent detention being unlawful, regardless of any of the circumstances of that public law error, and instead adopted an approach which involved the weighing of a number of countervailing considerations, such as the nature and extent of the public law error, the absence of procedural safeguards which are normally available in cases of judicial review but are not available in a private law action for damages for false imprisonment, and the discretionary nature of judicial review remedies. We are urged to adopt the same approach in this appeal in considering the elements of the tort of false imprisonment and correct approach to the assessment of damages, if liability is established. It is submitted that such an approach echoes that of the CJEU in Factortame when formulating the necessary elements of a claim for damages for a breach of European Union law. Lumba was a case in which the Secretary of State applied an unpublished policy of detention for all foreign national prisoners on completion of their sentences of imprisonment and pending the making of deportation orders against them. This court held that the unpublished policy was unlawful because it was a blanket policy which admitted of no exceptions and was inconsistent with the Secretary of States published policy. It also held that a public law error can found a claim for damages for false imprisonment but recognised that not all public law errors will have this effect. The majority expressed themselves in slightly different ways. Lord Dyson explained, at para 68, that the error must be material to the decision to detain: the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Lord Hope considered, at para 175: that there was here a serious abuse of power which was relevant to the circumstances of the appellants detention. Baroness Hale put it this way, at para 207: the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach. Lord Kerr stated the test in these terms, at para 251: Breach of a public law duty which has the effect of undermining the achievement of the statutory purpose will therefore, in my opinion, render the continued detention invalid. All of these formulations have at their heart a recognition that a public law error will not render detention unlawful unless that error bears upon and is relevant to the decision to detain, and so is capable of affecting the result. Similar expressions were adopted subsequently in Kambadzi at paras 41 42 (Lord Hope), para 69 (Baroness Hale) and para 88 (Lord Kerr). In my judgement, there can be no doubt that the test laid down in Lumba and Kambadzi, however expressed, is met in the circumstances of the cases before us in this appeal. There was a requirement for a binding provision of general application containing objective criteria underlying the reasons for believing that an applicant might abscond, and that requirement was not satisfied. This was fundamental to the decision to detain and it can make no difference whether the source of that requirement lay in European Union or domestic legislation. The third limb choice of law The third limb to the Secretary of States submissions adopts the reasoning in the dissenting judgment of Sales LJ in the Court of Appeal at paras 132 to 147. The essential elements of that reasoning are these: The Dublin III Regulation does not stipulate that damages are to be i) awarded for detention in breach of its terms. ii) The test laid down in Factortame for attaching liability to a state to pay damages to an individual for a breach of European Union law reflects the fact that Union legislation is frequently not clear. iii) The domestic tort of false imprisonment was framed without reference to the particular problems to which the Dublin III Regulation gives rise, and ignores the fair balance of interests which the Regulation aims to achieve. iv) In effect, a choice of law question arises when assessing whether a person within article 28 of Dublin III who has been wrongfully detained is entitled to substantial damages, and the appropriate law to govern that question is Union law. v) A person who is subject to a Dublin III procedure and who has been wrongfully detained must be released but such a person is only entitled to damages if there has been a sufficiently serious breach of article 2(n), and any other approach would be disproportionate. Put another way, article 28 excludes any application of the power to detain conferred by Schedule 2 of the 1971 Act. The detention of such a person is therefore completely covered by Union law and that person is only entitled to damages under Union law. vi) The disconnection between Union law as set out in articles 28(2) and 2(n) of the Regulation and the domestic law of false imprisonment is illustrated by the case of the third respondent who was refused bail and so was detained by order of the court, and could not claim damages for false imprisonment in respect of his detention thereafter. However, he could still claim damages for breach of Union law if the breach was sufficiently serious. vii) The Secretary of States position is also supported by the fact that damages for a breach of article 6 of the ECHR fall to be assessed by reference to ECtHR authority. These arguments overlap to a considerable extent with those I have already addressed. I of course accept that the Dublin III Regulation does not require member states to confer a right to damages on persons who have been detained in breach of its terms. So too I recognise that one of the matters informing the formulation by the CJEU of the conditions under which a member state may incur liability for damage caused to individuals by a breach of Union law is whether the state concerned manifestly and gravely disregarded the limits on its discretion, and that one of the factors which may be relevant to this issue is the clarity and precision of the rule breached: Factortame, paras 55 56. I also accept that the domestic tort of false imprisonment was framed without reference to the particular problems to which the Dublin III Regulation gives rise. These points aside, however, I cannot agree with Sales LJs analysis. The power to detain applicants for international protection who are subject to a Dublin III procedure is conferred, not by the Dublin III Regulation, but by Schedule 2 to the 1971 Act. That power to detain is constrained in various ways, three of which I have discussed: the Hardial Singh principles, the policy adherence principle and the provisions of the Dublin III Regulation. Here the Secretary of States published policy in Chapter 55 of the EIG did not comply with articles 28(2) and 2(n) of the Dublin III Regulation with the consequence that, in the case of each of the respondents, the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act. In these circumstances, the two ingredients of the tort of wrongful imprisonment were undoubtedly present. As the respondents submit and I accept, the right under domestic law to claim damages for wrongful imprisonment is not dependent on the law being clear. Nor is it dependent upon the nature of the illegality, that is to say whether it is the consequence of a failure to comply with European Union legislation, as in this case, or has some other cause, as it did in Lumba. Further, there is no disconnection between a failure to comply with articles 28(2) and 2(n) of Dublin III Regulation and the tort of false imprisonment in circumstances such as those of the cases before us. Nor can the Secretary of State derive any assistance from the position of the third respondent. He was not detained pursuant to an order of the court. He was simply denied bail. A decision on a bail application is not a determination of whether or not the detention is lawful, whether at common law or for the purposes of article 5(4) of the ECHR: see, for example, Lumba at para 118. The approach adopted in this jurisdiction to claims for damages for violations of article 6 of the ECHR does not assist the Secretary of State either. Sales LJ referred to the decision of the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673. In that case Mr Greenfield, a prisoner, failed a mandatory drug test and was charged with a drugs offence under the relevant prison rules. The charge was heard by the deputy controller, a Crown servant, for whom the Secretary of State was responsible. The deputy controller refused a request by Mr Greenfield that he be legally represented. The charge was proved and Mr Greenfield was ordered to serve an extra 21 days of imprisonment. He applied for judicial review of the decision, alleging that his rights under article 6 of the ECHR had been violated. In due course the Secretary of State conceded there had been a breach of article 6 on the basis that the proceedings involved a criminal charge, that the deputy controller was not an independent tribunal and that Mr Greenfield had been denied legal representation of his own choosing. Mr Greenfield nevertheless pursued his claim for damages for the violations of article 6 which had taken place. The House of Lords held that, in deciding whether an award of damages was necessary, it was appropriate to look to the jurisprudence of the ECtHR for guidance, and in the great majority of cases in which that court had found a breach of article 6 it had treated the finding of violation as, in itself, just satisfaction under article 41, and that it would only award monetary compensation where it was satisfied that the loss or damage was caused by the violation. The important point of difference between Greenfield and the cases before us on this appeal is that, in Greenfield, the claim for damages was based entirely on the breach of article 6. There was no claim for damages for wrongful imprisonment or for any other tort and Mr Greenfield had not suffered any loss. Indeed, as Lord Bingham of Cornhill explained at paras 27 to 29, the hearing had been conducted in an exemplary manner and, while it could be accepted that Mr Greenfield thought that the authorities were biased against prisoners and that he would not receive a fair hearing, the manner of his adjudication had been the norm, he had been treated no differently from any other prisoner and there was no feature of the case which justified an award of damages. In my judgement the majority in the Court of Appeal were therefore right to hold that the respondents were wrongfully detained. The respondents are also entitled to compensation for any loss their wrongful detention has caused them. Causation and nominal damages The Secretary of State contends that the respondents should be awarded no more than nominal damages. It is said that it is inevitable that the respondents would have been detained lawfully, had the Secretary of State appreciated the unlawfulness of Chapter 55 of the EIG. That is demonstrated by the 2017 Regulations, which came into force on 15 March 2017, the day the CJEU gave judgment in Al Chodor. Further, the argument continues, these regulations meet all of the criteria set out in articles 28(2) and 2(n) of the Dublin III Regulation as interpreted by the CJEU in Al Chodor, and their application would have resulted in the same outcome: the respondents would have been detained. The Secretary of State relies in support of this contention upon the decision of this court in Lumba. One of the issues in that appeal was whether the appellants had suffered any loss as a result of their wrongful imprisonment. The majority of the court held they had not because, had the Secretary of State acted lawfully and applied her published policy on detention as opposed to her unpublished policy of blanket detention, it was inevitable that the appellants would have been detained. In other words, the detention of the appellants was at all times justifiable. The same point emerges from the decision of this court in Kambadzi. There the claimants detention pending deportation was unlawful because it had not been reviewed in accordance with the Secretary of States published policy and rule 9(1) of the Detention Centre Rules 2001 (SI 2001/238). Although it could be no defence to a claim for false imprisonment to demonstrate that, if reviews had been carried out, the claimant would still have been detained, this would be relevant to the claim for damages. Lord Hope said this at para 55: As for the question of damages, the decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable. But this cannot be assumed to be so in every case, and in this case the facts have still to be established. So I would not foreclose entirely the possibility that the appellant in this case is entitled to no more than a purely nominal award. Baroness Hale of Richmond summed up the position this way at para 74: False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage. But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done. Similarly, Lord Kerr said this at para 89: As the majority in Lumba also held, however, causation is relevant to the question of the recoverability of damages. I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable. These principles were subsequently applied by the Court of Appeal in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788; [2019] 1 WLR 2238, another decision on which the Secretary of State relies. Here the claimant was arrested on suspicion of murder and rape. The investigating officer was delayed by traffic so the arrest was carried out by a surveillance officer who was present at the scene but did not personally have reasonable grounds for suspecting the claimant was guilty of an offence, as required by section 24(2) of the Police and Criminal Evidence Act 1984. It was perfectly clear that, had this requirement been appreciated, it could and would have been met, either by waiting for the investigating officer to arrive or by properly briefing the officer who carried out the arrest. Accordingly, the claimant could only recover nominal damages. In my view the Secretary of State is seeking to apply these principles well beyond their proper limits. In Lumba, this court considered what would have happened had the Secretary of State applied his published policy. In Kambadzi, the question was whether the claimant would have been detained had regular reviews been carried out. In Parker, it was established that, had things been done as they should have been, the claimant could and would have been arrested lawfully. In other words, a claimant will be awarded nominal damages if it is established that the detention could have been effected lawfully under the existing legal and policy framework. Article 5(1) of the ECHR requires any deprivation of liberty to have a legal basis in domestic law, and that law must be sufficiently precise and accessible in order to avoid all risk of arbitrariness: see Dougoz v Greece (2002) 34 EHRR 61, para 55. Similarly, a person is entitled to know what the law and any policy made under it is, so he or she can make relevant representations in relation to it: see Lumba, at paras 34 36, per Lord Dyson. It can be no answer to a claim for damages for unlawful imprisonment that the detention would have been lawful had the law been different. Damages for a breach of European Union law The respondents say that they are also entitled to damages pursuant to European Union law in the light of the principles explained by the CJEU in Francovich and Factortame. It is not contended that any award of damages for such a breach would exceed those payable for false imprisonment. It is therefore not necessary to consider this alternative claim in this appeal. Consequences The respondents claims do not require remittal for any further consideration of the lawfulness of their detention. They were all detained unlawfully and are entitled to damages under domestic law for false imprisonment. I would transfer these proceedings to the County Court for the assessment of the quantum of those damages, if that quantum cannot be agreed. Overall conclusion I would dismiss this appeal. |
The appeal arises in another case which involves the meaning of credit, the amount of credit and the charge for credit in the Consumer Credit Act 1974 (the Act). The case for the appellant borrowers is that the respondent lender failed correctly to state the amount of credit in the loan agreement. If that case is accepted, it follows that the loan agreement is wholly unenforceable under the Act. This point was not taken before District Judge Gilham, who made a suspended order for possession on terms that the borrowers made the payments as and when due and paid off what were substantial arrears by monthly instalments. The borrowers appealed to the Circuit Judge and were permitted to take the point that the agreement was unenforceable. They succeeded before His Honour Judge Halbert on 27 April 2009, with the result that he ordered the discharge of the charge registered on the property. However, the Court of Appeal allowed the lenders appeal on 12 November 2009. This appeal by the borrowers is brought with the permission of the Supreme Court. The agreement The borrowers are Mr and Mrs Walker. They completed an application form for a loan from the lender, Southern Pacific Personal Loans Limited (SPPL). The respondent is the successor in title to SPPL. The parties signed a credit agreement which it is common ground is regulated by the Act. On the front the agreement contains a number of boxes under the heading FINANCIAL MATTERS, some NOTES in smaller but legible print, some warnings in capital letters and the parties signatures. The borrowers signed it on 26 March 2005 and SPPL signed it on 20 April 2005. On the reverse there appear 46 LENDING CONDITIONS and some definitions. The boxes are set out in this way: FINANCIAL MATTERS: A Loan B Payment Protection Insurance (Optional) C Amount of Credit (A+B) Single Joint 17500 Current Margin Rate at: Above LIBOR We may change the interest rate (see below) Single & Joint & Single Life Joint Life 0 17500 The rate of interest payable is\: Repayment term: 9 % 13.98 % 180 months 244.46 D Broker Administration Fee 875 Monthly payment: We may change the Monthly Payment under the Terms and Conditions E Total Amount Financed (C+D) 18375 The APR applicable to the credit as shown in both A&B is 16 % The NOTES make it clear that all the terms, including the LENDING CONDITIONS, form part of the agreement, and also include this: Payments You must repay the Amount of Credit together with any amounts financed under this Agreement with interest by making the Monthly Payments. Clause 15 of the LENDING CONDITIONS provides: We will charge interest on the money you owe us (which includes the Loan, interest and Expenses) at the Interest Rate. The issue The issue in this appeal is whether the Amount of Credit is incorrectly stated in box C. The borrowers case is that the true amount of credit was not 17,500 as stated in box C but 18,375, which is the amount stated in box E, where it is described as Total Amount Financed. It is common ground that the amount of 875, which is described in box D as the Broker Administration Fee was advanced to the borrowers and that interest was payable on it at the same rate as on the sum of 17,500. Thus the Total Amount Financed is shown as 17,500 plus 875, namely 18,375, and interest is shown to be payable at 13.98 per cent per annum on that total figure. It is submitted on behalf of the borrowers that it follows from the fact that the total amount of the loan was 18,375 that the Amount of Credit was 18,375. It is said that, applying the principle of truth in lending, it is wrong to describe the Amount of Credit as only 17,500 because SPPL lent the borrowers the total sum of 18,375 and charged interest on that total. So expressed, that submission seems to us to have some attraction. However, it was rejected by the Court of Appeal in an admirably succinct judgment given by Mummery LJ, with whom Sullivan LJ and Owen J agreed. The issue is whether the Court of Appeal was correct. All depends upon the true construction of section 9 of the Act. The Act and the Regulations By section 8(2) of the Act, as amended as at the relevant time, a consumer credit agreement is a personal credit agreement by which the creditor provides the debtor with credit not exceeding 25,000. Sections 9 and 20 of the Act provide, so far as relevant, as follows: 9 Meaning of Credit (1) In this Act credit includes a cash loan, and any other form of financial accommodation. (4) For the purposes of this Act, an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment. 20 Total charge for credit (1) The Secretary of State shall make provisions containing such regulations as appear to him to be appropriate for determining the true cost to the debtor of the credit provided or to be provided under an actual or prospective consumer credit agreement (the total charge for credit), and regulations so made shall prescribe (a) what items are to be treated as entering into the total charge for credit, and how their amount is to be ascertained; the method of calculating the rate of the total charge for credit. (b) By section 189, unless the context otherwise requires, credit is to be construed in accordance with section 9. The relevant regulations under the Act were the Consumer Credit (Total Charge for Credit) Regulations 1980 (the TCC Regulations) and the Consumer Credit (Agreements) Regulations 1983 (the Agreements Regulations). We will refer to them together as the Regulations. They have been amended over time, both before and after the agreement. For present purposes both the Act and the Regulations in the form in which they were in April 2005 apply. The TCC Regulations were made under section 20 of the Act. Regulation 4 of them is entitled Items included in total charge for credit and provides, so far as relevant: Except as provided by regulation 5 below, the amounts of the following charges are included in the total charge for credit in relation to an agreement: (a) the total of the interest on the credit which may be provided under the agreement; (b) other charges at any time payable under the transaction by or on behalf of the debtor or a relative of his whether to the creditor or any other person. Section 60 of the Act requires the Secretary of State to make regulations as to the form and content of documents embodying regulated agreements. He made the Agreements Regulations under that section. Section 61(1)(a) of the Act provides that, among other things, a regulated agreement is not properly executed unless a document containing all the prescribed terms is signed by the debtor. The Act and the Regulations distinguish between prescribed terms and required terms. In the case of an agreement predating 6 April 2007 such as the agreement which is the subject of this appeal, by section 127(3) of the Act a failure properly to include a prescribed term in the agreement renders the agreement wholly unenforceable, whereas a failure properly to include a required term merely means that the agreement is enforceable only by court order under section 65(1) of the Act. In the case of the agreement in this case, the prescribed terms were: a term stating the amount of credit (Agreements Regulations reg 6(1) and Sch 6, para 2), a term stating the rate of any interest on the credit to be provided under the agreement (ibid Sch 6, para 4) and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments (ibid Sch 6, para 5). In the instant case it is common ground that, if the agreement contains a term correctly stating the amount of the credit, it complies with Schedule 6, para 2 of the Agreements Regulations and is enforceable, whereas if it does not, it is irredeemably unenforceable. Discussion But for the provisions of section 9 of the Act, there would be a strong case for saying that, since the total amount advanced was 18,350, that was the amount of credit and, since that sum was not stated in the agreement to be the amount of the credit, it follows that it does not contain a prescribed term and is unenforceable. The problem is that section 9(4) provides that an item entering into the total charge for credit shall not be treated as credit. It follows that if an item is part of the total charge for credit, it cannot form part of the amount of credit, even if it would otherwise be regarded as credit. That conclusion, which, in our judgment, follows from the plain meaning of subsection (4), is supported by the authorities: see in particular Wilson v First County Trust Ltd [2001] QB 407, Watchtower Investments Ltd v Payne [2001] EWCA Civ 1159, [2001] GCCR 3055 and Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), [2006] 1 WLR 1248. In each of those cases it was stressed that the first step is to assess the total charge for credit because, as Mummery LJ put it at para 15 of his judgment in this case, those items financed by the creditor which form part of the charge for credit must be identified and stripped out before the amount of credit can be determined. He took that phrase from para 35 of the judgment of Laddie J in the Robertsons (London) case, where the judge quoted from para 24.144 of the then edition of Professor Goodes work Consumer Credit Law and Practice. In Wilson v First County it was held that the agreement was unenforceable because the amount of credit was not correctly stated in it. The lender had agreed a loan of 5,000, to which was added a document fee of 250, which itself bore interest. The agreement stated that the amount of the loan was 5,250. So indeed in one sense it was. However, the Court of Appeal held that the amount of the credit was 5,000 and was incorrectly stated as 5,250. The reason was that the document fee was part of the charge for credit, that is the cost of the credit, and that, under section 9(4) of the Act, it could not be treated as, and thus form part of, the amount of the credit. As Mummery LJ observed at para 16, the Act does not define charge for credit. At para 52 of his judgment in the Watchtower case Peter Gibson LJ noted that it is not always easy to draw the line between an item forming part of the total charge for credit and an item forming part of the credit itself. He concluded that, in order to identify the total charge for credit, the purpose of the courts consideration is to arrive at what in reality is the true cost to the debtor of the credit provided. See also the judgment of Clarke LJ in that case at para 63, where it is noted that section 20 of the Act (quoted above) points the way. The question is thus what was the true cost to the borrowers of the credit provided under the agreement. There are two items which have been the subject of debate. The first is the Broker Administration Fee and the second is the interest on that fee. As to the fee, there cannot, in our judgment, be any doubt that it was part of the total cost of the credit. It was a fee paid to intermediary brokers and, as such, was a cost to the borrowers of borrowing the 17,500 from SPPL. That is plainly so, even though it was itself borrowed from SPPL. Once it is accepted that it was part of the total charge for credit, it follows that it must be stripped out of the amount of credit and, by section 9(4) of the Act shall not be treated as credit. It is analogous to the document fee in the Wilson v First County case. If it had been expressed as part of the amount of credit, like the document fee, so that amount of credit was expressed as 18,375, the agreement would have been unenforceable for the same reason as the Court of Appeal held the agreement, which stated the amount of credit as 5,250, to be unenforceable in that case. There seems little doubt that the form in which the agreement was drafted in the instant case owed much to the decision and reasoning of the Court of Appeal in the Wilson v First County case. The question remains whether that conclusion is affected by the fact that SPPL was lending the fee at the same rate of interest as that on the sum of 17,500, or indeed at any rate of interest. The answer must be no. Section 9(4) does not prohibit the charging of interest. If the fee itself was part of the total charge for credit, it seems to us to follow that interest on that fee was also part of the total charge for credit and not therefore to be treated as credit. As the court sees it, both the fee and interest on the fee are other charges within regulation 4(b) of the TCC Regulations quoted above and are thus included in the total charge for credit. Even if, for some reason, the interest were not so included in the charge for credit, we do not see how the interest could itself be credit. The borrowers argument involves saying that, whereas in the case of, say, a loan of 1,000 repayable with interest and a document fee of 50 repayable without interest, the amount of credit is 1,000, nevertheless in the case of such a loan but with a document fee of 50 repayable with interest, the amount of credit is 1,050. That seems to us to be nonsensical. Either the credit is 1,050 in both cases or in neither. For the reasons we have given we conclude that the answer in both cases is 1,000. The borrowers submission is that so to conclude is to infringe the principle of truth in lending. The argument is essentially that the true position here is that the total amount lent was 18,375 and that to describe the amount of the credit as 17,500 was therefore misleading and wrong. It is true that the total amount financed was 18,375 and that, in ordinary parlance, that was indeed the total amount of the loan or the total amount of the credit. So to conclude would, however, be to disregard the provisions of the Act, especially section 9(4). As the court sees it, the borrowers case involves construing section 9(4) as if it read: For the purposes of this Act, an item entering into the total charge for credit shall not be treated as credit even though time is allowed for payment (unless interest is charged, in which case it shall be treated as credit). There is in our judgment no warrant for the addition of the words in italics. We agree with the conclusions of Mummery LJ at paras 34 and 35: in particular that the borrowers submissions treat interest as a necessary feature or indicator of credit, which it is not, and that it was not the function of section 9 to prohibit anything but rather to supply a special statutory meaning to the core concept of credit in the Act and to distinguish it from the charge for, or cost of, credit. For the reasons we have given, which are based both on the language of the statute and the authorities cited above, we hold that, although it too was advanced to the borrowers and repayable with interest, the fee of 875 was part of the total cost of, or charge for, credit and therefore cannot be treated as part of the credit. Once that is appreciated, it can be seen that there is no infringement of the principle of truth in lending. The agreement is in clear terms. In the box on the front it draws a distinction between Amount of Credit, which in this case is the amount of the Loan namely 17,500 and the Total Amount Financed, namely the Amount of the Credit plus the Broker Administration Fee of 875, which makes 18,375. Moreover the boxes, together with the provision quoted at para 4 above, make it clear that the rate of interest of 13.98 per cent is payable on the whole of the Total Amount Financed and that the Monthly Payment was 244.46. There was no basis for confusion as to what sum was to be paid each month or as to what made up the Amount of Credit and what was the Broker Administration Fee. Nor was there any basis for confusion as to the calculation of the APR shown in the bottom right hand box of 16 per cent. As the description states, it was applicable to the credit shown in both A&B, namely the Amount of Credit of 17,500, but taking into account the interest chargeable on both that sum and the 875 Broker Administration Fee. It is not suggested that the APR was incorrectly calculated. For these reasons, which are essentially the same as those more concisely set out by Mummery LJ in the Court of Appeal, we dismiss the appeal. We merely note by way of postscript that, if the fee had been included in the amount of credit, so that the Amount of Credit was stated as 18,375, the borrowers would no doubt have said that the loan was unenforceable on the ground that the fee was part of the cost of the credit and should not therefore have been treated as part of the credit. Such an argument would have succeeded on the basis of the decision and reasoning in Wilson v First County. As we see it, in order to succeed in this appeal, the borrowers would have to persuade the court that Wilson v First County was wrongly decided. However, in our opinion it was not. Finally, some reliance was placed upon the last sentence of para 19 of Sir Andrew Morritt V Cs judgment in Wilson v First County, which was in these terms: It is apparent from these two considerations that section 9(4) must be applied without too narrow an interpretation of the word item. If a charge for credit is correctly recognised in accordance with the detailed regulations to which I have referred then any cash loan or other financial accommodation made or afforded by the creditor to the debtor for the purpose of discharging the liability for that charge should not be treated as part of that credit to which the total charge for credit relates. It may be, though it is unnecessary to any decision in this case, that the loan made to pay the charge is itself a separate credit which should be made the subject of a regulated agreement to which the Act applies, whether as a linked transaction within section 19 or otherwise. We can see that there might be cases in which, on analysis of the facts, it might be held that the loan to pay a charge was a separate credit which should be made the subject of a regulated agreement but it is not easy to envisage such a case. In any event there is no question that this is such a case. Here the Broker Administration Fee was simply part of the cost of the credit and thus not to be treated as part of the credit. It is perhaps important to note for the future that section 127(3) of the Act was repealed by sections 15, 70 and Schedule 4 of the Consumer Credit Act 2006 and does not apply to agreements made after 5 April 2007. Further, when the Consumer Credit (Agreements) Regulations 2010 come into force, they will require documentation of the total amount of credit, which is defined as the credit limit or the total sums made available under a consumer credit agreement. CONCLUSION The appeal is dismissed, essentially for the reasons given by the Court of Appeal. |
This appeal raises the question whether the Commissioner of Police of the Metropolis (the Commissioner) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from economic and reputational harm. Background facts The pleaded facts may be summarised as follows. On 2 December 2003 the respondents, four police officers serving in the Metropolitan Police Service, (the officers) took part in the arrest of a suspected terrorist, BA. BA subsequently made allegations that the officers had seriously assaulted and injured him during the arrest. The complaints were investigated by the Metropolitan Police Services Directorate of Professional Standards and the Crown Prosecution Service who concluded that there was no case to answer. However, the Independent Police Complaints Commission decided in October 2004 that one charge relating to the use of excessive force should be brought against the first respondent. That charge was dismissed by the disciplinary panel in April 2005. Between 14 January 2005 and 2 February 2005 the Independent Police Complaints Commission released the officers identities into the public domain. This led to threats of serious violence to the officers and their families on a website which supported BA. On 18 October 2007 BA issued civil proceedings against the Commissioner in which he alleged that the Commissioner was vicariously liable under section 88 of the Police Act 1996 for the serious assaults which he alleged the officers had inflicted on him. His claim included claims for aggravated and exemplary damages. The officers were not defendants in the action nor were contribution proceedings brought against them by the Commissioner. The defence of the claim on behalf of the Commissioner was undertaken by the Metropolitan Police Directorate of Legal Services (DLS). A defence denying liability was entered. On 10 January 2008 an offer of settlement was rejected by BA. On 18 March 2008 the officers attended a conference with Mr Jeremy Johnson of counsel, instructed by the DLS on behalf of the Commissioner. The officers subsequently alleged that counsel and the DLS solicitor assured them on that occasion that they were also acting for them and in their interests and told them that BAs claims would be vigorously defended. On 13 February 2009 an application by the Commissioner that the officers be permitted to give evidence from behind screens was dismissed at the pre trial review. On 10 March 2009 BA rejected a further offer of settlement because he wanted an apology or a finding in open court. The officers attended a second conference with Mr Johnson and the DLS on 11 March 2009. On this occasion the officers were accompanied by a solicitor from Russell Jones and Walker who attended only in relation to matters arising from a special measures application which had been made in respect of the evidence to be given by the respondents. At that conference the officers said that they would be reluctant to give evidence without special measures being in place. They allege that Mr Johnson informed them that he was no longer representing their interests but only the interests of the Commissioner. The officers allege that Mr Johnson indicated that the claim would be lost due to BAs medical evidence and they complained to him that they were unable to raise points on various aspects of the defence including medical evidence, expert evidence, CCTV footage and notes of arrest. The trial of BAs claim commenced on 16 March 2009. The officers declined to give evidence voluntarily without special measures being in place. On the third day of the trial, 18 March 2009, the Commissioner settled the claim on the basis of agreed damages of 60,000 and agreed costs of 240,000 with an admission of liability and an apology for gratuitous violence to which BA had been subjected by the officers. Paragraph 82 of the Particulars of Claim in the present proceedings alleges that the Commissioners office issued a press release stating: The Commissioner has demanded an immediate investigation into the circumstances surrounding the officers refusal to give evidence relating to this arrest in 2003. Whilst the arrest and subsequent events are historic this is a serious matter which has been referred to the IPCC. In the present proceedings the officers maintain that this was tantamount to endorsing their culpability. On 12 August 2010 the officers were each charged with one count of an assault occasioning actual bodily harm arising out of the arrest of BA. In June 2011, following a trial lasting five weeks, the officers were all acquitted. The current proceedings On 23 September 2013 the officers commenced the present proceedings against the Commissioner alleging breach of contract, negligence and misfeasance in public office arising from the manner in which the Commissioner had defended BAs claim. They sought compensation for reputational, economic and psychiatric damage. In the particulars of claim the officers put forward three bases on which it was alleged that the Commissioner owed them a duty of care. (1) A retainer had arisen between them and the Commissioners legal team because of the assurances given to them by counsel and the DLS solicitor. (2) The Commissioner had assumed a duty of care to the officers by reason of those same assurances. (3) The Commissioner owed the officers a duty of care in tort and concurrently in contract as employer or quasi employer to take reasonable care to safeguard their safety, health, welfare (including economic and professional welfare) and reputational interests, in the preparation and conduct of the defence to BAs claim and when considering and effecting any settlement of it. This third head of claim was said to include the following specific obligations to take reasonable care. (a) To keep the officers informed of the progress of the case. (b) To keep them and their families safe from threats by BAs supporters against their homes and physical safety. (c) To explain and provide reasons in the event that the Commissioner believed that BAs civil claim could no longer be defended or that a conflict had arisen between the officers and the Commissioner. (d) To consult the officers in sufficient time prior to the trial for them to obtain alternative and independent legal advice in the event that the Commissioner had decided to admit liability and make a public apology. (e) To warn the officers in sufficient time (to enable them to take independent legal advice or any other necessary steps to protect their own interests) prior to the opening of the trial that the application for special measures had failed, that the Commissioners lawyers were no longer acting for the officers or protecting their interests and that the Commissioner was considering admitting liability and making a public apology. The particulars of claim then provided detailed particulars of the alleged breaches of the duties. The officers do not allege that entering into an agreement on the terms of the settlement between the Commissioner and BA was in itself negligent. Their complaint is about the antecedent conduct of the defence by the Commissioner. In particular it is alleged that the Commissioner failed to conduct and prepare a competent defence to BAs claim. (See Jay J at para 23) Here complaint is made of the failure to proof or call as witnesses a list of named persons or to ascertain the availability of covert recordings. Complaint is made that evidence was lost, not located or not disclosed as a result of a systems failure. Complaint is also made of failure to take account of a list of miscellaneous evidential concerns raised by the respondents which, it is said, were either ignored or not adequately addressed. More generally, it is said that the Commissioner failed to keep the officers informed of the progress of the litigation and the preparation of the defence and failed to advise the officers within a reasonable time of the alleged conflict of interests. Complaint is made of the failure to obtain expert medical evidence to challenge the expert evidence called on behalf of BA and of a failure to apply for an adjournment of the trial. By notice dated 28 April 2014 the Commissioner applied to strike out the claims pursuant to CPR Part 3.4(2) on the grounds that they disclosed no reasonable grounds for the making of a claim, alternatively for summary judgment pursuant to CPR Part 24 on the grounds that the claims had no real prospect of success. On 1 May 2015 Jay J struck out the claims and entered summary judgment for the Commissioner. He considered that, in the absence of an express contract of retainer with the DLS, no retainer existed. Furthermore, the officers had no direct interest in the prior litigation and the possibility of consequential impact on their reputations was insufficient to create such an interest to which the Commissioner would be legally required to have regard or to promote or safeguard. The focus of the claim founded on the more general duty of care to protect the health, economic or reputational interests of the officers shifted during the hearing before Jay J. The judge seems to have been under the impression that the duty relied on by the officers was a duty to avoid psychiatric injury and that the claims for reputational damage and economic loss were entirely consequential on that head of damage. The judge considered that the officers had no real prospect of proving at trial that it was reasonably foreseeable that any breaches of duty by the Commissioner might cause psychiatric injury. However, the judge also observed that this basis of claim faced an insuperable difficulty under Caparo Industries plc v Dickman [1990] 2 AC 605 in that, given that the officers were not parties to BAs civil proceedings, the Commissioners lawyers owed duties solely to the Commissioner and the Commissioner was free to protect his own interests as he saw fit. He stated: The principled objection to this claim is that the postulated duty of care cuts right across the rights and obligations of the defendant itself, and those advising the defendant, in circumstances where no implied retainer existed. It would not be fair, just and reasonable to impose a concurrent conflicting duty of care in these circumstances: (at para 36) The claim for misfeasance was struck out as inadequately pleaded. The officers appealed to the Court of Appeal, save in respect of the claim in misfeasance. The Court of Appeal (Moore Bick, Longmore and Patten LJJ) dismissed the appeal in relation to the existence of a retainer and in relation to the assumption of responsibility. In addition, it dismissed the appeal in relation to psychiatric injury on the ground that such injury was not reasonably foreseeable. However, it allowed the appeal on the remaining issue, holding that it was arguable that the Commissioner owed a duty of care to the officers to safeguard their economic and reputational interests and that this extended to the conduct of litigation by the Commissioner. Moore Bick LJ, with whom the other members of the court agreed, accepted that the Commissioners primary duty was to protect the interests of the Metropolitan Police Service, but he did not consider that a duty of the kind alleged by the officers necessarily cut across this. In his view it was in the interest of the Commissioner and the officers for the defence to be conducted as effectively as possible and a duty of care in that regard would not inevitably give rise to any conflict of interest. Accordingly, he considered it arguable that the Commissioner owed to the officers (1) a duty to defend the litigation as effectively as possible and (2) a duty, when deciding whether to compromise the claim and if so on what terms, to take reasonable care not to sacrifice their interests and professional reputation without good reason and without giving them reasonable warning of what he intended to do. So far as breach of duty giving rise to actionable losses was concerned, Moore Bick LJ noted that there was no allegation that the Commissioners decision to compromise the claim was negligent in all the circumstances. However, the Commissioners forensic difficulties were alleged to have been a consequence of failures on the part of the MPS to identify or make available certain important pieces of evidence. In his view the essential elements of the claim for breach of a duty of care in relation to the conduct of the proceedings were present. The Court of Appeal came to a different conclusion, however, in respect of the allegation that the Commissioner was in breach of duty by failing to warn the officers in good time that he intended to pursue the interest of the MPS, if necessary at their expense. Moore Bick LJ agreed with the judge in dismissing as fanciful the suggestion that, had they been warned, the officers would have applied to be joined as defendants and would have instructed solicitors to conduct their defence independently. The Commissioner now appeals to the Supreme Court. The sole remaining allegation in the proceedings is that the Commissioner owed a duty of care to the officers to conduct the defence of the proceedings brought against her as effectively as possible in order to protect the officers from economic or reputational harm. There is no cross appeal by the officers in relation to the alleged retainer, the alleged assumption of responsibility or the head of claim alleging psychiatric injury. Nevertheless, the subject matter of those heads of claim which have fallen by the wayside forms an important part of the context in which the central issue now falls to be decided. The implied duty of trust and confidence Both before the Court of Appeal and before this court Mr Nicholas Bowen QC on behalf of the officers has placed at the forefront of his submissions the duty of trust and confidence which exists between an employer and his employees. He submits that the duty of care for which he contends is simply a manifestation of the long established term of trust and confidence which is implied into contracts of employment and that, accordingly, there is no scope or need for the court to conduct an assessment of whether the ingredients identified in Caparo v Dickman criteria are present and, in particular, whether the imposition of such a duty would be fair, just and reasonable. Police officers hold the public office of constable and are not employees. They have no contract of employment and the terms on which they hold their office are governed principally by the Police Regulations 2003 (SI 2003/527). Nevertheless, the relationship of Commissioner and officer is closely analogous to that of employer and employee (White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, per Lord Steyn at p 497E F; per Lord Hoffmann at p 505C). In Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700 Clarke LJ, with whom Potter LJ and Bodey J agreed, considered (at para 52) that the relationship is so closely analogous as to make it just in principle to hold that a Chief Constable owes the same duties to his officers as an employer does to his employees. At this point of the discussion I am content to proceed on the basis that the Commissioner and these officers should be treated as if they were employer and employee, while recognising that, in the absence of any actual contract, any duty derived by analogy with the standard terms implied in an employment contract must necessarily sound as a duty of care, rather than be absolute. The mutual obligation of employer and employee not, without reasonable and proper cause, to engage in conduct likely to destroy or seriously damage the relationship of trust and confidence required between employer and employee is a standardised term implied by law into all contracts of employment rather than a term implied from the particular provisions of a particular employment contract (Malik v Bank of Credit and Commerce International SA [1998] AC 20, per Lord Steyn at p 45D). It was described by Lord Nicholls in Malik at p 35A, as a portmanteau concept. In that case the House of Lords considered it the source of a more specific implied obligation on the part of the employer bank not to conduct its business in a dishonest and corrupt manner, the breach of which gave rise to a cause of action for damage to the economic and reputational interests of its employees. Similarly, in Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503 the House of Lords recognised an obligation on an employer, in the conduct of his business and in the treatment of his employees, to act responsibly and in good faith (per Lord Nicholls at para 11). The implied term has been held to give rise to an obligation on the part of an employer to act fairly when taking positive action directed at the very continuance of the employment relationship (Gogay v Hertfordshire County Council [2000] IRLR 703; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; Bristol City Council v Deadman [2007] EWCA Civ 822; [2007] IRLR 888; Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512; [2015] IRLR 112; Stevens v University of Birmingham [2015] EWHC 2300 (QB); [2016] 4 All ER 258). Furthermore, any decision making function entrusted to an employer must be exercised in accordance with the implied obligation of trust and confidence (Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661). If the present case is approached on the basis of implied contractual terms, the issue becomes whether, in unpacking this particular portmanteau implied term of trust and confidence, it is possible to extract a duty of care owed by an employer to its employees to conduct litigation in a manner which protects them from economic or reputational harm. It is significant that, despite the researches of counsel, we have not been referred to any decided case in any jurisdiction which holds that an employer owes such a duty of care to his employees. To derive such an obligation from the implied term of trust and confidence would be to move substantially beyond the specific derivative duties established to date. Although in Malik the House of Lords derived from the mutual implied contractual obligations of trust and confidence an implied obligation owed by the bank to its employees not to conduct a dishonest or corrupt business and held that damage to reputation resulting from breach sounded in damages, this is at a considerable remove from a duty to exercise care in the conduct of business so as to avoid economic or reputational damage to employees. This point was, in fact, emphasised by Lord Nicholls in a cautionary footnote: , [T]here are many circumstances in which an employees reputation may suffer from his having been associated with an unsuccessful business, or an unsuccessful department within a business. In the ordinary way this will not found a claim of the nature made in the present case, even if the business or department was run with gross incompetence. A key feature in the present case is the assumed fact that the business was dishonest or corrupt. (at p 42C D). In Scally v Southern Health and Social Services Board [1992] 1 AC 294 doctors sued their employer claiming damages, inter alia, in breach of contract and negligence, in respect of the failure of the employer to notify them of their entitlement under their contracts of employment to purchase, during a limited period of time, additional years of pension entitlement. The House of Lords held that the claimants common law claims were to be determined by reference to the contractual relationship and not in tort. The doctors claim succeeded but it is noteworthy that it did so on the narrow ground that where a contract negotiated between an employer and a representative body contains a term conferring on an employee a valuable benefit contingent upon his acting to obtain it, of which he could not be expected to be otherwise aware, there was an implied obligation on the employer to take reasonable steps to publicise that term. It is significant that the House of Lords did not base its decision on a more general duty of care owed by an employer to protect the economic interests of employees. Similarly, in Crossley v Faithful & Gould Holdings Ltd [2004] ICR 1615 the Court of Appeal refused to derive from the mutual duty of trust and confidence a standard obligation, implied by law as a term of all contracts of employment, which requires an employer to take reasonable care for the economic well being of his employees. The claimant, a senior employee and director of the defendant company, retired on grounds of ill health. He later brought an action for damages for breach of contract alleging that in failing to warn him of the effect which resigning from his employment would have on his entitlements under its insurance scheme, the defendant company had acted in breach of an implied term of the contract of employment requiring it to take reasonable care for his economic well being. Dyson LJ, with whom Thomas LJ and Sir Andrew Morritt V C agreed, rejected the proposed implied term. Having observed (at para 42) that it was not for that court to take a big leap to introduce a major extension of the law in this area when the House of Lords had declined to do so in Scally v Southern Health and Social Services Board [1992] 1 AC 294 and Spring v Guardian Assurance plc [1995] 2 AC 296, he developed (at para 43) the more fundamental objection that such an implied term would impose an unfair and unreasonable burden on employers. While an employer might assume responsibility under the Hedley Byrne principle, it was a quite different matter to impose on an employer the duty to give his employee financial advice or generally to safeguard his economic well being. Furthermore, I have difficulty in understanding how this principal argument on behalf of the officers can circumvent the requirement adverted to by Lord Bridge in Caparo v Dickman that the imposition of the duty must be fair, just and reasonable. In order to establish such a duty of care, the officers rely here upon a class of implied terms which are implied in law as a necessary incident of a particular class of contractual relationship. In Crossley Dyson LJ observed at para 36: [R]ather than focus on the elusive concept of necessity, it is better to recognise that, to some extent at least, the existence and scope of standardised implied terms raise questions of reasonableness, fairness and the balancing of competing policy considerations. This approach was commended by Lady Hale in Geys v Societe Generale, London Branch [2013] 1 AC 523 at paras 55, 56. The argument that such an implied term should extend to the conduct of litigation raises, therefore, precisely the same question as to whether the proposed term is fair and reasonable as arises if the claim is put in tort. Such an implied term, implied by law as an incident of a standardised contract, could not, to my mind, be wider in scope than the duty imposed by the law of tort. (White v Chief Constable of South Yorkshire Police, per Lord Griffiths at p 464C G; per Lord Goff at p 483C E; per Lord Steyn at p 498A B; per Lord Hoffmann at pp 505B 506B. See also the observations of Underhill LJ in Yapp v Foreign and Commonwealth Office at para 120.) It is difficult to see why such an implied term should extend further than a concurrent duty in negligence. Accordingly, it seems to me that the battlefield on which the conflicting contentions as to the existence of such a duty must be fought out is the scope of the duty of care in tort. In the present case the courts below have proceeded on the basis that, with the exception of the claim in respect of psychiatric injury which is no longer pursued, harm was arguably foreseeable. Furthermore, it was clearly arguable that by virtue of their relationship, akin to that of employer and employee, the parties were in a sufficiently proximate relationship to give rise to a duty of care. The argument therefore focussed on whether the imposition of a duty of care was fair, just and reasonable as indicated in Caparo. In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] 2 WLR 595 this court recently held, with regard to this aspect of Caparo, that it is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Since the police generally owe a duty of care not to inflict physical injury by their actions when such a duty arises under the ordinary principles of the law of negligence, unless statute or other common law principle provides otherwise, there was no requirement in that case to examine whether the recognition of the claimed duty would be fair, just and reasonable. However, this ingredient will be of critical importance in a situation where it is proposed that a duty of care should be imposed in novel circumstances. Thus Lord Reed observed (at para 29): Properly understood, Caparo thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. Contrary to the submission of Mr Bowen on behalf of the officers, the present case is very clearly one in which it is sought to extend a duty of care to a new situation. As Lord Reed explained in Robinson, in determining whether such a duty should be recognised the law will proceed incrementally and by analogy with previous decisions. He referred, in particular, to the following passage in the judgment of Brennan J in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43 44, which was approved by Lord Bridge in Caparo at p 618: It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed. The theme was developed by Lord Bingham in Customs and Excise Comrs v Barclays Bank plc [2007] 1 AC 181 where he observed at para 7: I incline to agree with the view that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be, on the approach of Brennan J adopted in Caparo Industries plc v Dickman, to find that there has been an assumption of responsibility or that the proximity and policy conditions of the threefold test are satisfied. The converse is also true. In addition, the proposed duty will be tested against considerations of legal policy and judgement will have to be exercised with particular regard to both the achievement of justice in the particular case and the coherent development of the law. The law protects reputation in a variety of ways in different circumstances. Causes of action such as libel, slander, malicious falsehood and passing off are designed to protect reputation. Moreover, a variety of other causes of action including breach of confidence, misuse of private information and causes of action in relation to data protection and intellectual property may often indirectly achieve this result. The common law does not usually recognise a duty of care in the tort of negligence to protect reputational interests. However, there are exceptions. In Spring v Guardian Assurance plc [1995] 2 AC 296 a majority of the House of Lords held that an employer who gave a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation and would be liable to him in negligence for a breach of duty which caused him economic loss. Lord Lowry, Lord Slynn and Lord Woolf reached this conclusion on the basis of the three ingredients identified by Lord Bridge in Caparo. Lord Goff (at p 316E F) concluded that a duty of care was owed to the former employee on a narrower ground. In his view the source of the duty of care was the principle in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 ie an assumption of responsibility by the authors of the reference to the plaintiff in respect of the reference, and reliance by the plaintiff upon the exercise by them of due care and skill in respect of its preparation. This case was essentially concerned with negligent mis statement and it may be that assumption of responsibility is the better rationalisation of the recognition of a duty in these circumstances. (See NRAM Ltd (formerly NRAM plc) v Steel [2018] UKSC 13; [2018] 1 WLR 1190 per Lord Wilson at para 24 referring also to Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 per Lord Goff at p 181 and Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 per Lord Steyn at p 837.) This decision should be contrasted with Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228. Following their reinstatement, police officers, against whom disciplinary proceedings had been taken, brought actions in negligence against their Chief Constables on the basis that they were vicariously liable for the investigating officers. The claimants alleged that the investigating officers had failed to conduct the proceedings properly or expeditiously and claimed, inter alia, damages in respect of loss of overtime earnings during their suspension and damages for injury to reputation. The House of Lords considered the submission that a duty of care was owed to the claimants to be unsustainable. First, Lord Bridge explained (at p 1238B G), anxiety, vexation and injury to reputation did not constitute reasonably foreseeable damage capable of sustaining an action in negligence within Donoghue v Stevenson [1932] AC 562. Secondly, it was not reasonably foreseeable that the negligent conduct of a criminal investigation would cause injury to the health of the suspect, whether in the form of depressive illness or otherwise. Thirdly, while it is reasonably foreseeable that a suspect may suffer some economic loss which might have been avoided had more careful investigation established his innocence at an earlier stage, such a claim would encounter the formidable obstacles in the path of liability in negligence for purely economic loss. Fourthly, it would be contrary to public policy to prejudice the discharge by police officers of their public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. To my mind Calveley has an important bearing on the present case. If a Chief Constable does not, in principle, owe a duty of care to protect the economic and reputational interests of his officers in respect of the prosecution of an investigation or disciplinary proceedings, it is difficult to see why he should owe a duty to his officers as to the manner in which he defends a claim brought against him by a third party. In the former situation the Chief Constable has himself initiated the investigation or proceedings over which he has at least a substantial measure of control and he is responsible for making allegations against officers. In the latter situation his role is essentially responsive to allegations made by third parties. In these circumstances it is necessary to test the proposed duty of care against relevant policy considerations and to consider the coherence of the resulting state of the law if such a duty is recognised. Conflicting interests The fact that a duty of care may give rise to conflicting interests will often be a weighty consideration against its imposition. In D v East Berkshire Community Health NHS Trust [2005] 2 AC 373 a majority of the House of Lords held that health care and childcare professionals investigating allegations of child abuse did not owe a duty of care to the parents of the children concerned. Lord Nicholls explained (at para 85) that conflict of interest was a persuasive factor here. When considering whether a child has been abused, a doctor should be able to act single mindedly in the interests of the child and he ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse were to prove unfounded he might be exposed to claims by a distressed parent. At that time [when a doctor is carrying out his investigation] the doctor does not know whether there has been abuse by the parent. But he knows that when he is considering this possibility the interests of parent and child are diametrically opposed. The interests of the child are that the doctor should report any suspicions he may have and that he should carry out further investigation in consultation with other child care professionals. The interests of the parent do not favour either of these steps. This difference of interest in the outcome is an unsatisfactory basis for imposing a duty of care on a doctor in favour of a parent. (at para 88) Similarly, in SXH v Crown Prosecution Service [2017] UKSC 30; [2017] 1 WLR 1401 Lord Toulson, with whom Lord Mance, Lord Reed and Lord Hughes agreed, considered (at para 38) that the duty of the Crown Prosecution Service (CPS) is to the public and not to the victim or the suspect, who have separate interests, and that to recognise a duty of care towards victims or suspects or both would put the CPS in positions of potential conflict. Yet, the fact that the recognition of a duty of care may potentially subject an individual to conflicting duties is not, of itself, necessarily conclusive against its recognition in all situations. Clearly, there will be many situations in which an individual will owe potentially conflicting duties to different persons. In Gogay v Hertfordshire County Council the managers of a childrens home owed both a duty of care to the resident children and an implied contractual duty of trust and confidence to its staff, notwithstanding the fact that in the case of an actual conflict the interests of the child should prevail. (See Hale LJ at para 59) Similarly, in D v East Berkshire Lord Nicholls referred (at para 86) to the fact that a doctor often owes duties to more than one person. He may owe duties, for example, to his employer and to his patient. (See also ABC v St Georges Healthcare NHS Trust [2017] EWCA Civ 336; [2017] PIQR P15.) However, in D the House concluded that the seriousness of child abuse as a social problem demanded that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused or in deciding what action should be taken. It is necessary, therefore, to have regard to the competing underlying policy considerations, when determining whether a duty of care may be imposed notwithstanding that it may give rise to a conflict of interests. The interests of an employer who is sued on the basis that he is vicariously liable for the tortious conduct of his employees differ fundamentally from the interests of those employees. The financial, commercial and reputational standing of the employer may be at stake. It is the employer who will incur the cost of defending the proceedings which, however successful the defence may be, is most unlikely to be recovered in full, and who, if unsuccessful, will bear the liability to the claimant. The employer must be able to make his own investigation into the claim and to assess its strength based on the conduct of his employee and the prospects of a successful defence. In this regard, he will need to form his own view as to the reliability and veracity of his employee and as to how the employee is likely to perform as a witness. The interests of insurers may have to be taken into account. The employer will have to decide what degree of importance he attaches to successfully defending the claim and what financial and other resources should be devoted to its defence. He may consider that, however strong the prospects of a successful defence, he cannot justify the cost and effort of defending the claim and that it should, therefore, be settled. The predominant interest of the employee, by contrast, will be that his reputation should be vindicated. The position will often be complicated further by the existence of inconsistent views or interests between different employees or groups of employees. (See, for example, Mohidin v Comr of Police of the Metropolis [2016] EWHC 105 (QB) (Gilbart J) [2016] 1 Costs LR 71, para 14) In cases where an employer is alleged to be vicariously liable for the tortious conduct of his employee, the possibility of contribution proceedings between employer and employee highlights this potential conflict of interests. It is particularly relevant here that claims under the Civil Liability (Contribution) Act 1978 may be brought up to two years after judgment in the original claim or settlement of that claim (Limitation Act 1980, section 10). That the possibility of bringing such a claim is not fanciful, at least in cases where deliberate misconduct is alleged, is demonstrated by Mohidin v Comr of Police of the Metropolis where such a claim succeeded. These stark differences between the interests of employer and employee strongly suggest that it would not be fair, just or reasonable to impose on an employer a duty of care to defend legal proceedings so as to protect the economic or reputational interests of his employee. Nor do I consider it realistic to suggest, as do the respondents in the present case, that this potential for conflict can be overcome by the recognition of a duty of care up to the time at which an actual conflict of interests arises, at which point timeous notification by the Commissioner could result in the duty of care ceasing to apply. Where an employer defends a claim against him founded on his vicarious liability for his employees, the potential for conflict is too great to permit such a compromise. Moreover, it would often be totally impracticable. A civil claim and its defence, as they proceed, often develop in unexpected ways. There could be no justification for imposing on an employer the burden of keeping under review at each stage of the proceedings the question whether an actual conflict has arisen. Furthermore, steps taken by the employee as a result of such timeous notification of the emergence of an actual conflict may well be disruptive of the litigation. In the present case, moreover, the Commissioner is not merely in a position analogous to that of an employer. She also holds public office and has responsibility for the Metropolitan Police Service. This adds a further dimension to this appeal because in the conduct of the proceedings against her she must be free to act as she considers appropriate in accordance with her public duty. This duty is, to my mind, totally inconsistent with her owing a duty of care to protect the reputational interests of her employees when defending litigation based on vicarious liability for their alleged misconduct. As we have seen, in Calveley the House concluded that it would be contrary to public policy to prejudice the discharge by the police of their public duty to investigate alleged misconduct by officers by imposing a conflicting duty of care to protect the reputational interests of those officers. In the same way in SXH this court considered (at para 38) that to recognise a duty of care owed by the CPS to victims or suspects would not be conducive to the best interests of the criminal justice system. These considerations apply with equal force to the present case. Policy considerations relating to the conduct of litigation Considerations relating to legal policy and the practical conduct of proceedings also weigh heavily against the duty for which the officers contend. First, there is an important public policy that parties in dispute should, in general, be able to avail themselves of the processes of litigation in order to resolve their disputes, without fear of incurring liability to third parties if they do so. This policy was expressed by Wilde CJ (with whom Maule J, Cresswell J, Williams J, Parke B and Rolfe B agreed) in De Medina v Grove (1847) 10 QB 172 at p 176: The law allows every person to employ its process for the purpose of trying his rights, without subjecting him to any liability, unless he acts maliciously and without probable cause. This policy underlies a number of legal principles including the general immunity which attaches to things said and done in court by witnesses and litigants and the principle that a duty of care is not owed by one litigant to an opposing litigant. (See, generally, Willers v Joyce [2016] UKSC 43; [2016] 3 WLR 477 per Lord Mance at para 135.) An employer who wishes to defend a claim based on vicarious liability for the alleged conduct of his employees should be entitled to defend the claim in the way he sees fit, notwithstanding that his employees will or may as a result be subjected to public criticism during the trial process. He should be free to do so without having constantly to look over his shoulder for fear that his conduct of the defence may expose him to a claim by his employees. Decisions in the conduct of the defence, such as which inquiries to undertake, which experts to instruct, which witnesses to call or which resources to devote to resisting the claim, are essentially matters for the employer as defendant and should be taken free of anxiety as to possible future claims by the employees on the basis that the case should have been run differently. The proposed duty would, to my mind, inevitably inhibit the conduct of the defence. An employer would, understandably, be less likely to make admissions in circumstances where they are objectively justified or to make use of evidence which reflects unfavourably on an employee, for fear of the subsequent repercussions. I have no doubt that the imposition of the duty of care contended for in the present case would, as the Commissioner submits, have a chilling effect on the defence of civil proceedings. Secondly, the recognition of a duty owed by an employer to his employees to defend a claim effectively would be inconsistent with the important legal policy which encourages the settlement of civil claims and seeks to promote out of court settlement. The resulting risk of exposure to consequential claims would, in many situations, operate as a powerful disincentive to settlement. Thirdly, the duty contended for could result in delay or disruption of civil proceedings. Disputes between employers and employees as to the appropriate way in which the defence should be conducted could well paralyse the defence. Resort to some form of dispute resolution procedure could be expensive and time consuming. In many instances the employer may well feel compelled to make a contribution claim against his employees in order to negative the imposition of a duty of care owed to them. Moreover, the existence of such a duty may result in an employer needlessly prolonging proceedings against him in an attempt to establish that he has taken care to protect the interests of his employees. (See N McBride, PN 2017 (33) 3, 216 at p 219.) Fourthly, the recognition of such a duty of care would be a fruitful source of satellite litigation. While there are some situations in which litigation about the conduct of prior litigation is unavoidable, it is generally to be discouraged. The acknowledgement of a duty owed by employers to their employees to protect their economic or reputational interests in the conduct of litigation would be likely to result in a proliferation of consequential claims which would often amount to a collateral challenge to the outcome of earlier proceedings. Legal professional privilege It is also necessary to say something about the issue of legal professional privilege. At first instance, it was submitted on behalf of the Commissioner that legal professional privilege was a further policy consideration for not imposing a duty of care in these circumstances. It was submitted that if such a duty of care existed an employer would in effect be compelled to waive privilege in circumstances where he would otherwise be entitled to assert privilege, because the correctness or reasonableness of his conduct of the underlying litigation could not be properly examined without relevant legal advice being properly exposed to judicial scrutiny. The response on behalf of the officers was that the relationship between the parties gave rise to a joint or common interest with the result that the Commissioner would, in any event, be unable to rely on legal professional privilege against the officers to the extent that common interest privilege applied. In his judgment Jay J expressly stated that he did not rely on legal professional privilege in coming to the conclusion that there was no arguable duty of care. The Court of Appeal did not address this point in its judgments. The judgments below have established that the legal advisers who defended the claim brought by BA were instructed on behalf of the Commissioner only and that neither those lawyers nor the Commissioner undertook responsibility to the officers for the conduct of the litigation. The officers attended conferences with counsel in the capacity of witnesses not clients. The officers do not seek to appeal those conclusions. Accordingly, there can be no question of legal professional privilege belonging jointly to the Commissioner and the officers. However, the officers rely on common interest privilege and seek to employ it as a sword in asserting an entitlement to disclosure of material in the possession of the Commissioner which is privileged against disclosure to others. Whether the officers have such an entitlement will depend on whether such a claim is consistent with the underlying relationship of the Commissioner and the officers. (See Phipson on Evidence, 19th ed (2017), para 24 11.) In my view it is not. If one sets to one side the decided cases which turn on contractual access rights, the cases show that something more than a shared interest in the outcome of litigation is required before common interest privilege can be used as a sword in the manner proposed here. For example, in Dennis & Sons Ltd v West Norfolk Farmers Manure and Chemical Co operative Co Ltd [1943] Ch 220 Simonds J held that shareholders were entitled to disclosure of an accountants report concerning the rights and duties of the board commissioned by the directors, notwithstanding that by the time the report was received the shareholders had commenced proceedings against the company in relation to the conduct of the companys affairs. The report had been commissioned by the directors on behalf of all the shareholders and not for the purpose of defending themselves against hostile litigation. The judge observed (at p 222) that the general rule applied equally as between a company and its shareholders and as between a trustee and his beneficiaries. A claim to privilege between the company and its shareholders would have been inconsistent with the nature of the relationship. Similarly, in CIA Barca de Panama SA v George Wimpey & Co Ltd [1980] 1 Lloyds Rep 598, Barca and Wimpey each held half the shares in a joint venture company, DLW, which had claims against Aramco. Wimpey settled the claims without authority from Barca. In the resulting proceedings brought by Barca against Wimpey the Court of Appeal held that Barca was entitled to disclosure of privileged documents of Wimpey generated in the original litigation as the Aramco claims had been made by Wimpey on behalf of itself and Barca (per Stephenson LJ at p 614). In Commercial Union Assurance Co plc v Mander [1996] 2 Lloyds Rep 640, at 647 648, Moore Bick J provided the following example: Although in many cases a relationship between two parties which supports common interest privilege will be one which also gives each of them a right to obtain disclosure of confidential documents relating to the matter in which they are both interested, one can readily think of situations in which that would not be so. Take the example given by Donaldson LJ in Buttes v Hammer (No 3) of tenants in a block of flats. One tenant, acting entirely for his own benefit, obtains legal advice concerning a dispute with the landlord over a provision in the lease which affects other tenants in a similar way. If he chooses to give a copy of the document containing that advice in confidence to another tenant who is willing to cooperate with him in pursuing a claim their common interest would be sufficient for the document to remain privileged in the latters hands. I do not, however, see any basis upon which the second tenant could have insisted on seeing the advice if the first tenant did not wish to show it to him, even though they had a common interest in the subject matter. Both as a matter of principle and authority it is not enough that the person seeking disclosure of confidential documents can show that he has an interest in the subject matter which would be sufficient to give rise to common interest privilege if the documents had been disclosed to him; he must be able to establish a right to obtain access to them by reason of a common interest in their subject matter which existed at the time the advice was sought or the documents were obtained. In the present case the Commissioner and the officers are likely to have had a shared interest in successfully defending the claim brought by BA against the Commissioner, at least initially. It may well be that, had privileged documents been disclosed in confidence by the Commissioner to the officers at that stage, that shared interest would have enabled the officers to defeat an application for disclosure by a third party on grounds of common interest privilege. However, before the officers could compel disclosure of privileged material in the hands of the Commissioner, considerably more would be required. Although the relationship between the Commissioner and the officers is closely analogous to that of employer and employees, there is nothing in the present situation which resembles the relationship between a company and its shareholders, or between a trustee and his beneficiaries, or between parties to a joint venture agreement. Here the relationship between the Commissioner and the officers does not require or justify such an entitlement of access to legally privileged material. Considered against this background, there is force in the Commissioners submission as to the practical consequences in this regard of the recognition of the duty of care for which the officers contend. Although employees would normally have no entitlement to disclosure of privileged material in the possession of their employer relating to the defence of the original proceedings, the effective defence of proceedings by the employees against the employer brought on the basis that the earlier proceedings were conducted in breach of duty may well require waiver of privilege in order to demonstrate the contrary. This has the potential to undermine the effective conduct of the defence of the original claim against the employer in that the possibility of such a claim in negligence and the likelihood of having to waive privilege may well inhibit frank discussion between the employer and his legal advisers. This is, therefore, a further consideration which weighs against the recognition of the duty of care for which the officers contend. Conclusion For these reasons I would allow the appeal. The imposition of the claimed duty would not be fair, just or reasonable. |
This appeal concerns the interpretation and application of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act). The appellant is a patient detained in the State Hospital at Carstairs who made an application to the Mental Health Tribunal for Scotland (the tribunal) for an order under section 264(2) of the Act, declaring that he was being detained under conditions of excessive security and specifying a period during which the duties under section 264(3) and (5) should be performed. His application was refused. An appeal to the Court of Session against that decision, under section 322 of the Act, was also refused ([2011] CSIH 55; 2012 SC 138). He now appeals to this court. For the reasons I shall explain, the appeal must be dismissed. It has however provided an opportunity to clarify the nature of decision-making under section 264(2), and the factors which are relevant to the proper application of that section and of other provisions of the Act. The background to the Act It may be helpful to begin by considering the general background to the Act. Until its enactment, the statutory framework for the treatment in Scotland of persons suffering from mental disorders was contained in the Mental Health (Scotland) Act 1984, a consolidation Act which drew together a body of older legislation. That legislation had become increasingly out of step with current thinking about the treatment of mental disorders, the rights of patients, and the relationship between patients and the wider community. One important development was the influence of the European Convention on Human Rights, particularly after it was given effect in domestic law by the Scotland Act 1998 and the Human Rights Act 1998. In particular, the Convention necessitated a more robust system of judicial protection of the rights of patients than had previously existed, and greater involvement of patients and their families and carers in decisions concerning treatment. Another important development concerned the treatment of the mentally ill, with many more patients being treated outside hospitals, fewer patients requiring long-term hospital care, and a marked reduction in the number of hospital beds available for the treatment of mental illness. A third development was an increasing recognition of the desirability of eliminating the stigma which had long been associated with mental illness. All these developments, and others, necessitated a fundamental review of Scottish mental health law. The Committee stated in the report that it was fundamental to its approach that a new Act should be based on principles stated on the face of the Act itself (Introduction, para 3): as I shall explain, that is reflected in section 1 of the Act. A particular problem identified by the Committee, which in due course section 264 of the Act sought to address, was discussed in Chapter 27: 82. We have received evidence from the State Hospital and the Mental Welfare Commission that there are significant numbers of entrapped patients. These are patients who no longer require the level of security afforded by the State Hospital, but for whom appropriate local services are not available. The State Hospitals Board suggested that there is currently little incentive for local health boards and trusts to arrange secure psychiatric services. The local public is unlikely to welcome such services (indeed quite the reverse), and funding arrangements do not create incentives to develop such services. The Board strongly advocated that an explicit statutory duty be placed on health boards to commission local services to address the need for a range of medium and low security services for mentally disordered offenders. 83. We have considerable sympathy with the position of the State Hospital on this point. However, we have decided that, in terms of our core remit of reviewing the Mental Health (Scotland) Act 1984, it would be more appropriate for us to propose another means of addressing this problem, which is more directed at the rights of individual patients. This is that patients should have a continuing right to appeal against the level of security to which they are subjected. 84. It seems to us that to detain a patient unnecessarily in conditions of high security is inconsistent with respect for the patient's rights, and our general principle of Least restrictive alternative. Furthermore, the proposed development of medium secure units would seem to make it more likely that such an appeal right would be practicable. The Committee discussed how such a right of appeal might be made effective. In order to provide care at a lower level of security, arrangements would have to be made by the responsible health board. The provision of such arrangements could involve practical difficulties which might be beyond the health boards control. If the necessary arrangements were not put in place, it would be undesirable that a patient who was still assessed as requiring some degree of secure care should simply be discharged. On the other hand, the proposed right of appeal would be meaningless unless it led to an order which was capable of being enforced. Following consultation on this issue, the Committee concluded that a staged approach was appropriate: We therefore suggest that, should a patient successfully appeal to a tribunal against the level of security, it should set a time within which the necessary provision should be arranged by the responsible health board. The time limit might be of the order of three months. Should arrangements not be made at the expiry of that period, representatives of the health board should be required to appear before the tribunal to explain the position, and to confirm whether there is a prospect of a placement being found within a reasonable period. The tribunal should be able to extend the time limit for a further period of no more than three months. If, at the end of that period, no provision has been made, the tribunal could order that arrangements must be put in place to accommodate the patient within 14 days. (Chapter 27, para 89) In a subsequent White Paper, Renewing Mental Health Law Policy Statement (2001), the Scottish Executive broadly accepted the Committees recommendations as the framework for a future Bill, although rejecting or modifying some of the recommendations concerned with mentally disordered offenders. As introduced, the Bill did not contain any provision reflecting the recommendations in relation to appeals against levels of security. There was at that time only one specialist medium secure unit in Scotland, namely the Orchard Clinic in Edinburgh. The provisions which became sections 264 to 273, giving effect to the Committees recommendations, were however introduced by amendment during the passage of the Bill through Parliament. Commencement provisions in section 333(2) allowed the entry into force of sections 264 to 273 to be delayed until 1 May 2006, so as to allow sufficient time for additional facilities for affected patients to be commissioned. Section 1 of the Act Section 1 of the Act is a provision of particular importance. It sets out principles to be applied by persons discharging certain functions under the Act. The principles are set out in, or incorporated into, subsections (2) to (4). The circumstances in which they apply are defined by subsection (1), which provides: (1) Subsections (2) to (4) below apply whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years. The tribunal does not fall within subsection (7). Subsections (2) to (4) therefore apply to the tribunal whenever it is discharging a function by virtue of the Act in relation to a patient who is over 18. One of the functions discharged by the tribunal under the Act, to which subsections (2) to (4) therefore apply, is that of taking decisions under section 264(2). Section 1(2) provides: (2) In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged. Subsection (9) is not relevant to the present case, and need not be considered further. Subject only to that provision, the tribunal is under a statutory duty to have regard to the matters mentioned in subsection (3) so far as they are relevant to the function being discharged: such as, in the present case, the taking of decisions under section 264(2). Section 1(3) provides: (3) The matters referred to in subsection (2) above are - (a) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (b) the views of [the patients named person, carer, guardian and welfare attorney, if any], which are relevant to the discharge of the function; (c) the importance of the patient participating as fully as possible in the discharge of the function; (d) the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (c) above; (e) the range of options available in the patient's case; (f) the importance of providing the maximum benefit to the patient; (g) the need to ensure that, unless it can be shown that it is justified in the circumstances, the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation; (h) the patient's abilities, background and characteristics, including, without prejudice to that generality, the patient's age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group. Paragraphs (a), (c) and (d) reflect the importance of respect for the patients autonomy and the consequent need to enable the patient to participate in the exercise of functions concerning him or her, so far as possible. The Millan Committee had identified in its discussion of general principles (Chapter 3, para 13) a need to broaden the extent to which those principles were reflected in mental health law. Paragraph (b) is similar in purpose to paragraph (a), and applies the same general principle to carers and others closely involved with the patient. Paragraphs (e) and (f) reflect the importance of ensuring that functions exercised under the Act should be discharged in the most beneficial way possible for the patient. As the Committee had noted, that principle was reflected in the older legislation concerned with children and with adults with incapacity, but not in mental health law generally. Paragraph (g) gives expression to the principle of non-discrimination in relation to persons with mental disorders: the term patient is defined by section 329(1) of the Act as meaning a person who has, or appears to have, a mental disorder. The Committee had noted that this concept of equality had come to the fore in recent years. Paragraph (h) reflects the principle of respect for diversity. The Committee had observed that such a principle added to the principle of equality by making a positive statement of the requirement to reflect individual needs. Before considering section 1(4), it is necessary to consider section 1(5) and (6), which list further matters to which regard must be had in particular circumstances. Section 1(5) provides: (5) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act (other than the making of a decision about medical treatment) in relation to a patient, the person shall have regard, in so far as it is reasonable and practicable to do so, to - (a) the needs and circumstances of any carer of the patient which are relevant to the discharge of the function and of which the person is aware; and (b) the importance of providing such information to any carer of the patient as might assist the carer to care for the patient. As I have explained, the tribunal does not fall within subsection (7); and a decision under section 264(2) is not a decision about medical treatment. It is therefore a decision to which section 1(5) applies. Section 1(6) provides: (6) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a person who is, or has been, subject to - (a) detention in hospital authorised by [an emergency detention certificate]; (b) detention in hospital authorised by a [short-term detention certificate]; (c) [a compulsory treatment order]; or (d) [a compulsion order], the person who is discharging the function shall have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to the certificate or order concerned (including, without prejudice to that generality, the provision of continuing care when the person is no longer subject to the certificate or order). Since section 264 applies where a patients detention in a state hospital is authorised by inter alia a compulsory treatment order or a compulsion order, it follows that section 1(6) can apply when the tribunal is taking a decision under section 264. It did so in the present case, the appellant being subject to a compulsion order. Returning to section 1(4), it provides: (4) After having regard to - (a) the matters mentioned in subsection (3) above; (b) if subsections (5) and (6) below apply, the matters mentioned there; and (c) such other matters as are relevant in the circumstances, the person shall discharge the function in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Section 1(4) is of a different nature from subsections (3), (5) and (6). It does not specify matters to which the person in question must have regard. It applies after the person has had regard to all the matters to which he or she is required to have regard, including, under paragraph (c), the residual category of such other matters as are relevant in the circumstances. It requires the person then to discharge the function in a particular manner, namely the manner which appears to the person to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances. This broadly but not precisely reflects the Millan Committees general principle of the least restrictive alternative (Chapter 3, para 13), and Principle 9.1 of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, adopted by the UN General Assembly on 17 December 1991 (A/RES/46/119). The concept of restriction on freedom is not defined, and must be considered broadly. A persons freedom has many aspects, and can be restricted in many different ways. To some extent, whether a particular aspect or effect of the detention of a patient is regarded as a restriction of his freedom may depend on the characteristics of the patient. There may be room for debate as to whether one course of action will involve greater restriction of a patients freedom than another. One course of action may, for example, involve relatively greater restriction on freedom than another for a period of time, but relatively less restriction subsequently. One course of action may involve one kind of restriction on freedom, while another may involve a different type of restriction. For all these reasons, the person discharging the function must have a wide power of judgment in making his or her assessment under section 1(4), and may not be able to reach any clear conclusion. Section 1(4) does not prioritise the freedom of the patient over other considerations, such as the importance of providing the maximum benefit to the patient or, where relevant, the protection of the public, or the safety of other patients: it requires the minimum restriction on the freedom of the patient that is necessary in the circumstances. The judgment of what is necessary in the circumstances is to be made by the person discharging the function. Section 1 thus sets out an overarching approach to the discharge of functions under the Act. The person discharging the function must have regard to the matters specified in subsection (3), so far as relevant, to the matters specified in subsections (5) and (6) where applicable, and to such other matters as may be relevant in the particular circumstances. The person must then discharge the function in the manner that appears to him or her to involve the minimum restriction on the freedom of the patient that is necessary in those circumstances. Section 1(4) will not however be determinative of all the decisions falling within its scope. Some functions discharged under the Act do not impinge upon the freedom of patients. In other cases, there may be a number of ways in which the function might be discharged, none of which appears to the person in question to impose a greater restriction on the freedom of the patient than is necessary in the circumstances. Section 264 of the Act Section 264 applies, in terms of subsection (1), where a patients detention in a state hospital is authorised by any of a number of specified orders and directions, including a compulsion order. As I have explained, the appellants detention in the State Hospital is authorised by such an order, and therefore comes within the scope of section 264. Section 264(2) provides: (2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order - (a) declaring that the patient is being detained in conditions of excessive security; and (b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed. The patient is among the persons mentioned in subsection (6), and is therefore entitled to make such an application. Section 264(2) confers a discretion (the Tribunal may make an order), subject to a pre-condition (if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital). The function conferred upon the tribunal by section 264(2) therefore involves two distinct stages. First, the tribunal has to decide whether it is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital: that is to say, whether the statutory condition for the admission of a patient to a state hospital (under, for example, sections 57A(6) or 59A(6) of the Criminal Procedure (Scotland) Act 1995 as amended) is no longer satisfied. If the tribunal is not so satisfied, then it will refuse the application. If on the other hand it is so satisfied, then it may make an order under the subsection. The second stage of the tribunals function is therefore to decide whether to exercise its discretion to make such an order. If it decides to do so, then it must also decide the length of the period within which the duties under subsections (3) to (5) are to be performed, subject to a maximum period of three months. The duties imposed by an order made under section 264(2) are set out in subsections (3) to (5). Section 264(3) provides: (3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital (a) which is not a state hospital; (b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and (c) in which accommodation is available for the patient. Section 264(4) makes analogous provision in relation to patients who are not relevant patients. A relevant patient is defined by section 273 as one whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order, or one whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction. The appellant falls into the first of these categories and is therefore a relevant patient. Section 264(5) provides that, where the tribunal makes an order under subsection (2), the relevant health board shall, as soon as practicable after identifying a hospital under subsection (3) or (4), notify the managers of the state hospital of the name of the hospital so identified. It is relevant to note the terms of sections 265 to 267 and 272. Section 265 provides an enforcement mechanism in relation to orders which have been made under section 264(2) and have not been recalled under section 267. In terms of section 265(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order, under section 265(3), of a similar nature to the order originally made under section 264(2). The order made under section 265(3) must specify either a further period of 28 days, or a longer period of up to three months, within which the health board must perform its duties. Section 266 provides a further enforcement mechanism in relation to orders made under section 265(3) which have allowed the health board a further period of more than 28 days to perform its duties, and have not been recalled under section 267. In terms of section 266(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order under section 266(3) of a similar nature to the order originally made under section 264(2), specifying a further period of 28 days within which the health board must perform its duties. Under section 267, an application can be made to the tribunal by the health board (and, in the case of a relevant patient, by the Scottish Ministers) for the recall of an order made under section 264(2), 265(3) or 266(3). The tribunal is required to recall the order if it is satisfied that the patient requires to be detained under conditions of special security that can be provided only in a state hospital, and also has a discretion to recall the order on any other grounds. Under section 272(1), an order made under section 264(2), or an order made under section 265(3) which allows the health board a period of more than 28 days to perform its duties, cannot be enforced by proceedings for specific performance. Such orders can therefore be enforced only by means of the procedures laid down in sections 265 and 266 respectively. On the other hand, under section 272(2), an order under section 265(3) which specifies a period of 28 days, and an order under section 266(3), are enforceable by proceedings for specific performance. One implication of these provisions is that orders made by the tribunal under section 264(2), and orders made under section 265(3) allowing the health board more than 28 days, are not enforceable. In particular, following the making of an order under section 264(2), the tribunal is required to review the position at one or possibly two further hearings before the health board can be compelled by civil proceedings to identify a suitable hospital and notify the managers of the state hospital. The period of time allowed to the health board to make suitable arrangements, before civil proceedings can be taken to compel it to do so, can therefore be substantial: up to three months in terms of the order made under section 264(2), a further three months in terms of the order made under section 265(3), and a further 28 days in terms of the order made under section 266(3). Further time will be required to deal with applications under each of those three sections, there being in each case a requirement to afford an opportunity of making representations and of leading evidence, and to hold a hearing. In the present case, an application under section 264 alone took more than 19 months to be decided by the tribunal. Returning to section 264(2), I have explained the two stages of the exercise which the tribunal has to carry out. At the first stage, it has to decide whether it is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital. What constitute such conditions will be a question of fact for the tribunal, the answer to which may vary from time to time. Having identified those conditions, the tribunal has to decide whether the patient requires to be detained under them. If he does not, then the decision at stage one will be favourable to him. It is to be noted that the tribunal is not concerned at stage one with the question whether accommodation is available for the patient in some other hospital in which he could be detained in appropriate conditions. If the tribunal is satisfied at stage one, it then has to perform its function at stage two: that is to say, it has to decide whether to exercise its discretion to make an order. As I have explained, the tribunals discharge of its function under section 264(2) falls within the scope of the general provisions set out in section 1 of the Act. The tribunal must therefore have regard to the matters to which it is required to have regard under that section, and to such other matters as are relevant in the circumstances, in accordance with section 1(4)(c). In the present case, for example, a relevant consideration was that the State Hospital had no female patients, whereas there were such patients in medium secure hospitals. Another was the risk posed by the appellant to the safety of women. As I have explained, the tribunal is required by section 1(4) to exercise its discretion at stage two in the manner that appears to [it] to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. That test employs a different concept from section 264(2): conditions of security are not synonymous with restrictions on freedom. For example, the security conditions at the State Hospital include a perimeter security fence which prevents patients from having uncontrolled access to the wider community. Within the perimeter, however, the movements and activities of a patient may be subject to relatively few restrictions. Medium secure hospitals on the other hand typically have less secure perimeters. In consequence, patients posing a risk to the public may require to be subject to relatively onerous restrictions on their movements and activities, which may not only prevent them from having uncontrolled access to the wider community but may also restrict their freedom within the hospital itself. For reasons such as these, it is possible that fewer restrictions on the freedom of a particular patient may be necessary under conditions of security that are available only in a state hospital than if the patient were detained elsewhere. Thus an analysis of the implications of an order under section 264(2) for the daily regime of the patient and for his progress through the system may, depending on the circumstances, result in the conclusion that the refusal of the order will result in the minimum restriction necessary in the circumstances. It is also possible that no clear conclusion will be reached as to whether the patient will be subject to greater restrictions on his freedom if he is detained in a state hospital or elsewhere. The tribunal should in any event exercise its discretion in such a way as to promote the policy and objects of the Act, and of section 264 in particular. As I have explained, the mischief which section 264 was intended to address is the entrapment of patients who no longer require the level of security afforded by the State Hospital. Given that intention, Parliament can be taken to have envisaged that if the tribunal were to conclude at stage one that the patient no longer required to be detained under conditions of special security that could be provided only in a state hospital, it would then make an order under section 264(2) unless it considered that there was some good reason not to do so. In that regard, the unavailability of accommodation in a medium secure hospital in which the patient could be detained in appropriate conditions cannot have been intended to preclude the making of an order under section 264(2): otherwise, Parliaments intention in enacting section 264 could be frustrated by mere inertia on the part of health boards, and the arrangements made by sections 264 to 266 and 272, preventing the immediate enforcement of orders under section 264(2), and allowing health boards substantial periods of time where necessary to make appropriate arrangements, would be supererogatory. Those provisions take account of the potential practical difficulties identified by the Millan Committee, while also guarding against the connection between entrapment and the absence of incentives for health boards to address the problem. It is implicit in section 264(3), (4) and (5) that an order can be made by the tribunal under subsection (2) at a time when no hospital has been identified, other than a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for the patient. At the same time, the unavailability of accommodation in medium secure hospitals where the patient could be detained in conditions appropriate to his particular needs, including appropriate facilities for treatment, may in some circumstances be relevant to the tribunals performance of its duty to have regard to the importance of providing the maximum benefit to the patient, in accordance with section 1(3)(f). It may also be relevant to the tribunals duty to have regard to the importance of the provision of appropriate services to the patient, in accordance with section 1(6). To make an order under section 264(2) where medical or other evidence demonstrated that appropriate conditions were not available outside a state hospital, or where clinically superior conditions were available in a state hospital, might be incompatible with providing the maximum benefit to the particular patient. As I shall explain, the present case provides an example of such a situation. Furthermore, to make an order where the tribunal was satisfied that there was no conceivable possibility that the patient could be accommodated in a medium secure hospital in appropriate conditions within any realistic timescale, and where an application for recall could not therefore be refused, would be unreasonable. The view expressed in Lothian Health Board v BM 2007 SCLR 478, that the availability of accommodation in a medium secure hospital where the patient could be detained in appropriate conditions, including appropriate facilities for treatment, can never be relevant to the question whether an order should be made under section 264, and can only be raised by way of an application for the recall of the order under section 267, therefore goes too far. The present case In 1998 the appellant appeared before the High Court of Justiciary on charges of rape, assault and breach of the peace. He was acquitted on the ground of insanity and made the subject of orders under which he was detained at the State Hospital. Although those orders were made under earlier legislation, they are now deemed to be a compulsion order and a restriction order within the meaning of the Criminal Procedure (Scotland) Act 1995 as amended. In 2008 the appellant applied for an order under section 264(2) of the Act. In 2009 the tribunal issued its decision, refusing the application. In its decision, the tribunal described the security conditions at the State Hospital, and explained how they differed from those in hospitals of lesser security. It found that the appellant had in recent times been subject to the lowest level of security in the State Hospital. He continued to pose some risk of sexual violence. The best way of managing that risk could only be determined following his undertaking and completing satisfactorily a course of psychological treatment for sexual offending. The tribunal found that the appellant had in the past been offered such treatment at the State Hospital, on a group basis, but had declined to take part. He had recently indicated his willingness to engage in such treatment on a one to one or one to two basis. After a delay for which there was no satisfactory explanation, the provision of appropriate treatment for him was currently under consideration by the clinical psychologists at the State Hospital. The psychology department there was the best resourced in any secure hospital in Scotland. It was capable of providing appropriate treatment in a variety of forms, including one to one or one to two. It had assessed the appellant and was best placed to decide how to meet his needs. There was uncertainty as to the time scale for undertaking such treatment in a medium secure hospital. The tribunal correctly identified that decision-making under section 264(2) involved two stages, and it correctly understood what those stages were. At the first stage, it concluded that the appellant did not require to be detained under conditions of special security that could be provided only in a state hospital. On the facts which it had found, it was entitled to reach that conclusion: it found that the appellant could be managed within a medium secure hospital, although only subject to considerable restrictions until he had completed a course of treatment for sexual violence. If the appellant could be detained elsewhere in appropriate conditions of security, then he did not require to be detained under conditions of special security that could be provided only in a state hospital. At the second stage of its decision, the tribunal had regard to section 1 of the Act. It referred in particular to the importance of providing the maximum benefit to the patient (section 1(3)(f)), and to the least restrictive option (section 1(4)). It made no express mention of the other provisions of section 1(3), (5) or (6). In reaching its decision at the second stage, the tribunal noted the medical witnesses agreement that the appellant had to undertake an appropriate course of treatment before he could be allowed greater contact with women. If transferred to a medium secure hospital, he would have greater contact with women: although this was not explained by the tribunal, we were informed that the State Hospital has no female patients, whereas medium secure hospitals have patients of both sexes. If transferred before completing such treatment, he would pose a risk to any woman with whom he formed a relationship, in the event that he felt rejected or came under the influence of alcohol or drugs. The tribunal also shared the concern expressed by certain of the medical witnesses that the appellant was less likely to engage in such treatment in a medium secure hospital. There was therefore a significant risk that he would become entrapped in the medium secure system: although this was not explained by the tribunal, we were informed that this was because the progression of patients to lower levels of security depends on assessments of risk, and one of the purposes of such treatment is to provide the information necessary for that assessment process. Because of the risk he posed to women, he would require to be subject to restrictions on his movements in a medium secure hospital which were much greater than those to which he was subject in the State Hospital, unless and until he successfully completed such treatment. There was a significant risk of consequential problems for his mental health. In relation to the least restrictive alternative, the tribunal stated that if the appellant moved to a medium secure hospital then he would have to endure greater restrictions on his movements than currently experienced at the State Hospital, until a treatment course was satisfactorily completed. Such a course could take 12 to 18 months. The tribunal concluded that it was of maximum benefit to the appellant that he should remain at the State Hospital and undertake appropriate treatment there. It stated that accordingly in the exercise of its discretion, the application should be refused. The challenge to the tribunals decision On behalf of the appellant, it was submitted to this court that the tribunals decision was vitiated by a number of errors. In the first place, it was argued that the tribunal had failed to exercise its discretion in accordance with the purpose of section 264. Since the purpose was to avoid patients being detained in state hospitals when adequate security arrangements were available elsewhere, section 264(2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage two, where a decision favourable to the patients application had been reached at stage one. Secondly, the tribunal had been influenced at stage two by the risk posed by the appellant to women. Risk was however an irrelevant consideration at stage two: the tribunal only reached stage two after it had already decided at stage one that the patient could be managed within a medium secure hospital. Thirdly, the tribunal had placed weight on a finding that the State Hospital offered better resources for the treatment of the appellant than were available in the medium secure estate. The unavailability of suitable resources elsewhere was not however a relevant factor: otherwise, the provisions of sections 265 and 266 would be otiose. Fourthly, the tribunal had failed to have regard to the wishes and feelings of the appellant, and to the need to avoid discrimination against patients, contrary to section 1(3)(a) and (g) respectively. Fifthly, the tribunal had misunderstood the relationship between section 1(3) and section 1(4). It had elevated the importance of providing maximum benefit to the patient (section 1(3)(f)) above the least restrictive alternative principle (section 1(4)), thus inverting the proper approach. I shall consider each of these contentions in turn. The width of the discretion exercised at stage two If the tribunal reaches a conclusion favourable to the patients application at stage one, it must then exercise its discretion whether to grant the application in accordance with the principles set out in section 1 and in accordance with the policy underlying section 264. Putting the matter broadly, if the patient does not require to be detained under conditions of special security available only in a state hospital, this approach should lead to the granting of the application unless in the particular circumstances there is some good reason to refuse it. It would therefore be potentially misleading to describe the tribunals discretion as unqualified: the range of matters which it may take into account is not subject to any express restriction, and is necessarily wide, but its discretion must nevertheless be exercised in a manner which is consistent with the intention of Parliament. On the other hand, it would also be wrong to say that it is only in exceptional circumstances that an application should be refused at stage two: it is impossible to say a priori whether the circumstances in which an application may properly be refused will be exceptional or not. There is no legal reason why they need be. Indeed, exceptional circumstances cannot be a legal test: circumstances can be described as exceptional only by reference to a criterion, rather than exceptionality being a criterion in itself. The relevance of risk at stage two The risk posed by the patient to the safety of others is plainly relevant to the tribunals assessment at stage one, since the conditions of security under which the patient requires to be detained are dependent upon the nature and extent of any risk which he poses. If the tribunal concludes at stage one that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it is by implication finding that the conditions of security that can be provided elsewhere are equally capable of addressing the risk posed by the patient. The tribunal cannot rationally exercise its discretion at stage two on a basis which is inconsistent with that conclusion. In those circumstances, the tribunal was correct to consider one aspect of the issue of risk namely, the necessity for security arrangements available only in a state hospital - at stage one, and other aspects namely, the risk to female patients in a medium secure hospital, and the implications of that risk for restrictions on the appellants freedom in that setting, and consequently for the appellants mental health - at stage two. The relevance of the quality of the resources available in medium secure hospitals As I have explained, when the tribunal is taking a decision under section 264(2), the unavailability of accommodation for the patient at another hospital where he could be detained in appropriate conditions does not preclude the granting of the application. That does not however entail that the quality of treatment available at other hospitals, as compared with the treatment available at the State Hospital, is irrelevant to the tribunals exercise of its discretion. There is nothing in section 264 which expressly or implicitly bars the tribunal from taking such a clinical comparison into account. Under section 1, the quality of the treatment available elsewhere may be a relevant consideration, notably under section 1(3)(f) and section 1(6), both of which were relevant in the present case. Furthermore, the quality of treatment available in a medium secure hospital, and in particular the availability of the particular form of treatment required by the patient, may affect the risk posed by the patient in that setting. The potential raising of the level of risk is in itself a matter to which the tribunal is entitled to have regard, under section 1(4)(c), and it may have consequences which are also relevant to the tribunals decision, for example under section 1(3)(f) or section 1(4). In the present case, the tribunals focus was upon the availability of the most suitable treatment for the appellants particular needs in the State Hospital and in a medium secure hospital, the likelihood of his accepting appropriate treatment in each of those settings, and the implications of those matters for the risk which he would pose in each of those settings, for the necessary restrictions on his movement and for his mental health. Although the tribunal might have given a fuller explanation of its factual findings in relation to these matters, its approach to them did not involve any error of law. The tribunals failure to refer to section 1(3)(a) and (g) The tribunal made no express mention of section 1(3)(a), and did not refer in terms to the appellants wishes or feelings in the reasons it gave for its decision. It is nevertheless clear that the tribunal had regard to the appellants wishes and feelings so far as relevant, as required by section 1(3)(a). In particular, it took account of his wish to be transferred to a medium secure hospital, and it considered his attitude towards different forms of treatment. I am unable to accept the submission on behalf of the tribunal, seemingly endorsed by the Inner House at para 14 of the opinion delivered by Lord Bonomy, that the non-discrimination principle set out in section 1(3)(g) is irrelevant to the tribunals discharge of its function under section 264, since a patient is not comparable to a person of full capacity: on the contrary, section 1(3)(g) is undoubtedly relevant, most obviously to the way in which the patient is treated by the tribunal in its procedures. In the present case, it was argued that section 1(3)(g) required the tribunal to respect the appellants right to decline to accept the most beneficial form of treatment. No reference was made to section (1)(3)(g) by the tribunal. In reaching its decision, however, the tribunal bore in mind that the appellant might decline to participate in an appropriate course of treatment if transferred to a medium secure hospital. It was partly for that reason that it concluded that his application should be refused. Generally, in relation to this aspect of the appellants contentions, it is necessary to have regard to general guidance relevant to the duty of tribunals to give reasons for their decisions, such as that given by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, 49-50; [1997] 1 WLR 1447, 1464-1465. Applied in the present context, that guidance does not require a formulaic rehearsal of every matter referred to in section 1 of the Act, regardless of its importance in the particular case. It is also necessary to bear in mind general guidance given to courts scrutinising the reasoning of expert tribunals, such as that given by Baroness Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678, para 30 and that given by Sir John Dyson in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65, para 45. In the present case, the reasons given by the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. That was enough. The relationship between section 1(3)(f) and section 1(4) It is not readily apparent from the tribunals decision that it understood the structure of section 1, and the potential significance of section 1(4) in particular. On the facts of the present case, however, it does not appear that any misunderstanding can have affected the substance of the tribunals decision, as opposed to the manner in which it was expressed. The tribunal considered section 1(4), which it referred to as the least restrictive option. It stated that if the appellant moved to a medium secure hospital, then until a psychotherapy course was satisfactorily completed he would have to endure greater restrictions on his movements than currently experienced in the State Hospital. Such a course could take 12 to 18 months. If the implication of that statement is that the tribunal considered that the refusal of the application would result in the minimum restriction on the appellants freedom that was necessary in the circumstances, then it could have stopped there: that would have been a proper basis for refusing the application. It appears more likely however that the tribunal did not reach a clear conclusion as to the least restrictive option, perhaps because of the uncertainties as to the appellants likely attitude to treatment in a medium secure hospital, and as to the timescale and outcome of such treatment. In those circumstances it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. It concluded that it would be of maximum benefit to the appellant to undertake the necessary course of treatment at the State Hospital, because (1) the State Hospital had carried out the necessary groundwork to offer him such treatment, and was best placed to offer him the most suitable treatment for his needs, (2) he was less likely to undertake such treatment at a medium secure hospital, (3) he would have to endure greater restrictions on his movements at such a hospital until he completed such treatment, because of the risk to women in that setting, (4) such treatment could take 12 to 18 months to complete, and (5) the restrictions on his movements until the treatment was completed would place his mental health at risk. On that basis, it exercised its discretion to refuse the application. In the light of the matters to which it referred, all of which were relevant, its decision cannot be regarded as unreasonable. Conclusion For these reasons, and those given by Lady Hale, I would dismiss the appeal. A fundamental modernisation of the system for detaining and treating mental patients took place in Scotland under the Mental Health (Scotland) Act 1960 and in England and Wales under the Mental Health Act 1959. The aim was to integrate and normalise the treatment of mental patients within the mainstream National Health Service. But there remained the high security institutions, in Scotland the state hospital at Carstairs and in England and Wales what were then known as the special hospitals at Broadmoor, Rampton, Moss Side and Park Lane (which at that stage were not run as part of the NHS but now are). It soon became clear that there were many patients detained in the high security hospitals who did not need to be there but who could not be transferred to other settings and thus became trapped. There were many reasons for this. These patients were most unlikely to be able to move directly from the highly structured setting of the special hospital into a community setting. Many would be unable to move directly into an ordinary psychiatric hospital or unit. But there was a lack of facilities with an intermediate level of security which could enable the patient to move on without endangering either his own health or safety or that of others. There was also some reluctance among hospital staff, as well as local communities, to having former special hospital patients in their midst. The problem was recognised as long ago as 1974, when the Butler Committee on Mentally Abnormal Offenders published an Interim Report (1974, Cmnd 5698), ahead of its main recommendations, urging the setting up of secure units in each NHS region. This became government policy, and eventually medium and low secure units were established and became an attractive if challenging area of forensic psychiatric practice. According to the Care Quality Commission, 11% of all psychiatric hospital inpatients in England and Wales on census day in 2010 were on medium or high security wards, compared with 76% in general wards and 13% on low security wards (Count me in 2010, p 27). The proportions of detained patients on high, medium or low security wards are likely to be double that, as something over half of all inpatients are detained. This was achieved through government policy and professional commitment rather than through asserting the individual rights of patients. Mr Ashingdane was a Broadmoor patient who was deemed ready for transfer back into his local hospital, but was denied a bed there because the nurses trade union operated a ban on taking special hospital patients. He launched proceedings against the trade union branch secretaries, the Secretary of State and the area health authority. We shall never know whether his claim against the Secretary of State and the local health authority might have succeeded on the grounds that it was unlawful for them to take the union ban into account, because at that stage both were virtually immune from suit under section 141 of the 1959 Act and so his claim was struck out (see Ashingdane v Department of Health and Social Security [1981] CLY 175u). He then complained to the European Court of Human Rights that, among other things, his detention in Broadmoor did not fall within the lawful detention of persons of unsound mind permitted by article 5(1)(e) of the Convention, because he did not need to be in Broadmoor. The Court held that there had to be a relationship between the grounds of detention and the place and conditions of detention, so that a person detained because of mental disorder had to be kept in some sort of hospital or clinic appropriate to that purpose (Ashingdane v United Kingdom (1985) 7 EHRR 528). But beyond that article 5 is not concerned with the conditions under which a patient is detained; keeping him in Broadmoor longer than he needed to be there did not change the character of his detention and was not a violation of article 5. Since then, beyond the very remote possibility of judicial review, patients in England and Wales have been unable to complain that they are being detained in conditions of excessive security. It was therefore progressive and far-sighted of the Millan Committee to recommend that individual patients in Scotland should have the right to challenge the place of their detention on that basis and of the Scottish Parliament to pass what became sections 264 to 273 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Despite all the recent changes to the Mental Health Act 1983 (which consolidated the 1959 Act with later amendments), the law in England and Wales still lags behind the law in Scotland in this respect. No doubt those with an interest in the subject south of the border will be keeping a close eye on experience with the Scottish jurisdiction. It would obviously defeat the object of the legislation if the authorities were able simply to say that no bed was available in another, less secure, hospital. It must be the case, as Lord Reed observes (para 38), that this is irrelevant to the first stage: deciding whether (in the case of a state hospital patient) he requires to be detained under conditions of special security that can be provided only in a state hospital (section 264(2)) or (in the case of a patient in another hospital) he is being subject to a level of security that is excessive in his case (section 268(2)). It must also be the case, as Lord Reed says (paras 41 and 54), that having decided that question in favour of the patient, the expectation is that the tribunal will make an order unless in the particular circumstances of the case there is some good reason not to do so. More difficult is whether the non-availability of a bed constitutes a good reason at the second stage, the exercise of the tribunals discretion in the light of the guidance given in section 1(2), (3), (4), (5) and (6) of the 2003 Act. I agree with Lord Reed (para 43) that it would be unreasonable to make an order under section 264, or indeed section 268, if there were no conceivable possibility of an appropriate bed being found elsewhere. But that is a conclusion which a tribunal should be slow to reach. I would add that the search for an appropriate bed need not be confined to Scotland. If there are appropriate facilities in England, Wales or Northern Ireland, then the patient can be transferred there. The difficult case is the one like this, where the patient is not being denied a bed in a medium secure unit, but it is said that the conditions and treatment there will not be appropriate to his particular needs. These are not for the high level of security which can only be provided at the state hospital, but to be kept away from unsupervised contact with women until he has properly addressed the problem which brought him into the hospital in the first place. One can easily see how such a case could develop into an unseemly contest between the state hospital doctors, who wish their patient to move on, and the medium secure unit doctors who consider their facilities unsuitable. A principal object of giving patients individual rights is to stimulate the authorities into providing appropriate facilities for them, so it is important to ask whether such facilities could be provided in less secure settings. There is the further problem in a case like this, that the reason why the experts do not consider a medium secure unit suitable is that the patient has not undergone a particular course of treatment. One must beware the Catch 22 where the patient does not need a high level of security, but the facilities offered are not in fact suitable to the level of security he does need, and the reason for that is the lack of appropriate work which has been done with him in the state hospital. This is akin to the problem of those post-tariff life or indeterminate sentence prisoners who are denied the opportunity of demonstrating that they are safe to be moved on or out by the lack of appropriate courses for them: see R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1 AC 553 and James v United Kingdom (2012) 56 EHRR 399. If Ashingdane is right, this does not engage article 5(1) in the way it was said to be engaged in James. Nevertheless, being denied the opportunity of moving on because the state hospital has not provided the treatment which would enable the patient to move on is likely to engender a sense of injustice which might, at the very least, be considered anti- therapeutic. Fortunately, it looks as if this patients treatment needs are now being addressed in a way which he can accept. I confess to having found this case a troublesome one. Is it a case in which the authorities could provide the appropriate facilities outside the state hospital if they chose to do so? If it is, then in my view the tribunal should at least make an order at the first hearing, even if the search eventually proves fruitless so that the order has to be recalled. Alternatively, is it a case where the patients therapeutic needs will genuinely be better met in the state hospital than they would be outside it? This is obviously relevant to factor (f) in section 1(3) (para 14 above), the importance of providing the maximum benefit to the patient, and to section 1(6) (para 21), the importance of the provision of appropriate services to the [patient]. Those are factual matters for the tribunal, but I agree with Lord Reed that the evidence that the forensic psychology facilities at the state hospital were better than anywhere else, and that the patient would be more inclined to engage with them if he were still there (and thus had the incentive to demonstrate that he was ready to move on), was highly relevant to that question. So in my view the tribunal was entitled to take the view that the patients therapeutic needs would be better met in the state hospital. As Lord Reed has made clear (para 23), the obligation in section 1(4) is of a different nature from the obligation to consider the various matters listed in section 1(3), (5) and (6). It is not a matter to be taken into account. It is the manner in which the discretion is to be exercised, that is, the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Generally speaking, one would expect that if a patient does not need to be detained with the level of security that can only be provided at the state hospital, the minimum restriction on the patients freedom that is necessary in the circumstances will be found elsewhere. Once again, the object of the legislation would be defeated if the authorities were able to say that they had chosen to provide medium secure facilities in such a way as to make it difficult for people like this patient to move on. They might, for example, provide single sex accommodation where patients would not come into unsupervised contact with women until they were ready. However, I agree with Lord Reed (para 56) that risk, whether to the patient or others, is not irrelevant to the exercise of the tribunals discretion. It is inherent in factors 1(3)(f) and 1(6). This in turn feeds into what is necessary for the purpose of section 1(4). So the tribunal could conclude that, in the light of the patients treatment needs and the risks he posed either to himself or others, the restrictions on his freedom which would be necessary in a medium secure unit would in fact be greater than those entailed in staying in the state hospital. But I would hope that among the factors it considers when reaching that conclusion are the wishes and feelings of the patient (section 1(3)(a)). It could be that a patient is willing to accept a greater restriction on his freedom for the sake of the opportunity to leave the state hospital. It is therefore with a degree of reluctance that I conclude, for the reasons given by Lord Reed, that the tribunal was entitled to reach the conclusion that they did and that therefore this appeal must be dismissed. It has, however, provided the court with a useful opportunity, both to clarify how these provisions are meant to work, and to sound some warning bells as to how they should not work. |
The short point in this appeal is whether the appellant county council, as local planning authority, correctly understood the meaning of the word openness in the national planning policies applying to mineral working in the Green Belt, as expressed in the National Planning Policy Framework (NPPF). The Court of Appeal ([2018] EWCA Civ 489), disagreeing with Hickinbottom J ([2017] EWHC 442 (Admin)) in the High Court, held that, in granting planning permission for the extension of a quarry, the council had been misled by defective advice given by their planning officer. In the words of Lindblom LJ, giving the leading judgment: It was defective, at least, in failing to make clear to the members that, under government planning policy for mineral extraction in the Green Belt in para 90 of the NPPF, visual impact was a potentially relevant and potentially significant factor in their approach to the effect of the development on the openness of the Green Belt, (para 49, per Lindblom LJ) He thought that, having regard to the officers own assessment, it was quite obviously relevant, and therefore a necessary part of the assessment. The court quashed the permission. In this court, the council, supported by the quarry operator (the third respondent), argues that the Court of Appeals reasoning was based on misunderstandings both of the relevant policies and of the officers report, and that the permission should be reinstated. The first and second respondents (collectively referred to as Samuel Smith) seek to uphold the decision and reasoning of the Court of Appeal. Green Belt policy History and aims Although we are directly concerned with the policies in the NPPF (in its original 2012 version), Green Belt policies have a very long history. It can be traced back to the first national guidance on Green Belts in Circular 42/55 (issued in August 1955). More recently Planning Policy Guidance 2: Green Belts (published in 1995 and amended in 2001) (PPG2) confirmed the role of Green Belts as an essential element of planning policy for more than four decades; and noted that the purposes of Green Belt policies and the related development control policies set out in 1955 remain valid today with remarkably little alteration (para 1.1). The NPPF itself, as appears from ministerial statements at the time, was designed to consolidate and simplify policy as expressed in a number of ministerial statements and guidance notes, rather than to effect major policy changes (see Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386; [2015] PTSR 274, paras 16ff, 22 per Sullivan LJ). In the NPPF the concept of openness first appears in the introduction to section 9 (Protecting Green Belt land) which gives a statement of the fundamental aim and the purposes of Green Belt policy: 79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence. 80. Green Belt serves five purposes: to check the unrestricted sprawl of large built up areas; another; encroachment; to prevent neighbouring towns merging into one to assist in safeguarding the countryside from to preserve the setting and special character of historic towns; and the recycling of derelict and other urban land. to assist in urban regeneration, by encouraging This statement of the fundamental aim of the policy and the five purposes is unchanged from PPG2. The PPG included a fuller statement of certain objectives for the use of land within defined Green Belts, including (for example) providing opportunities for access to open countryside, and retaining and enhancing attractive landscapes (para 1.6), but adding: The extent to which the use of land fulfils these objectives is however not itself a material factor in the inclusion of land within a Green Belt, or in its continued protection. For example, although Green Belts often contain areas of attractive landscape, the quality of the landscape is not relevant to the inclusion of land within a Green Belt or to its continued protection. The purposes of including land in Green Belts are of paramount importance to their continued protection, and should take precedence over the land use objectives. (para 1.7) It is clear therefore that the visual quality of the landscape is not in itself an essential part of the openness for which the Green Belt is protected. Control of development in Green Belts Key features of development control in Green Belts are the concepts of appropriate and inappropriate development, and the need in the latter case to show very special circumstances to justify the grant of planning permission. In R (Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404; [2016] Env LR 30 (the Lee Valley case), Lindblom LJ explained their relationship: 18. A fundamental principle in national policy for the Green Belt, unchanged from PPG2 to the NPPF, is that the construction of new buildings in the Green Belt is inappropriate development and should not be approved except in very special circumstances, unless the proposal is within one of the specified categories of exception in the closed lists in paras 89 and 90. The distinction between development that is inappropriate in the Green Belt and development that is not inappropriate (ie appropriate) governs the approach a decision maker must take in determining an application for planning permission. Inappropriate development in the Green Belt is development by definition, harmful to the Green Belt harmful because it is there whereas development in the excepted categories in paras 89 and 90 of the NPPF is not. These concepts are expressly preserved in the policies for the control of development set out in paras 87ff of the NPPF: As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. Very special circumstances will not exist unless the potential harm the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. (paras 87 88) Paragraph 89 indicates that construction of new buildings is to be regarded as inappropriate with certain defined exceptions. The exceptions include, for example, buildings for agriculture and forestry, and (relevant to authorities discussed later in this judgment): provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it; the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development. infilling or limited Paragraph 90, which defines forms of development regarded as not inappropriate is directly in issue in the present case: 90. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are: mineral extraction; engineering operations; local transport infrastructure which can demonstrate a requirement for a Green Belt location; the re use of buildings provided that the buildings are of permanent and substantial construction; and development brought forward under a Community Right to Build Order. (Emphasis added. I shall refer to the words so emphasised as the openness proviso) Paragraphs 89 90 replace a rather fuller statement of policy for Control of Development in section 3 of PPG2. Paragraphs 3.4 3.6 (New buildings), and paras 3.7 3.12 (Re use of buildings, and, under a separate heading, Mining operations, and other development) cover substantially the same ground, respectively, as NPPF paras 89 and 90, but in rather fuller terms. The policy for Mining operations, and other development was as follows: 3.11 Minerals can be worked only where they are found. Their extraction is a temporary activity. Mineral extraction need not be inappropriate development: it need not conflict with the purposes of including land in Green Belts, provided that high environmental standards are maintained and that the site is well restored. Mineral and local planning authorities should include appropriate policies in their development plans. Mineral planning authorities should ensure that planning conditions for mineral working sites within Green Belts achieve suitable environmental standards and restoration 3.12 The statutory definition of development includes engineering and other operations, and the making of any material change in the use of land. The carrying out of such operations and the making of material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt (Emphasis added) It will be noted that a possible textual issue arises from the way in which the PPG2 policies have been shortened and recast in the NPPF. In the PPG the openness proviso is in terms directed to forms of development other than mineral extraction (it also appears in the section on re use of buildings: para 3.8). By contrast, mineral extraction is not expressly subject to the proviso, but may be regarded as not inappropriate, subject only to high environmental standards and the quality of restoration. In the shortened version in the NPPF these categories of potentially appropriate development have been recast in para 90, and brought together under the same proviso, including the requirement to preserve openness. I do not read this as intended to mark a significant change of approach. If that had been intended, one would have expected it to have been signalled more clearly. To my mind the change is explicable as no more than a convenient means of shortening and simplifying the policies without material change. It may also have been thought that, whereas mineral extraction in itself would not normally conflict with the openness proviso, associated building or other development might raise greater problems. A possible example may be seen in the Europa Oil case discussed below (para 26). Other relevant policies Mineral policies A later part of the NPPF (section 13, headed Facilitating the sustainable use of minerals) deals with mineral development generally. It emphasises the importance of ensuring a sufficient supply of minerals to support economic growth (para 142); and gives advice on the inclusion of mineral policies in local plans (para 143), and on the determination of planning applications (para 144). The latter includes (inter alia) a requirement to ensure that there are no unacceptable adverse impacts on the natural and historic environment , and that provision is made for restoration and aftercare at the earliest opportunity to be carried out to high environmental standards . No issue arises under these policies in the present case, but they show that development which is appropriate in Green Belt may be found unacceptable by reference to other policy constraints. Local plan policies The proposal was also subject to Green Belt and other policies in the local plan (the Selby District Core Strategy Local Plan). These are summarised by Lindblom LJ (para 9). It is not suggested by either party that these materially affect the legal issues arising in the present appeal. The application and the officers report The application was for an extension to the operational face of Jackdaw Crag Quarry, a magnesian limestone quarry owned and operated by the third respondent, Darrington Quarries Ltd. The quarry, which extends to about 25 hectares, is in the Green Belt, about 1.5 kilometres to the south west of Tadcaster. It has been operated by Darrington Quarries for many years, planning permission for the extraction of limestone having first been granted in July 1948 and subsequently renewed. The proposed extension is for an area of about six hectares, expected to yield some two million tonnes of crushed rock over a period of seven years. The application had received planning permission in January 2013, but that permission was quashed because of failings in the environmental impact assessment. The application came back to the county councils Planning and Regulatory Functions Committee on 9 February 2016, when the committee accepted their officers recommendation that planning permission be granted. Following completion of a section 106 agreement planning permission was granted on 22 September 2016. The officers report, prepared by Vicky Perkin for the Corporate Director, Business and Environmental Services, was an impressively comprehensive and detailed document, running to more than 100 pages, and dealing with a wide range of planning considerations. Under the heading Landscape impact, the report summarised the views of the councils Principal Landscape Architect, who had not objected in principle to the proposal, but had drawn attention to the potential landscape impacts and the consequent need to ensure that mitigation measures are maximised (paras 4.118, 7.42 5). For present purposes the critical part of the report comes under the heading Impacts of the Green Belt (paras 7.117ff). Having summarised the relevant national and local policies, she referred (para 7.120) to the consultation response from Samuel Smith stating that: the application site falling within the Green Belt is critical in the determination of the proposal and added that mineral extraction remains inappropriate development in the Green Belt unless it can be demonstrated that the proposal both preserves the openness of the Green Belt and doesnt conflict with the purposes of including land within the Green Belt. The objector also stated that one of the aims of the Green Belt, in assisting in urban regeneration will be materially harmed by the development (her italics) The officer commented: 7.121 When considering applications within the Green Belt, in accordance with the NPPF, it is necessary to consider whether the proposed development will firstly preserve the openness of the Green Belt and secondly ensure that it does not conflict with the purposes of including land within the Green Belt. 7.122 It is considered that the proposed development preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt. Openness is not defined, but it is commonly taken to be the absence of built development. Although the proposed development would be on existing agricultural land, it is considered that because the application site immediately abuts the existing operational quarry, it would not introduce development into this area of a scale considered to conflict with the aims of preserving the openness of the Green Belt. 7.123 In terms of whether the proposed development does not conflict with the purposes of including land within the Green Belt, the proposed quarrying operations are not considered to conflict with the purposes of including land within the Green Belt. Equally, it is not considered that the proposed development would undermine the objective of safeguarding the countryside from encroachment as it should be considered that the site is in conjunction with an operational quarry which will be restored. The proposed development is a temporary use of land and would also be restored upon completion of the mining operations through an agreed [restoration plan]. 7.124 The purposes of including land within the Green Belt to prevent the merging of neighbouring towns and impacts upon historic towns are not relevant to this site as it is considered the site is adequately detached from the settlements of Stutton, Towton and Tadcaster. It is also important to note that the A64 road to the north severs the application site from Tadcaster. 7.125 As mentioned in the response from [Samuel Smith], one of the purposes of the Green Belt is assisting in urban regeneration which the objector claims will be undermined by the proposed development. Given the situation of the application site, adjacent to an existing operational quarry and its rural nature, and the fact that minerals can only be worked where they are found, it is considered that the site would not, therefore, undermine this aim of the Green Belt. 7.126 The restoration scheme is to be designed and submitted as part of a section 106 Agreement, it is considered that there are appropriate controls to ensure adequate restoration of the site. Due to the proposed restoration of the temporary quarry and the fact that it is considered the proposal doesnt conflict with the aims of the Green Belt, it is considered that the proposed development would not materially harm the character and openness of the Green Belt, and would, therefore, comply with Policy SP3 and SP13 of the Selby District Core Strategy Local Plan and NPPF. Section 8 of the report gives the planning officers conclusion: 8.4 It is considered that the proposed screening could protect the environment and residential receptors from potential landscape and visual impacts. 8.5 Due to the proposed restoration of the temporary quarry and the fact that it is considered the proposal doesnt conflict with the aims of the Green Belt, it is considered that the proposed development would not materially harm the character and openness of the Green Belt. Legal principles Much time was taken up in the judgments below, as in the submissions in this court, on discussion of previous court authorities on the relevance of visual impact under Green Belt policy. The respective roles of the planning authorities and the courts have been fully explored in two recent cases in this court: Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening) [2012] UKSC 13; [2012] PTSR 983, and Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37; [2017] 1 WLR 1865. In the former Lord Reed, while affirming that interpretation of a development plan, as of any other legal document, is ultimately a matter for the court, also made clear the limitations of this process: Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (para 19) In the Hopkins Homes case (paras 23 34) I warned against the danger of over legalisation of the planning process. I noted the relatively specific language of the policy under consideration in the Tesco case, contrasting that with policies: expressed in much broader terms [which] may not require, nor lend themselves to, the same level of legal analysis The concept of openness in para 90 of the NPPF seems to me a good example of such a broad policy concept. It is naturally read as referring back to the underlying aim of Green Belt policy, stated at the beginning of this section: to prevent urban sprawl by keeping land permanently open . Openness is the counterpart of urban sprawl and is also linked to the purposes to be served by the Green Belt. As PPG2 made clear, it is not necessarily a statement about the visual qualities of the land, though in some cases this may be an aspect of the planning judgement involved in applying this broad policy concept. Nor does it imply freedom from any form of development. Paragraph 90 shows that some forms of development, including mineral extraction, may in principle be appropriate, and compatible with the concept of openness. A large quarry may not be visually attractive while it lasts, but the minerals can only be extracted where they are found, and the impact is temporary and subject to restoration. Further, as a barrier to urban sprawl a quarry may be regarded in Green Belt policy terms as no less effective than a stretch of agricultural land. It seems surprising in retrospect that the relationship between openness and visual impact has sparked such legal controversy. Most of the authorities to which we were referred were concerned with the scope of the exceptions for buildings in para 89 (or its predecessor). In that context it was held, unremarkably, that a building which was otherwise inappropriate in Green Belt terms was not made appropriate by its limited visual impact (see R (Heath and Hampstead Society) v Camden London Borough Council [2007] EWHC 977 (Admin), upheld at R (Heath and Hampstead Society) v Vlachos [2008] EWCA Civ 193; [2008] 3 All ER 80). As Sullivan J said in the High Court: The loss of openness (ie unbuilt on land) within the Green Belt or Metropolitan Open Land is of itself harmful to the underlying policy objective. If the replacement dwelling is more visually intrusive there will be further harm in addition to the harm by reason of inappropriateness (para 22) To similar effect, in the Lee Valley case, Lindblom LJ said: The concept of openness here means the state of being free from built development, the absence of buildings as distinct from the absence of visual impact. (para 7, cited by him in his present judgment at para 19) Unfortunately, in Timmins v Gedling Borough Council [2014] EWHC 654 (Admin) (a case about another familiar Green Belt category cemeteries and associated buildings), Green J went a stage further holding, not only that there was a clear conceptual distinction between openness and visual impact, but that it was: wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact. (para 78, emphasis in original) This was disapproved (rightly in my view) in Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466; [2017] 2 P & CR 1, para 18. This concerned an inspectors decision refusing permission for a proposal to replace a mobile home and storage yard with a residential bungalow in the Green Belt. In rejecting the contention that it was within the exception for redevelopment which would not have a greater impact on the openness of the Green Belt, the inspector had expressly taken account of its visual effect, and that it would appear as a dominant feature that would have a harmful impact on openness here. The Court of Appeal upheld the decision. Sales LJ said: The concept of openness of the Green Belt is not narrowly limited to the volumetric approach suggested by [counsel]. The word openness is open textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case. Prominent among these will be factors relevant to how built up the Green Belt is now and how built up it would be if redevelopment occurs and factors relevant to the visual impact on the aspect of openness which the Green Belt presents. (para 14) Before us there was no challenge to the correctness of this statement of approach. However, it tells one nothing about how visual effects may or may not be taken into account in other circumstances. That is a matter not of legal principle, but of planning judgement for the planning authority or the inspector. The only case referred to in argument which was directly concerned with mineral extraction as such was Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government [2013] EWHC 2643 (Admin); [2014] 1 P & CR 3 (upheld at [2014] EWCA Civ 825; [2014] PTSR 1471). That concerned an application for permission for an exploratory drill site to explore for hydrocarbons in the Green Belt, including plant and buildings. The inspector had considered the potential effect of the development on the Green Belt: I consider Green Belt openness in terms of the absence of development. The proposal would require the creation of an extensive compound, with boundary fencing, the installation of a drilling rig of up to 35 metres in heating, a flare pit and related buildings, plant, equipment and vehicle parking on the site. Taking this into account, together with the related HGV and other traffic movements, I consider that the Green Belt openness would be materially diminished for the duration of the development and that there would be a conflict with Green Belt purposes in respect of encroachment into the countryside over that period. (quoted by Ouseley J at para 16) He refused permission, taking the view that it did not fall within the exception for mineral extraction, and that there were no very special circumstances to out weigh the harm to the Green Belt identified in that passage. It was held that he had erred in failing to treat the proposal as one for mineral extraction, and therefore potentially within the exception in NPPF para 90. Ouseley J noted the special status of mineral extraction under Green Belt policy. As he said: 67. One factor which affects appropriateness, the preservation of openness and conflict with Green Belt purposes, is the duration of development and the reversibility of its effects. Those are of particular importance to the thinking which makes mineral extraction potentially appropriate in the Green Belt. Another is the fact that extraction, including exploration, can only take place where those operations achieve what is required in relation to the minerals. Minerals can only be extracted where they are found 68. Green Belt is not harmed by such a development because the fact that the use has to take place there, and its duration and reversibility are relevant to its appropriateness and to the effect on the Green Belt . The key point, in my judgment, is that the inspector approached the effect on Green Belt openness and purposes on the premise that exploration for hydrocarbons was necessarily inappropriate development since it did not come within any of the exceptions. He was not considering the application of the proviso to para 90 at all: on his analysis, he did not get that far. Had he been assessing the effect on Green Belt openness and purposes from the point of view of the proviso, it would have been on the very different premise that exploration for hydrocarbons on a sufficient scale to require planning permission is nevertheless capable in principle of being appropriate development. His mind set would have been different, or at least it might well have been different However, he made clear that it remained necessary for the decision maker to consider the proposal under the proviso to para 90. Affirming his decision in the Court of Appeal, Richards LJ said (para 41): Although the decision turned principally on a legal issue as to the meaning of mineral extraction, it is significant that the impact on the Green Belt identified by the inspector (including a 35 metre drill rig and related buildings) was not thought necessarily sufficient in itself to lead to conflict with the openness proviso. That was a matter for separate planning judgement. Material considerations Section 70(2) of the Town and Country Planning Act 1990 (the Act) required the council in determining the application to have regard to the development plan and any other material consideration. In summary Samuel Smiths argument, upheld by the Court of Appeal, is that the authority erred in failing to treat the visual effects, described by the officer in her assessment of Landscape impact (para 17 above) as material considerations in its application of the openness proviso under para 90. The approach of the court in response to such an allegation has been discussed in a number of authorities. I sought to summarise the principles in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin); [2010] 1 P & CR 19. The issue in that case was whether the authority had been obliged to treat the possibility of alternative sites as a material consideration. I said: 17. It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it 18. For the former category the underlying principles are obvious. It is trite and long established law that the range of potentially relevant planning issues is very wide (Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281); and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision maker (Tesco Stores Ltd v Secretary of State for the Environment and West Oxfordshire District Council [1995] 1 WLR 759, 780). On the other hand, to hold that a decision maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so. I referred to the discussion of this issue in a different context by Cooke J in the New Zealand Court of Appeal, in CreedNZ Inc v Governor General [1981] 1 NZLR 172, 182 (adopted by Lord Scarman in the House of Lords in In re Findlay [1985] AC 318, 333 334, and in the planning context by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1991) 61 P & CR 343, 352): 26. Cook J took as a starting point the words of Lord Greene MR in the Wednesbury case [1948] 1 KB 223, 228: If, in the statute conferring the discretion there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. He continued: What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that it is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision . (Emphasis added) In approving this passage, Lord Scarman noted that 27. Cook J had also recognised, that in certain circumstances there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers would not be in accordance with the intention of the Act. (In re Findlay at p 334) It seems, therefore, that it is not enough that, in the 28. judges view, consideration of a particular matter might realistically have made a difference. Short of irrationality, the question is one of statutory construction. It is necessary to show that the matter was one which the statute expressly or impliedly (because obviously material) requires to be taken into account as a matter of legal obligation. Mutatis mutandis, similar considerations apply in the present case. The question therefore is whether under the openness proviso visual impacts, as identified by the inspector, were expressly or impliedly identified in the Act or the policy as considerations required to be taken into account by the authority as a matter of legal obligation, or alternatively whether, on the facts of the case, they were so obviously material as to require direct consideration. The reasoning of the courts below Hickinbottom J in the High Court held in summary that consideration of visual impact was neither an implicit requirement of the openness proviso, nor obviously relevant on the facts of this case. He said: 64. I stress that we are here concerned with differential impact, ie the potential adverse visual impact over and above the adverse spatial impact. On the facts of this case it is difficult to see what the potential visual impact of the development would be over and above the spatial impact, which, as Mr Village concedes, was taken into account. In any event, even if there were some such impact, that does not mean that openness would be adversely affected; because, in assessing openness, the officers would still have been entitled to take into account factors such as the purpose of the development, its duration and reversibility, and would have been entitled to conclude that, despite the adverse spatial and visual impact, the development would nevertheless not harm but preserve the openness of the Green Belt. In this case, the potential visual impact of the 65. development falls very far short of being an obvious material factor in respect of this issue. In my judgment, in the circumstances of this case, the report did not err in not taking into consideration any potential visual impact from the development. Indeed, on the facts of this case, I understand why the officers would have come to the view that consideration of visual impact would not have materially added to the overarching consideration of whether the development would adversely impact the openness of the Green Belt. Lindblom LJ took the opposite view. He summarised the visual impacts described by the officer: 42. The proposed development was a substantial extension to a large existing quarry, with a lengthy period of working and restoration. As the Principal Landscape Architect recognized in her response to consultation, and the officer acknowledged without dissent in her report, there would be permanent change to the character of the landscape (paras 4.109 and 4.115 of the report). The quality of the Locally Important Landscape Area as a whole would be compromised (para 7.41). The exposed face of the extended quarry would be as visible as that of the existing quarry, if not more so (paras 4.111 and 7.42). Long distance views could be cut off by the proposed bunding and planting. Agricultural land would ultimately be replaced by a deep lower level landscape of grassland (para 4.113). The character and quality of the landscape would be permanently changed and the impact cannot be described as neutral (paras 4.115 and 7.44). Concluding her assessment of Landscape Impact, the officer was satisfied that the proposed screening could protect the environment and residential receptors from potential landscape and visual impacts, and that with the proposed mitigation measures the development would comply with national and local policy (paras 7.47 and 8.4). 43. That assessment did not deal with the likely effects of the development on the openness of the Green Belt as such, either spatial or visual. It does show, however, that there would likely be or at least could be effects on openness in both respects, including the closing off of long distance views by the bunding and planting that would screen the working (para 4.111 of the officers report). The officers conclusion overall (in para 7.47) was, in effect, that the proposed screening would be effective mitigation, without which the development would not be acceptable. But this was not followed with any discussion of the harmful effects that the screening measures themselves might have on the openness of the Green Belt. (Emphasis added) He then directed particular attention to para 7.122 of the report, which he understood to encapsulate her views on the application of the openness proviso under NPPF para 90: 45. So it is to para 7.122 that one must look, at least in the first place, to see whether the officer considered the relevance of visual impact to the effect of this development on the openness of the Green Belt. Did she confront this question, and bring the committees attention to it? I do not think she did. She neither considered, in substance, the likely visual impact of the development on the openness of the Green Belt nor, it seems, did she ask herself whether this was a case in which an assessment of visual impact was, or might be, relevant to the question of whether the openness of the Green Belt would be preserved. Indeed, her observation that openness is commonly taken to be the absence of built development seems deliberately to draw the assessment away from visual impact, and narrow it down to a consideration of spatial impact alone. And the burden of the assessment, as I read it, is that because the further extraction of limestone would take place next to the existing quarry, the scale of the development would not fail to preserve the openness of the Green Belt. This seems a somewhat surprising conclusion. But what matters here is that it is a consideration only of spatial impact. Of the visual impact of the quarry extension on the openness of the Green Belt, nothing is said at all. That was, it seems to me, a significant omission, which betrays a misunderstanding of the policy in para 90 of the NPPF. 46. One must not divorce para 7.122 from its context. The report must be read fairly as a whole. The question arises, therefore: did the officer address the visual impact of the development on the openness of the Green Belt in the remaining paragraphs of this part of her report, or elsewhere? I do not think she did. Her consideration of the effects of the development on the purposes of including land in the Green Belt, in paras 7.123 to 7.125, is unexceptionable in itself. However, she did not, in these three paragraphs, revisit the question of harm to the openness of the Green Belt, either in spatial or in visual terms. The conclusion to this part of the report, in para 7.126, is that the character and openness of the Green Belt would not be materially harmed by the development a conclusion repeated in para 8.5 and that the proposal would therefore comply with Policy SP3 and Policy SP13 of the local plan and the NPPF. But I cannot accept that this conclusion overcomes the lack of consideration of visual impacts on openness in the preceding paragraphs. It seems to treat character as a concept distinct from openness. Even if these two concepts can be seen as related to each other, and however wide the concept of character may be, there is no suggestion here that the officer was now providing a conclusion different from that in para 7.122, or additional to it. 47. The same may also be said of the officers earlier discussion of Landscape Impact in paras 7.41 to 7.47. Her assessment and conclusions in that part of her report are not imported into para 7.122, or cross referred to as lending support to her conclusion there . (Emphasis added) This led to the overall conclusion in para 49 (quoted in part at the beginning of this judgment): 49. I can only conclude, therefore, that the advice given to the committee by the officer was defective. It was defective, at least, in failing to make clear to the members that, under government planning policy for mineral extraction in the Green Belt in para 90 of the NPPF, visual impact was a potentially relevant and potentially significant factor in their approach to the effect of the development on the openness of the Green Belt, and hence to the important question of whether the proposal before them was for inappropriate development in the Green Belt and, indeed, in implying that the opposite was so One can go further. On the officers own assessment of the likely effects of the development on the landscape, visual impact was quite obviously relevant to its effect on the openness of the Green Belt. So the consideration of this question could not reasonably be confined to spatial impact alone. (Emphasis added) Although it is necessary to read the discussion in full, I have highlighted what seem to me the critical points in Lindblom LJs assessment of the failure to take account of visual effects; in summary: i) In paras 42 and 43, he extracts from the officers own landscape assessment the observation that the exposed face of the extended quarry would be as visible as that of the existing quarry, if not more so and that long distance views could be cut off by the proposed bunding and planting. This leads to the view that: there would likely be or at least could be effects on openness in both respects, including the closing off of long distance views by the bunding and planting that would screen the working. ii) In para 7.122, where the officer purported to address the issue of openness, she failed to consider the likely effect of such visual impact nor its relevance to whether the openness of the Green Belt would be preserved. Instead, by in effect equating openness with absence of built development, she tended to narrow the issue down to a consideration of spatial impact alone. That betrayed a misunderstanding of the policy in para 90 of the NPPF. iii) The subsequent paragraphs dealt with other aspects of the effect on the purposes of the Green Belt, and were unexceptionable in themselves; but they did not revisit the question of visual impact or so make up for the deficiency in para 7.122. iv) The officers advice was defective in this respect. Further on her own assessment visual effect was quite obviously relevant to the issue of openness, and the committee could not reasonably have thought otherwise. I hope I will be forgiven for not referring in detail to the arguments of counsel before this court, which substantially reflected the reasoning respectively of the High Court and the Court of Appeal. I note that Mr Village QC for Samuel Smith made a further criticism of para 7.122, not adopted by Lindblom LJ, that the officer treated the fact that the site abutted the existing quarry as reducing its impact on openness. Discussion With respect to Lindblom LJs great experience in this field, I am unable to accept his analysis. The issue which had to be addressed was whether the proposed mineral extraction would preserve the openness of the Green Belt or otherwise conflict with the purposes of including the land within the Green Belt. Those issues were specifically identified and addressed in the report. There was no error of law on the face of the report. Paragraph 90 does not expressly refer to visual impact as a necessary part of the analysis, nor in my view is it made so by implication. As explained in my discussion of the authorities, the matters relevant to openness in any particular case are a matter of planning judgement, not law. Lindblom LJ criticised the officers comment that openness is commonly equated with absence of built development. I find that a little surprising, since it was very similar to Lindblom LJs own observation in the Lee Valley case (para 23 above). It is also consistent with the contrast drawn by the NPPF between openness and urban sprawl, and with the distinction between buildings, on the one hand, which are inappropriate subject only to certain closely defined exceptions, and other categories of development which are potentially appropriate. I do not read the officer as saying that visual impact can never be relevant to openness. As to the particular impacts picked out by Lindblom LJ, the officer was entitled to take the view that, in the context of a quarry extension of six hectares, and taking account of other matters, including the spatial separation noted by her in para 7.124, they did not in themselves detract from openness in Green Belt terms. The whole of paras 7.121 to 7.126 of the officers report address the openness proviso and should be read together. Some visual effects were given weight, in that the officer referred to the restoration of the site which would be required. Beyond this, I respectfully agree with Hickinbottom J that such relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law. For similar reasons, with respect to Mr Villages additional complaint, I see no error in the weight given by the officer to the fact that this was an extension of an existing quarry. That again was a matter of planning judgement not law. Conclusion For these reasons, I would allow the appeal and confirm the order of the High Court dismissing the application. |
fall open at Thomas v Thomas 1947 SC (HL) 45; [1947] AC 484, where one finds in the speech of Lord Thankerton at pp 54 and 487 488 what may be the most frequently cited of all judicial dicta in the Scottish courts: (1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. The principles stated in Thomas v Thomas had, even then, long been settled law: the speech of Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36 37, where he said that an appellate court should intervene only it is satisfied that the judge was plainly wrong, is almost equally familiar. Accordingly, as was said by Lord Greene MR in Yuill v Yuill [1945] P 15, 19, in a dictum which was cited with approval by Viscount Simon and Lord Du Parcq in Thomas at pp 48, 62 63, 486 and 493 respectively, and by Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 17: It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion. The reasons justifying that approach are not limited to the fact, emphasised in Clarke and Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer 470 US 564 (1985), 574 575: The rationale for deference to the original finder of fact is not limited to the superiority of the trial judges position to make determinations of credibility. The trial judges major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judges efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be the main event rather than a tryout on the road. For these reasons, review of factual findings under the clearly erroneous standard with its deference to the trier of fact is the rule, not the exception. Similar observations were made by Lord Wilson in In the matter of B (a Child) [2013] UKSC 33; [2013] 1 WLR 1911, para 53. Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 at para 14: The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged. While the law is not in doubt, its application has been inconsistent. From time to time it has proved necessary for its application to be considered at the highest level, in Scotland as in other jurisdictions. In the present case, Clarke and Thomas were cited in the opinion of the Extra Division ([2012] CSIH 23) in the time honoured fashion. Counsel for the appellant however began his submissions by reminding the court of the words of Lord Hope in the case of Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1 at para 16: The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked. Whether there has indeed been a failure to follow the proper approach is the issue which this court has to decide. The background circumstances Lord President Dunedin remarked of the facts of Brownlees Executrix v Brownlee 1908 SC 232 that the story seemed more like the closing scenes of the life of Pre Goriot than the history of a middle class family in Glasgow. The present case prompts similar reflections. The pursuer and his wife left Scotland many years ago and lived in the United States. They had two sons: Rodger, the first defender, and Daniel, from whom they had long been estranged. The first defender lived in Scotland with his partner, the second defender, and their son, Richard. In 2005 the pursuers wife became terminally ill, and she and the pursuer decided to return to Scotland. They asked the first defender, who is a property developer, to find a suitable property for them, and he did so, finding a newly built flat in St Helens Gardens, Glasgow. The pursuer transferred the funds required to purchase the property into the first defenders bank account, and the first defender made the arrangements for the purchase and the conveyancing. Unknown to the pursuer, he arranged for the title to the property to be taken in his own name as proprietor. The pursuer and his wife moved into St Helens Gardens on 1 January 2006. She died six days later. In February 2007 the pursuer gave the first defender a cheque in his favour for 285,000. The reason for his doing so is in dispute, as I shall explain. The first defender paid the cheque into a bank account. He and the second defender then used about 200,000 from the account, together with 90,000 raised by way of mortgage, to buy a newly built house in Lochrig Court, Stewarton, taking title in their own names. They spent the balance of the 285,000 on cars, the repayment of debts, the decoration of their existing house in Glasgow in preparation for its sale, and on finishings for the house in Lochrig Court. Later in 2007 the pursuer began the present proceedings, in which he sought a number of remedies, including the conveyance of the properties in St Helens Gardens and Lochrig Court to himself. In his pleadings, he maintained that the first defender had acted without his authority in taking title to the properties in his own name, in the case of St Helens Gardens, or in his and the second defenders names, in the case of Lochrig Court. In response, the first defender maintained that the pursuer had instructed that title to St Helens Gardens was to be taken in his (the first defenders) name; and he and the second defender maintained that the 285,000 had been a gift. The Lord Ordinarys Opinion In an opinion on the substantive issues in the case ([2009] CSOH 142) which, if I may respectfully say so, seems to me to have been careful and fair, the Lord Ordinary, Lord Brodie, summarised the salient points in the evidence and then set out his assessment of the witnesses. It is clear that he found none of the principal witnesses entirely satisfactory. That is of course a familiar situation, perhaps especially in cases concerned with family disputes. Nevertheless, the Lord Ordinary considered that the pursuer was a confident witness, capable of being firm and even robust in the face of cross examination, and that there was an energy in his responses that had an air of conviction about it. He acknowledged that the pursuers evidence lacked much in the way of specifics or circumstantial detail in relation to the second transaction and that he had forgotten some matters. The pursuer also appeared to contradict himself as to why he had paid 285,000 (rather than some other figure) to the first defender: At one point he indicated that this was the price that he had been advised by the builder's sales representative. At other points he emphasised that this was the price that the first defender had told him was required for the purchase of the property. Nevertheless, the Lord Ordinary stated: On the central issue of whether the pursuer had made two substantial gifts to the first and second defenders, the demeanour of the pursuer and the content of his answers to questions did not suggest someone who was telling other than the truth. As to the pursuers character, the Lord Ordinary discerned nothing to suggest that the pursuer would be particularly generous. The Lord Ordinarys assessment of the first defender was markedly different: The content of the first defenders evidence and the manner in which he gave it raised sharp questions as to whether he was a witness in whom the court could have confidence. The first defenders presentation in the witness box was indeed such that, after he had given evidence, his counsel sought to amend the pleadings so as to aver that the first defender had an autistic spectrum disorder. The Lord Ordinary described the first defenders presentation as casual, even when talking about his mothers terminal illness. He appeared to have felt an antipathy towards the pursuer from a time preceding the events in question. He described his own reaction to his mothers wish that family assets should go to Richard: I said, What do I get? He was always the golden eyed boy. He did not always seem to understand his counsels questions, and at points his presentation suggested that his abilities might be impaired by medication, although there was no reason to believe that he was in fact taking medication. In relation to the first transaction, the first defender gave conflicting evidence on the question whether the pursuer had given him an instruction that title to St Helens Gardens should be taken in his name. Perhaps more importantly, the Lord Ordinary stated: I was left with the impression that the first defender did not fully appreciate the central importance of the pursuer's wishes in the matter and whether the pursuer had communicated his wishes to him. Indeed, he seemed to suggest that the pursuer's wishes were irrelevant. The Lord Ordinary stated that he ascribed this to a complete inability to come to a view as to what would be reasonable in particular circumstances. The Lord Ordinary concluded that the first defender was not a witness upon whom I could rely. The matter went however beyond the credibility of the first defenders evidence. The Lord Ordinary added: This is particularly so when it came to his accounts of interactions with other people and the inferences to be drawn from these interactions. To an extent this case is about the reasonable interpretation of what was said and done in a particular social context. I have no confidence in the first defenders ability to come to such a reasonable interpretation. In other words, not only could the first defenders evidence in court not be relied upon, but even outside the court he could not be relied upon to have understood and acted upon what the pursuer had said to him. The Lord Ordinary was less forthright in relation to the second defender, but nevertheless made clear his reservations. He gave two reasons for doubting her credibility. First, he noted that both she and the first defender departed in their evidence from the account, given in their averments, that the pursuer had suggested that the cheque should be used to buy the house at Lochrig Court and had reserved the house with the builders: an account which could only have been based upon precognition. Secondly, he noted that she gave confident evidence about an aspect of the new account of events, only to alter her account when confronted unexpectedly with documents which demonstrated that her earlier evidence could not be correct. The Lord Ordinary concluded that Richard, who had been diagnosed with Aspergers Syndrome, was an honest but not necessarily reliable witness. It was not clear that he was able clearly to distinguish between what he believed to be the case and what he knew from his own experience. In very large part he was recounting what he had been told by his parents. The Lord Ordinary regarded his evidence as adding little or nothing. In relation to St Helens Gardens, the Lord Ordinary accepted that the first defender had taken title to the property without any instructions to do so, and in the absence of any indication that the pursuer intended to make him a gift of the property. In relation to Lochrig Court, the Lord Ordinary observed that the accounts of the parties were diametrically apart, and that each side accused the other of lying. He stated that he had regard to [what] might be seen as the inherently unlikely nature of the deceit which the pursuer alleges was practised upon him by the defenders, in that the defenders could hardly conceal from him their occupation of Lochrig Court. He stated that there is also the point that it is not entirely clear why the pursuer should have found it necessary, after having been re established in Scotland for a year, to employ the first defender to arrange for the purchase. On the other hand, it was not in doubt that the first defender had been so employed in connection with St Helens Gardens. On that occasion, the first defender had acted in breach of trust in taking title to the property in his own name. That was relevant to the question whether he had also acted dishonestly in connection with Lochrig Court. The critical consideration however was the credibility of the principal witnesses: Critically, there is the question of whose evidence I find more likely to be credible and reliable. For the reasons given I prefer the pursuer over both the first and the second defender. The Lord Ordinary added: I do not find any of the other evidence materially to undermine the specifics of the pursuers account or his evidence more generally. In a subsequent opinion ([2010] CSOH 60) the Lord Ordinary dealt with the question of the appropriate remedies. The Opinion of the Extra Division In the Inner House, the first defender did not contest the Lord Ordinarys findings and conclusions in relation to St Helens Gardens. The challenge was directed to the findings and conclusions relating to Lochrig Court. The opinion of the Extra Division, delivered by Lady Paton [2012] CSIH 23, took as its starting point the Lord Ordinarys statement that he did not find any of the other evidence materially to undermine the pursuers account. The Extra Division then proceeded to identify a number of aspects of the evidence which they regarded as materially undermining the pursuers account. They concluded, on that basis, that the Lord Ordinary went plainly wrong when he stated that he did not find any of the other evidence materially to undermine the specifics of the pursuers account or his evidence more generally. On that basis, they concluded that they were entitled to overturn his decision and to substitute their own decision. In that regard, they relied on the same aspects of the evidence as supporting the defenders account and accordingly establishing, on a balance of probabilities, that the pursuer had made a gift of 285,000 to the first defender. The aspects of the evidence which were considered to undermine the pursuers account, and to support the defenders, were the following: 1. By February 2007, the pursuer had been living in Scotland for over a year. He was well able to choose his own home, and to instruct a lawyer. It is less clear why, in these circumstances, he would delegate the choice and purchase of a new home to his son. 2. Furthermore the pursuer had never been in the house at 6 Lochrig Court at any time, either before or after the purchase. He had seen only the show house. 3. As for the purchase itself, the sum required for settlement on 13 April 2007 was 290,768.89. In our view it is significant that, on the evidence available, it is not possible to reconcile the figure of 285,000 with the ultimate settlement figure of 290,768.89. 4. It is also of significance that the pursuer gave two explanations as to why the cheque was for a figure of 285,000. At first he stated that 285,000 was what the builders wanted. Later however he said that it was his son who told him that the end figure of 285,000 was needed to buy the house. 5. Once the house at Lochrig Court had been purchased, the pursuer made no attempt to move in and live there. It was the defenders and their teenage son Richard who began to occupy Lochrig Court in about May 2007. On the evidence, the pursuer was fully aware that they had done so, and did nothing to try to prevent or challenge that development. 6. The defenders spent the 285,000 in a quite open and uninhibited manner. Such behaviour was, in our view, wholly inconsistent with a surreptitious scheme whereby the first defender deliberately disobeyed his father's clear instructions to purchase a home for him and to take the title in his name. 7. For the defenders and their son openly to occupy Lochrig Court is again inconsistent with such a scheme, as their occupancy of the new house could not but arouse suspicions and result in the scheme being discovered. 8. Perhaps of less significance than the other facts referred to above, the figure of 285,000 bore a relationship to the nil rate tax level for inheritance tax at the time the cheque was given. The following comments can be made about these points, taking them in the same order: 1. The Lord Ordinary expressly considered this point: see para 20 above. 2. The pursuer gave evidence that the show house was the same as the house. It was never put to him that it was somehow remarkable to buy a newly built house having seen only the show house, and it is far from clear why the Extra Division considered it to be implausible. The reality is that new houses are bought on that basis every day: that is the purpose of show houses. 3. The Lord Ordinary was well aware of the difference between the amount paid by the pursuer to the first defender and the final settlement figure. He considered the matter most fully in his opinion dealing with remedies [2010] CSOH 60, stating, at para 8: The selection of the figure of 285,000 came, on the evidence, from the first defender. He told the pursuer what was needed for the purchase of 6 Lochrig Court and the pursuer paid over what he was asked to pay. The pursuer explained that if he had been asked to pay another sum he would have paid it. The effective discount in the purchase price due to the seller's meeting the stamp duty obligation meant that it was by no means obvious that the pursuer should have appreciated that there was any shortfall as between the purchase price and what he paid. That is a complete answer to the point. 4. The Lord Ordinary considered this point: see para 13 above. 5. This point does not accurately reflect the evidence. At one point during his examination in chief the pursuer was asked if he knew when the defenders had moved in and answered May, June. His other evidence suggests that he was referring to the date when entry was taken (which was in fact 13 April 2007), not to the date when the house began to be occupied: when asked why he did not move into the house at Lochrig Court, he answered that it was because it was not ready, as the first defender wanted to do tiling work. The defenders own evidence was that they had carried out work on the house after taking entry, and had not begun to reside there until 2008. It was admitted in their pleadings that they had been living at their house in Glasgow in September 2007, when the proceedings commenced. It was never put to the pursuer that the defenders had moved into Lochrig Court and lived there openly without challenge from him: unsurprisingly, since no one suggested that that was what had happened. 6. This point appears to be equally insubstantial. Since the 285,000 was less than the cost of completing the transaction, there was no surplus left over. The funds spent in an open and uninhibited manner were generated by the defenders raising a mortgage on the property. On the pursuers evidence, he did not know that they had done so until after he consulted lawyers: his understanding was that the money he had paid the first defender had been used in its entirety to buy the house. 7. The Lord Ordinary considered this point: see para 20 above. 8. This point is puzzling. The nil rate band was of no possible significance to an inter vivos gift: it applies only on death. A gift inter vivos would be a potentially exempt transfer whatever its amount. Nor was the nil rate band relevant to the estate of the late Mrs McGraddie, which had passed to the pursuer and was therefore exempt from inheritance tax. It might have been relevant if a deed of variation had been entered into, but there was no such deed, and the nil rate band applicable in that eventuality would not in any event have been 285,000, Mrs McGraddie having died during an earlier tax year. Although the defenders gave evidence that they thought that the gift, as they maintained it to be, had possibly been motivated by the pursuers desire to minimise inheritance tax, the pursuers own evidence was that he knew nothing about inheritance tax planning. The Lord Ordinary considered the inheritance tax implications and stated that, while they were not to be ignored, he would not regard them as sufficiently compelling to point to gift as the most likely underlying explanation for the transaction. The points which had substance were therefore that it was not entirely clear why the pursuer employed the first defender to arrange for the purchase of Lochrig Court, that he gave two explanations of where the figure of 285,000 came from, that he was sooner or later going to discover that the defenders had occupied the house, and (for what it was worth) that a gift of 285,000 would potentially result in a saving of inheritance tax. Each of those points had been expressly taken into account by the Lord Ordinary in reaching his conclusion as to the pursuers credibility. Indeed, even if he had not mentioned them, he would be presumed to have taken the whole of the evidence into consideration: Thomas v Thomas 1947 SC (HL) 45, 61; [1947] AC 484, 492 per Lord Simonds. In those circumstances, the words of Viscount Simon in Thomas at pp 47 and 486 are relevant: If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. In a case where the court was faced with a stark choice between irreconcilable accounts, the credibility of the parties testimony was an issue of primary importance. The Lord Ordinary found that the pursuer was a credible witness on the central issue, notwithstanding a number of aspects of the evidence which could be regarded as detracting from his credibility, including the aspects mentioned in para 26. The question whether the pursuers evidence was to be regarded as credible and reliable having regard to the other evidence in the case was pre eminently a matter for the Lord Ordinary. The weight of the evidence adverse to the pursuers credibility had of course to be considered in the context of the evidence as a whole. The Extra Division however focused solely on those particular aspects of the evidence. There is no indication in their opinion that they gave any weight to the extent to which the Lord Ordinarys conclusion was affected by the way in which the principal witnesses gave their evidence: a matter which the Extra Division were unable to assess for themselves from the printed record. Yet it is plain, as explained at paras 13 14, that this aspect of the evidence had an important bearing on the Lord Ordinarys assessment of credibility. There is no indication that they considered the significance of the Lord Ordinarys assessment of the characters of the pursuer and the first defender: that the former did not appear to be particularly generous, while the latter was incapable of coming to a reasonable interpretation of what had been said and done by other people, and did not appreciate the central importance of the pursuers wishes in the matter. Those findings had an evident bearing on the likelihood, on the one hand, of the pursuers having made a gift of 285,000, and on the other hand of the first defenders having acted contrary to the pursuers instructions. There is no indication that they considered the significance of the unchallenged finding that the first defender had acted in breach of trust in relation to the purchase of St Helens Gardens: a finding which evidently bore on the likelihood of his having done so again when a second opportunity presented itself. Nowhere in their opinion did they subject the evidence of the defenders to the checking against other evidence which they carried out in relation to the evidence of the pursuer. Furthermore, the thrust of the Extra Divisions criticism appears to be that, since the Lord Ordinary said that he did not find any of the other evidence materially to undermine the pursuers account, it follows that he must have failed to appreciate the weight or bearing of the aspects of the evidence on which the Extra Division focused their attention. Whether that is so depends however on what he meant by other evidence: earlier in the same paragraph of his judgment, he had mentioned all of the points summarised in para 26 above, other than the two explanations of where the figure of 285,000 had come from. It also depends on what he meant by materially: the implication is that the pursuers account might have been undermined to some extent, but not to an extent which the Lord Ordinary considered material. No useful purpose would however be served by pursuing these questions: the important point is that the Lord Ordinary had plainly taken the evidence in question into account and had nonetheless concluded that the pursuer was telling the truth about the central issue. It is necessary to bear in mind the point made by Lord Hoffmann, in a different but related context, in Piglowska v Piglowski [1999] 1 WLR 1360, 1372: The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. In support of their approach, the Extra Division cited the decision of the Second Division in Hamilton v Allied Domecq plc [2005] CSIH 74; 2006 SC 221, subsequently affirmed by the House of Lords [2007] UKHL 33; 2007 SC (HL) 142, and said that the test set out in that case had been met. That case was however concerned with a completely different issue from the present case. It was a case where the Lord Ordinary had made a critical finding, as to the making of a negligent misrepresentation, which the relevant passages in the evidence did not support. In those circumstances, the appellate court was plainly entitled to interfere: see the first sentence of the dictum of Viscount Simon in Thomas, cited in para 27 above. That was the context of Lord Hamiltons observation at para 85 of his opinion: On the other hand, when, on examination by the appellate court of the printed evidence, it is plain that it could not constitute a proper basis for some primary finding of fact made by the judge of first instance, the appellate court has a power and a duty to reverse that finding. If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance. That observation had no relevance to the present case. Finally, at the hearing of the present appeal counsel for the defenders sought to persuade the court that the Lord Ordinary had in any event made a critical error in failing to give greater weight to the evidence of the defenders son Richard. As explained at para 18 above, the Lord Ordinary described Richard as largely recounting what he had been told by his parents, and as adding little or nothing to the case. That assessment is borne out by the passages in his evidence to which the court was referred, almost all of which recounted what he had been told by his parents, or his interpretation of events in the light of what he had been told. In the whole circumstances, the Extra Division had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re consideration of the whole evidence the opposite conclusion should be reached. The case illustrates an important point made by Iacobucci and Major JJ, delivering the judgment of the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235, para 14, when explaining why appellate courts are not in a favourable position to assess and determine factual matters: Appeals are telescopic in nature, focussing narrowly on particular issues as opposed to viewing the case as a whole. I would accordingly allow the appeal and invite parties to make Conclusion submissions as to the appropriate form of order. Postscript: the reasonableness of the appeal have also been recent cases in this court (eg In the matter of B (a Child) [2013] UKSC 33; [2013] 1 WLR 1911) and in the Judicial Committee of the Privy Council (eg Mutual Holdings (Bermuda) Ltd v Hendricks [2013] UKPC 13) where permission to appeal was granted in relation to issues concerning the role of appellate courts in respect of findings made by the trial judge. I have also referred to recent judgments of the Canadian and United States Supreme Courts in which the relevant principles were re stated. In the circumstances of the present case, I would not criticise the bringing of the appeal. There was some discussion in the printed cases of the question whether the appeal had properly been certified as reasonable. It is true that the relevant legal principles have long been settled. Nevertheless, the failure by appellate courts to apply those principles correctly may raise a point of law of general public importance. There have been a number of recent Scottish appeals to the House of Lords in which the application of the relevant principles has been considered: they include Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, Simmons v British Steel plc [2004] UKHL 20; 2004 SC (HL) 94; [2004] ICR 585 and Hamilton v Allied Domecq plc [2007] UKHL 33; 2007 SC (HL) 142. |
The financial crisis of 2007 2008 revealed systemic weaknesses in the European banking system and the lack of an adequate legal framework for rescuing failing banks in some member states of the European Union. The result, after a long period of deliberation, was the European Bank Recovery and Resolution Directive 2014/59/EU (or EBRRD). The directive required member states to confer on their domestic Resolution Authorities (usually the Central Bank) certain minimum powers (or tools) for reconstructing the businesses of failing credit institutions and investment firms. One of the tools was the bridge institution tool, which is dealt with in section 3 (articles 40 41) of the EBRRD. This required designated national Resolution Authorities to have the power to transfer to a bridge institution any assets, rights or liabilities of a failing credit institution. The present appeal is about the recognition in the United Kingdom of measures by a foreign Resolution Authority in accordance with its own national legislation implementing the EBRRD. Any pan European scheme for dealing with the systemic risks of bank failures must depend for its efficacy on the widest possible recognition of a home states measures in other jurisdictions where banks in the course of reorganisation may have interests or assets or under whose laws it may have contracted. The EBRRD dealt with this issue mainly by amending the earlier Directive 2001/24/EC on the Reorganisation and Winding up of Credit Institutions (which I shall call the Reorganisation Directive). The Reorganisation Directive applied to credit institutions in the course of reorganisation or winding up in a member state. It provided for their assets and liabilities to be dealt with in a single process under the law of the home member state, and for the legal consequences to be recognised in all other member states, irrespective of any other relevant law. The EBRRD amended the Reorganisation Directive so that it applied to measures taken in accordance with the new tools with which member states were required to equip themselves. In addition, the EBRRD made supplementary provision for co operation among member states in giving effect to those measures. Oak Finance and Banco Esprito Santo SA The appellants sue as the assignees of the rights of Oak Finance Luxembourg SA. On 30 June 2014, Oak entered into a facility agreement with a Portuguese commercial bank, Banco Esprito Santo SA (BES), through the latters Luxembourg branch, under which it agreed to lend it about $835m. The facility agreement was governed by English law and provided for the English courts to have exclusive jurisdiction in respect of any dispute arising out of or in connection with this Agreement. The entire facility was drawn down on 3 July 2014. The first scheduled repayment, amounting to $52,860,814.22, was due on 29 December 2014. It shortly became clear, however, that BES was in serious financial difficulties. On 30 July 2014, BES reported losses for the first half of 2014 exceeding $3.5 billion, and on the following day applied to Banco de Portugal, the Central Bank of Portugal, for emergency liquidity assistance. Banco de Portugal is the designated Resolution Authority for Portugal for the purpose of the EBRRD. The relevant terms of the EBRRD had been incorporated into Portuguese law by various provisions added by amendment to the Banking Law (Regime Geral das Instituies de Crdito e Sociedades Financeiras). Articles 145 G, 145 H and 145 I of the Banking Law (as amended) implemented the provisions concerning the bridge institution tool. On 3 August 2014, the Central Bank decided to invoke these provisions in order to protect depositors funds. By a Deliberation published on that date it incorporated Novo Banco SA to serve as the bridge institution, and transferred to it the assets and liabilities of BES specified in Annexes 2 and 2A. Annex 2 specified all assets and liabilities recorded in its accounts with certain exceptions. Under article 145 H(2) of the Banking Law, no liability could be transferred to a bridge institution if it was owed to an entity holding more than 2% of the original credit institutions share capital. An exception to that effect was accordingly included as paragraph (b)(i)(a) of Annex 2 of the Central Banks decision. Annex 2A was the balance sheet of BES as at 30 June 2014 adjusted to the time of transfer to show what was then understood to be the value of the transferred assets and liabilities. The Oak liability was not mentioned there by name, but it was included in the totals for liabilities. There followed a number of further decisions of the Central Bank adjusting the transfer of both assets and liabilities as investigation of BESs affairs proceeded. One of these concerned the Oak liability. On 22 December 2014, a week before the due date of the first scheduled repayment of the Oak loan, an internal memorandum addressed to the Board of the Central Bank recorded that although it had originally been thought that the Oak liability was eligible for transfer to Novo Banco, subsequent investigations suggested (i) that Oak had entered into the facility agreement on behalf of Goldman Sachs, and (ii) that Goldman Sachs held more than 2% of BESs share capital. In these circumstances, the Board of the Central Bank reached a decision later that day. The document recording the decision recites that: there are serious and grounded reasons to justify the understanding that Oak Finance, in granting this loan, acted on account of Goldman Sachs International, an entity in relation to which serious and grounded reasons also exist to consider that it falls under paragraph a) of no 2 of article 145 H of the [Banking Law]. The operative part of the decision, which follows, is in these terms: (a) Banco Esprito Santos liability towards Oak Finance pursuant to the loan agreement of 30 June 2014 was not transferred to Novo Banco; (b) This decision is effective as of 3 August 2014; (c) Novo Banco and Banco Esprito Santo must adapt their accounting records to the present decision and act in accordance with it. Goldman Sachs objected. They contended that while they had arranged the facility agreement they were not the true lenders. Nor were they holders of more than 2% of BESs share capital. The Central Bank did not accept either point. On 11 February 2015, its Board resolved to maintain its decision of 22 December 2014. The minutes record Goldman Sachs objection and the Central Banks view that it disclosed no grounds for departing from the decision. But it recites that any issue as to the eligibility of the Oak loan for transfer to Novo Banco would ultimately have to be resolved by a court of law. There are current administrative law proceedings in Portugal in which the appellants challenge the Central Banks decision of 22 December 2014. These have not yet been resolved. The present proceedings On 26 February 2015, the appellants commenced the present actions against Novo Banco in the High Court in England for sums due in respect of the Oak loan. The basis of their claims was that liability on the Oak facility had been transferred to Novo Banco by the Central Banks decision of 3 August 2014. On that footing, Novo Banco was bound by the jurisdiction clause in the facility agreement. Novo Banco countered by applying to set aside service of the claim forms in both actions for want of jurisdiction, on the ground that it had not been transferred, principally because the decision of 22 December 2014 conclusively determined that that was so. This is, accordingly, a case in which the fact on which jurisdiction depends is also likely to be decisive of the action itself if it proceeds. For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had the better of the argument on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, para 7, this court reformulated the effect of that test as follows: (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced. Portuguese law There is, at least for the purposes of the jurisdiction issue, a large measure of common ground about the powers of the Central Bank and the legal status of its successive decisions as a matter of Portuguese law. The decisions of 3 August and 22 December 2014 were administrative acts governed by rules of administrative law which, as in other civil law systems, are distinct from the rules which govern civil matters. It is agreed that both decisions were valid acts establishing legal rights and obligations of third parties in accordance with their terms. It is agreed that a public authority may amend its own administrative act prospectively or interpret it with effect from the time it was made. It is agreed that a public authority may by a subsequent decision implement its own administrative act or apply it to a particular case. Finally, it is agreed that administrative acts are reviewable by the courts of Portugal, which may annul them on the ground that they were based on an erroneous factual assumption or on an error of law. But unless and until they are annulled, they remain binding and directly effective as a matter of law. The parties are not agreed about the meaning of the December decision. They are, however, agreed that it took effect according to its terms from 3 August 2014 and that subject to annulment by a Portuguese court it conclusively determined as a matter of Portuguese law that the Oak liability was not transferred to Novo Banco. The appellants case is that while the legal effect of the August decision in Portugal falls to be recognised in England, the legal effect of the December decision does not. Recognition: the Directives The rescue of failing financial institutions commonly involves measures affecting the rights of their creditors and other third parties. Depending on the law under which the rescue is being carried out, these measures may include the suspension of payments, the writing down of liabilities, moratoria on their enforcement, and transfers of assets and liabilities to other institutions. At common law measures of this kind taken under a foreign law have only limited effect on contractual liabilities governed by English law. This is because the discharge or modification of a contractual liability is treated in English law as being governed only by its proper law, so that measures taken under another law, such as that of a contracting partys domicile, are normally disregarded: Adams v National Bank of Greece SA [1961] AC 255. By way of exception, however, the assumption of contractual liabilities by another entity by way of universal succession may be recognised in England: National Bank of Greece & Athens SA v Metliss [1958] AC 509. The National Bank of Greece litigation arose out of the reconstruction under Greek law of the liabilities of an insolvent Greek bank which had issued bonds governed by English law, a context very similar to that of the present appeal. As regards banks, however, the law declared in those two decisions of the House of Lords was superseded by the Credit Institutions (Reorganisation and Winding Up) Regulations (SI 2004/1045), which gave effect in English law to the Reorganisation Directive, and by the Bank Recovery and Resolution (No 2) Order (SI 2014/3348) which amended the 2004 order to reflect the changes made to the Reorganisation Directive by the EBRRD. The purpose of the Reorganisation Directive is apparent from its recitals. Recitals (6), (7) and (16) are in the following terms: (6) The administrative or judicial authorities of the home member state must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that member state. Owing to the difficulty of harmonising member states laws and practices, it is necessary to establish mutual recognition by the member states of the measures taken by each of them to restore to viability the credit institutions which it has authorised. It is essential to guarantee that the reorganisation (7) measures adopted by the administrative or judicial authorities of the home member state and the measures adopted by persons or bodies appointed by those authorities to administer those reorganisation measures, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims and any other measure which could affect third parties existing rights, are effective in all member states. (16) Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality, which require the administrative or judicial authorities of the home member state to have sole jurisdiction and their decisions to be recognised and to be capable of producing in all the other member states, without any formality, the effects ascribed to them by the law of the home member state, except where this Directive provides otherwise. The relevant substantive provision is article 3, which provides: Article 3 Adoption of reorganisation measures applicable law 1. The administrative or judicial authorities of the home member state shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other member states. 2. The reorganisation measures shall be applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive. They shall be fully effective in accordance with the legislation of that member state throughout the Community without any further formalities, including as against third parties in other member states, even where the rules of the host member state applicable to them do not provide for such measures or make their implementation subject to conditions which are not fulfilled. The reorganisation measures shall be effective throughout the Community once they become effective in the member state where they have been taken. Article 3 governs the recognition of reorganisation measures. Article 2, as amended by article 117(2) of the EBRRD, defines these as follows: reorganisation measures shall mean measures which are intended to preserve or restore the financial situation of a credit institution or an investment firm as defined in article 4(1), point (2) of Regulation (EU) No 575/2013 and which could affect third parties pre existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims; those measures include the application of the resolution tools and the exercise of resolution powers provided for in Directive 2014/59/EU. Since it is not disputed that Banco de Portugal had power under Portuguese law to employ the bridge institution tool as it did, it is unnecessary to examine the detailed provisions of the EBRRD relating to the reconstruction of bank liabilities. For present purposes, the relevant provisions are those dealing with mutual recognition of the legal effects of measures taken in accordance with the tools and the provisions dealing with challenges to those measures in the courts of the home member state. As far as mutual recognition is concerned, recital (119) recites: (119) Directive 2001/24/EC of the European Parliament and of the Council provides for the mutual recognition and enforcement in all member states of decisions concerning the reorganisation or winding up of institutions having branches in member states other than those in which they have their head offices. That Directive ensures that all assets and liabilities of the institution, regardless of the country in which they are situated, are dealt with in a single process in the home member state and that creditors in the host member states are treated in the same way as creditors in the home member state. In order to achieve an effective resolution, Directive 2001/24/EC should apply in the event of use of the resolution tools both when those instruments are applied to institutions and when they are applied to other entities covered by the resolution regime. Directive 2001/24/EC should therefore be amended accordingly. Article 66 is a supplementary recognition provision dealing with (among other things) dispositions of assets and liabilities in the course of a reorganisation of a credit institution in its home state. It provides: Article 66 Power to enforce crisis management measures or crisis prevention measures by other member states. 1. Member states shall ensure that, where a transfer of shares, other instruments of ownership, or assets, rights or liabilities includes assets that are located in a member state other than the state of the resolution authority or rights or liabilities under the law of a member state other than the State of the resolution authority, the transfer has effect in or under the law of that other member state. 3. Member states shall ensure that shareholders, creditors and third parties that are affected by the transfer of shares, other instruments of ownership, assets, rights or liabilities referred to in paragraph 1 are not entitled to prevent, challenge, or set aside the transfer under any provision of law of the member state where the assets are located or of the law governing the shares, other instruments of ownership, rights or liabilities. Turning to proceedings to challenge measures taken in accordance with the tools, recitals (88) and (89) of the EBRRD recite the need for the decisions of a Resolution Authority to be subject to appeal to the courts on the ground (among others) of insufficient factual basis. Recitals (90) and (91) are in the following terms: (90) Since this Directive aims to cover situations of extreme urgency, and since the suspension of any decision of the resolution authorities might impede the continuity of critical functions, it is necessary to provide that the lodging of any appeal should not result in automatic suspension of the effects of the challenged decision and that the decision of the resolution authority should be immediately enforceable with a presumption that its suspension would be against the public interest. (91) In addition, where necessary in order to protect third parties who have acquired assets, rights and liabilities of the institution under resolution in good faith by virtue of the exercise of the resolution powers by the authorities and to ensure the stability of the financial markets, a right of appeal should not affect any subsequent administrative act or transaction concluded on the basis of an annulled decision. In such cases, remedies for a wrongful decision should therefore be limited to the award of compensation for the damages suffered by the affected persons. The corresponding substantive provision is article 85, which provides: Article 85 Ex ante judicial approval and rights to challenge decisions 1. Member states may require that a decision to take a crisis prevention measure or a crisis management measure is subject to ex ante judicial approval, provided that in respect of a decision to take a crisis management measure, according to national law, the procedure relating to the application for approval and the courts consideration are expeditious. 3. Member states shall ensure that all persons affected by a decision to take a crisis management measure, have the right to appeal against that decision. Member states shall ensure that the review is expeditious and that national courts use the complex economic assessments of the facts carried out by the resolution authority as a basis for their own assessment. 4. The right to appeal referred to in paragraph 3 shall be subject to the following provisions: (a) the lodging of an appeal shall not entail any automatic suspension of the effects of the challenged decision; (b) the decision of the resolution authority shall be immediately enforceable and it shall give rise to a rebuttable presumption that a suspension of its enforcement would be against the public interest. In paragraphs 3 and 4, a crisis management measure includes a resolution action: article 2(102). A resolution action includes the application of a resolution tool, or the exercise of one or more resolution powers: article 2(40). A resolution power refers to the powers under national law which are required in order to apply the resolution tools: articles 2(20) and 63. The judgments below Before Hamblen J, Novo Bancos case was that the effect of the December decision fell to be recognised in an English court by virtue of article 66 of the EBRRD. They did not rely on article 3 of the Reorganisation Directive. The judge approached the question in two stages: [2015] EWHC 2371 (Comm). He held, first, that it was sufficiently established for the purpose of jurisdiction (ie the claimants had the better of the argument) that Goldman Sachs held less than 2% of the share capital of BES and was not the real lender under the facility agreement. It followed that for the purpose of jurisdiction, it must be assumed that the Oak liability had been transferred to Novo Banco by the decision of 3 August 2014, there being (on that footing) no relevant exception covering it. That being so, he considered, secondly, that Novo Banco became party to the jurisdiction clause in the facility agreement on 3 August 2014. Novo Banco was therefore bound to submit to the English court any dispute arising out of or in connection with this Agreement, including the dispute about the effect of the December decision. On that footing he did not need to decide what the effect of the latter decision was, nor whether it fell to be recognised under article 66 of the EBRRD. These would be matters for trial. But in case he was wrong about that, he also held that article 66 did not require the recognition of the December decision in England because, whatever else it was, the December decision was not itself a transfer of assets. In the Court of Appeal the argument took a different turn as a result of the intervention of Banco de Portugal. Mr Howard QC, who appeared for them both in the Court of Appeal and before us, put at the forefront of his case on recognition article 3 of the Reorganisation Directive, which had received hardly any attention before Hamblen J. The significance of this is that article 3, unlike article 66 of the EBRRD, is not limited to requiring the mutual recognition of transfers. Mr Howards primary submission was, in summary, that the Directives required the recognition of the entire process of reorganisation under the EBRRD and that it was in principle wrong to consider the effect of the August decision independently of the December decision. Whatever the correct legal analysis of the December decision, an English court was bound to recognise its effect as a matter of Portuguese law, which was to determine conclusively that the Oak liability had not been transferred. The Court of Appeal allowed the appeal, substantially on that ground: [2016] EWCA Civ 1092; [2017] 2 BCLC 277. Application of the recognition provisions of the Directives The first thing that strikes one about the appellants submission is its inherent implausibility. The appellants accept, indeed assert, (i) that the August decision was a reorganisation measure entitled to recognition in England under article 3 of the Reorganisation Directive and (ii) that it was a transfer for the purpose of article 66 of the EBRRD. The result of separating the August decision from the December decision and giving effect only to the former is that in the eyes of an English court Portuguese law must be treated as having transferred the Oak liability to Novo Banco although it would not be so treated in the eyes of a Portuguese court. Since the ordinary purpose of any choice of law rule is to ascertain which legal rules should be applied in the relevant foreign jurisdiction, this is a paradoxical result. In assessing the appellants submission, the provision which is primarily relevant is article 3 of the Reorganisation Directive, as amended by the EBRRD to apply to reorganisation measures taken in the exercise of its various tools. Article 3 of the Reorganisation Directive, as its title declares, determines the applicable law to be applied to a reorganisation measure in England. Article 66 of the EBRRD is a more specific provision. Although its language may suggest some overlap with article 3 of the Reorganisation Directive it is, as its title declares, about enforcement. Its main purpose is to require other member states to take active steps to enforce transfers of assets or liabilities made in the course of a reorganisation in the home state and to prevent challenges to such transfers in their own jurisdictions. Two points need to be made about the Reorganisation Directive, and in particular about article 3. The first is that its purpose, as recital (119) of the EBRRD records, is to ensure that all assets and liabilities of the institution, regardless of the country in which they are situated, are dealt with in a single process in the home member state and that creditors in the host member states are treated in the same way as creditors in the home member state. This can be achieved only by taking the process as a whole and applying the legal effects attaching to it under the law of the home state in every other member state. It is not consistent with either the language or the purpose of article 3 that an administrative act such as the December decision, which affects the operation of a reorganisation measure under the law of the home state, should have legal consequences as regards a credit institutions debts which are recognised in the home state but not in other member states. This was the basis of both of the decisions of the Court of Justice on article 3 of the Reorganisation Directive. LBI hf v Kepler Capital Markets SA (Case C 85/12) (Judgment delivered on 24 October 2013) arose out of proceedings in France brought by a creditor of an insolvent Icelandic bank in the course of winding up in Iceland to attach a debt owed to the bank by Kepler. One of the questions referred to the CJEU was whether article 3 applied to an automatic statutory moratorium retrospectively introduced under the transitional provisions of an Icelandic statute, given that article 3 referred only to decisions of the home states administrative or judicial authorities. The CJEU answered that question by reference to the purpose of the Reorganisation Directive. The Court described that purpose as follows at para 22: At the outset, it must be borne in mind that, as is apparent from recital 6 in its preamble, Directive 2001/24 seeks to establish mutual recognition by the member states of the measures taken by each of them to restore to viability the credit institutions which it has authorised. That objective, and that of guaranteeing equal treatment of creditors, laid down in recital 16 to that directive, require that the reorganisation and winding up measures taken by the authorities of the home member state have, in all the other member states, the effects which the law of the home member state confers on them. The court went on, at para 39, to describe the Directive as establishing a system of mutual recognition of national reorganisation and winding up measures, without seeking to harmonise national legislation on that subject. It answered the question in the affirmative, because the effect of the transitional provisions was retrospectively to treat the judicial declaration of insolvency as ordering the moratorium. Similarly, in Kotnik v Dravni Zbor Republike Slovenije (Case C 526/14) [2017] 1 CMLR 753, one of the issues concerned the application of article 3 to a decision of the Slovenian central bank reconstructing the share and loan capital of an insolvent commercial bank. After referring to its analysis of the purpose of the Reorganisation Directive in LBI, the Court observed, at para 105: That objective entails that the reorganisation measures taken by the administrative or judicial authorities of the home member state, that is, the member state in which a credit institution has been authorised, must have, in all the other member states, the effects which the law of the home member state confers on them (see, to that effect, LBI EU:C:2013:697 at para 22). Secondly, an administrative act such as the August decision does not occur in a legal vacuum. It occurs in the context of a broader framework of public law. Article 3 does not only give effect to reorganisation measures throughout the Union. It requires them to be applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive, and to be fully effective in accordance with the legislation of that member state. In this legal scheme, it cannot make sense for the courts of another member state to give effect to a reorganisation measure but not to other provisions of the law of the home state affecting the operation of a reorganisation measure. That is so, whether or not that other provision is itself a reorganisation measure. For these reasons I reject the proposition, which was fundamental to both the Judges analysis and the appellants case, that the effect of the August decision can be recognised without regard to the December decision. On the face of it, the December decision was not an interpretation of the August decision or an amendment of it, retrospective or otherwise. Nor was it a retransfer of a liability previously transferred to Novo Banco. It was a ruling that under the terms of article 145 H(2) of the Banking Law and paragraph (b)(i)(a) of Annexe 2 of the August decision, the Oak liability had never been transferred. But, like the courts below, I do not think that it matters what the correct analysis of the December decision is, provided that it is accepted (as it is) that as a matter of Portuguese law it is conclusive of that point unless and until annulled by a Portuguese administrative court. It follows from the agreed propositions of Portuguese law and from the requirement of article 3.2 of the Reorganisation Directive that an English court must treat the Oak liability as never having been transferred to Novo Banco. It was therefore never party to the jurisdiction clause. This makes it unnecessary to consider the alternative case advanced by Banco de Portugal and Novo Banco to the effect that the December decision was itself a reorganisation measure or an implied retransfer of the Oak liability to BES. A provisional decision? The appellants have an alternative case that even if the December decision is otherwise entitled to recognition in England, it should be disregarded on the ground that it was a provisional decision pending the final decision of a Portuguese administrative court on the questions whether Goldman Sachs was the true lender or a 2% shareholder in BES. The argument is that an English court should look to what the Portuguese administrative court would decide about those questions and not what the Central Bank has actually decided. Mr Rabinowitz QC, who appeared for Guardians of New Zealand Superannuation Fund and others, submitted that the Judges finding that the appellants had the better of the argument on those questions meant that we must assume that a Portuguese administrative court would decide them in the appellants favour. The first point to be made is that the December decision was not in terms a provisional decision. The Judge thought that Banco de Portugal had not stated or purported to find that the Oak liability is an Excluded Liability. He considered that the December decision simply asserted that there are serious and well grounded reasons so to conclude, while recognising that that was ultimately a matter for a court of law to determine. I respectfully disagree. He was referring to the recitals and not to the operative part of the decision. The minutes recited the Central Banks reasons for the decision, which were based on its current view of the facts. But the operative section determined that the Oak liability was not transferred to Novo Banco and directed that the accounting records of Novo Banco should be restated accordingly. It follows that the Appellants submission must be based on the mere fact that like any other administrative decision it was subject to review by a Portuguese administrative court. The appellants submission to this effect is based on the decision of the Court of Appeal in Guaranty Trust of New York v Hannay & Co [1918] 2 KB 623. The question at issue in this case was whether as a matter of New York law a particular bill of exchange was conditional. In previous proceedings on the same issue between the same parties a New York judge had held on demurrer that it was. Bailhache J and the Court of Appeal held that it was not. The ground of the decision was that the judgment was no more than evidence of New York law, and expert evidence put before the English courts showed it to be mistaken. The point was put with characteristic clarity by Scrutton LJ at p 667: Foreign law is a question of fact to an English Court; the judgment of a foreign judge is not binding on an English Court, but is the opinion of an expert on the fact, to be treated with respect, but not necessarily conclusive. In my opinion, this decision has no bearing on the present appeal. The issue in Guaranty Trust was not about the legal status of the New York judgment as a matter of New York law. The question was what the relevant rule of New York law was. That was a question of fact. In the present case, there is no issue about either the relevant content of Portuguese law or the status of the December decision, because it is agreed that as a matter of Portuguese law it determines creditors rights. The present issue is quite different, namely whether that decision is to be recognised as affecting rights under an English law contract. That is not a question of fact, but a question of private international law. True it is that the December decision was based on a factual premise which is being challenged in Portugal. But it does not matter for present purposes whether its factual premise was right or wrong. It is binding in Portuguese law in either case, unless and until it is set aside by a Portuguese court. No other conclusion would, as it seems to me, be consistent with the Directives. In the first place, it is not for an English court to decide what would amount to an appeal from an administrative act of the Portuguese Central Bank. Article 3(1) of the Reorganisation Directive provides that the implementation of a reorganisation measure such as the August decision is a matter for the administrative or judicial authorities of the home state alone. Consistently with that approach, article 85 of the EBRRD assigns appeals to the courts of the home state responsible for the reorganisation. Secondly, article 85(4) provides that an appeal is not to entail any automatic suspension of the challenged decision. This is because a banking reconstruction under the EBRRD requires decisive steps to be taken, often as a matter of urgency, which the authorities in other member states can act on. The scheme of the Directives would be undermined if the acts of a designated national Resolution Authority were open to challenge in every other member state simply because they were open to challenge in the home state. Reference to the Court of Justice of the European Union The relevant propositions of EU law are to my mind beyond serious argument. The decisive questions are questions of Portuguese domestic law, on which the parties are agreed. There is therefore no proper basis for a reference. Disposal I would dismiss the appeal. |
This appeal concerns the effectiveness of a scheme, known as Project C, which was designed to minimise the overall liability to VAT of a group of companies involved in motor breakdown insurance (MBI). Summarising matters which I shall at a later point explain in greater detail, the supply of insurance is exempt from VAT. It follows that insurers do not charge VAT on premiums, and do not account to the Commissioners for Her Majestys Revenue and Customs (the Commissioners) for VAT in respect of their insurance business. It also follows that, if an insurer incurs costs in respect of supplies of goods or services which it uses in the course of its insurance business, on which VAT is chargeable, it is unable to deduct the amount of the VAT which it has paid from any VAT which it has received in respect of that business. Instead, it has to bear the VAT element of its costs. MBI insurers normally undertake to indemnify the insured against the cost of repairs. Whether the garage invoices the insured, who is then reimbursed by the insurer, or invoices the insurer directly, in either case the garages invoice will include VAT (provided the garage is registered for VAT, as is normally the case). In such circumstances, the cost of the repair is the cover which the insurer has contracted to provide to the insured under the insurance policy. It is not the cost of a service supplied to the insurer for the purposes of its business, and no possibility arises of the insurer being able to deduct the VAT element of the cost. In principle, however, an MBI insurer might undertake not to indemnify the insured in respect of the cost of repair, but to repair the insureds vehicle; and it could then arrange with a garage for the repair to be carried out, and pay the garages bill. Even in such a case, however, the insurer would not be able to deduct the VAT element of the bill, since, even if the garage were regarded as supplying a service to the insurer for the purposes of its insurance business, the insurer would not be liable to account for any VAT in respect of that business, and would therefore not have received any VAT from which the tax paid to the garage could be deducted. The VAT paid to garages represents a substantial element of the costs of an MBI insurers business, which has to be covered by premiums. The inability to deduct VAT as input tax is perceived by MBI insurers as placing them at a competitive disadvantage relative to businesses, such as car dealers, offering uninsured warranties under which they contract to repair vehicles in the event of a breakdown. Since businesses of the latter kind are not treated as being exempt from VAT, they can set the VAT element of their costs against the VAT which they receive, with the result that the effect of the tax upon their business should in principle be neutral. The competitive disadvantage of the insurers was exacerbated in 1997, when insurance premium tax was imposed on MBI premiums at a rate of 17.5%. The purpose of the scheme with which the appeal is concerned was to redress that competitive disadvantage by enabling the VAT element of the cost of repairs to be recovered by one or other of the members of a group of companies to which an MBI insurer belonged, thereby reducing costs and enabling the insurer to offer lower premiums. The National Insurance and Guarantee Corporation plc (NIG) is a UK insurer. It has underwritten MBI policies for many years. The policies cover the cost of repairs and replacement parts following breakdowns of second hand cars. The policies are marketed and sold by another UK company, Warranty Holdings Ltd (Warranty), which is a member of the Oriel group of companies, the holding company of which is Oriel Group plc. Prior to the implementation of Project C, NIG reinsured the risks under the policies with Practical Insurance Company Ltd (Practical), a Gibraltar based reinsurer which is another member of the Oriel group. Until the implementation of Project C, Warranty was appointed by NIG to handle all claims made under the policies. In the event of a breakdown the insured contacted Warranty, which directed the insured to take the vehicle to an approved repairer, or a repairer of the insureds choice, or the dealer (all of which I shall refer to as the garage) for repair. The garage provided repair services and billed Warranty for the cost or, if the cost of the repair exceeded the insurance cover, for the amount of the cover. As claims handler, Warranty made arrangements with approved repairers which were designed to keep down the cost of repairs. These arrangements resulted in the VAT paid by Warranty on the repair services and parts supplied by the garage being irrecoverable. This was the problem which Project C was designed to solve. Project C had two strands, each of which was based on the operation of statutory provisions. The aim was that the first strand should be enough to secure the recovery of the VAT paid on the repairs. The second strand was designed to provide a fall back position should the first not hold. Putting the matter very broadly, the first strand was based on legislation designed to ensure that there was no VAT burden on the supply of certain insurance and financial services by UK businesses to consumers outside the EU. The legislation gave credit for input tax which was incurred for the purpose of businesses making certain specified types of supply to a person outside the EU. The specified supplies included the provision of assistance in the administration and performance of insurance contracts, including the handling of claims. The legislation was interpreted by those responsible for Project C as enabling a UK insurance claims handler to recover input tax incurred for the purpose of its supplying claims handling services to a non EU recipient. Project C sought to avail itself of this legislation by having the first appellant, WHA Ltd (WHA), a UK member of the Oriel group, supply claims handling services to the second appellant, Viscount Reinsurance Company Ltd (Viscount), a Gibraltar based member of the group, with which 85% of the risk under NIGs MBI policies issued through Warranty was ultimately reinsured. Provided (1) the garages made supplies of labour and parts to WHA (and not, as previously, to the insured car owner) and invoiced WHA for those supplies, (2) WHA then invoiced Viscount for claims handling services and (3) the latter invoice covered the amounts invoiced by the garages, WHA would be able to recover the VAT charged by the garage, and would not have to charge VAT on its onward supply of claims handling services to Viscount. That, in short, was the thinking behind the first strand of Project C. The first strand envisaged, as I have explained, that no VAT would be chargeable on the supplies to Viscount. The second strand of Project C was designed to provide a fall back line of defence if that was disputed by the Commissioners: if, for example, they maintained that WHA did not use the garages supplies for the purpose of making its own supplies of claims handling services to Viscount, or contended (as actually happened) that WHAs supplies to Viscount were wholly or partly chargeable to VAT as being supplies of repairs or parts rather than supplies of claims handling services. Again putting the matter very broadly, the second strand relied upon UK VAT legislation which was interpreted as enabling Viscount to recover the VAT which it paid to WHA so long as Viscount itself made supplies to a non EU recipient. For the purpose of the second strand, it was therefore necessary to instal another non EU entity between NIG and Viscount. That entity was Crystal Reinsurance Company Ltd (Crystal), another Gibraltar based member of the Oriel group. It reinsured 100% of the risk under NIGs MBI policies issued through Warranty, and in turn retroceded 85% of the risk to Viscount. The NIG policies were the only reinsurance business carried on by Crystal and Viscount. The end result of the first strand of Project C was thus intended to be that WHA (1) would be the recipient of the repair services on which the garages charged VAT, (2) would not have to charge output tax on its onward supplies to Viscount, and (3) would therefore be entitled under the relevant legislation to recover the input tax from the Commissioners. The end result of the second strand was intended to be that, if proposition (2) did not hold and WHA had to charge output tax on its supplies to Viscount, Viscount would nevertheless be entitled to recover that tax from the Commissioners. Following the implementation of Project C in 1998, the Commissioners refused the claims made by WHA and Viscount for the repayment of tax. WHA and Viscount then appealed to the Value Added Tax and Duties Tribunal (the tribunal). Before the tribunal, the Commissioners challenged the effectiveness of Project C on the basis that none of its three central planks was sound. First, they maintained that there was no supply of services by the garages to WHA: if that contention were accepted, it was fatal to the success of the scheme, since both strands of Project C depended upon its being accepted that the repair services were supplied by the garages to WHA. Secondly, they maintained that if there was indeed a supply of repair services to WHA, its onward supply to Viscount was in any event subject to VAT: if that contention were accepted, it was fatal to the success of the first strand. Thirdly, they maintained that Viscount was not in any event entitled to recover input tax under the UK legislation in question: if that contention were accepted, it was fatal to the success of the second strand. The Commissioners also advanced further arguments based on the alleged artificiality of the scheme, including a contention based on the EU doctrine of abuse of rights. In its decision ([2002] VATTR 202), the tribunal agreed with the Commissioners on all three of their principal contentions, and dealt only briefly with the Commissioners further arguments. On an appeal to the High Court ([2003] STC 648), Lloyd J disagreed with the tribunal on the first two issues. He held that (1) WHA could treat the VAT payable on the garage bills as input tax, (2) WHA made exempt supplies to Viscount and (3) WHA was therefore entitled to recover its input tax. Having thus accepted that the first strand of Project C was effective, he did not go on to consider the third issue, which was relevant only to the second, fall back, strand of the scheme. A further appeal to the Court of Appeal was dealt with in two stages. In an interim judgment ([2004] STC 1081), the Court of Appeal agreed with Lloyd J on the first issue: that is to say, it held that there was a supply of services by the garages to WHA. It agreed with the tribunal on the second issue: that is to say, it held that WHA made a taxable supply of services to Viscount, and therefore had to charge output tax. The court therefore had to deal with the third issue. In disagreement with the tribunal, it held that Viscount was entitled to recover the VAT which it had to pay WHA. Those conclusions were however all subject to the Commissioners further arguments about abuse of rights, consideration of which was deferred until the preliminary rulings of the European Court of Justice on a number of cases concerned with that subject were available. Following the issue of those rulings, the Court of Appeal subsequently gave its final judgment ([2007] STC 1695), in which it held that the scheme was abusive and that the tribunals decision should therefore be reinstated, albeit for somewhat different reasons. The present appeal is taken against the decision of the Court of Appeal. The parties positions have altered in some respects since that decision was made. The issues now in contention are as follows: (1) Is there a supply of repair services for the purposes of WHAs business by the garages to WHA, as well as or instead of a supply of services to the insured, on which WHA may claim deduction of input tax? (2) If the answer to question (1) is yes, what is the application to WHA's claim of the EU law doctrine of abuse of right? (3) In any event, was the then extant UK legislation pursuant to which Viscount claimed to recover the input tax charged on the supplies to it by WHA ultra vires? If so, was that legislation void ab initio and does this cause the claim by Viscount for recovery of such input tax to fail? (4) Are the Commissioners entitled to raise or rely on the latter issue for the first time before this court or as the sole reason for withholding repayment from Viscount, insofar as (i) Viscount may have had a legitimate expectation that its claim would be met, (ii) the issue was not identified in any of the Commissioners' original decisions, (iii) it was not argued by them before any of the courts below and (iv) the Commissioners have consistently maintained that the tribunal has no jurisdiction to hear or determine public law questions? For reasons which I shall explain, I have come to the conclusion that question 1 should be answered in the negative: there is no supply of repair services by the garages to WHA. It follows from that conclusion that the appeal must be dismissed and the decision of the Court of Appeal affirmed, albeit for different reasons. That being so, it is unnecessary to address the remaining issues. In the following discussion, I shall accordingly focus solely upon the factual and legal issues which are relevant to the question whether the garages make a supply of repair services to WHA for the purposes of its business. The relevant legislation The relevant EU legislation is contained in Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (the First Directive), and Council Directive 77/388/EEC of 17 May 1977 (the Sixth Directive), as amended by Council Directive 95/7/EC of 10 April 1995. These are translated into domestic law by the Value Added Tax Act 1994 as amended (the 1994 Act). It is sufficient to refer principally to the EU provisions. Article 2 of the First Directive describes the basic system of value added tax: The principle of the common system of value added tax involves the application to goods and services of a general tax on consumption exactly proportional to the price of the goods and services, whatever the number of transactions which take place in the production and distribution process before the stage at which tax is charged. On each transaction, value added tax, calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of value added tax borne directly by the various cost components. The common system of value added tax shall be applied up to and including the retail trade stage. Article 2 of the Sixth Directive provides: The following shall be subject to value added tax: 1. the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such . Articles 5 and 6 define supply of goods and supply of services respectively. The former means the transfer of the right to dispose of tangible property as owner. The latter means, generally, any transaction which does not constitute a supply of goods within the meaning of article 5. Article 11 defines the taxable amount. It provides, so far as relevant: A. Within the territory of the country 1. the taxable amount shall be: (a) in respect of supplies of goods and services, everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies. Article 13 provides various exemptions, including at B.(a) insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents. That is implemented in the UK, so far as related services are concerned, by Group 2, item 4 of Schedule 9 to the 1994 Act, which exempts the provision by an insurance broker or insurance agent of any of the services of an insurance intermediary The latter services are defined by Note (1) as including (c) the provision of assistance in the administration and performance of such contracts, including the handling of claims. Article 17(2) allows a taxable person the right, in so far as the goods and services are used for the purpose of his taxable transactions, to deduct VAT due or paid in respect of goods or services supplied or to be supplied to him by another taxable person. The factual background As this court has recently observed (Her Majestys Revenue and Customs v Aimia Coalition Loyalty UK Limited [2013] UKSC 15, para 68), decisions about the application of the VAT system are highly dependent upon the factual situations involved. A small modification of the facts can render the legal solution in one case inapplicable to another. It is therefore necessary to begin by considering carefully the facts of the present case. As was also noted in the Aimia case at para 38, the case law of the Court of Justice indicates that, when determining the relevant supply in which a taxable person engages, regard must be had to all the circumstances in which the transaction in question takes place. Furthermore, as Lord Walker explained in Aimia at paras 114 115, in cases where a scheme operates through a construct of contractual relationships, as in the present case, it is necessary to look at the matter as a whole in order to determine its economic reality. Accordingly, although the transaction of particular importance is that between the garage and WHA, it has to be understood in the wider context of the arrangements between the insured, NIG, Crystal, Viscount, WHA and the garage. The contractual position is not conclusive of the taxable supplies being made as between the various participants in these arrangements, but it is the most useful starting point. I shall begin with the contract of insurance between the insured and NIG. Two sample policies have been produced in these proceedings. Their terms, so far as material, are to similar effect, and it is sufficient to refer to one of them, described as Motor Cover. The policy makes it clear that the insurer is undertaking to meet the cost of repairs to the vehicle falling within the scope of the policy: it is not undertaking responsibility for the repairs themselves. The policy states, for example, that following a mechanical breakdown of your vehicle, this policy will assist with the cost of repair of the parts listed; and the terms and conditions provide that NIG will not pay more than the limits shown on the proposal form or, if lower, in this policy document. Although the terms and conditions also provide that NIG reserves the right to provide replacement parts and to carry out repairs under this policy or to arrange for their provision by other persons, the implication of that clause is that NIG is under no obligation to do so. The policy also explains to the insured the role of WHA, in terms which are consistent with the financial nature of the insurers obligations. The terms and conditions state that WHA has been appointed to deal with all matters relating to claims handling and settlement, including payment, of claims arising under this policy. Under the heading, How to make a claim, the policy states that the insured should first telephone or write to WHA, which will explain the claims procedure. The insured should next book the vehicle in with the garage and give your permission to carry out any fault finding/diagnosis or dismantling necessary. Next, you agree that you will pay the cost of dismantling and repairing the vehicle if the cause of the breakdown is not covered by the policy and, if it is covered, all costs which exceed the limits on your proposal form. Next, the garage must ask WHA for authority to carry out the repair. If your claim is accepted, your repairer will be informed how much will be paid under this policy You are responsible for paying any amount the repairer charges over and above the amount authorised. When the repairs have been completed, the garage must submit an invoice to WHA. The policy makes it clear that the insured can either take the vehicle to the dealer or to a garage approved by WHA, or he can use a garage of his choice, provided in the latter case that the garage follows WHAs claim procedures and sends its invoice to WHA. It is necessary next to consider the relationships between NIG, Crystal, Viscount and WHA so far as relevant to the issue. First, the agreement between NIG and Crystal provided for Crystal to receive the premium income from the relevant policies, and for NIG to receive a monthly fee. Crystal was also to meet all claims under the policies. In effect, therefore, NIG was what may be described, without any pejorative meaning, as a UK front for an offshore insurance business carried on by the Oriel group. In relation to claims, the agreement between NIG and Crystal provided that in the event of any claim or loss hereunder or under a NIG policy the reinsurer [Crystal] shall have the sole right to appoint adjusters and/or assessors and to control, or to appoint such person as it thinks fit to control, all claims handling, negotiations, investigations, adjustments and settlements in connection with such claims and losses and to make payment in respect thereof under and in accordance with the terms of the relevant NIG policy document . The claims handlers role was accordingly envisaged as encompassing the negotiation, investigation, adjustment, settlement and payment of claims. The agreement between Crystal and Viscount similarly provided for Viscount to control all claims handling in the event of a claim under an NIG policy and to appoint any person it saw fit to control the claims handling and to make payment in respect thereof. Crystal passed on to Viscount the appropriate percentage of the premium income. In terms of the agreement between Viscount and WHA, Viscount appointed WHA to appoint adjusters and/or assessors and to control all claims handling, negotiations, investigations, adjustments and settlements in connection with claims and losses under NIG Policies and to make payment in respect thereof under and in accordance with the terms of the relevant NIG Policy Documents. WHA agreed to handle, investigate, control, negotiate, validate, process, administer and settle all claims arising under NIG Policies in accordance with the terms of the relevant NIG Policy Documents . Under the heading Accounting and Consideration, the agreement provided that all valid claims and losses (to include amounts paid to repairers and suppliers) under the NIG policies were to be settled at WHA's expense. Viscount was to pay WHA the cost of all claims plus 17.60 for each claim settled and paid by WHA. In practice, as was explained in evidence to the tribunal, Viscount provided WHA with a cash float of about 2.5m, taken from the premium income and topped up about once a week, out of which WHA met the claims. WHA was accountable to Viscount for what it spent. The invoices submitted by WHA to Viscount identified separately the claims handling fees (ie the aggregate of the fees of 17.60 per claim) and the cost of meeting the claims. These agreements are accordingly consistent in envisaging the role of WHA as encompassing the negotiation, investigation, adjustment, settlement and payment of claims. There is no indication that WHAs role included undertaking responsibility for the carrying out of repairs. The agreements between NIG and Crystal, Crystal and Viscount, and Viscount and WHA also contained provisions designed to secure that the title to vehicle parts appropriated for use in a repair under a valid claim under an NIG policy would be transferred in turn to Viscount, then Crystal, then NIG, prior to the parts being fitted in the insureds vehicle. It is common ground that these provisions were ineffective: there is no indication that they were notified to either the insured or the garages; they conflicted with retention of title clauses used by some of the garages; they did not address the situation where the policy covered only part of the cost of the repair; and they could not in any event prevent title from passing to the owner of the vehicle once a part was fitted. Turning next to the relationship between WHA and the garages, WHA issued a claims procedure leaflet to authorised repairers which required them to take the following steps: 1. Obtain policy type and number from the proposal form . Check proof of servicing. 2. With policyholder's authority, including agreement to pay all costs incurred by the repairer which do not form part of an authorized repair, establish precise cause of failure and the cost [of] parts and labour required for the repair. 3. To obtain authorization to carry out a repair phone WHA's claims department. No rectification to be carried out without prior authority from WHA. 4. After obtaining authority and having carried out the repair in accordance with the authority given, send a detailed VAT repair invoice for all parts used in the authorized repair and the authorized labour costs together with any relevant service invoices to WHA. 5. Obtain payment from policyholder for all costs in excess of those authorized by WHA. The tribunal found that in an appreciable number of cases the procedure set out in the leaflet was not followed, but that instead the insured paid the garage and was subsequently reimbursed by WHA. The evidence also established that WHA had agreed labour rates and parts discounts with the authorised repairers. Although it was not the subject of an explicit finding by the tribunal, it appears from the leaflet, and from the practical arrangements described by the tribunal, that there was an agreement between WHA and the garage, implied if not express, under which WHA agreed to pay for the work in so far as it was covered by the policy and authorised by WHA. There is no finding that the garage undertook to WHA to carry out repairs properly or at all, or that any steps were taken by WHA to check whether repairs had been carried out properly or at all. The tribunal also found that there was an agreement between the insured and the garage, implied if not express, under which the insured authorised the garage to carry out the necessary investigatory work and agreed to pay for all work carried out by the garage in so far as it was not covered by the policy. The insured must also have authorised the garage to carry out the repairs to his or her car. The tribunals decision Against that background, which reflects the tribunals findings as to the facts, the tribunal, chaired by Stephen Oliver QC, concluded that the garages made supplies of repairs and parts to the insured, and not to WHA. WHA merely paid for those supplies, to the extent that the bill of the garage in question was within the cover provided by the policy. The tribunal stated, at para 71: We are satisfied that the documentation and the arrangements, designed to divert the supplies of labour and parts from their normal direct route from garage to insured by routing them instead via the Gibraltar loop, do no more than create a paper trail. Their purpose is to facilitate Project C. The reality is quite different. The garage supplies the labour and parts to the insured. In support of that conclusion, the tribunal noted that the insured chose the garage and authorised it to carry out the investigatory work. He was liable for the cost of any investigatory or repair work which was not covered by the policy. In a proportion of cases, the insured paid the garage. He became the owner of any parts installed, and the beneficiary of any warranties given. Under the policy, the insurer undertook to cover the cost of the repair. WHA was identified as the claims handler, but that did not oblige it to provide labour and parts. The repair was the responsibility of the garage. The claims procedure leaflet required the garage to obtain authorisation from WHA to carry out repairs, and directed that invoices for authorised repairs should be sent to WHA. This committed WHA to pay for authorised repairs. It did not, however, make WHA the customer of the garage. The tribunal considered that its conclusion was consistent with the reasoning of Lord Millett in Customs and Excise Commissioners v Redrow Group plc [1999] 1 WLR 408, a case to which it will be necessary to return. Asking itself the question posed by Lord Millett at p 418, whether the taxable person making the payment in question obtained anything anything at all used or to be used for the purposes of his business in return for that payment, the tribunal responded that WHA had a business of claims handling, in the course of which it held funds advanced as a float by Viscount and disbursed them in meeting approved garage bills. In return for its services Viscount paid it 17.60 per claim. There was no evidence that the garage's supply of labour and parts was used for the purposes of WHA's business. It is also relevant to note that the tribunal analysed WHAs business as involving two supplies to Viscount. First, it made exempt supplies of claims handling services, for which it was paid 17.60 per claim, and which were capable of generating a profit. Secondly, it made a taxable supply of satisfying the claims. That supply earned nothing: WHA merely disbursed the money advanced by Viscount as a float. The decision of the High Court On appeal, Lloyd J observed that it seemed likely that, when WHA gave authority to a garage to carry out a repair, it came under an obligation to the garage to pay for the work if and when it had been done, provided the garage sought payment in accordance with the correct procedure. It was, he observed, more difficult to say, from the material before the court, that the garage came under any positive obligation to WHA to do anything. Those observations appear to me to be correct. Lloyd J agreed with the tribunal that the garages made supplies of repairs and parts to the insured, but correctly observed that it did not follow that WHA did not receive anything itself which was relevant for VAT purposes. Lloyd J considered that the contrary was the case: WHA's duty to Viscount includes having the appropriate repairs done. Only if that is done are the obligations of the successive insurers to the insured discharged. WHA sees to that by having the work done, that is to say by setting up arrangements whereby garages will do the work with the necessary authority from WHA, and will look to WHA for payment. The service which a garage supplies to WHA is the service of repairing the insured's car, thereby satisfying the obligation of NIG to the insured, and in turn the corresponding obligations of every other party in the insurance chain. (para 40) Addressing the question posed by Lord Millett in Redrow at p 418, Lloyd J stated that WHA received a benefit from its contract with the garage, namely the discharge of its obligations to Viscount. That was a benefit supplied by the garage to WHA and used by WHA for the purposes of its business (para 41). On that basis, Lloyd J disagreed with the tribunals conclusion on this issue. It is to be noted that Lloyd Js approach was based upon two factual premises: first, that NIG (and each of the successive insurers) was under an obligation to the insured to repair the insureds car; and secondly, that WHA was under an obligation to Viscount to have the appropriate repairs done. Neither of those premises was in my view sound, for the reasons I have explained in particular at paragraphs 27 and 30 to 33. Furthermore, the fact that As payment of B discharges an obligation owed by A to C does not eo ipso mean that A has received a supply from B. An insurer may, for example, meet the cost of dental treatment provided to its insured in accordance with the relevant policy, but that does not mean that the dentist supplied her services to the insurer. Lloyd J disagreed with the tribunals analysis of WHAs business as involving separate supplies to Viscount of (1) claims handling services and (2) the satisfaction of claims. He considered that that analysis drew an artificial distinction. In his view the whole process, including the payment of the garages bill, could fairly be described as claims handling, and certainly, in the language of Note (1)(c) to Group 2, item 4 of Schedule 9 to the 1994 Act, as the provision of assistance in the administration and performance of insurance contracts. The decision of the Court of Appeal On a further appeal, the Court of Appeal, in a judgment given by Neuberger LJ with which Waller and Latham LJJ agreed, similarly proceeded upon the mistaken premise that Viscount contracts with WHA to carry out any works required to be effected under the policies (para 2). The Court of Appeal identified the essential features which were said to justify the conclusion that the garage made a supply of services to WHA. First, the invoice was in respect of work carried out by the garage pursuant to an instruction by WHA. Secondly, the only contractual relationship, pursuant to which the work was carried out, existed under an agreement between WHA and the garage. Thirdly, the only person who was liable to pay the garage in respect of that work was WHA. Fourthly, WHA entered into the contractual relationship with the garage in the course of its business. Fifthly, by ensuring that the garage carried out the work, WHA fulfilled its obligation to Viscount under the claims handling agreement, and also became entitled to earn its 17.60 in respect of the claim. The Court of Appeal appears to have accepted that these features existed: Neuberger LJ stated that, in these circumstances, it appeared to him that there was indeed a supply of services by the garage to WHA, unless there was some reason for reaching a contrary conclusion (para 37). Four of the five features relied upon require however some qualification or correction. In relation to the first feature, Neuberger LJ had earlier noted at para 22 that in a fair number of cases the insured agreed with the garage what work would be carried out, paid for it, and was subsequently reimbursed by WHA. Such cases were not typical, but they were relevant to an assessment of the commercial reality of the arrangements. In relation to the second feature, the agreement between WHA and the garage was not the only contractual relationship pursuant to which the work was carried out, as I have explained at paragraph 38: the insured authorised the garage to carry out the necessary investigatory work, authorised the garage to carry out the repairs to his or her car, and agreed to pay for the work in so far as it was not covered by the policy. In relation to the third feature, it is correct to say that the only person liable to pay the invoice submitted to WHA was WHA, assuming that the invoice was in conformity with the agreement between the garage and WHA and the latters authorisation of the work. The insured was however also liable to pay the garage in respect of the work in so far as the cost was not covered by the policy, as I have explained at paragraph 38. In relation to the fifth feature, there was no finding by the tribunal that WHA was under an obligation to Viscount to ensure that the garage carried out the work, and the terms of the agreement between WHA and Viscount indicate only that WHA was under an obligation to handle the claim and make the payment, as I have explained at paragraphs 32 to 33. Consistently with its premises, the Court of Appeal considered that WHA receives a benefit from the carrying out of the repairs (namely satisfaction of an obligation to Viscount and the ability to earn the 17.60) (para 37). That view again rests on the mistaken premise that WHA was under an obligation to Viscount to ensure that repairs were carried out. As I have explained at paragraph 32, the fee of 17.60 was paid in consideration of WHAs settling and paying the claim, not for ensuring that repairs were carried out to the vehicle. It also reflects the mistaken view that, merely because payment for services has the effect of discharging an obligation owed to a third party, it necessarily follows that the person making the payment is the recipient of a supply. The Court of Appeal also put forward at para 40 another reason for rejecting the conclusion that the vehicle owner, rather than WHA, was the person to whom the services should be treated as being supplied: However, such a conclusion suffers from the unattractive feature that the owner does not pay for the work, and receives no invoice in respect of it, and that, accordingly, even if the circumstances would otherwise justify someone recovering the input tax, there could be nobody entitled to recover the input tax, at least on the face of it. The owner could not recover input tax because he had not paid it, and neither could WHA, because although it had paid the VAT, it could not be treated as input tax because there would have been no supply of services to WHA. The court should certainly not lean in favour of analysis which results in such a dichotomy. The difficulty with this reasoning is that the question in dispute cannot be resolved on the basis of a presumption that the VAT on the repairs ought to be deductible as input tax, since whether the VAT is deductible as input tax depends on how one answers the question in dispute. In other words, this approach to the issue begs the question. The whole point of the scheme was to secure that the VAT was deductible as input tax, contrary to the pre existing position, under which it was not. The tribunal considered that the payment made by WHA to the garage should be categorised as third party consideration for services supplied to the owner, as contemplated in article 11A1(a) of the Sixth Directive. WHA maintains that the payment should be categorised as consideration for services supplied to itself. The deductibility of the VAT depends on the answer (subject to the Commissioners further arguments). Which view is correct depends on the proper analysis of the transaction between WHA and the garage. In relation to the nature of WHAs business, the Court of Appeal agreed with the tribunal that it made two separate supplies to Viscount, namely (a) the footing of the bill for the works and (b) the other services, which have been conveniently referred to as claims handling services (para 84). In relation to the footing of the bill, the Court of Appeal described that as the performance of the fundamental obligation of the principal, namely the insurer (para 85). The parties contentions In summary, it was submitted on behalf of WHA that the VAT system works on the basis that the person who pays for a supply in the context of a reciprocal relationship is usually the recipient of the supply. WHA had a reciprocal relationship with the garages. It paid the VAT element of the garages bills in connection with its taxable business activities as defined by the Court of Appeal. The relevant aspect of its business was to discharge the liabilities of the insurer using the money provided for that purpose by Viscount. That aspect of its business had been considered by the Court of Appeal to be taxable. It followed from the principle of fiscal neutrality that WHA should therefore be able to deduct the VAT which it had paid. Applying the guidance given in Customs and Excise Commissioners v Redrow Group plc [1999] 1 WLR 408, WHA received a genuine benefit in the course of its business from the carrying out of the repairs. On behalf of the Commissioners, it was explained that they did not contend that WHA had a liability to account for output VAT even though it had no entitlement to deduct input VAT. The Commissioners contended simply that there was no supply to WHA which could give rise to an entitlement to deduct input VAT. The question of output tax only arose if, contrary to the Commissioners contention, WHA were held to be entitled to deduct input tax. The economic reality was that it was the insured vehicle owner who consumed the repair services. He or she was therefore the person to whom the supply of services was made. The insurer (or the claims handler with whom the insurer had contracted to fulfil its obligation) was obliged to pay for those services. This was a classic example of third party consideration. Discussion As I have explained, under the contract of insurance NIG undertakes to the insured that it will meet the cost of the repair. It does not undertake to repair the vehicle. If NIG were to perform the contract by itself paying the garage, that would be an example of third party consideration within the meaning of article 11A(1)(a) of the Sixth Directive: that is to say, consideration for a supply which the person providing the consideration does not himself receive, but which he pays for, in this example, in order to discharge an obligation owed to the recipient of the supply. On this hypothesis, the garage supplies a service to the insured by repairing his or her vehicle, and NIG meets the cost of that supply because it has undertaken to the insured that it will do so, and has received premiums from the insured as the consideration for its giving that undertaking. In that situation, the breakdown is a risk: an event insured against. The cost of the repair is the cover: it is not the consideration for a service provided to the insurer. The interposition of reinsurers does not alter that position. Neither, on the facts found by the tribunal, does the interposition of WHA. In economic reality, when WHA pays for the repairs it is merely discharging on behalf of the insurer (via the chain of contracts connecting it to NIG, through Viscount and Crystal) the latters obligation to the insured to pay for the repair. WHAs role, in relation to the aspect of its business concerned with the payment of the garages, is to act as the paymaster of costs falling within the cover provided by the policies. The interposition of WHA does not, by some alchemy, transmute the discharge of the insurers obligation to the insured into the consideration for a service provided to the reinsurers agent. That conclusion is supported by a number of considerations. First, as was noted in Her Majestys Revenue and Customs v Aimia Coalition Loyalty UK Limited [2013] UKSC 15 at para 73, the Court of Justice has consistently stressed that the deduction of input tax is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. In the present appeal, however, WHA does not bear the burden of the VAT paid to the garage: it pays the garage out of the float provided by Viscount, and its profit or loss is unaffected by the VAT. Secondly, it was also noted in Aimia at para 75 that the consequence of the deduction of input VAT is that the tax is charged, at each stage in the production and distribution process, only on the added value, and is ultimately borne only by the final consumer (or by a person who stands in the shoes of the final consumer). In the present appeal, however, WHA adds no value in respect of its supply of footing the bill, as the Court of Appeal put it: its inputs and its outputs in relation to that aspect of its business are identical. The final consumer of the services supplied by the garage is the insured; and the effect of dismissing this appeal is that VAT is borne on that supply. That conclusion is also consistent with the guidance given in Customs and Excise Commissioners v Redrow Group plc [1999] 1 WLR 408. When Lord Hope of Craighead posed the question at p 412, Was something being done for him for which, in the course or furtherance of a business carried on by him, he has had to pay a consideration ?, and Lord Millett asked at p 418, Did he obtain anything anything at all used or to be used for the purposes of his business in return for that payment?, those questions are to be understood as being concerned with a realistic appreciation of the transactions in question (Aimia, para 66). So understood, it is plain that WHA did not obtain anything in return for the payment to the garage which was used for the purposes of its business. On the contrary, as the tribunal found and the Court of Appeal confirmed, and as I have explained at paragraphs 42 and 53, WHAs business was the making of the payment. Finally, the contention that the principle of fiscal neutrality requires that WHA should be able to deduct the VAT paid to the garages must be rejected. The Commissioners have made it clear that they do not maintain that WHA is under any liability to account for output tax in the present circumstances. Conclusion For these reasons, I would dismiss the appeal. |
The factual background to this appeal is set out in the judgments of this Court in Belhaj v Straw [2017] AC 964. In short summary, the first Appellant, Mr Belhaj, was a political opponent of the government of Colonel Gadaffi in Libya. He and his wife Ms Boudchar (the second Appellant) contend that they were abducted and maltreated by agents of Malaysia, Thailand and the United States, and eventually rendered to the Libyan authorities, by whom they were imprisoned, tortured, and subjected to other serious maltreatment. The Appellants allege that this was done with the connivance of the British Secret Intelligence Service and in particular that of Sir Mark Allen, who is said to have been a senior officer of that service. We make no finding about that, any more than the courts below did. Her Majestys Government has neither confirmed nor denied that Sir Mark was involved in these events, and references to him in this judgment should be read in that light. In parallel proceedings, the Appellants have sued the British Government for damages. The present appeal arises out of an investigation commenced by the Metropolitan Police in 2012 into possible criminal offences committed in the course of this history. On 9 June 2016, the Director of Public Prosecutions announced her decision not to bring any prosecutions. That decision was based on a decision of Ms Hemming, a senior prosecutor at the Crown Prosecution Service and on detailed advice given to Ms Hemming by First Senior Treasury Counsel that there was insufficient evidence to prosecute for any offence subject to the criminal jurisdiction of the United Kingdom. In communicating her decision to the Appellants representatives, Ms Hemming pointed out that the security marking of the potential evidence in this case is such that I am unable to provide you with a summary of the material submitted to us. The Appellants applied for an internal review of the decision under the Victims Right of Review procedure. The case was accordingly referred to another senior CPS prosecutor, Mr Gregor McGill, who reached the same conclusion for substantially the same reasons. On 20 October 2016, the Appellants issued the present proceedings, seeking judicial review of the failure to prosecute Sir Mark Allen. The application is made on three grounds: misdirection in law, procedural unfairness and inconsistency with the evidence. Only the last of these grounds is relevant to the present issues. The Appellants contend that it is irrational because, they say, the material in the public domain is alone enough to make good the elements of the relevant offences. The Director takes issue with this. She says that the Appellants contention is based on the very limited documentation available to them, whereas the decision not to prosecute was supported by an examination of some 28,000 pages of statements, exhibits and other documents which were considered by the CPS and Treasury Counsel but could not be disclosed to Appellants because of its classification (TOP SECRET STRAP 2). The Appellants response is that neither the decision itself nor the Directors evidence in support of it adequately discloses her reasoning on this question. The issue on this appeal is whether on the hearing of the application for judicial review, it would be open to the Court to receive closed material disclosed only to the court and a special advocate but not to the Appellants. As will appear, this depends on whether the judicial review proceedings are proceedings in a criminal cause or matter. Closed material procedure is a derogation from ordinary principles of forensic justice because it necessarily limits the ability of a litigant or a defendant in criminal proceedings to deploy his case. The degree of limitation will depend on the arrangements made to represent his interests in some other way, although no one suggests that these arrangements can entirely make good the adverse effect on him. There are nonetheless cases in which, notwithstanding that closed material procedure represents imperfect justice, the alternative is no justice at all. For that reason, the European Court of Human Rights has held that closed material procedure may be justified in some cases. In A v United Kingdom (2009) 49 EHRR 29, para 205. the Court observed that even in proceedings under article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v Netherlands (1996) 22 EHRR 330, para 70; Van Mechelen v Netherlands (1998) 25 EHRR 647; para 58, Reports 1997 III; Jasper v United Kingdom [GC] (2000) 30 EHRR 441, paras 51 53; SN v Sweden, No 34209/96, para 47, ECHR 2002 V; and Botmeh and Alami v United Kingdom (2008) 46 EHRR 31, para 37. The Strasbourg court in that case held that the use of closed material procedure before the Special Immigration Appeals Commission could be consistent with the Convention, provided that it was strictly necessary in the interests of national security. It considered that the interests of the complainant were sufficiently protected by the use of a special advocate, in those cases where the defendant was given enough information about the allegations against him to enable him to give meaningful instructions to the special advocate. More recent Strasbourg jurisprudence has softened the latter requirement in a case where, even in the absence of such disclosure, resort to closed material procedure was proportionate and the proceedings as a whole were fair: Kennedy v United Kingdom (2011) 52 EHRR 4, paras 184 187, as applied in Tariq v Home Office (JUSTICE intervening) [2012] 1 AC 452. However, the mere fact that the use of closed material procedure may represent a fair balance between national security and the demands of procedural justice does not mean that the courts have power to adopt it. The rule at common law is that, with very limited exceptions, no material can be put before the court in litigation, civil or criminal, without being disclosed to the parties. The rule was reaffirmed for criminal cases in R v Davis [2008] 1 AC 1128 in the special context of the anonymisation of witness evidence. In civil proceedings it was reaffirmed in Al Rawi v Security Service (JUSTICE intervening) [2012] 1 AC 531, which concerned the use of closed material procedure in the context of allegations somewhat similar to those made by the Appellants in the present case. These decisions are authority for the proposition that the adoption of closed material procedure is not within the inherent jurisdiction of the courts and requires specific statutory authority. Closed material procedure has been authorised by statute for proceedings before certain specialised tribunals. It was authorised in proceedings before the SIAC by sections 5 and 6 of the Special Immigration Appeals Commission Act 1997, and provision was made for its use by the Investigatory Powers Tribunal under section 69(4) of the Regulation of Investigatory Powers Act 2000. However, until the enactment of the Justice and Security Act 2013, the High Court had no general statutory power to receive closed material. The background to the Act of 2013 is explained in the Justice and Security Green Paper Cm 8194/2011. There had been a growing number of cases in which civil claims for damages had been brought against the Government or the security agencies or their personnel, which were untriable except at unacceptable cost to the national interest, because of the disclosure of secret material that would have been required. The Government had been obliged to buy off these claims in order to avoid that damage. This was seen as unsatisfactory, because it was costly and deprived the public of answers which litigation might have provided. A more general authorisation of closed material procedure was conceived to be a way of enabling substantial justice to be done on the basis of a full examination of any relevant secret material, even if it was not in all respects seen to be done. Part 2 of the Justice and Security Act 2013 authorised the use of closed material procedure in civil proceedings on certain conditions. The first step in the statutory procedure is an application to a court seized of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court: section 6(1), (2) of the Act. Section 6(3) (5) provide: (3) The court may make such a declaration if it considers that the following two conditions are met. (4) The first condition is that (a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or a party to the proceedings would be required to (b) make such a disclosure were it not for one or more of the following (i) the possibility of a claim for public interest immunity in relation to the material, (ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material, (iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material), (iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section. (5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration. Relevant civil proceedings are defined by section 6(11) as any proceedings (other than proceedings in a criminal cause or matter) before (a) (b) (c) (d) the High Court, the Court of Appeal, the Court of Session, or the Supreme Court. Sensitive material is defined in the same subsection as material the disclosure of which would be damaging to national security. The making of a section 6 declaration is the necessary precondition for an application under CPR Part 82, made under powers conferred by section 8 of the Act. Part 82.6 provides for the court to sit in private and in the absence of any party and his legal representatives, inter alia for the purpose of securing that information is not disclosed where disclosure would be damaging to the interests of national security. The Act and rules made under it contain a number of safeguards. First, section 7 requires the court to keep a section 6 declaration under review and to revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings. A formal review must in any event be conducted once pre trial disclosure has been completed: section 7. Secondly, the law officers may appoint a special advocate under section 9, and generally will. Thirdly, section 14(2)(c) provides that nothing in sections 6 to 13 is to be read as requiring a court or tribunal to act in a manner inconsistent with article 6 of the Human Rights Convention. Fourthly, the Secretary of State is required by section 13 to appoint a reviewer to review and report on the operation of these provisions. The parallel proceedings (Belhaj v Straw) brought in support of the Appellants claim to damages are unquestionably relevant civil proceedings. Popplewell J, to whom they have been assigned, has made a section 6 declaration in relation to them. In his judgment on the application for the declaration, he said, [2017] EWHC 1861 (QB), para 60(5) (6): Whilst this is a matter for more detailed consideration at the section 8 stage, it appears to me to be very unlikely that the material could be put into open or made available to the claimants or their legal representatives in a way which would better promote a fair and effective trial than a closed material procedure. As I have observed, much of the material can only properly be understood and weighed in the context of a substantial part of the material as a whole, such that gisting is unlikely to provide a realistic solution in most instances. Sittings in private and/or the use of confidentiality rings are unlikely to provide a satisfactory solution, both because of the risk of disclosure, even inadvertent, and because of the hobbling effect on the conduct of the claimants case if, as is almost inevitable, they were themselves to be excluded from the confidentiality ring These claims are brought not only against the Government, but against two named individuals who both wish to have a real and fair opportunity to defend themselves, but who cannot do so unless there is a closed material procedure. That judgment has not been appealed. In the judicial review proceedings, the Appellants application for permission to apply for review came before Jeremy Baker J on paper. He ordered that it should be adjourned to a rolled up hearing at which both permission and the substantive claim would be considered. The Secretary of State for Foreign and Commonwealth Affairs then applied for a section 6 declaration. His application concerned a narrower range of material than that covered by Popplewell Js declaration in the civil action. It related in practice to three documents: the full decision letters of Ms Hemming and Mr McGill and the advice of Treasury Counsel. It is clear from the letters in which the CPS decisions were communicated to the Appellants that the analysis of the evidence in those three documents was substantially based on secret material. However, the Secretary of States application was met with a challenge to the courts jurisdiction on the ground that the judicial review proceedings were proceedings in a criminal cause or matter. The Divisional Court (Irwin LJ and Popplewell J) dealt with that challenge as a preliminary issue [2017] EWHC 3056 (Admin). They held that the present proceedings were not proceedings in a criminal cause or matter. Their reasons can fairly be summarised in two propositions. First, proceedings by way of judicial review of a prosecutorial decision do not decide criminal liability. They are a means of holding the executive, in the form of the prosecuting authorities, to account. Such proceedings should properly be categorised as civil, even if their subject matter is a potential criminal prosecution. Secondly, the alternative to closed material procedure was likely to be a successful application by the Secretary of State for public interest immunity, with the result that the sensitive material would be entirely removed from the scrutiny of the court, instead of being available on the basis of limited disclosure. That was an outcome which would probably be unjust to one or other party. The Divisional Court certified the following point of public importance suitable for consideration by this court: Does a case where claimants seek judicial review of a decision by the Director of Public Prosecutions not to prosecute an individual constitute proceedings in a criminal cause or matter, within the meaning and for the purposes of section 6(1) and 6(11) of the Justice and Security Act 2013? As a consequence, is there jurisdiction in such a case to entertain an application for a declaration under section 6 of that Act, that a closed material application may be made to the court? Mr Jaffey QC, who appeared for the Appellants, took it as his starting point that closed material procedure represents a curtailment of fundamental common law rights. Therefore, it was said, in accordance with the principle of legality, any statutory provision relied upon as authorising it should be given the narrowest possible construction: R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131 (Lord Hoffmann). The principle is that general or ambiguous words cannot normally be taken to authorise a curtailment of fundamental rights because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. Parliament must squarely confront what it is doing and accept the political cost. Valuable as that principle is, I do not think that it helps to resolve the question at issue on this appeal. The Justice and Security Act 2013 made significant and acknowledged inroads into the common law principle as applied to relevant civil proceedings. It did this, subject to specific safeguards, on the ground that the interests of justice might well require the withholding of evidence from a party if the dispute cannot otherwise be tried fairly and consistently with the demands of national security. As the House of Lords held in Al Rawi, the existence and extent of the courts jurisdiction to adopt closed material procedure is a matter for Parliament. That involves a balance between the potentially conflicting interests of national security and justice, which Parliament has drawn in the Act of 2013 by authorising the procedure subject to the statutory safeguards. This leaves little scope for any presumption that Parliament does not intend to curtail fundamental common law rights. Parliament plainly did intend to curtail them in what it conceived to be a wider public interest. The only questions are on what conditions and in what proceedings. Those questions must be answered on ordinary principles of construction, without presumptions in either direction. In R (Sarkandi) v Secretary of State for Foreign and Commonwealth Affairs [2016] 3 All ER 837, para 58, Richards LJ, delivering the only reasoned judgment in the Court of Appeal, put the point in terms on which I cannot improve: The 2013 Act is one of those in which Parliament has stipulated that a closed material procedure may be permitted by the court. It represents Parliaments assessment of how, in relevant civil proceedings, the balance is to be struck between the competing interests of open justice and natural justice on the one hand and the protection of national security on the other, coupled with express provision in section 14(2)(c) to secure compliance with article 6. It is certainly an exceptional procedure, and in the nature of things one would expect it to be used only rarely, but the conditions for its use are defined in detail in the statute. In the circumstances there is, in my judgment, no reason to give the statutory provisions a narrow or restrictive construction, save for any reading down that may be required, in accordance with the terms of the statute itself, for compliance with article 6. Subject to that point, the provisions should be given their natural meaning and applied accordingly. In my opinion, the Appellants are entitled to succeed on this appeal because in its ordinary and natural meaning proceedings in a criminal cause or matter include proceedings by way of judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the legislation suggests a different meaning. The first point to be made is perhaps the most obvious one, namely that although the High Court has only very limited original criminal jurisdiction, it has an extensive criminal jurisdiction by way of review. It is a feature of English criminal procedure that many decisions made in the course of criminal proceedings or in relation to prospective criminal proceedings are subject to judicial review in the High Court, mainly but not only in cases where there is no statutory avenue of appeal. The High Courts review jurisdiction extends in principle to the exercise of any officials functions in relation to the criminal process. These include police decisions to investigate or charge (R v Comr of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118) or to administer cautions (R (Aru) v Chief Constable of Merseyside Police [2004] 1 WLR 1697); decisions of prosecutors whether or not to prosecute (R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE Intervening) [2009] 1 AC 756, para 30), or of the Director of Public Prosecutions whether to consent to a prosecution (R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326); and decisions of the Attorney General whether to take over a prosecution or enter a nolle prosequi (Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343). It also exercises an analogous jurisdiction by way of writ of habeas corpus over the detention of suspects. The High Courts supervisory jurisdiction over the criminal process is not limited to the decisions of officials. It extends to the decisions of magistrates courts and to those of the Crown Court other than in relation to trial on indictment. For this purpose the Crown Court, although a superior court of record, is treated as if it were an inferior tribunal: see sections 28(2) and 29(3) of the Senior Courts Act 1981. The categories of case giving rise to judicial review of the Crown Court include a variety of orders held not to have been made in relation to trial on indictment, such as orders in proceedings against a person found unfit to plead, orders binding over an acquitted defendant; or orders made in the exercise of the Crown Courts appellate jurisdiction. The main categories are reviewed by Lord Browne Wilkinson in R v Manchester Crown Court, Ex p Director of Public Prosecutions [1993] 1 WLR 1524, 1530. The High Courts powers of review have also been held to extend to any excess of jurisdiction by the Crown Court, even in relation to a trial on indictment: R v Maidstone Crown Court, Ex p Harrow London Borough Council [2000] QB 719. It follows that judicial review as such cannot be regarded as an inherently civil proceeding. It may or may not be, depending on the subject matter. What is clear is that it is an integral part of the criminal justice system, whose availability is in many cases essential to the fairness of the process and its compliance with article 6 of the Human Rights Convention. It is against this background that one must construe the phrase proceedings in a criminal cause or matter as it appears in section 6(11) of the Justice and Security Act 2013. The phrase itself is of some antiquity. It has been used since the Supreme Court of Judicature Act 1873 to define a category of appeals which were excluded from the jurisdiction of the Court of Appeal. Under section 47 of that Act, there was no relevant right of appeal to the Court of Appeal from a decision of the High Court in a criminal cause or matter. The corresponding provision today is section 18(1)(a) of the Senior Courts Act 1981. Section 151 of the 1981 Act, which substantially reproduces the relevant definitions in section 100 of the Act of 1873 and section 225 of the Supreme Court of Judicature (Consolidation) Act 1925, provides that cause means any action or any criminal proceedings, and matter means any proceedings in court not in a cause. Thus defined, these words have been held to refer to the proceedings which supply the subject matter of the relevant decision: Ex p Alice Woodhall (1888) 20 QBD 832. The phrase, in the words of Lord Esher MR, at p 836 of the report of that case applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject matter of which is criminal, at whatever stage of the proceedings the question arises. This decision was approved by the House of Lords in Provincial Cinematograph Theatres Ltd v Newcastle upon Tyne Profiteering Committee (1921) 90 LJ (KB) 1064, in particular at pp 1067 1068 (Lord Birkenhead LC). Accordingly, in the former case the phrase embraced a decision concerning acts preliminary to criminal proceedings, including habeas corpus applications in extradition proceedings; and in the latter decisions concerning the resolution of a local authority to prosecute for profiteering under wartime regulations. These authorities, and others to the same effect have been carefully analysed by the Divisional Court and the exercise need not be repeated here. Their effect is sufficiently stated in the speech of Lord Wright in Amand v Secretary of State for Home Affairs [1943] AC 147. The case concerned a Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a Divisional Court. The Court of Appeal held that they had no jurisdiction to entertain an appeal from the Divisional Court. Lord Wright said, at pp 159 160: The words cause or matter are, in my opinion, apt to include any form of proceeding. The word matter does not refer to the subject matter of the proceeding [before the Divisional Court], but to the proceeding itself. It is introduced to exclude any limited definition of the word cause. In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order, and to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. In other words, the matter before the Divisional Court was the order made by the magistrate to hand the Appellant over to the Dutch military authorities. Lord Wright went on, at p 162, to say: The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a criminal cause or matter. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. In other words, Lord Wright was treating the proceedings in the Divisional Court as an integral part of the matter before the magistrate. Since the latter was criminal in nature, so too was the former. Clearly, the principle thus stated has its limits. A decision on an application collateral to the exercise of criminal jurisdiction, such as an application for the release of documents referred to in court, will not necessarily itself be a decision in a criminal cause or matter. On that ground, the Court of Appeal held in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] 1 WLR 3253 that an application for judicial review of a courts refusal to provide the press with copies of documents referred to at a hearing of a criminal cause or matter was not a criminal cause or matter. The Director and the Secretary of State accept, as they must, that these decisions are unimpeachable authority for the proposition that the application for judicial review is a proceeding in a criminal cause or matter for the purpose of any right of appeal. Indeed, that is the basis on which the present question comes before us on appeal from the Divisional Court, instead of going to the Court of Appeal. The question is whether the decisions on rights of appeal are germane to the definition of relevant civil proceedings in the Justice and Security Act 2013. the House of Lords held that In Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it. per Viscount Buckmaster at p 411; cf Lord Russell of Killowen at pp 441 442, Lord Macmillan at p 446. The effect of this principle is to treat certain hallowed formulae as terms of art, to be applied like statutory definitions, on the footing that Parliament must have intended to adopt them. The reason for Lord Buckmasters reference to a similar context is connected with his reference to words of doubtful meaning. The assumption is that the words are not self explanatory and have derived the meaning given to them on the earlier occasion from their statutory context. Hence the probability that Parliament intended, when it later used the same doubtful expression in the same statutory context, that the meaning would be supplied from the existing judicial dictionary. In R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (No 2) [2013] QB 618, doubts were expressed in the Court of Appeal about the force and value of the principle. But it is well established, and was recently endorsed by this court in R (N) v Lewisham London Borough Council [2015] AC 1259, para 53 (Lord Clarke). It remains good law, provided that one bears in mind that it is no more than a presumption, even in cases where the statutory context is similar in both enactments. The Barras principle is therefore of little assistance in construing the phrase criminal cause or matter in the very different context of the Justice and Security Act 2013. I nevertheless reach the same conclusion about the meaning of proceedings in a criminal cause or matter in the Justice and Security Act as Lord Esher and Lord Wright (among others) did when construing the statutory restrictions on the right of appeal. I do so because I think that their reasoning reflected the natural meaning of the words. Their reasoning was not primarily based on any special feature of the Judicature Acts. In Ex p Alice Woodhall, Lord Esher referred to the undesirable results of large numbers of appeals to the Court of Appeal in cases involving the prerogative writs which had arisen out of acts of inferior tribunals which were criminal rather than civil in nature. But the real basis of the decisions on appeals was that the phrase criminal cause or matter, read as a whole, spoke for itself. A cause is a proceeding, civil or criminal, actual or prospective, before a court. A matter is something wider, namely a particular legal subject matter, although arising in a different proceeding. That is why a criminal cause or matter in the Judicature Acts extends to a judicial review in the High Court of a decision made in relation to actual or prospective criminal proceedings: see R (Aru) v Chief Constable of Merseyside Police, supra. And it is why, as Mr Eadie QC, who appeared for the Secretary of State, felt bound accept, that even for the purpose of section 6 of the Act of 2013 a judicial review of an extradition order would be a proceeding in a criminal cause or matter. On that footing it seems to me to be impossible to contend that this judicial review was anything else. The reality of the Appellants application is that it is an attempt to require the Director of Public Prosecutions to prosecute Sir Mark Allen. That is just as much a criminal matter as the original decision of the Director not to prosecute him. I find it difficult to conceive that Parliament could have intended to distinguish between different procedures having the same criminal subject matter and being part of the same criminal process. This would have been a strange thing to do. But if the draftsman had intended it, he could have achieved it easily enough, for example by omitting the reference to a matter. The Divisional Court in the present case appear to have accepted this as a matter of language. But they considered that the statutory context of the phrase in the Act of 2013 and the purpose of that Act pointed to a different conclusion. I do not doubt the importance of context in construing statutes, but I think that they adopted the wrong approach to this question. Having decided that closed material procedure served the interests of justice better than any alternative procedure likely to be available in a case involving sensitive material, they concluded that the purpose of the Act required the narrowest possible meaning to be given to the exception for criminal causes or matters. I think that the real question is not what is the purpose of authorising closed material procedure, the answer to which is clear enough. The real question is what is the purpose of distinguishing in this context between proceedings in criminal causes or matters and other proceedings. The explanation of the distinction given in the Green Paper appears in a section at p 7 headed Criminal vs Civil: Why criminal proceedings are out of the scope of this Paper. This is relevant not as guide to the meaning of the words of a Bill which had not yet been published, but as evidence of the mischief behind the distinction between civil and criminal causes or matters. The difference between them lay in the degree of control exercisable by the executive in criminal cases. The Green Paper pointed out that the right to a fair trial under article 6 of the Human Rights Convention imports more onerous requirements in criminal cases, and the rules concerning the use and protection of sensitive evidence are different to those in civil cases. These words are a reference, as the text goes on to explain, to the rule that although the prosecution may choose to rely only on material whose disclosure would be consistent with the national interest, it must disclose any potentially exculpatory unused material. The prosecution may seek to limit the disclosure of unused material by the issue of a public interest immunity certificate, followed by an application for permission not to disclose it. But if that application fails, the state can as a last resort avoid disclosure by withdrawing the prosecution and allowing the defendant to be discharged. By comparison, in civil claims, where the government is a defendant, there is no possibility of withdrawal, so that the ability to protect sensitive material is entirely dependent on PII claims. There is no reason to doubt that this was indeed the rationale for the distinction between civil and criminal proceedings in section 6 of the Act. But it is not a rationale which requires closed material procedure to be available in an ancillary judicial review of a decision made as an integral part of the criminal justice process, when it would not be available for an actual trial. The executive can dispose of proceedings of either kind by withdrawing the prosecution. It is true that this assumes that the prosecution is duly launched. It does not take account, at any rate in terms, of the peculiar combination of factors which happens to be present in this case: ie (i) a decision by an independent prosecuting authority declining to prosecute; (ii) on the ground that there is insufficient evidence to warrant a prosecution; (iii) for reasons which cannot be disclosed without compromising secret material; (iv) followed by a third party challenge to the adequacy of those reasons by way of judicial review. However, I do not think that the rival interpretations of the Act advanced on this appeal can sensibly be tested by reference to this scenario. There is an obvious artificiality about claims made on that basis which makes it difficult to treat them as any part of the mischief against which the Act was directed. It is one thing for a court to say that a decision not to prosecute is based on a misdirection of law. It is not disputed that the legal basis of the two decisions of the Crown Prosecution Service is apparent from the letters in which the decision was communicated to the Appellants. It is quite another for a court to review the evidential material available to the prosecution with a view to requiring it to put forward as its own evidence secret material which it considers it to be contrary to the national interest to deploy. In the absence of its deployment by the prosecution, secret material could be relevant only on the footing that it was unused material potentially exculpatory of the defendant, something which was clearly the main concern of the promoters of the Bill but would be entirely inconsistent with the Appellants case on the proposed judicial review. On the assumption, which may or may not be justified, that this logical difficulty can be surmounted, the states obvious response, as Mr Eadie acknowledged, is a contents claim to public interest immunity. A claim to public interest immunity may well fail if the court considers that the balance of the public interest required its disclosure in the interest of the defence. But Parliament seems unlikely to have had in mind the rather fanciful risk that the Court would reject a PII claim on the ground that disclosure was necessary in the interests of the prosecution, least of all in a case where the prosecutor considered a prosecution to be unjustified anyway. I therefore see no reason to regard the statutory context or purpose as calling for any narrower view of criminal cause or matter than the words themselves suggest. I would accordingly allow the appeal, and declare that the present proceedings are proceedings in a criminal cause or matter for the purpose of section 6 of the Justice and Security Act 2013. LORD MANCE: This is a finely balanced case, as is evident from the judgments written in favour of allowing the appeal by Lord Sumption with whom Lady Hale agrees, and in favour of dismissing it by Lord Lloyd Jones with whom Lord Wilson agrees. I have come down in favour of allowing the appeal. I do so essentially for the same reasons as Lord Sumption. A challenge by judicial review to a decision to prosecute would seem to me to fall naturally within the concept of proceedings in a criminal cause or matter; and so too a challenge to a decision not to prosecute, the whole point of which would be to lead to a prosecution. Mr James Eadie QC for the Crown accepted, rightly, that an extradition hearing, to decide whether or not to surrender a person wanted for trial abroad, would be a proceeding in a criminal cause or matter. Like Lord Sumption, I find it difficult to see how a distinction could sensibly exist between such a case and the present. In considering the correct construction of the concept of proceedings in a criminal cause or matter, it is appropriate to look at the rationale for the distinction between proceedings which are civil in nature and which are in a criminal cause or matter. The primary purpose of introducing a closed material procedure in civil proceedings was to avoid situations in which there was relevant material which could not on public interest grounds be disclosed, with the result that one party (commonly the Crown) would be effectively unable to advance its case or the court might simply conclude that the whole case had become un triable (Carnduff v Rock [2001] EWCA Civ 680; [2001] 1 WLR 1786). The position in relation to criminal proceedings is different, for reasons explained in the Green Paper. While the Green Paper referred simply to criminal proceedings as outside the scope of any proposed legislation, the exclusion as introduced was expanded to extend to proceedings in a criminal cause or matter. The expansion must have been deliberate. But there is no reason to think that the rationale changed when the language of the exclusion was expanded. The rationale as explained in the Green Paper was, in substance, that criminal proceedings were outside the scope of the proposal because evidence relied on for conviction was never kept secret from an accused in criminal proceedings: The evidence that the prosecutor uses in court to secure a conviction is never withheld from the accused. Further: The prosecutor is required to disclose to the accused all relevant material obtained in an investigation (whether or not it is admissible as evidence) that might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused . Later, the Green Paper explained that criminal proceedings involve an accusation by the state, generally in respect of wrongs which affect the public as a whole, so that the public has an interest in their detection and punishment. In criminal proceedings, the position in relation to sensitive public interest material is addressed by the Public Interest Immunity (PII) procedure, whereby a judge is shown the material in the absence of the accused. The procedure ensures that the Crown must either disclose potentially exonerating material or withdraw the proceedings: see the discussion in Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34; [2012] 1 AC 531 and Tariq v Home Office (JUSTICE intervening) [2011] UKSC 35; [2012] 1 AC 452. Judicial review proceedings challenging decisions whether or not to prosecute are not common. In the case of decisions to prosecute, a more appropriate forum for any challenge is usually the criminal process itself, in which the court has power to halt proceedings if they constitute an abuse. Nevertheless, challenges by potential defendants by way of judicial review to decisions to prosecute are probably more familiar than challenges by victims, interest groups or others by way of judicial review to decisions not to prosecute. In the present case, the challenge is to the Crowns decision not to prosecute, and the Crown seeks, while the applicants oppose, a closed material procedure in relation to a challenge to a decision not to prosecute. It is relevant to consider the applicability in this context of the rationale for introducing a closed material procedure in civil proceedings, while excluding proceedings in a criminal cause or matter. The rationale for the exclusion from the closed material procedure of proceedings in a criminal cause or matter is readily applicable or transposable to the context of a challenge by judicial review to a decision to prosecute. If there is material which could potentially exonerate a defendant, it should either be disclosed in the judicial review proceedings or, if the Crown is unwilling to disclose for public security reasons, the Crown should withdraw the charge. If there is material which could potentially incriminate the defendant but cannot, for public security reasons, be disclosed at trial, there would be no point in a closed material hearing to enable it to be deployed during the judicial review proceedings, when it could not subsequently be used at trial. There is no basis on which to detect or impute any Parliamentary intention to provide for a closed material procedure in this context. What then about the present context, the less familiar situation of a challenge by alleged victims by judicial review to a decision not to prosecute? The rationale stated in the Green Paper for the exclusion of any closed material procedure in proceedings in a criminal cause or matter was to protect the rights of the accused, not to facilitate the pursuit of criminal proceedings against them. If it had been the applicant who was seeking a closed material procedure with a view to identifying further incriminating material, there would seem no real point in such a procedure during judicial review proceedings, if this material could not for PII reasons be disclosed and used at trial. Nor can Parliament sensibly be taken to have had in mind the remote possibility that a closed material procedure might identify incriminating material, which was not the subject of PII immunity and on which the Crown had either not thought to rely, or the significance of which the Crown had failed sufficiently to appreciate. Here, however, it is the Crown which seeks a closed material procedure in relation to a third party challenge by alleged victims to a decision not to pursue charges. It does so on the basis that such a procedure it would enable the court to evaluate the decision in the light of all the available evidential material. The suggestion is presumably that there is or may be sensitive material, which cannot for public interest reasons be disclosed but which points away from the pursuit of any criminal charge. In criminal proceedings, the Crown can address this problem by simply refraining from pursuit of any charge, which will render irrelevant any complaint by any potential defendant about non disclosure of the material. It is less obvious how the Crown, having decided not to prosecute, can address a third party complaint that the material available does not appear on its face to justify its decision not to pursue a charge against a potential accused. One possibility, not explored in submissions, is that, since there is sensitive material on the basis of which the Crown had taken its decision not to prosecute but which cannot, on public interest grounds, be disclosed, the Crown would be entitled to the benefit of the presumption or regularity of its decision: see R (Haralambous) v Crown Court at St Albans (Secretary of State for the Home Department intervening) [2018] UKSC 1; [2018] 2 WLR 357, paras 47 to 52, citing inter alia R v Inland Revenue Comrs, Ex p Rossminster Ltd [1980] AC 952 and R v Inland Revenue Comrs, Ex p T C Coombs & Co [1991] 2 AC 283. Be that as it may, I do not consider that the relatively unusual situation which exists in the present case can serve as a reliable guide to Parliaments presumed intention when introducing the exception of proceedings in a criminal cause or matter. In my opinion, the present proceedings seeking judicial review are in a criminal cause or matter according to the natural sense of that phrase; and no real support is obtained for a narrower interpretation from a consideration of the rationale behind the introduction of a closed material procedure in civil proceedings and behind its exclusion in proceedings in a criminal cause or matter. I would have dismissed this appeal for the following reasons. LORD LLOYD JONES: (dissenting) (with whom Lord Wilson agrees) Interpretation The principle of legality On behalf of the Appellants, Mr Jaffey QC submits that closed material procedures are a serious curtailment of the fundamental rights to open and natural justice. He places at the forefront of his submissions the following observations by Lord Dyson in Al Rawi v Security Service (JUSTICE intervening) [2012] 1 AC 531, paras 47 48: In my view, it is not for the courts to extend such a controversial procedure beyond the boundaries which Parliament has chosen to draw for its use thus far. It is controversial precisely because it involves an invasion of the fundamental common law principles to which I have referred. The common law principles to which I have referred are extremely important and should not be eroded unless there is a compelling case for doing so. If this is to be done at all, it is better done by Parliament after full consultation and proper consideration of the sensitive issues involved. It is not surprising that Parliament has seen fit to make provision for a closed material procedure in certain carefully defined situations and has required the making of detailed procedural rules to give effect to the legislation. Relying on Lord Hoffmanns speech in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, Mr Jaffey submits that Parliament cannot be taken to have intended to abrogate fundamental rights with ambiguous, rather than express language. He submits that the principle of legality applies to the present case with the result that the courts should presume that, in the absence of clear express language or necessary implication, the use of general words is nevertheless intended to be subject to the basic rights of the individual. As a result, he submits, the words proceedings in a criminal cause or matter in section 6, Justice and Security Act 2013 should, if necessary, be given an expansive meaning so as to reduce the scope of availability of the closed material procedure. I readily accept that to hold a closed material hearing is a restriction of the common law principles of open justice and natural justice. As this court made clear in Bank Mellat v Her Majestys Treasury (No 2) [2014] AC 700 (per Lord Neuberger PSC, at paras 2 4, with whom Baroness Hale, Lord Clarke, Lord Sumption and Lord Carnwath JJSC agreed), a closed hearing offends the principle of open justice, which is fundamental to the dispensation of justice in a modern, democratic society, and, by denying a party a right to know the full case against him and the right to test and challenge that case fully, is even more offensive to the fundamental principle of natural justice. While these principles may, exceptionally, be required to yield if justice cannot otherwise be achieved, claims that adherence to these principles is not attainable in particular circumstances will always require the most intense scrutiny. I am, however, unable to accept that the principle of legality has any application to the specific issue raised on this appeal. In Al Rawi this court made clear that it was for Parliament and not the courts to determine whether, and if so to what extent and with what safeguards, closed material procedures should be permitted in order to accommodate the competing public interests. Part 2 of the Justice and Security Act 2013 is one of the instances in which Parliament has sought to perform this difficult exercise. It necessarily involves an attempt to balance competing interests which are, ultimately, irreconcilable. It comprises a detailed series of provisions which incorporate a number of important safeguards. A court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court (section 6(1)). The court may make such a declaration only if it is satisfied that a party to the proceedings would be required to disclose sensitive material or would be so required but for specific matters (the first condition) (section 6(4)) and that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration (the second condition) (section 6(5)). Sensitive material is defined in section 6(11) as material the disclosure of which would be damaging to the interests of national security. The court must not consider an application for a declaration by the Secretary of State unless satisfied that the Secretary of State has, before making the application, considered whether to make or to advise another person to make a claim for public interest immunity in relation to the relevant material (section 6(7)). The effect of section 6(1) and 6(11) is to exclude proceedings in a criminal cause or matter from the closed material procedure. Where a court has made a declaration under section 6 it must keep the declaration under review and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings (section 7(2)). The court must undertake a formal review of the declaration once the pre trial disclosure exercise in the proceedings has been completed and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings (section 7(3)). Section 14(2)(c) provides that nothing in the statutory provisions establishing the closed material procedure is to be read as requiring a court or tribunal to act in a manner inconsistent with article 6 ECHR. In my view, this approach by the legislature leaves no scope for the application of the principle of legality. A restrictive interpretation to general words lest, as Lord Hoffmann put it in Simms (at p 131), the full implications of their unqualified meaning may have passed unnoticed in the democratic process, would be inappropriate here. On the contrary, the elaborate scheme of Part 2 of the Justice and Security Act 2013 demonstrates that Parliament was fully aware of the implications for civil liberties of the exercise it was attempting to perform. This is Parliaments assessment of the appropriate balance. There is, therefore, no call for a narrow or restrictive interpretation of these provisions, subject to the express provision in section 14(2)(c) requiring them to be read in a manner consistent with article 6 ECHR. Appropriate safeguards are already built into the structure of the legislation. (R (Sarkandi) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWCA Civ 687; [2016] 3 All ER 837 per Richards LJ, at para 58.) As Popplewell J observed in the parallel civil proceedings brought by Mr Belhaj and Mrs Bouchar, Belhaj v Straw [2017] EWHC 1861 (QB) at para 26: A closed material procedure is in Parliaments view one which serves the fair and effective administration of justice, and for that reason consideration of the second condition cannot turn on the aspects of the process which are necessarily part of the incursion into the principles of public and natural justice which are inherent in the closed material procedure itself; consideration must focus on the particular nature of the proceedings and sensitive material in question. (See also McGartland v Attorney General [2015] EWCA Civ 686, per Richards LJ at para 35; F v Security Service [2013] EWHC 3402 (QB); [2014] 1 WLR 1699 per Irwin J at paras 36 and 41; Abdulbaqi Mohammed Khaled v Secretary of State for Foreign and Commonwealth Affairs [2017] EWHC 1422 (Admin) per Jay J at para 25.) The exclusion by section 6(1) and 6(11) of proceedings in a criminal cause or matter from the closed material procedure is intended by Parliament to operate as a safeguard. It will be necessary at a later point to consider how wide a reading of those words is required or effective to achieve that purpose. I am, however, unable to accept that the principle of legality can require a broad reading of this exception so as to restrict the scope of the procedure which is, in itself, Parliaments proposed solution to the problem. Interpretation the Barras principle The Appellants also rely on the principle of interpretation known as the Barras principle which, they submit, has the effect that where Parliament uses a word or phrase in legislation and it has received a clear judicial interpretation, it will be assumed that when the legislator subsequently chooses to use the same word or phrase in a similar context it is intended to have the same meaning. The principle takes its name from Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 where Viscount Buckmaster stated at p 411: It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it. This approach was endorsed, obiter, by a majority of the Supreme Court in R (N) v Lewisham London Borough Council [2014] UKSC 62; [2015] AC 1259. Lord Hodge (with whom Lord Wilson, Lord Clarke of Stone cum Ebony and Lord Toulson JJSC agreed) stated (at para 53): It suffices for me to say that where Parliament re enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re enacted provision to bear the meaning that case law had already established: Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, 411 412, Viscount Buckmaster. Applying that in the present case, one can readily conclude, as I have, that the word dwelling in the phrase let as a dwelling in the [Protection from Eviction Act 1977] must bear the same meaning as it had in section 31 of the Rent Act 1965 and in the phrase let as a separate dwelling in the Rent Acts. (Cf Lord Carnwath at paras 83 88; Baroness Hale at para 167.) Lord Neuberger (at paras 142 147) accepted that, if Parliament has re enacted a statutory provision in identical words after it had been interpreted as having a certain meaning by the courts of record, there is some attraction in the notion that the Parliamentary intention was that the provision should have that meaning. However, he stated that he was far from convinced that the principle can be regarded as correct, at least in the absence of some additional factor in favour of maintaining the interpretation previously adopted. Here he referred to observations in Farrell v Alexander [1977] AC 59 and A v Hoare [2008] 1 AC 844. I share the reservations expressed by Lord Neuberger but, as will become apparent, it is unnecessary to come to a concluded view on this point in the present case. Mr Jaffey, on behalf of the appellants, draws attention to a line of judicial authority on routes of appeal in which the courts have interpreted the words criminal cause or matter in a succession of statutes starting with the Supreme Court of Judicature Act 1873. By section 4 of the 1873 Act, the Supreme Court was constituted in two divisions, the High Court of Justice and the Court of Appeal. Section 47 which addressed the business of the High Court provided in relevant part that no appeal shall lie from any judgment of the said High Court in any criminal cause or matter. Section 100 included the following definitions: Cause shall include an action, suit, or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the Crown. Action shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by Rules of Court; and shall not include a criminal proceeding by the Crown. Matter shall include every proceeding in the Court not in a cause. This line of authority has been addressed in considerable detail in the judgment of the Divisional Court. It is not necessary to do so here as it is clear that, under the relevant legislation relating to routes of appeal including the current provision in section 18(1)(a), Senior Courts Act 1981, proceedings such as the instant proceedings would be classified as proceedings in a criminal cause or matter. Indeed, that is the basis on which the Supreme Court has heard this appeal from the Queens Bench Division, Divisional Court. For present purposes it is sufficient simply to refer to the following examples of the application of the words in that context. 1) In Ex p Pulbrook [1892] 1 QB 86 a judge in chambers gave permission pursuant to the Law of Libel Amendment Act 1888 to bring proceedings for criminal libel. The proposed defendant sought to appeal. This raised the question whether the order was made in criminal proceedings within the Rules of the Supreme Court. The Divisional Court, referring by analogy to section 47 of the 1873 Act, considered that the permission was granted in a criminal cause or matter within the meaning of that provision. 2) In Provincial Cinematograph Theatres Ltd v Newcastle Upon Tyne Profiteering Committee (1921) 90 LJ (KB) 1064 the Committee took a decision to institute criminal proceedings against the appellants for breach of regulations. The appellants attempted unsuccessfully to challenge that decision by certiorari. On appeal to the Court of Appeal that court held that the judgment under appeal had been delivered in a criminal cause or matter and that no appeal lay to the Court of Appeal by virtue of section 47 of the 1873 Act. The House of Lords upheld the Court of Appeal. Approving Pulbrook, Lord Birkenhead LC observed (at p 1067) that, although such an order is not necessarily followed by any proceedings, it had rightly been held that no appeal lay against the order to the Court of Appeal because it had been made in a criminal matter. 3) In Amand v Home Secretary [1943] AC 147 the House of Lords held that an application for habeas corpus, following the detention in England of a national of the Netherlands for being absent without leave from the Netherlands military, was an application in a criminal cause or matter within section 31(1)(a), Supreme Court of Judicature (Consolidation) Act 1925 and that, accordingly, the Court of Appeal had no jurisdiction to hear the appeal. 4) In R (Aru) v Chief Constable of Merseyside Police [2004] 1 WLR 1697 the Court of Appeal held that an official caution was a criminal matter within section 18(1)(a), Supreme Court Act 1981 and that the Court of Appeal had no jurisdiction to hear an appeal in judicial review proceedings challenging the caution. 5) Challenges by way of judicial review to decisions to prosecute or not to prosecute are heard by a Divisional Court and then, as a criminal cause or matter, any appeal lies directly to the House of Lords. (R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326; R (Corner House Research) v Director of Serious Fraud Office [2009] 1 AC 756. See also R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800.) Although in none of these cases was any point taken on jurisdiction, this well established usage is clearly correct. Nevertheless, in my view the fact that the present proceedings are proceedings in a criminal cause or matter within section 18(1)(a), Senior Courts Act 1981 and previous legislation concerning routes of appeal does not assist the Appellants on this appeal for two reasons. First, the principle enunciated by the House of Lords in Barras applies only where, following a clear judicial interpretation of a word or phrase in an earlier statute, a later statute incorporates the same word or phrase in a similar context. This was expressly stated by Viscount Buckmaster in his formulation of the principle (at p 411) cited above. (See also Viscount Buckmaster at p 410; Lord Macmillan at p 446.) This presumption of interpretation applies where the same language is used in a subsequent statute dealing with the same subject matter. I also note that in Barras the circumstances which supported the presumption were particularly strong. The Merchant Shipping (International Labour Conventions) Act 1925 provided that a seaman should be entitled to receive wages in certain circumstances where his service was terminated by reason of the wreck or loss of a ship on which he was employed. The stated purpose of the Act was to give effect to a draft international convention, scheduled to the statute, which provided that the indemnity against unemployment arose only where unemployment resulted from the loss or foundering of the vessel. At the time of the passing of the 1925 Act seamen enjoyed wider and more extended rights under the Merchant Shipping Act 1894 in case of the wreck or loss of the ship, as judicially interpreted, than under the draft convention. As Viscount Buckmaster observed, at p 412, the conclusion was plain that the Act, while intending to embody the draft convention, did not intend to restrict or limit the rights which seamen already enjoyed under the 1894 statute. The context of the authorities on routes of appeal and the present context are so very different that I find it impossible to derive any assistance from those authorities. Moreover, it is apparent that there were strong reasons for giving the phrase in question a particularly broad meaning in the former context. As Irwin LJ observed in the Divisional Court in the present case (at para 75), historically the caution shown in interpreting these words must initially have been governed by the desire to avoid blurring the lines of appeal and encroaching upon longstanding, discrete criminal jurisdiction, recently subject to statutory reorganisation and reform. Furthermore, there was an understandable reluctance on the part of a civil court to entertain anything akin to an appeal in a criminal matter. Thus in Ex p Alice Woodhall (1888) 20 QBD 832 we find the following statement in the judgment of Lord Esher MR (at p 835): The result of all the decided cases is to shew that the words criminal cause or matter in section 47 should receive the widest possible interpretation. The intention was that no appeal should lie in any criminal matter in the widest sense of the term, this court being constituted for the hearing of appeals in civil causes or matters. (See also Ex p Schofield [1891] 2 QB 428 per Lord Esher MR at pp 430 431; Ex p Pulbrook per Mathew J at p 89.) Secondly, it is clear that the phrase criminal cause or matter need not have one meaning but may be interpreted differently depending on its statutory context. In R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] EWCA Civ 1188; [2011] 1 WLR 3253 a district judge had refused an application by the applicant newspaper that it be provided with copies of documents referred to but not read out in an open hearing in extradition proceedings. The applicant sought judicial review of the decision and appealed by way of case stated. The Divisional Court dismissed the claim and the appeal. The Court of Appeal, (Lord Neuberger MR, Jackson and Aikens LJJ) granting permission to appeal to the Court of Appeal, considered that the application had been wholly collateral to the extradition proceedings and that the district judges order had not involved an exercise of his criminal jurisdiction nor had it any bearing on the extradition proceedings. Accordingly, it held that the Divisional Courts judgment had not been made in a criminal cause or matter within section 18(1)(a) of the Senior Courts Act 1981. In R (Guardian News and Media Ltd) v City of Westminster Magistrates Court (No 2) [2012] EWCA Civ 420; [2013] QB 618, the question arose whether the previous decision had any impact on the powers of the Criminal Procedure Rule Committee which under section 68 and 69 of the Courts Act 2003 are limited to making rules in relation to the Crown Court and the Magistrates Court when they are dealing with any criminal cause or matter. Hooper LJ concluded (at para 106): Mr Perry, rightly in my view, said that the words any criminal cause or matter must have a different meaning in section 68 of the Courts Act 2003 than they do in section 18(1) of the Senior Courts Act 1981. To give the words any criminal cause or matter in section 68 a narrow meaning would lead to the undesirable result that issues such as those dealt with in Part 5 of the Criminal Procedure Rules (and in other parts of the Rules) would have to be the subject of rule making by some other body. That cannot have been the intention of Parliament: Lord Neuberger MR agreed (at para 110): I agree with what is said in para 106 that criminal cause or matter in section 68(b) of the Courts Act 2003 does not necessarily have the same meaning as the identical expression in section 18(1) of the Senior Courts Act 1981, and that, if the expression in the 1981 Act has the meaning ascribed to it in the earlier decision in this case , then it has a different meaning in the 2003 Act. (See also Al Fawwaz v Secretary of State for the Home Department [2015] EWHC 468 (Admin) per Wyn Williams J at para 6.) If the basis of the Barras principle is that Parliament must be assumed to be aware of authoritative judicial decisions defining a particular word or phrase, it must, as a result of Guardian News (No 2), have been aware prior to the enactment of the Justice and Security Act 2013 that criminal cause or matter need not have one meaning but may be interpreted differently depending on its statutory context. To my mind, this is fatal to the Appellants reliance on the Barras principle. Interpretation in the context of Justice and Security Act 2013 Considering the words proceedings in a criminal cause or matter in their natural meaning and usage, it seems to me that cause is appropriate to cover criminal proceedings which will result in a conviction or acquittal of a criminal offence. The use of matter in the alternative may extend the scope of the exclusion beyond that to ancillary applications in such criminal proceedings, such as applications for disclosure, and to extradition proceedings which do not in themselves result in a conviction or acquittal but may be considered analogous to committal proceedings. In my view, however, these words in their natural meaning do not extend to include this judicial review. This is a public law challenge to a decision as to whether to initiate criminal proceedings. It involves the scrutiny of the legality of the decision on public law grounds and the application of principles of judicial review. The application is made and heard in the Administrative Court. It is extraneous to the criminal process. Even if it were to succeed, further steps would have to be taken before criminal proceedings might begin. It is at, at least, one remove from proceedings in a criminal cause or matter. It is, therefore, necessary to consider the words in the context of this particular statute and to consider the purpose of the exclusion of proceedings in a criminal cause or matter from this closed material procedure. Here, it is permissible to refer to the Justice and Security Green Paper Cm 8194/2011, which preceded the Justice and Security Act 2013 and to the Explanatory Notes to the Bill and the Act in order to cast light on the contextual setting and in order to give a purposive interpretation of the legislation (Fothergill v Monarch Airlines [1981] AC 251 per Lord Diplock at p 281; R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956 per Lord Steyn at para 5). The Green Paper states that its proposals are aimed to better equip our courts to pass judgment in cases involving sensitive information and to protect UK national security by preventing damaging disclosure of genuinely national security sensitive material (Foreword). An indication of the purpose of the specific exclusion of proceedings in a criminal cause or matter from the new procedure is provided by the following passage (at p 7): Criminal vs Civil: Why criminal proceedings are out of scope for this Paper Civil and Criminal proceedings in England and Wales are fundamentally different. In civil cases, the courts adjudicate on disputes between parties under the civil law. In criminal cases, it is usually the state which prosecutes individuals for the commission of criminal offences; where defendants are convicted, they face criminal sanctions including imprisonment. Due to the understandably more onerous requirements of the right to a fair trial in criminal cases, the rules concerning the use and protection of sensitive evidence are different to those in civil cases. Criminal proceedings have the strictest requirements under article 6 of the ECHR regarding the disclosure of sensitive material. Long standing procedures, generally supported by all parties, are in place: The evidence that the prosecutor uses in court to secure a conviction is never withheld from the accused. The passage then refers to disclosure to an accused of all relevant material, the use of public interest immunity procedures, the power of the court to overrule a public interest immunity certificate and the discretion which would permit a prosecutor to withdraw a prosecution rather than disclose sensitive material. It then states: In civil claims, as [Her Majestys Government] is a defendant, there is no possibility of withdrawing from the case, so the ability to protect sensitive material is entirely dependent on PII claims. In addition, a glossary (at p 68) which distinguishes civil and criminal proceedings, reinforces the view that the purpose of the exclusion is to prevent its use in criminal proceedings: Civil proceedings For the purposes of this Green Paper any court or tribunal proceedings which are not criminal in nature are referred to as civil proceedings. Civil proceedings include, but are not limited to, areas such as public law (ie judicial review), negligence, family law, employment law, property law and commercial law. By contrast, criminal proceedings involve an accusation by the state (or in England, Wales and Northern Ireland, occasionally by way of private prosecution) that the accused has committed a breach of the criminal law which, if proved, would lead to conviction and the imposition of a sentence. Crimes are generally wrongs which affect the public as a whole, so that the public has an interest in their detection and punishment. It then concludes with the statement that: The proposals outlined in the Paper do not affect criminal proceedings (at p 68). The Explanatory Notes to the Justice and Security Bill, clause 6(7) provided: 51. Subsection (7) defines relevant civil proceedings. This sets the range of civil proceedings in which a declaration under subsection (1) may be made. Relevant civil proceedings are defined as proceedings in the High Court, the Court of Appeal or the Court of Session which are not criminal proceedings. The Explanatory Notes to the Justice and Security Act 2013 simply states: 67. Section 6 enables certain courts hearing civil (but not criminal) proceedings, namely the High Court, the Court of Appeal, the Court of Session or the Supreme Court, to make a declaration that the case is one in which a closed material application may be made in relation to specific pieces of material. I see the force of the point that if the full extent of the intention of Parliament had been that the new procedure should not affect criminal proceedings, it would have been open to it simply to exclude the use of this closed material procedure in criminal proceedings. Nevertheless, the Green Paper provides two compelling reasons why the new procedure should not be available in proceedings which may result in a conviction or an acquittal. First, the objections to a person being convicted of a criminal offence on the basis of secret evidence which has not been disclosed to him or his legal representatives are obvious. Secondly, the obligations of the United Kingdom under article 6 ECHR are more onerous in their application to criminal proceedings which may result in a conviction or acquittal. However, neither of these reasons has any application here and neither would justify denying the use of the new procedure in the present application for judicial review of the Directors decision. The Green Paper also draws attention to the fact that the Director has control over a criminal prosecution with the result that it is open to her to choose to discontinue a prosecution rather than disclose sensitive national security material. By contrast, the Director is the defendant in this judicial review and therefore has a responsive role; she has no power to withdraw these proceedings in order to prevent the disclosure of such material. Moreover, no reason of principle has been advanced as to why the closed material procedure should not be available when the Administrative Court hears the present application for judicial review. On the contrary, it is apparent that the conflict between the principles of open justice and natural justice, on the one hand, and the need to protect national security on the other, arises in a particularly acute form in judicial review proceedings to which the application of the detailed compromise drawn by Parliament in Part 2 of the Justice and Security Act 2013 is particularly appropriate. I should add that I do not share Lord Mances view that the rationale for the exclusion from the closed material procedure of proceedings in a criminal cause or matter is readily applicable or transposable to the context of a challenge by judicial review to a decision to prosecute, a hypothesis which he uses as a stepping stone to his conclusion. If there is material which is potentially incriminating, a closed material procedure would be pointless, as he accepts, as it could not be used at trial. If, on the other hand, there is material which is potentially exculpatory, a closed material procedure would be equally pointless because it would have to be disclosed at trial or the prosecution abandoned. This does not suggest any need to exclude the closed material procedure in a judicial review of a decision to prosecute in order to achieve the objective of the exclusion. On the other hand, as the present case shows, there may well be purpose in making the closed material procedure available in a challenge to a decision not to prosecute and the rationale for exclusion has no application here. I accept the submission of Mr James Eadie QC that the core concern which lies behind this provision is that this closed material procedure should not be available in any case where criminal guilt is being decided. The present proceedings, however, are at, at least, one remove from a criminal cause or matter and the court is performing the function of determining the legality of the conduct of the decision maker. (See the observations of Wyn Williams J in Al Fawwaz, at para 7, to similar effect.) These proceedings do not fall within the purpose of the exclusion. Here, proceedings challenging a decision not to prosecute are not themselves proceedings in a criminal cause or matter for the purpose of section 6 Justice and Security Act 2013. Accordingly, I would have dismissed this appeal. |
Section 103A of the Employment Rights Act 1996 (the Act) provides: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. In this appeal the dispute surrounds the reason for the dismissal of Ms Jhuti, the appellant, from her employment by Royal Mail Group Ltd (the company). As I will explain, the facts found by the employment tribunal (the tribunal) show that (a) Ms Jhuti made protected disclosures within the meaning of section 43A of the Act, colloquially described as whistleblowing, to her line manager; (b) the line managers response to her disclosures was to seek to pretend over the course of several months that Ms Jhutis performance of her duties under her contract of employment with the company was in various respects inadequate; (c) whether Ms Jhuti should be dismissed; and (d) having no reason to doubt the truthfulness of the material indicative of Ms Jhutis inadequate performance, the other officer decided that she should be dismissed for that reason. in due course the company appointed another officer to decide So what was the reason for Ms Jhutis dismissal? Was it that her performance was inadequate? Or was it that she had made protected disclosures? These specific questions generate the following question of law of general importance which brings the appeal to this court: In a claim for unfair dismissal can the reason for the dismissal be other than that given to the employee by the decision maker? On 17 September 2013 the company employed Ms Jhuti as a media specialist in its MarketReach unit under a contract terminable by either side on three months notice. But the contract provided that, for the first six months, she would be on trial and that, if she failed it, the company could dismiss her on one weeks notice. The unit had two teams. Ms Jhuti was assigned to Mr Widmers team. The role of a media specialist in the company is to promote the use of mail by businesses engaged in marketing activities. Ms Jhuti had previously worked at a senior level in the media industry. On 16 October 2013 Ms Jhuti was shadowing Ms Mann. Ms Jhuti formed the view that Ms Mann was or might be infringing Ofcoms guidance, reflected in the companys own policy, in respect of Tailor Made Incentives (TMIs). The companys dominant position in the postal market had led its regulator, Ofcom, by the issue of guidance, to seek to control its offers of TMIs to customers: it provided that, while they could be offered to new customers or to existing customers in respect of new products, they should not be offered to existing customers in respect of repeat business. Ms Jhuti formed the view that Ms Mann was not complying with that guidance nor with the company policy which reflected it and that the business which flowed from her improper offers would assist her in achieving her targets and in securing a bonus for herself and, indirectly, for Mr Widmer himself. Ms Jhuti soon formed the same view about offers of TMIs made by another member of Mr Widmers team. By two emails to Mr Widmer dated 8 November 2013 and by a third email to him dated 12 November, Ms Jhuti reported her concerns about Ms Manns perceived non compliance with Ofcoms guidance and with company policy in relation to offers of TMIs. Mr Widmer apprised his line manager, namely Mr Reed, the companys Sales Director, of Ms Jhutis reports. By an email which the tribunal described as sinister, Mr Reed responded to him as follows: The TMI issue is one we should look at, so she needs to provide evidence of that, and has to be aware that she is making quite strong and serious allegations in this area. On 13 November 2013 there was a meeting between Ms Jhuti and Mr Widmer. It lasted for no less than four hours. Mr Widmer asked her at length about her understanding of the guidance and policy in relation to TMIs. He commented that her understanding of them was questionable and that, if it was wrong, it would impact on her position. He asked her whether she was sure that she wished to make the allegations against Ms Mann. He observed that Ms Jhuti was on trial and that the allegation could cause problems for everyone. During a short break Ms Jhuti realised that, were she to press the allegations further, her employment would be at risk. When the meeting resumed, Ms Jhuti therefore apologised repeatedly; and she acceded to Mr Widmers suggestion that, by email to him, she should admit that she had made a mistake and should retract the allegations. Thereafter Mr Widmer administered to her what she described as, and the tribunal accepted to have been, a two hour dress down in which, for the first time, he insisted that she was failing to meet the requirements of her role and in which he provided her with a list of fresh performance targets for her to meet. Later that day Ms Jhuti duly sent the email by which she retracted the allegations. She said that her wires had been crossed in relation to Ms Manns offers of TMIs. Thereafter Mr Widmer set up intensive weekly meetings with Ms Jhuti, unmatched for other members of his team, which, so he said, were necessary in order to monitor her performance. In an email dated 3 December 2013 to Ms Rock in the Human Resources department (HR), Mr Widmer, who had begun to tell Ms Jhuti repeatedly that her progress was disappointing, said that he intended to compile examples of material which would support concerns that she was not meeting expected standards. In the absence of Mr Widmer, off sick for several weeks over Christmas 2013, the other team leader in the unit supervised Ms Jhutis work. She told Ms Jhuti that she was happy with her progress. Her advice was just keep [Mr Widmer] happy and you will be fine. At a meeting on 18 December 2013 Mr Roberts, who within the company had particular expertise in connection with TMIs, acknowledged to Ms Jhuti that media specialists were offering them inappropriately. He said that we all know and that changes were necessary to eradicate the abuses. At two protracted meetings with Ms Jhuti in January 2014 following his return to work, Mr Widmer resumed his criticisms of her performance. Ms Jhuti found it hard to discern precisely what he expected of her. By then she was suffering from alopecia. Mr Widmer also sent a further email to HR to the effect that her performance was not up to expectations and that, in the absence of change, the company would need to consider exiting her. At a further meeting on 5 February 2014 Mr Widmer told Ms Jhuti that she was to be placed on a six week performance improvement plan and that, unless she complied with it, she would not pass her trial period. The fourth of the five stated objectives of the plan was for her to disclose to him all the key client contacts in the travel industry which she had made during her previous employments. On 6 February 2014 Ms Jhuti sent an email to HR in which she expressed concern about Mr Widmers conduct towards her. She alleged that it was all due to an issue which she had raised previously and which, being on trial, she had been forced to rescind. She stated that she had consulted her doctor for stress which, in her view, was causing her alopecia. She said that she believed that the demand for disclosure of information gained during previous employments was one with which she could not lawfully comply and that it represented part of an agenda to dismiss her if she failed to accede to it. Ms Jhutis email to HR precipitated a meeting with Ms Rock on 10 February 2014. Ms Jhuti reiterated that Mr Widmer had been harassing her because she had accused Ms Mann of an improper use of TMIs. She said that they had helped Ms Mann to achieve her performance targets and to secure a bonus for herself and indirectly for Mr Widmer himself, thereby in effect defrauding the company. Ms Rock responded that Mr Widmer was a respected employee; that he would be the one to be believed; that Ms Jhuti might regard the company as not right for her; and that, by reference to her performance, the company might find a way to dismiss her. By email to Ms Rock dated 25 February 2014 Ms Jhuti wrote: It is clear I am being managed to be removed, all on the basis of [Mr Widmer] holding what I believe is a grudge from the day I raised an issue If you want me out, all based on the initial issue I raised, then just tell me to go On 29 February 2014 Ms Jhuti was told that her request for a different line manager was granted and that it would be Mr Reed. Mr Reed extended Ms Jhutis trial period by one month, to 17 April. He told Ms Jhuti that she was not making the progress which he would have expected. But he admitted that the length of Mr Widmers meetings with her had been excessive. He said that he did not wish to discuss the allegations which she had made in 2013 because HR was addressing them. On 12 March 2014 Ms Jhutis general practitioner signed her off work by reason of work related stress, anxiety and depression. She never thereafter returned to work. A few days prior to Ms Jhutis cessation of work, Ms Rock had on behalf of the company offered her three months salary in return for a voluntary termination of her employment. Ms Jhuti had rejected the offer. Following its cessation, Ms Rock increased the offer to a years salary. The tribunal described the ostensible generosity of it, to an employee with an insufficiently long period of employment to be able to claim unfair dismissal on the general basis set out in section 98 of the Act, as extremely strange. Ms Jhuti did not respond to the increased offer. In April 2014 the company appointed Ms Vickers, a manager with the same seniority as Mr Reed, to decide whether it should terminate Ms Jhutis employment. Ms Vickers had had no previous dealings with Ms Jhuti. Her instructions were to review the evidence rather than (so it appears) to investigate matters for herself. She was supplied with numerous emails passing between Mr Widmer and Ms Jhuti, including her email of retraction dated 13 November 2013, but not with the emails dated 8 and 12 November nor with her emails to HR dated 6 and 25 February 2014. On 11 July 2014 Ms Vickers invited Ms Jhuti to attend a meeting on 18 July. Ms Jhuti responded in about 50 lengthy emails which the tribunal found to be often incoherent and irrational, in marked contrast to her earlier emails. She referred to being sacked for telling the truth so Ms Vickers asked Mr Widmer to explain what she meant. He replied that Ms Jhuti had alleged that TMIs were being offered inappropriately but that, when he had explained the units observance of the strict criteria for offers of TMIs, she had been happy to accept that she had misunderstood what had occurred. Ms Jhuti did not attend any meeting with Ms Vickers, whether on 18 July 2014 or otherwise. She was too ill to do so. By letter to Ms Jhuti dated 21 July Ms Vickers communicated her decision that the company should dismiss her from her employment on three months notice, thus with effect from 21 October. Ms Vickers explained that from November 2013 to March 2014, and despite having been subject in February 2014 to Mr Widmers performance improvement plan, Ms Jhuti had failed to meet required standards of performance and that it was unlikely that she would do so in future. In September 2014, having consulted solicitors, Ms Jhuti exercised her right to bring an internal appeal against Ms Vickers decision. On 28 August 2015, so almost a year later, it was dismissed. The tribunal found that the conduct of it had been unsatisfactory. By her claim to the tribunal, which had been lodged on 18 March 2015, Ms Jhuti presented two complaints. First Complaint: Detriments In the appeal before this court, nothing directly turns on the first complaint. This complaint was presented under section 48(1A) of the Act, which falls within Part V of it. In it Ms Jhuti contends that she made protected disclosures within the meaning of section 43A, which falls within Part IVA of it. The contention is that they were disclosures of information which, so she reasonably believed, she made in the public interest and which tended to show that criminal offences had been committed or that persons had failed to comply with legal obligations to which they were subject (section 43B(1)(a) and (b)) and which she made to her employer (section 43C(1)(a)). Ms Jhuti proceeds to contend that, contrary to section 47B(1) of the Act, she was subjected to detriments by acts of the company done on the ground that she had made the protected disclosures. She seeks compensation from the company for the detriments pursuant to section 49(1)(b). At first sight a possible obstacle to the first complaint, not yet finally resolved, is presented by section 47B(2) of the Act, which provides: This section does not apply where the worker is an employee, and the detriment in question amounts to dismissal (a) (b) (within the meaning of Part X). Thus the exclusion provided by subsection (2) applies only where the detriment amounts to dismissal. In the present case the detriments which the tribunal identified, and which I will address in para 32(b) below, all preceded the dismissal. The detriments may well have caused Ms Jhutis dismissal. But can it be said that they amounted to it? Neither party takes issue with the proposition articulated by Underhill LJ in the decision under appeal: 78. There is thus, on the arguments advanced before us, no obstacle in principle to the claimant recovering compensation [under section 49(1)(b)] for dismissal consequent on detriment. Whether she can do so in practice, or to what extent, is of course a matter for the employment tribunal at the remedy hearing. The judges proposition was confirmed in a formal declaration made in the Court of Appeals order. Although, as I will explain, the tribunal had made observations suggesting that Ms Jhutis dismissal was consequent upon the detriments to which it found her to have been subjected, the Court of Appeal there held that it remained open to the company to argue otherwise before the tribunal at a future remedy hearing; and the company says that it proposes to do so. As I will explain, another potential obstacle to the first complaint was presented by section 48(3) of the Act, which provides: An employment tribunal shall not consider a complaint under this section unless it is presented (a) before the end of the period of three months beginning with the date of the act to which the complaint relates or, where that act is part of a series of similar acts , the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Second Complaint: Unfair Dismissal This complaint was presented under section 111(1) of the Act, which falls within Part X of it, entitled Unfair Dismissal. Ms Jhuti alleges that, pursuant to section 103A, set out in para 1 above, her dismissal was unfair because the reason for it was that she had made protected disclosures. Section 103A is an example of what is often called automatic unfair dismissal. It is to be contrasted with the provision in section 98, entitled General, under which, if pursuant to subsection (1) the employer establishes that the reason (or, if more than one, the principal reason) for the dismissal is of the kind there specified, the fairness of the dismissal falls to be weighed by reference to whether it was reasonable in all the circumstances pursuant to subsection (4). The application of subsection (4) to section 103A is excluded by section 98(6)(a). So there is no weighing by reference to whether the dismissal was reasonable in all the circumstances: under section 103A unfairness is automatic once the reason for the dismissal there proscribed has been found to exist. In Kuzel v Roche Products Ltd [2008] EWCA Civ 380, [2008] ICR 799, the Court of Appeal addressed the location of the burden of proof under section 103A. It held that a burden lay on an employee claiming unfair dismissal under the section to produce some evidence that the reason for the dismissal was that she had made a protected disclosure but that, once she had discharged that evidential burden, the legal burden lay on the employer to establish the contrary: see paras 57 and 61 of the judgment of Mummery LJ. The Decision of the Tribunal The tribunal (Employment Judge Baty and two lay members) made a series of decisions upon the complaints in respect of liability and explained them in a comprehensive set of written Reasons. In relation to the first complaint the tribunal decided as follows: (a) Ms Jhuti had made four protected disclosures within the meaning of section 43A. She had made them in the three emails to Mr Widmer dated 8 and 12 November 2013 and also at her meeting with Ms Rock on 10 February 2014. In breach of her right under section 47B(1), Ms Jhuti had in four (b) respects been subjected to detriments by acts of the company done on the ground that she had made the protected disclosures. First, Mr Widmer, who did not genuinely have serious concerns about her performance, had from 13 November 2013 imposed particular targets and mandatory weekly meetings solely on Ms Jhuti and had bullied, harassed and intimidated her. He had done so as a result of her disclosures to him and he had been setting her up to fail. Second, still lacking any serious concerns about her performance, Mr Widmer had on 5 February 2014 imposed upon Ms Jhuti a performance improvement plan, with which she was required to comply in order to pass her trial period and which included a demand for disclosure of key contacts made during previous employments. He had done so as a result, again, of her disclosures to him and he had again been setting her up to fail. Third and fourth, Ms Rock had in March 2014 made an offer to Ms Jhuti of three months salary and had later increased it to one years salary, as inducements to her to relinquish her employment, which Ms Jhuti did not wish to do. Ms Rock had done so as a result of all four disclosures, in particular the disclosure to her on 10 February. (c) Ms Jhutis complaint was not out of time because it related to a series of acts, the last of which occurred within the three months specified under section 48(3)(a). The tribunals reasoning in this respect is irrelevant to the present appeal. (d) Assessment of the amount of compensation to be paid by the company to Ms Jhuti in respect of the detriments should be conducted at a remedy hearing. But the tribunal decided that the second complaint should be dismissed. It held that the complaint failed to satisfy section 103A because the reason, or at least the principal reason, for Ms Jhutis dismissal had not been her making of the protected disclosures. It found that the disclosures had played no part in the reasoning of Ms Vickers who, albeit by reference to evidence which was hugely tainted, genuinely believed that the performance of Ms Jhuti had been inadequate and who had dismissed her for that reason. But the tribunal added the following observation, which it underlined: 346. However, given Mr Widmers actions, including the treatment which he meted out to the claimant as a result of her protected disclosures, the email trail that he prepared in this context, and his other actions as set out in these reasons above, it was inevitable that Ms Vickers would, as she did, dismiss the claimant. The Decision of the Appeal Tribunal The company appealed to the Employment Appeal Tribunal (the appeal tribunal) against decisions made by the tribunal in respect of the first complaint. In particular it challenged the decision that Ms Jhutis first complaint had been presented in time. Ms Jhuti cross appealed against the dismissal of her second complaint; and it was agreed that the judge in the appeal tribunal, Mitting J, should determine the cross appeal first. On 19 May 2016, by a judgment numbered UKEAT/0020/16 and reported at [2016] ICR 1043, Mitting J allowed Ms Jhutis cross appeal. He held, at paras 33 and 34, that, if someone in a managerial position, responsible for the employee, had manipulated a decision to dismiss her which had been made in ignorance of the manipulation, the manipulators reason for dismissal could be attributed to the employer for the purpose of section 103A; and he held, at paras 35 and 36, that on the tribunals findings the reason for Ms Jhutis dismissal was therefore her making of the protected disclosures. Mitting J granted permission to the company to appeal to the Court of Appeal against his order in this respect. He also stayed the companys appeal to the appeal tribunal pending determination of its proposed appeal to the Court of Appeal. The Decision of the Court of Appeal On 20 October 2017, by judgments numbered [2017] EWCA Civ 1632 and reported at [2018] ICR 982, the Court of Appeal allowed the companys appeal. The only substantive judgment was delivered by Underhill LJ; by their judgments, Jackson and Moylan LJJ did no more than to agree with it. The Court of Appeal held that, subject to possible qualifications said to be irrelevant to the present case, a tribunal required to determine the reason (or, if more than one, the principal reason) for the dismissal under section 103A of the Act, and for that matter under section 98(1)(a), was obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss para 57. It is against the Court of Appeals decision to set aside Mitting Js order and to reinstate the tribunals dismissal of her second complaint that Ms Jhuti brings the present appeal. The Court of Appeal also remitted to the appeal tribunal the task of determining the companys appeal, stayed by Mitting J, against the tribunals decision that Ms Jhutis first complaint was presented in time in accordance with section 48(3) of the Act. It appears that the appeal tribunal allowed the companys appeal and remitted the issue under the subsection for re determination by the tribunal; that, by a different route, the tribunal again determined that the complaint was presented in time; and that the companys appeal against the tribunals re determination has recently been dismissed. Reason for the Dismissal The question is whether the tribunal correctly identified the reason (or, if more than one, the principal reason) for the dismissal within the meaning of section 103A of the Act. But the same words also appear in numerous other sections in Part X of it. In particular, as explained in para 30 above, they appear in subsection (1) of section 98, which contains the current provision for a claim of unfair dismissal on the general basis; indeed those same words have been applied to a general claim for unfair dismissal ever since introduction of the claim into the law by section 24 of the Industrial Relations Act 1971. The courts answer to the question in relation to section 103A must relate equally to the other sections in Part X in which the same words appear, and also, for example, to section 98(4), which requires the tribunal to determine whether the employer acted reasonably in treating the reason for dismissal as sufficient. At first sight, therefore, the question seems to be of wide importance. On the other hand, as the company acknowledges, the facts of the present case are extreme: an employee on trial blows the whistle upon improper conduct on the (a) part of her line managers team; (b) her line manager responds by deciding to pretend that the employees performance of her duties is inadequate and to secure a conclusion that she has failed her trial period; (c) over the next months he bullies and harasses her with targets, meetings and an improvement plan, by which he sets her up to fail; (d) he succeeds in creating, in emails and otherwise, a false picture of her inadequate performance; the decision to dismiss the employee is made by an officer who, in her (e) review of the evidence, fails to perceive the falsity of the picture which he has created; and (f) in particular the employee, in no condition to meet the decision maker or otherwise to present her case clearly to her, fails to help her to understand the falsity of the picture. Instances of decisions to dismiss taken in good faith, not just for a wrong reason but for a reason which the employees line manager has dishonestly constructed, will not be common. The need to discern a state of mind, such as here the reason for taking action, on the part of an inanimate person, namely a company, presents difficulties in many areas of law. They are difficulties of attribution: which human being is to be taken to have the state of mind which falls to be attributed to the company? In Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 a New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief investment officer improperly acquired such investments on the companys behalf. The judicial committee of the Privy Council held that his knowledge of the holding should be attributed to the company and thus triggered the requirement for the company to give notice; and that it was unnecessary to decide whether in some more general sense he was the companys directing mind and will. On behalf of the committee Lord Hoffmann said, at p 507: [G]iven that [a rule] was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy. This context dependent nature of the task of attributing a human state of mind to a company was re affirmed by Lord Sumption in Bilta (UK) Ltd v Nazir (No 2) [2015] UKSC 23, [2016] AC 1, at para 67. The context of the present case is a search for the reason for a companys dismissal of an employee. In Abernethy v Mott, Hay and Anderson [1974] ICR 323, 330, Cairns LJ offered the classic definition: A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. In West Midlands Co operative Society Ltd v Tipton [1986] AC 536 Lord Bridge of Harwich, in a speech with which the other members of the appellate committee agreed, indorsed at p 545 the definition of Cairns LJ; approved at p 544 observations by Lord Reid in Post Office v Crouch [1974] 1 WLR 89, 95 96, that statutory provisions for claims for unfair dismissal must be construed in a broad and reasonable way so that legal technicalities shall not prevail against industrial realities and common sense; and observed at p 545 that the reason for the dismissal to which the provisions referred might aptly be termed the real reason for it. In enacting section 103A Parliament clearly intended to provide that, where the real reason for dismissal was that the employee had made a protected disclosure, the automatic consequence should be a finding of unfair dismissal. But is the meaning of the section, to be collected from its language construed in the light of its context and purpose, that, when the employees line manager deliberately hides the real reason behind a fictitious reason, the latter is instead to be taken as the reason for dismissal if adopted in good faith by the decision maker on the companys behalf? In giving an affirmative answer to that question the Court of Appeal considered itself bound by its earlier decision in Orr v Milton Keynes Council [2011] EWCA Civ 62, [2011] ICR 704, which had not been drawn to the attention either of the tribunal or of the appeal tribunal. The tribunal in the Orr case had not clearly found all the relevant facts and the three judgments in the Court of Appeal differ in their recital of some of them as well as in relation to the legal issue to which they gave rise. An attempted summary is as follows: (a) Mr Orr was employed by the council as a youth worker. (b) Contrary to his managers instruction, Mr Orr discussed a recent sexual assault with the youths with whom he was working. (c) The manager sought in an underhand way to reduce Mr Orrs working hours and Mr Orr discovered, or may have discovered, that the manager had done so. (d) There was an altercation between Mr Orr and the manager, in which Mr Orr lapsed into Jamaican patois. (e) The manager thereupon responded with words which were held to amount to unlawful race discrimination, to the effect that those who use the patois mumble unintelligibly. (f) Mr Orr thereupon lost his temper and behaved in an insubordinate manner towards the manager. (g) An officer was appointed to decide whether Mr Orr should be dismissed. (h) Mr Orr chose not to contribute to the officers inquiry. (i) The manager did contribute to the officers inquiry but withheld from him the facts at (c) and (e). (j) Pursuant to the decision of the officer, who was unaware of the facts at (c) and (e), the council dismissed Mr Orr. The main issue before the Court of Appeal was whether, for the purpose of section 98(4) of the Act, the council acted reasonably in treating Mr Orrs insubordination as a sufficient reason for dismissing him. For that purpose, what knowledge should be attributed to the council? Just the knowledge of the officer? Or also the knowledge of the manager? Moore Bick LJ at para 58 gave a clear answer, with which Aikens LJ at para 86 agreed: it was the knowledge of the person who was deputed to carry out the employers functions under section 98, and only of that person, which fell to be attributed to the company for that purpose. So Mr Orr failed in his appeal against the rejection of his complaint of unfair dismissal. But Sedley LJ dissented from the dismissal of Mr Orrs appeal. He held at para 19 that the officer appointed to decide whether an employee should be dismissed has to be taken to know not only those things which he or she ought to know but any other relevant facts the employer actually knows [including] facts known to persons who in some realistic and identifiable way represent the employer in its relations with the employee concerned. If, as would seem inescapable, relevant things known to a chief executive must be taken to be known to both the corporation and its decision maker, the same is likely to be the case as the chain of responsibility descends. It is equally likely not to be the case when one reaches the level of fellow employees or those in more senior but unrelated posts. Mr Jones QC, on behalf of Ms Jhuti, does not seek to persuade this court to approve the need for an inquiry into the knowledge of facts as wide as Sedley LJ there suggested. He also accepts the criticism made by Moore Bick LJ at para 60 that attribution to the officer of facts known to the manager would be artificial. It is attribution to the company of facts known to the manager (here Mr Widmer) for which Mr Jones contends; and he relies on a sentence in para 29 of the judgment of Sedley LJ, seemingly inconsistent with what he had said in para 19, in which he observed that Mr Orrs case involved imputing the managers knowledge not to the officer but to the council. For various reasons, some already visible, Mr Orrs case was not a satisfactory vehicle for any full, reasoned, articulation of principle in relation to the attribution to the employer of facts unknown to the decision maker but known to those in the chain of responsibility above the employee. Nor were the facts of his case, in which what was told to the decision maker was true but did not include part of the background, comparable to those in the present case, in which the decision maker was deceived by the presentation to her of a falsely constructed set of criticisms. While in the present case he correctly acknowledged that the Court of Appeal was bound by its majority decision in the Orr case, Underhill LJ identified at para 62 a different situation in which, so he suggested, it might be appropriate for a tribunal to attribute to the employer knowledge held otherwise than by the decision maker. He was referring to the knowledge of a manager who, alongside the decision maker, had had some responsibility for the conduct of the disciplinary inquiry. It was a suggestion which he had first made in his judgment in The Co Operative Group Ltd v Baddeley [2014] EWCA 658. There, in para 42, he had referred to a situation in which the decision makers beliefs had been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation. For short, Underhill LJ had added (perhaps questionably), an Iago situation. He had proceeded: [Counsel] accepted that in such a case the motivation of the manipulator could in principle be attributed to the employer, at least where he was a manager with some responsibility for the investigation; and for my part I think that must be correct. I respectfully agree that in the situation there identified by Underhill LJ it might well be necessary for the tribunal to attribute to the employer the knowledge of the manipulator; but, as Underhill LJ accepted, the proposition in no way helps to resolve the present case because Mr Widmer cannot be taken to have had responsibility, alongside Ms Vickers, for any part of the conduct of the inquiry. In its opposition to the attribution to it of the knowledge of Mr Widmer for the purpose of identifying its reason for dismissing Ms Jhuti, the company, by Mr Gorton QC, relies principally on the provisions of section 47B of the Act, part of which has been addressed above. The argument is that the section gives a valuable right to workers not to be subjected to detriment by acts done on the ground that they have made a protected disclosure; and that there is therefore no reason under section 103A to (so it is said) stretch the attribution to the company of the reason for dismissal beyond that given by the appointed decision maker. It is in two different situations that section 47B confers the right to which the company refers. Subsection (1) caters for the first situation: here the workers right is not to be subjected to detriment by any act done by his employer on the specified ground. Subsections (1A) to (1E), inserted into the Act by section 19(1) of the Enterprise and Regulatory Reform Act 2013, cater for the second situation: here the right is not to be subjected to detriment by any act done by another worker on the specified ground but, subject to a limited defence to which it is unnecessary to refer, the other workers act is treated as the employers act so as to render the employer vicariously liable for it. One aspect of the companys argument appears to be that, to catch the conduct of other employees who act against whistleblowers as Mr Widmer did, the provision for the employers vicarious liability in subsections (1A) to (1E) of section 47B affords an entirely adequate remedy. With respect, this aspect of the argument seems curious. A close study of the documents in the present case yields the confident conclusion that, as set out in para 32(b) above, the right of Ms Jhuti under section 47B which the tribunal held to have been infringed was the right under subsection (1), arising in the first situation in which the employer does the act and is directly liable for it. It was not the right under subsections (1A) to (1E), arising in the second situation in which another worker does the act and the employer is vicariously liable for it. It follows that, of the four acts (including series of acts) by which the tribunal found Ms Jhuti to have been subjected to detriment, the two acts of Mr Widmer (and for that matter the two acts of Ms Rock) were attributed to the company so as to make it directly liable for the detriments. This unchallenged attribution to the company of the acts of Mr Widmer, which, had it known of the circumstances surrounding them, it could not have authorised, affords no support for its approach to attribution under section 103A. But the companys reliance on section 47B of the Act has a wider dimension. Rising above the dichotomy between the two situations there identified, its argument is that, in one way or the other, the right there given to those in the position of Ms Jhuti affords to them all the relief which they could reasonably expect. The argument has generated comparison between the time limit for presenting a complaint of subjection to detriment under section 47B (see section 48(3), set out in para 29 above) and the allegedly more generous limit for presenting a complaint of unfair dismissal under section 103A (see section 111(2)); and comparison also between the remedy for subjection to detriment, compensation for which can extend to injury to feelings, and the remedies for unfair dismissal, which do not provide such compensation but which include interim relief under section 128 and orders for reinstatement or re engagement under section 113 such as have no parallel in relation to a complaint of detriment. There is a limit to the utility of such comparisons. There will inevitably be facets of the two complaints which will make one of them more advantageous than the other to the complainant or to the employer. Overarchingly, however, Parliament has, by section 103A, provided that, where an employees whistleblowing is the reason for it, a dismissal should automatically be unfair and should thus attract the remedies set out in Part X; and, as noted in para 28 above, it has also, by section 47B(2), withdrawn the rights provided by that section from the whistleblowing employee who is subjected to a detriment which amounts to dismissal. It is therefore obvious that whistleblowers are not confined to remedies under Parts IVA and V of the Act. The task of this court, mandated by section 103A, is to determine whether the tribunal properly identified the reason for Ms Jhutis dismissal. The company is right to object to any stretching of that word. On the other hand we should respond to the encouragement of Lord Reid in the Crouch case, cited in para 45 above, to approach the problem in a broad and reasonable way in accordance with industrial realities and common sense. In searching for the reason for a dismissal for the purposes of section 103A of the Act, and indeed of other sections in Part X, courts need generally look no further than at the reasons given by the appointed decision maker. Unlike Ms Jhuti, most employees will contribute to the decision makers inquiry. The employer will advance a reason for the potential dismissal. The employee may well dispute it and may also suggest another reason for the employers stance. The decision maker will generally address all rival versions of what has prompted the employer to seek to dismiss the employee and, if reaching a decision to do so, will identify the reason for it. In the present case, however, the reason for the dismissal given in good faith by Ms Vickers turns out to have been bogus. If a person in the hierarchy of responsibility above the employee (here Mr Widmer as Ms Jhutis line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision maker adopts (here inadequate performance), it is the courts duty to penetrate through the invention rather than to allow it also to infect its own determination. If limited to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that persons state of mind rather than that of the deceived decision maker. Conclusion There is no need to remit to the tribunal an issue whether, upon the proper attribution to the company of Mr Widmers state of mind, the reason for Ms Jhutis dismissal was that she had made the protected disclosures. Mitting J in the appeal tribunal was correct to hold that, although the tribunal had considered it necessary to address the state of mind only of Ms Vickers, it had made findings determinative of that issue in favour of Ms Jhuti. Such part of the order of the Court of Appeal as allowed the companys appeal against his order should be set aside; and his order should be restored. There is no need to overrule the decision in the Orr case; by our decision, we attach only a narrow qualification to it. Yes, if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason. The answer to the question of law identified in para 1 above is therefore as follows: |
A person infringes a patent for a particular product if he makes, disposes of, offers to dispose of, uses or imports the product or keeps it see section 60(1)(a) of the Patents Act 1977 (the 1977 Act). The principal issue on this appeal concerns the meaning of the word makes. The other aspect of this appeal raises a number of issues arising out of section 68 of the 1977 Act. The background facts and the patent in suit Intermediate Bulk Containers An intermediate bulk container, unsurprisingly known as an IBC, is a large container, normally around 1000 litres in volume, used for the transport of liquids. Such containers face tough transport conditions. They must be capable of bearing heavy weights (as much as six tonnes, as they are often stacked four high), of withstanding prolonged or violent vibration, and of resisting the forces caused by the liquid splashing around inside, without buckling, cracking or springing leaks. IBCs of a two part construction, resting on a flat pallet (of wood, steel, or plastic) have been well known in the trade for many years. They consist of a metal cage into which a large plastic container (or bottle) is fitted. The bottle has to fit the cage snugly, as otherwise the cage will not provide full protection, and the walls of the bottle will not be properly supported. The general idea is shown by the prior art IBC which is illustrated in the description of the patent involved in this case: IBCs are used to transport a wide range of types of liquid. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. While the cage also has a limited life span, which depends on a number of factors (such as the means and conditions of transport and climatic conditions), it has a significantly longer life expectancy than a bottle; the evidence suggested that, on average, it is about five or six times as long. Reconditioning Reconditioners engage in re bottling or cross bottling used IBCs. In either case the old bottle is removed, any damage to the cage repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer; cross bottling involves replacing the bottle with a bottle from a different source. Opinion in the industry is divided about cross bottling. Because the bottle is not specifically designed for the cage, the fit is not always as good as with a bottle from the original manufacturer. For instance, stabilising loops in the top of the bottle may not precisely match up with bars on the cage, or the bottle may not fit so as to drain properly without tipping. However, there appears to be a healthy market for cross bottled IBCs. The IBC market IBCs are normally sold by a manufacturer to a filler, who then uses the IBC to send its product to an end user. Fillers typically include large chemical companies, and end users include fizzy drink wholesalers, cosmetic suppliers and pharmaceutical companies. Manufacturers of new IBCs often also recondition their own original IBCs, but there are many suppliers of IBCs who are solely reconditioners. Reconditioners (whether or not they are the original manufacturers) normally collect used IBCs from end users, who have no further use for the used IBCs. The end users are sometimes, but by no means always, paid for these used IBCs by the reconditioners. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market in competition with the products of original manufacturers, and of other reconditioners. Reconditioned IBCs are, predictably, generally cheaper than new IBCs. The invention and the Patent in this case European Patent (UK) 0 734 967 (the Patent) has a priority date of 30 March 1995. Claim 1 of the Patent (the Claim) is the only relevant claim for present purposes. It is in the following terms (with added sub paragraphs): [A] Pallet container for the transporting and storing of liquids, having a flat pallet, an exchangeable inner container made of plastic material with an upper, closable filler opening and a lower emptying device and also, surrounding the inner container, one outer sleeve which consists of vertical and horizontal lattice bars made of metal which support the plastic inner container filled with liquid, [B] the lattice bars which are configured as tubes being indented at the intersection points to form trough like, double walled recesses extending in the longitudinal direction of the lattice bars [C] in such a manner that at each intersection point between the longitudinal edges of the recesses of two lattice bars lying perpendicularly one above the other there arise four contact points with a material accumulation respectively corresponding to the quadruple lattice bar wall thickness, and the four contact points of the two lattice bars being welded together at the intersection points, [D] characterised in that the trough like recesses of the vertical and horizontal lattice bars have a central raised part extending across the cross section of the recesses, [E] two lattice bars respectively lying one above the other at the intersection points are welded together at the four contact points of these raised parts and the incisions of the recesses of the lattice bars adjacent on both sides to the raised part [F] with the contact and weld points form restrictedly elastic bending points with a reduced bending resistance moment relative to the raised part for relieving the weld joints at the intersection points upon application of static and/or dynamic pressure on the lattice sleeve. Read on its own, the Claim is not immediately accessible, and it would normally be inappropriate to consider its meaning or effect without explaining its factual and technical context, including the description (i.e. the narrative preceding the claims) of the Patent, reasonably fully. However, given the issues which require consideration on this appeal, only the following points need be identified: i. Item [A] extends to a complete IBC, i.e. a pallet, a bottle (the inner container) and a cage (the outer sleeve); ii. The claimed inventiveness lies in items [D], [E], and [F], as is indicated by the introductory words characterised in that; iii. The inventiveness of the Patent lies in the idea of flexible weld joints in the cage, to increase its strength and durability; iv. More specifically, the inventiveness lies in the idea of introducing a dimple on either side of the weld and a central raised portion; vs The description of the Patent acknowledges that the bottle is exchangeable i.e. replaceable. The parties The proprietor of the Patent is Protechna S.A. (Protechna). The respondent, Schtz (U.K.) Limited (Schtz) is its exclusive licensee in this country, and is the leading manufacturer of rigid composite IBCs in the United Kingdom. Most of its sales are of new IBCs, but about 25% are rebottled IBCs, whose cages have, after any necessary repairs, been re bottled with new Schtz bottles. The appellant, Werit UK Limited (Werit), sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), and replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs, marketed by, or with the express authority of, Schtz. Schtz objects to its cages being used by cross bottlers. Apart from the competitive consequences, Schtz claims to be concerned that publicity about any accident with a cross bottled product made with one of its cages might harm its reputation. Accordingly, it objects to Deltas re bottling activities and contends that they infringe the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. The legislation Section 60(1) of the 1977 Act (section 60(1)) is concerned with direct infringement, and provides in para (a) that a person infringes a patent if, where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise, without the consent of the patentee. Section 60(2) of the 1977 Act is concerned with indirect infringement, which includes the knowing supply to a primary infringer of any of the means which enables him to carry out the infringing act. (Hence the common ground referred to at the end of the preceding paragraph). Section 125(1) of the 1977 Act (section 125(1)) provides that unless the context otherwise requires, an invention for a patent for which a patent has been granted should be taken to be that specified in a claim of the specification of the patent , as interpreted by the description and any drawings contained in that specification, and the extent of the protection conferred by a patent shall be determined accordingly. Section 130(7) of the 1977 Act states that certain specified sections of that Act, including sections 60 and 125, are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the [European Patent Convention and the Community Patent Convention] have in the territories to which those Conventions apply. The scope of protection afforded by a European patent is defined by Article 69(1) of the European Patent Convention (the EPC), as amended in 2000, which provides that [t]he extent of the protection conferred by a European patent shall be determined by the terms of the claims. It also provides in Article 64(1) that the protection to be afforded to an EPC patentee should be the same as that afforded to a patentee under a national patent. Article 25(a) of the Community Patent Convention (the CPC) prohibits the making, offering, putting on the market, or using a product which is the subject matter of the patent. The present litigation On 7 August 2008, Schtz issued these proceedings against Werit seeking relief on the ground that Werit infringed the Patent (as well as two earlier patents, also vested in Protechna and of which Schtz was the exclusive licensee). The proceedings were met with a denial of infringement on more than one ground, and a counterclaim for revocation of the three patents. By the time the case came on for hearing before Floyd J in March 2010, the issues concerned only two of the three patents, but there were other issues which he had to resolve. Following a seven day hearing, he gave a full and prompt judgment [2010] EWHC 660 (Pat), [2010] Bus LR 1244, [2010] FSR 22. The only question relevant to the present appeal which he had to consider was whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a). On that question, Floyd J held, distinguishing the House of Lords decision in United Wire Ltd v Screen Repair Services (Scotland) Ltd, [2000] 4 All ER 353, [2001] RPC 24, that Deltas activity of replacing the inner container of a Schtz IBC with a Werit bottle does not amount to making the patented product. He justified this conclusion on the ground that the correct approach is to ask whether, when the part in question is removed, what is left embodies the whole of the inventive concept of the claim, and the inventive concept of [this claim] is wholly embodied in the Schtz cage paras 181, 197, and 206. Schtz appealed on a number of points. In a judgment given by Jacob LJ (with which Ward and Patten LJJ agreed), the Court of Appeal upheld the Judge on all other points, but reached a different conclusion on this issue. Relying on the reasoning of the Court of Appeal and House of Lords in United Wire, Jacob LJ said that it was inappropriate to determine the issue by reference to the inventive concept, and that [the] product (i.e. the IBC) ceased to exist when the bottle is removed, so [w]hat remained at that stage was merely an important component from which a new IBC could be made [2011] EWCA Civ 303, [2011] Bus LR 1510, [2011] FSR 19, paras 69, 75, and 64. Accordingly, Werit was found to be liable to Schtz to pay damages or account for its profits, arising out of its infringement of the Patent. The Court of Appeal also had to deal with an issue relating to costs and damages, arising out of section 68 of the 1977 Act (section 68), and the fact that Schtz had failed to register its exclusive licence. This led to two decisions, which were favourable to Schtz. Accordingly, Werit had to pay the great majority of Schtzs costs of the proceedings at first instance and almost all of Schtzs costs in the Court of Appeal. Werit was granted permission to appeal both against the substantive order that it had infringed the Patent and against the costs order. I shall first consider the main issue, namely whether the Court of Appeal were right to hold that Delta did indeed make the patented article contrary to section 60(1)(a), and I shall then address certain issues arising under section 68. Infringement: the proper approach to the meaning of makes Introductory It seems clear that the effect of section 60(1)(a) is that a person infringes a patent for a product if that person makes the product, as claimed in the patent concerned. As to the making, that is the verb used in section 60(1)(a). As to the product being defined by the claim, that seems clear from section 125(1). In any event, if it is not the product as claimed in the patent, it is hard to see what else the subject matter of the making could rationally be. The word makes must, of course, be interpreted contextually. In this case, the word should, in my view, be approached bearing in mind a number of considerations (which sometimes may be apparently irreconcilable in this field, as Robert Walker LJ pointed out in Cartonneries De Thulin SA v CTP White Knight Ltd [2001] RPC 6, para 21 quoting Attorney General v Prince Ernest Augustus Of Hanover [1957] AC 436, 461). First, the word makes must be given a meaning which, as a matter of ordinary language, it can reasonably bear. Secondly, it is not a term of art: like many English words, it does not have a precise meaning. Thirdly, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article, or whether it falls short of that. Fourthly, the word makes must be interpreted in a practical way, by reference to the facts of the particular case. Fifthly, however, there is a need for clarity and certainty for patentees and others, and for those advising them. Sixthly, it should be borne in mind that the word applies to patents for all sorts of products, from machinery to chemical compounds. Seventhly, one should bear in mind, at least as part of the background, the need to protect the patentees monopoly while not stifling reasonable competition. Eighthly, the word makes must be interpreted bearing in mind that the precise scope of a claim may be a matter almost of happenstance in the context of the question whether the alleged infringer makes the claimed product. Lord Diplock described the specification of a patent as a unilateral statement by the patentee, in words of his own choosing by which he states what he claims to be the essential features of the new product Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183, 242. As Lord Hoffmann explained in Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46, [2005] 1 All ER 667, [2005] RPC 169, para 21, a claim is, or at least should be drafted not only in the interest of others who need to know the area within which they will be trespassers but also in the interests of the patentee, who needs to be able to make it clear that he lays no claim to prior art or insufficiently enabled products. As Lord Hoffmann went on to explain in para 35, all sorts of factors, only some of which may appear to be rational, can influence the person drafting a claim. Ninthly, where, as here, there is a decision (United Wire) of the House of Lords or this court on the meaning of the word, it cannot be departed from save for very good reasons indeed. Finally, particularly given that section 60 (like section 125) is one of the sections mentioned in section 130(7) of the 1977 Act, the word should be interpreted bearing in mind that it is included in a provision which is intended to be part of a scheme which applies in many other jurisdictions. United Wire The decision of the House of Lords in United Wire assumed central importance in the Court of Appeal, as is clear from para 91 of Jacob LJs judgment, where he described Schtzs appeal as determined by United Wire, a proposition unsurprisingly supported by Mr Meade QC on behalf of Schtz before this court. However, while we must be careful not to cause confusion in this area, the reasoning in that case, like the reasoning of any court, was inevitably based on the facts agreed between the parties or decided by the judge, and on the arguments raised by the parties or suggested by the court. United Wire involved two patents, and the facts were summarised by Lord Hoffmann at paras 62 64 (taking the paragraph numbering from the RPC report, which includes the decision of the Court of Appeal) in these terms: 62. [B]oth patents are for a screen consisting of a frame to which two meshes of different mesh sizes are adhesively secured at the periphery so as to be at different tensions. The differences are the striking screens of the first patent and the flexible apertured [frame] of the second. 63. The meshes quickly become torn in use. The plaintiffs therefore enjoy [the] aftermarket in selling replacement screens made in accordance with their inventions. 64. The defendants [sell] reconditioned screens made from the plaintiffs own frames. The [metal] frames weigh about 10 kilos [and look] more like a drain cover than a picture frame. They are durable in relation to the rest of the materials of the screen. The defendants acquire the frames from the plaintiffs customers and strip them down to the bare metal by sandblasting. They recoat them with adhesive polyethylene and attach the two layers of mesh, coarse below and fine above. The differences in the sizes of the mesh produces the necessary differential tensions when both are tensioned together. Heat is then used to bond the meshes to the polyethylene coating of the frame, the selvage of mesh around the frame is cut off and the edges trimmed and taped. At first instance in United Wire, the judge had been narrowly persuaded that the defendants activities amounted to repair, and therefore that the defendant did not make the article claimed under either of the two patents. The Court of Appeal took a different view. In a judgment which was expressly approved by the House of Lords, Aldous LJ held that in cases where it is claimed that the alleged infringer makes a product contrary to section 60(1)(a) the question must be whether his acts amount to manufacture of the product, namely the product of the invention see para 25. In para 27, he briefly summarised the patentees case, which he accepted, and which included the contention that the defendants activities should be contrasted with on site repair. He then described the defendants activity as equivalent to the purchase on the open market of frames and then using them to produce an assembly para 28. In the House of Lords, Lord Bingham and Lord Hoffmann gave reasoned speeches, with which the other Law Lords agreed. Lord Bingham, at para 56, thought the issue was simply whether the defendant made the patented article, to which the answer was a question of judgment; that it was better not to ask whether the defendants work involved repair; and that the Court of Appeal had identified the right question and reached a conclusion open to them. Lord Hoffmann described the point as a very short one, and (discussing an earlier case) he said that the real issue was whether the defendants had made the patented product paras 68 and 72. He quoted (para 70) with approval a statement made by Lord Halsbury LC that you may prolong the life of a licensed article but you must not make a new one under the cover of repair, and he warned (para 71) of the dangers of asking whether the work constituted repair. Lord Hoffmann described the question raised as one of fact and degree in para 72, and, at the end of his final paragraph, para 73, he said that: [The patented] product ceased to exist when the meshes were removed and the frame stripped down to the bare metal. What remained at that stage was merely an important component, a skeleton or chassis, from which a new screen could be made. Neither Lord Bingham nor Lord Hoffman said, at least in terms, that the decision of the trial judge to the contrary effect was one which he could not have reached. What Lord Hoffmann said at para 73 was that the Court of Appeal was entitled to substitute its own evaluation because the judge did not correctly identify the patented product. Lord Bingham seems also to have justified the Court of Appeal having substituted its own decision on this ground, saying in para 56 that the judge did not concentrate his attention on whether the defendants had made the patented product. Decisions of German courts The fact that the word makes is in a section of the 1977 Act which is intended to conform with the provisions of an international convention is particularly significant where, as is the case with the EPC and the CPC, the convention contains a set of principles which are intended to apply consistently across signatory states. (The EPC is not an EU convention, whereas the CPC is; however, the CPC is not yet in force.) The House of Lords and this court have emphasised on a number of occasions the desirability of national courts following the established approach to validity of the Technical Board of Appeal of the European Patent Office (the EPO), and the German Bundesgerichtshof (the BGH) have taken the same view see, most recently, Human Genome Sciences Inc v Eli Lilly & Co [2011] UKSC 51, [2012] 1 All ER 1154, paras 84 87, and Case Xa ZR 130/07. The parties in this case have not referred to any relevant decision of the EPO, as we are here concerned with infringement. However, it is worth addressing four decisions of the BGH which consider what activities constitute making a patented article. The most recent such decision related to the German equivalent of the Patent Paletenbehlter II, Schtz v Mauser (Pallet Container II) Case X ZR 97/11, in July 2012. These are not only decisions of a highly expert, experienced and respected court on the very point which is raised in this case, but they are decisions of a court of another signatory state to the EPC (and the CPC) on a point of some significance arising under those Conventions. We should therefore accord them considerable respect, and sympathetically consider the extent to which we should adopt any points of principle or practice which they raise. However, there can be no question of the courts in this jurisdiction feeling obliged to follow the approach of the German courts, any more than the German courts could be expected to feel obliged to follow the approach of the English and Welsh courts. Unlike the EPO, both this court and the BGH are national courts. As such, while they have a great deal, including many principles, in common, they have inevitably developed somewhat different techniques and approaches in relation to many issues, including many which arise in the field of patents. While complete consistency of approach may be achieved one day, it is not a feasible or realistic possibility at the moment. Nonetheless, given the existence of the EPC (and the CPC), it is sensible for national courts at least to learn from each other and to seek to move towards, rather than away from, each others approaches. It appears that the BGH is of the same view. In Flgelradzhler (Impeller Flow Meter) Case X ZR 48/03, para 2.a, it made the point that, following the CPC, the case law on the old German patent law cannot be used automatically to interpret section 10 of the German Patent Act (equivalent to section 60 of the 1977 Act). In the same case at the end of para 3.b.ii, the BGH cited the reasoning of Lord Hoffmann in United Wire. And in Pallet Container II it considered the decision of the Court of Appeal in this case see para 47 below. In Impeller Flow Meter, the BGH referred to the distinction between a (permissible) repair and a (prohibited) remaking and observed that this could only be determined in the light of the particular nature of the subject matter of the invention and a balancing of the conflicting interests. It then said that When the interests are weighed, increasing importance can be given to whether it would be customary to expect the relevant parts to be replaced during the service life of the device . But what is also relevant is the extent to which the technical effects of the invention are reflected by the replaced parts. Therefore, the replacement of a part subject to wear and tear that is usually replaced during the expected service life of the machine sometimes repeatedly does not usually constitute a new manufacture. The situation can be different, however, if this part in fact embodies essential elements of the inventive concept. This approach was adopted by the BGH in Laufkranz (Wheel Tread) Case X ZR 45/05, para 17, and it was also followed in Pipettensystem (Pipette System) Case X ZR 38/06. In Pallet Container II, the BGH cited these three earlier decisions in support of the proposition that it may also be significant whether the parts [replaced] are such that one normally expects them to be replaced during the useful life of the product and to what extent the technical effects of the invention are reflected in the replaced parts para 23 (substantially repeated at para 28). It was made clear at paras 43 to 45 that, in the view of the BGH, the technical effects of the invention were not reflected in the bottle, as they were not manifested in the replaced part. However, the BGH went on to say that [i]f, according to the prevailing market opinion, the replacement of a part is seen as re manufacturing the patented product, then as a general rule, a patent infringement cannot be denied, but if it was seen by general market opinion as a repair, the opposite conclusion would probably apply paras 29 and 41. It then observed that there was insufficient evidence available to reach a concluded view, and suggested that, if used [IBCs] which require the replacement of the inner container are viewed as practically worthless in the prevailing opinion of the purchasers of such containers, then the installation of a new inner container [w]ould be viewed as the re manufacture of the [IBC] para 34. The BGH remitted the case for a determination as to what proportion of used IBCs were returned to Schtz or reconditioners for no consideration. connected, points about the decision in Pallet Container II. First, I do not read the BGH as suggesting that the question of whether a new article is made depends on who carries out the work involved. That would be illogical and unprincipled, and indeed contrary to what was said in para 19 of Pallet Container II. When the BGH referred to the market, it was simply looking at the difference in value between a used IBC before and after it is reconditioned. Secondly, the BGH said at para 40 that it disagreed with the Court of Appeal in this case that weight should be given to the fact that Delta described their rebottled IBCs as re manufactured. I agree with the BGH on this point: the issue we have to determine is not how a party views or markets its products, but how those products should be characterised. In the light of the argument before us, I should make two further, perhaps Repairing and making The reasoning of Lord Bingham and Lord Hoffmann in United Wire emphasises that one must avoid basing a decision on the point at issue by simply contrasting the two concepts of making and repairing, not least because the notions of making and repair may well overlap para 71 per Lord Hoffmann. However, it was a contrast which Buckley LJ drew, and apparently found helpful, in this context in Solar Thomson Engineering Co Ltd v Barton [1977] RPC 537, 555 (in a passage quoted and approved by Lord Hoffmann in United Wire at para 72), and which Aldous LJ appears to have approved in his judgment in United Wire at paras 21 22 and 26 27. The approach of Buckley LJ supports the notion that, subject to the overriding point that it should not obscure the central issue of whether the alleged infringer makes the patented article, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article. I am fortified in that view by the fact that the BGH also plainly considers this distinction to be a useful one in this field. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves making of a new article rather than constituting a repair of the original article. Repair of an item frequently involves replacement of one or some of its constituents. If there are broken tiles on a roof, the replacement of those tiles is properly described as repairing the roof, and such replacements could not be said to involve rebuilding, or making, the roof. Indeed, replacing the whole of a deteriorated roof of a building could be regarded as repairing the building, taken as a whole, rather than reconstructing the building. There are many cases concerned with repairing obligations in leases which illustrate this point see e.g. the discussion in Woodfall on Landlord and Tenant (October 2008), Vol 1, paras 13.32 to 13.037.12. In the more directly relevant context of chattels rather than buildings, the normal use of making and repairing demonstrates the same point. Works to a ship or a motor car, which involve removal and replacement of defective significant constituent parts, could be substantial in terms of physical extent, structural significance, and financial cost, without amounting to making a ship or motor car, as a matter of ordinary language: in such a case, they would be repair of the existing ship or motor car. Thus, in Coleborn & Sons v Blond [1951] 1 KB 43, 49 50, Denning LJ said, in a case concerned with purchase tax, that [s]peaking generally, if you replace an old engine by a new one, or an old body by a new body, you are not making a different vehicle: you are altering and improving an old one . On the facts of that case he held a new thing was made out of two parts the old chassis and the new body [which] when assembled together make a different thing from either of them separately. The approach of Lord Hoffmann in the remarks at the end of his judgment in United Wire, quoted at the end of para 35 above, appear to me to be consistent with the approach of Denning LJ in Coleborn. On the facts of United Wire, Lord Hoffmann concluded (or said that the Court of Appeal was entitled to conclude) that the totality of the work described in his para 64 amounted to making a new article, because the removal of the meshes and the stripping down and repairing of the frame resulted merely in a component of the patented article from which a new screen could be [and was] made. Returning to the theme of the normal meaning of a word, observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution. The examples given above are referred to primarily to emphasise the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article. In general terms, in a case under section 60(1)(a) the particular contextual features are those identified in paras 26 to 29 above. Infringement: the present case The reasoning in the decisions below The first question to consider is whether either of the Courts below adopted the right approach to the question which they had to decide. In my view, they did not. In para 196 of his judgment, Floyd J said that [t]he difficult question, as it seems to me, is the case where the invention resides, or resides principally, in the part retained. This was not the case in United Wire. Mr Meade QC challenged this statement, contending that, at any rate in the case of the second of the patents in United Wire, the inventive concept in the patented article lay, at least primarily, in the frame which the defendant retained, and not in the wire meshes which it replaced. I accept that contention, although, as explained below, it does not by any means wholly invalidate the approach adopted by Floyd J. Similarly, Floyd J over simplified the position in the following paragraph of his judgment, when he said that the correct approach is to ask whether, when the part in question is removed, what is left embodies the whole of the inventive concept of the claim. The notion that the issue of infringement in a case such as this is to be determined simply by answering the question which the judge formulated in that passage is attractive and simple to apply. However, it seems to me to conflict with the wording of sections 60(1)(a) and 125(1) as well as with the approach adopted by the Court of Appeal and House of Lords in United Wire. On the other hand, I consider that the Court of Appeal were too ready to accept that the outcome of this case was governed by United Wire. They do not appear to have recognised that the question of whether replacing a part of a patented article constitutes making it is a matter of fact and degree. Indeed, Jacob LJ appears to have thought that replacing any part of a patented article would involve making it. At para 70, he said that if Delta made a frame according to Claim 1 and fitted it with a Schtz bottle that must produce exactly the same outcome as the present position. Similarly, at para 64, he said that the IBC ceased to exist when the bottle is removed and [w]hat remained at that stage was merely an important component [viz the Schtz cage] from which a new IBC could be made. However, as mentioned above, it is a matter of degree, to be assessed in each case, whether replacing a worn or damaged part of a patented article amounts to making the patented article. If, very unusually, an original Schtz IBC was in such a state that the bottle could be reused but the cage could not, it would, I think, be hard to challenge the view that putting the existing bottle in a new Schtz cage would involve making the claimed article. On the other hand, if an original Schtz IBC was entirely reusable save that the detachable lid of the bottle (assuming the bottles design involved a detachable lid) was damaged, it could not be plausibly contended that the replacement of the lid constituted making the claimed article, even though the IBC would be unusable without a new lid. In other words, the replacement of a damaged essential constituent of an IBC can constitute repairing, rather than making, the article. The fact that merely replacing the damaged lid of a Schtz bottle in a Schtz cage would not infringe the Patent, cannot possibly mean that there would be no infringement if one took a lid from an IBC marketed by Schtz and fixed it to a newly made bottle in a newly made cage, which (but for the lid) would infringe the Claim. By the same token, Jacob LJ was wrong to say that, because a person who replaced a damaged original Schtz cage, while keeping the original Schtz bottle, would infringe, it must follow that a person who replaced a damaged original Schtz bottle, while keeping the original Schtz cage would infringe. The correct approach in this case Since neither the Judge nor the Court of Appeal approached the issue in this case in the right way, we must reconsider and, if possible, determine for ourselves, the central issue, namely, whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. As is clear from United Wire, this question requires the court to focus on the question of whether, when it replaces a component of the article (viz. the bottle) the subject of the Claim, Delta makes that article (viz. the IBC as described in the Claim). In answering that question, I consider that it is both legitimate and helpful to consider the question of whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article. There are undoubtedly points in favour of the view that the bottle is more than subsidiary in this sense, so that its replacement involves making the claimed article, namely an IBC. Thus, it is a necessary part, indeed an integral part, of the patented article, but so, self evidently, is the lid of the bottle, whose replacement, when damaged, cannot, as observed in para 59 above, sensibly be said to involve making the IBC. Further, the bottle is specifically referred to in Item [A] of the Claim, but then so is the lid, albeit arguably only impliedly (an upper closable filler opening). The question, however, is one of degree. In that connection, the bottle is a much more substantial feature of the composite article described in the Claim than the lid of the bottle. Indeed, the bottle would appear to have a greater surface area than the cage (at least if one ignores the gaps between the bars). However, while undoubtedly an essential and physically large part of the patented article, it seems to me that, particularly in the context of the present issue, the bottle can fairly be said to be a relatively subsidiary part of the article, viewed as a whole. In that connection, Mr Thorley QC identified two significant features of the bottle. First, the bottle has a significantly lower life expectancy than the cage and, presumably, than the pallet. In particular, one would anticipate replacing the bottle, on average, five or six times during the life of the cage. The fact that one would expect the bottle to be replaced in this way reinforces the notion that it is a subsidiary part. Another aspect of the same point is that the bottle is also physically less substantial than the cage (or, no doubt, the pallet), since it is made of plastic (albeit tough plastic) rather than metal. Looking at the point another way, if the cage has a much greater life expectancy than the bottle, a purchaser of an IBC might well expect to be able to replace the bottle. As Lord Hatherley LC said in Betts v Willmott (1871) LR 6 Ch App 239, 245, in a passage cited by Lord Hoffmann in United Wire at para 68: When a man has purchased an article he expects to have the control of it, and there must be some clear and explicit agreement to the contrary to justify the vendor in saying that he has not given the purchaser his licence to sell the article, or to use it wherever he pleases as against himself. In principle, a purchaser of a patented article, as I see it, should be taken as entitled to make such an assumption, subject to section 60(1)(a). Accordingly, for that reason also, where the article includes a component which is physically easily replaceable and in practice relatively perishable, those features must constitute a factor (which may, of course, be outweighed by other factors) in favour of concluding that the replacement of that component does not fall foul of section 60(1)(a). Secondly, the bottle does not include any aspect of the inventive concept of the Patent. The extent to which a component of an article is a subsidiary part, so that its replacement is more likely to involve repairing than making the article, must be a matter of degree. It therefore seems to me that it must be legitimate, in the context of addressing the question whether a person makes the patented article by replacing a worn out part, to consider whether that part includes the inventive concept, or has a function which is closely connected with that concept. While, as already observed, there is nothing in the judgments in United Wire to support the notion that the inventive concept is relevant to the question raised in an appeal such as this, there is nothing inconsistent with such a notion either. What the reasoning in that case does rule out is the attractively simple use of the inventive concept in this sort of case which Floyd J suggested in his para 196. Mr Meade QC contended that the inventive concept of a patent is often a controversial issue, and that there could therefore be problems if it was treated as relevant in determining whether an alleged infringer makes the patented article. I am unconvinced by that contention. In almost all patents, the claimed inventive concept is clearly identified or identifiable from the patent, and, if it is unclear or disputed, it will often be an issue in the proceedings anyway. I note that the BGH appears to have no difficulty in accommodating the inventive concept in this exercise, and, if Mr Meade QC was right, it would be much more likely to be a problem in Germany with its bifurcated approach (where different courts deal with infringement and validity) than in England with our unitary approach (where the two issues are dealt with by the same court). Two further factors (which are connected to some extent) carry some weight with me. They can be highlighted by contrasting the facts of this case with those in United Wire. In this case, the replaced part, the bottle, is a free standing item of property, which does not include, or relate to, the inventive concept. In United Wire, the replaced part, the wire mesh system, had no independent identity from the retained part, the frame. Hence it was much easier to say, as Lord Hoffmann did in that case, that the original product ceased to exist when the meshes were removed, whereas in this case there are, as it were, two products (disregarding the pallet, which is included in the Claim), and one of them, which is significantly longer lasting, more substantial, and the only inventive component, certainly does not cease to exist. Furthermore, there is a significant difference between the nature of Deltas operations in this case and that of the defendants operations in United Wire, as described by Lord Hoffmann at para 64 of his opinion (quoted in para 31 above). In this case, a damaged free standing plastic bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary. In United Wire, unlike in this case, (i) the replaced part was integrally connected to the retained part, so the work included a significant element of demolition, (ii) the replaced part was subjected to significant improvement work, (iii) the inventive concept either largely resided in the replaced part (the first patent) or was closely connected to that part (the second patent), and (iv) the work involved could undoubtedly be described as manufacture. Merely replacing a damaged plastic bottle (albeit one of considerable size) with a new plastic bottle (even allowing for the fact that the replacement has to be made) appears to me to be an exercise of a very different order. It seems to me that it would accord with the eight general principles set out in paras 26 to 28 above to take into account the various factors mentioned in the preceding eleven paragraphs, when deciding whether Delta makes the patented article. I derive comfort from the fact that they are factors which appear to carry force with the BGH when it is considering this issue. I also consider that there is nothing in the speeches of Lord Bingham or Lord Hoffmann in United Wire which suggests that it would be wrong to take these factors into account. The speeches appear to me to establish that the question to be determined in a case such as this is whether the alleged infringer makes the patented article, and that the answer to that question is often a matter of fact and degree. The speeches do not give much guidance as to what specific considerations can or cannot be taken into account when determining the question. The next issue to be addressed is whether it is also appropriate to consider the further point raised by the BGH in Pallet Container II, summarised in para 44 above. In my view, the question of whether the end user is paid for a used IBC could have relevance to the issue which we have to determine. If an article has no value when it has been used and before it is worked on, and has substantial value after it has been worked on, that could fairly be said to be a factor in favour of the work resulting in the making of a new article, or, to put the point another way, in favour of the work involved amounting to more than repair. However, that would be just one factor, and it would have to be approached with caution. For instance, there might be considerable value to an end user in having the used IBC collected by Delta, as it might otherwise have to be disposed of at some cost. Or a cross bottled IBC may have a relatively small value, so that the collection by Delta represents significant cost to Delta. Further, it is possible that the value of the cage could vary significantly with the price of the metal from which it is made, and it would seem wrong that the issue whether Delta makes a new article should fluctuate with prices on the metal exchanges. In this case, as in Pallet Container II, there was no evidence which can fairly enable us to assess this factor. However, unlike the BGH in Pallet Container II, I am firmly of the view that we should not remit the case back to Floyd J, let alone another judge, so as to enable the parties to adduce evidence on the matter. A first instance hearing in this jurisdiction involves a full and detailed examination of all the issues, requiring the parties to devote considerable expense and effort, and taking up a significant amount of court time; and an appeal is normally limited to points of law. Parties are expected to adduce all their evidence and arguments before the trial judge, and are normally only permitted to adduce new evidence (whether on appeal or through a rehearing) if there was a very good reason why the evidence was not adduced at trial. In any event, on the basis of the evidence and arguments which we have heard, I think it very unlikely that any such evidence would have affected the outcome. Infringement: conclusion Weighing up the various relevant factors, I have come to the conclusion that by replacing the bottle in the IBC, Delta does not make the article identified in the Claim. Given the size of the bottle, and the fact that it is one of the two (or three, if one includes the pallet) components of that article, the issue is by no means clear. However, the combination of the factors discussed in paras 63 to 72 above persuade me that the conclusion reached by Floyd J on this point was right, albeit for somewhat more nuanced reasons. Deciding whether a particular activity involves making the patented article involves, as Lord Bingham said, an exercise in judgment, or, in Lord Hoffmanns words, it is a matter of fact and degree. In some such cases, one can say that the answer is clear; in other cases, one can identify a single clinching factor. However, in this case, it appears to me that it is a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, concluding, as a matter of judgment, whether the alleged infringer does or does not make the patented article. In the present case, given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, I am of the view that, in carrying out this work, Delta does not make the patented article. I should add that, while ones focus in a case such as this should not be deflected from the central question of whether the alleged infringer makes the patented article, it may sometimes be a useful cross check to consider whether its activities involve repairing the original product. As mentioned, that was a question which Buckley LJ found helpful in Solar Thompson, and which the BGH also invokes in this connection. In this case, I consider that the question does not take matters much further: for the reasons I have given for concluding that Delta does not make a new patented article, I am of the view that its cross bottling activities involve repairing the original product. I would therefore allow Werits appeal on the main issue. That means that Werits appeal on the section 68 issue is academic. However, because the issues that the appeal raises were fully argued, and because I do not agree with some of the conclusions of the Court of Appeal, it is right to deal with that aspect also, at least to the extent that it is safe to do so. The section 68 appeal The background facts and law As mentioned above, Schtz has been granted an exclusive licence by the patentee, Protechna. Schtz was initially granted a licence (the first licence) on 24 March 1994. On 26 November 2009, the first licence was determined, and on the same day another licence (the second licence) was granted in its place. Sections 32 and 33 of the 1977 Act (sections 32 and 33) provide for a register of patents, on which not only patents themselves, but also transactions, instruments or events affecting rights in or under patents can be registered, partly for the purpose of establishing priority. The first licence was not registered until 17 July 2008, more than fourteen years after it had been granted, and just before these proceedings were started. The second licence was not registered until 15 November 2012, some two years after it had been granted and well after the decision of the Court of Appeal on infringement. Section 68, in its original and current form, is in these terms: Where by virtue of a transaction, instrument or event to which section 33 above applies a person becomes the proprietor or one of the proprietors or an exclusive licensee of a patent and the patent is subsequently infringed, the court shall not award him damages or order that he be given an account of the profits in respect of such a subsequent infringement occurring before the transaction, instrument or event is registered, in proceedings for such an infringement, the court shall not award him costs or expenses unless (a) the transaction, instrument or event is registered within the period of six months beginning with its date; or (b) the court is satisfied that it was not practicable to register the transaction, instrument or event before the end of that period and that it was registered as soon as practicable thereafter. The italicised words were in the section as enacted, but, with effect from 29 April 2006, they were repealed and replaced by the words in bold, to ensure that the section did not fall foul of Articles 13(1) and 14 of the Enforcement Directive (2004/48/EC). This was effected by regulation 2(2) of, and para 4 of Schedule 2 to, the Intellectual Property (Enforcement etc) Regulations 2006 (SI 2006/1028). The purpose of section 68 is not in dispute. People need to know who is on the register. This section is aimed at making the people who own the monopolies get on the register, as Jacob J observed in LG Electronics v NCR Financial Solutions Group Ltd [2003] FSR 24, para 18. The effect of the Court of Appeals decision that Werit infringed the Patent was, at least on the face of it, that Schtz was entitled to (i) damages or an account of profits in respect of infringements occurring on or after 7 August 2002 (being six years before the issue of these proceedings), and (ii) its costs (subject, of course, to any point which Werit could have legitimately raised). However, if section 68 applied, (i) its original provisions would have disentitled Schtz from recovering any damages or account in respect of infringements occurring before 29 April 2006, and (ii) the amended provisions would have cut down Schtzs right to recover costs. After the Court of Appeals judgment on the main issue had been made available in draft, Werit gave notice that it intended to rely on section 68. This led to two further decisions of the Court of Appeal [2011] EWCA Civ 927, [2012] FSR 2 and [2011] EWCA Civ 1337, [2012] Bus LR 746, [2012] 2 Costs LR 306. The first of those decisions gives rise to three issues, and the second decision to a fourth issue. I shall consider those issues in turn. To what extent should reliance on section 68 be pleaded? The first issue is whether Werit needed to have specifically raised its reliance on section 68 in its pleaded case before it could rely on its original restriction on damages and an account, and its subsequent restriction on costs recovery. The Court of Appeal held that the point need not be pleaded, because of the mandatory terms in which section 68 is expressed the court shall not. I do not agree. The main point of requiring a party to put forward its contentions in a statement of case or a pleading is to ensure that the other party is not taken by surprise. The mere fact that a statute is expressed in directory terms should not mean that its contents can be relied on by a party without any warning to the other party. Of course, there may be good public policy issues justifying a different view in a particular case, but, absent such a factor, I consider that clear words would be required before a party could, as of right, raise a point of this nature without fairly putting the other party on notice, which would normally be in its statement of case. This conclusion is supported by the reasoning of the Court of Appeal in Fookes v Slaytor [1978] 1 WLR 1293 in relation to section 1 of the Law Reform (Contributory Negligence) Act 1945, which provides that, in a negligence case, damages shall be reduced to take into account contributory negligence. To much the same effect is what Lord Griffiths said about the need to plead a limitation defence in Ketteman v Hansel Properties Ltd [1987] AC 189, 219. The same view is taken in Bennion on Statutory Interpretation (5th edition, 2007), p.114, and specifically in relation to section 68, by Terrell on the Law of Patents (17th edition, 2010) at para 18.89. It should be recorded that none of these authorities appears to have been cited to the Court of Appeal in this case. The policy behind section 68 is to encourage persons such as Schtz to register their licences or other interests under section 33 of the 1977 Act. Although the court should favour an interpretation which gives such a policy real effect, I do not consider that it is a policy which justifies the view that the point need not be pleaded. It would be a remarkably harsh result for a licensee who had failed to register, and would represent a potentially remarkable windfall for an infringer. Under the section as originally drafted, an infringer would be able to lie low during proceedings brought by an unregistered licensee, knowing that there was a complete defence to any financial liability for continuing infringement which the licensee could end by registering. Accordingly, Schtzs case on this point is a fortiori that of the successful parties in Fookes and Ketteman, where there was no continuing benefit for the party who had failed to plead the point. Was Werits case sufficiently pleaded to enable it to raise section 68? The second question is whether Werit did, in fact, plead its case sufficiently to enable it to rely on section 68. The Court of Appeal held that if, contrary to their view, Werit had to plead its case on section 68, it had not done so. Again I disagree. In its pleaded case, Werit not only denied that Schtz was entitled to the relief it sought, which included damages, an account, and costs, but, crucially, in my opinion, para 5 of Werits statement of case (i) put Schtz to proof as to its status as exclusive licensee, and (ii) stated that any alleged licence had not been filed for registration and it is not admitted that the said transaction, instrument or event was registered within the period of six months beginning with its date. Thus, Werits pleaded case denied Schtzs right to damages or costs, raised all the facts which were needed for a section 68 argument, and quoted the crucial words from that very section. CPR 16.5(2)(a) requires a defendant to state its reasons for denying any allegation, and para 13.3(1) of Practice Direction 16 merely entitles a party to refer to any point of law it relies on. At least in the circumstances of this case, it seems to me clear that there was a sufficient pleading for section 68 purposes. If there were any doubt about this, it would be put to rest by the fact that para 5 was in a defence to a claim brought under the 1977 Act by an exclusive licensee, whose claim form recorded that it had instructed solicitors and counsel who were acknowledged experts in the field. I should add that we were referred in this connection to evidence on behalf of Schtz as to how para 5 of Werits statement of case was understood by Schtz. I very much doubt that such evidence was admissible, but, if it was, it tends to support my conclusion. I therefore reach the same conclusion as the Court of Appeal on the procedural issue of whether it was open to Werit to rely on section 68, but for very different reasons. The Court of Appeal thought that Werit had not pleaded the point but did not need to do so; I am of the view that Werit had to plead the point, and had done so. How does the costs sanction under section 68 work? The conclusion of the Court of Appeal, supported by Mr Meade QC on behalf of Schtz, was that section 68 simply serves to disentitle a licensee from recovering costs incurred in connection with an infringement action during a period that the licence is unregistered. Werits case, as advanced by Mr Thorley QC in the Court of Appeal and before us, is that if a claim for damages or an account by the licensee of a patent relates to an infringing act prior to registration of the licence, then the claimant licensee can recover no costs. Like the Court of Appeal, I cannot accept Werits case on this point. It seems to me to produce an arbitrary and potentially penal result. It is arbitrary because the sanction would be the same whether the licensee was claiming for one weeks infringement before registration and five years after, or for five years infringement before the registration and for one weeks after. In the former case, it would also be penal. The interpretation favoured by the Court of Appeal and Schtz does not produce a penal or arbitrary result, but it leaves the section with very little bite, as an unregistered licensee could avoid its consequences simply by registering and then starting the proceedings. It also seems to me to be difficult to reconcile with the wording of the amended section 68. The expression proceedings for such an infringement must be a reference to the proceedings for infringe[ment] before the transaction is registered, not to proceedings, before the transaction is registered, for infringement. Because the section is poorly drafted, that may not have been an insuperable obstacle to Schtzs case were there not a third interpretation, which was raised in argument by Lord Mance, and which I think is right. That interpretation is that, where a licensee successfully claims damages or an account for infringement of a patent, it cannot recover its costs in so far as they are attributable to the claim for damages or an account in respect of infringements pre dating the registration of the licence, but it can recover costs attributable to such relief in respect of infringements post dating the registration. In my view, this is the right interpretation, as it accords with the wording of section 68, and it reflects its purpose as described in LG Electronics. Apparently, this interpretation was considered in argument in the Court of Appeal, but rejected on the ground that it would be unworkable. I do not see why. Obviously in a case where there was a claim for pre and post registration relief, there would have to be an apportionment, and the apportionment would normally involve an element of rough justice. But that is a familiar state of affairs when it comes to costs. The consequence of the late registration of the second licence The final issue arises from the fact that the second licence was not registered until 15 November 2012, even though it was granted on 26 November 2009. The effect of the reasoning so far is that, if Schtz had succeeded on infringement, (i) it would not have been entitled to relief in respect of infringements before 29 April 2006 (when section 68 was amended), (ii) it would have been entitled to relief in respect of infringements after that date, (iii) it would not have been entitled to costs in relation to infringements occurring between 29 April 2006 and 17 July 2008 (when the first licence was registered); (iv) it would have been entitled to costs in relation to infringements occurring between 17 July 2008 and 26 November 2009 (when the first licence was determined and the second licence was granted); (v) it would have claimed costs in relation to infringements between 26 November 2009 and 15 November 2012 (when the second licence was registered); and (vi) it would have been entitled to costs in respect of infringements after 15 November 2012. Thus, the remaining issue, which is in respect of item (v) in the preceding paragraph, would have concerned costs in respect of infringements committed between 26 November 2009 and 15 November 2012. The Court of Appeal accepted Schtzs contention that what mattered was that it had been registered as a licensee in July 2008 and had remained registered as such at all times since that date, and the fact that it had surrendered the first licence in exchange for the second licence did not require it to go through the exercise of re registration. This conclusion is reinforced by the fact that, although the register records the date of the licence as well as the name of the licensee, and the public has a right to inspect the register, those who wish to inspect the register have no right to see, or to be told of the terms of, the licence. Werit contends, however, that the natural meaning of section 68, and in particular the word becomes, demonstrates that Schtz should have registered the second licence. Some support for that proposition may also be found in the fact that sections 32 and 33 appear to envisage registration of licences and other documents rather than of licensees and proprietors. The Court of Appeal accepted that Werits argument had force, but concluded that Article 14 of the Enforcement Directive required it to adopt what Ward LJ referred to as an artificial meaning, as opposed to the natural meaning of section 68, so as to enable Schtz to rely on the registration of the first licence, even after it had been determined and replaced by the second licence. The Court of Appeal may have been right about the natural meaning of section 68 in the absence of Article 14; certainly its conclusion derives support from the reasoning of Aldous J in Minnesota Mining & Manufacturing Co v Rennicks (UK) Ltd [1992] FSR 118, Pumfrey J in Spring Form Inc v Toy Brokers Ltd [2001] EWHC 535 (Pat);[2002] F.S.R. 17, and Peter Smith J in Finecard International Ltd v Urquhart Dyke and Lord [2005] EWHC 2481 (Ch); [2006] F.S.R. 27. However, despite these decisions, there does appear to be an argument the other way. If the Court of Appeal was right about the natural meaning of the section, then I am very dubious about its invocation of Article 14 to justify a very different meaning to the section, especially as it has not been argued that Article 14 has direct effect. This final point throws up two questions which are not straightforward and were (understandably in all the circumstances) not as fully argued as they might have been. Accordingly, it would be safer not to decide the point, although I would emphasise that the reasoning of the Court of Appeal both as to the natural reading of section 68 and as to the justification for adopting an artificial meaning, should not be regarded as necessarily correct. Conclusion on the section 68 costs issue 68 judgment, but not to the extent to which Werit contended, and I would leave open the question of whether it should succeed on its appeal against the second section 68 judgment. However, as I would allow Werits appeal on the main, infringement, issue, my conclusions on the section 68 costs issues are, strictly speaking, obiter. Accordingly, I would have allowed Werits appeal against the first section |
This appeal raises a question about what the grantee of a deed who has been provided with a defective title needs to establish in order to obtain a remedy under the granters obligation of absolute warrandice. By including a clause of warrandice in a disposition of property which he has sold to the grantee, the seller warrants his title as absolute owner of the property. But warrandice is a contingent obligation. It only comes into effect upon eviction. It has been described as an obligation to warrant the grantee against eviction of the thing sold: MP Brown, A Treatise on the Law of Sale (1821), p 240, para 329. Eviction, in the strict sense of the word, only takes place when a court order is pronounced which deprives a party of his right to continue to occupy the property. As Brown puts it, it is concerned with the loss of the subject through the enforcement of a third partys rights by the sentence of a judge: p 258, para 353. But Scots law has never insisted upon eviction in that sense as the only pre-condition of entitlement to proceed against the granter for recourse under his obligation of warrandice. There can be eviction for this purpose if eviction is threatened and there is shown to be a competing title which will inevitably prevail in competition with that which was given by the granter to the grantee. The question that this case raises is directed to the requirements that must be satisfied if the grantees claim for breach of warrandice is to succeed on the basis of a threat of eviction. It can now be taken as settled law that the claim will succeed if the challenge is made by the party with a competing title to the disputed subjects which is unquestionable and will inevitably prevail in competition with that of the grantee: Clark v Lindale Homes Ltd 1994 SC 210, 216. The problem that has arisen in this case is that, contrary to what was understood at the time when the grantee submitted to the threat of eviction, the party who challenged the grantees title did not at that time have a competing right to the property. The title to the disputed ground was vested in a third party when the threat was made. But the grantee offers to prove that the challenger would have been immediately able to secure title to the disputed ground in its favour and that no proceedings would ever have been required to establish its title to it. That assertion is disputed by the granter, who submits that the grantees claim would be bound to fail even if all the facts on which the grantee relies are proved. Her case is that a challenge by a party whose ownership of the disputed ground was not registered or otherwise established at the time of the threat, but who would have been able subsequently to obtain a registered title, is not sufficient to engage a remedy in warrandice. The situation that has arisen in this case is not one that any previous discussion of the extent of the remedy has contemplated. Some of the dicta might be taken as suggesting that the granter cannot succeed as the essential requirements for a successful claim are not satisfied. But the limits of what it is necessary to prove to establish an eviction for this purpose have never been precisely identified. So I think that it is open to us to address the issue as one of principle. But first it is necessary to set out the facts. The facts The pursuer, Mr Morris, seeks an award of damages against the defender, Mrs Rae. He is the assignee of rights formerly vested in Ransom Developments Ltd (RDL), which is now in liquidation. On 3 August 2004 RDL concluded missives with the defender for the purchase of a plot or area of ground at 152 Dalmellington Road, Ayr. The transaction was settled on 23 August 2004. RDL received a disposition of the subjects in exchange for the purchase price of 140,000. The disposition contained the words and I grant warrandice. RDL took entry and commenced building operations on the subjects which it had purchased. A title to the subjects had not previously been registered in the Land Register under the Land Registration (Scotland) Act 1979. The system of registration of title which that Act introduced replaced the recording of deeds in the Register of Sasines as the principal means of creating real rights in land. Registration of title was introduced by a phased process across Scotland, one area after another. By the date of this transaction it had become fully operational. So it was necessary for RDL to seek registration of the disposition in the Land Register to complete its title to the subjects. The usual search and examination of the title as recorded in the Register of Sasines was carried out before the transaction was settled. It did not suggest that there was any reason to think that there was anything wrong with it. But by letter dated 8 June 2005 the Keeper of the Registers informed RDLs solicitors that an examination of the various title deeds indicated that the defender did not have, and never had, a title to part of the subjects which she had sold to RDL. This was the part adjacent to Kincaidston Drive over which access was to be obtained from the public road to the proposed development (the disputed part). The Keeper was therefore not able to complete the process of registration by issuing an unqualified land certificate. He would have had to exclude a right to indemnity in relation to the disputed part under section 12(2) of the Act. Prior to the introduction of the system of land registration a defect of the kind that the Keeper had identified might have remained undetected. If the subjects were possessed for ten years openly, peaceably and without any judicial interruption after the recording of a deed in the Register of Sasines that was sufficient on its own terms to constitute a real right to the subjects disponed to the purchaser, the right would have been exempt from challenge by the operation of positive prescription as from the expiry of that period: Prescription and Limitation (Scotland) Act 1973, section 1(1)(a). As it was, the fact that the defect had been detected made it necessary for RDL to make further enquiries with a view to resolving the problem. Positive prescription is available under the 1973 Act in cases where a real right has been registered in the Land Register subject to an exclusion of indemnity: section 1(1)(b). But, unless the defect in title could be cured in the meantime, any developments carried out on the disputed part from which the Keeper had excluded the right to indemnity would not have been marketable. The pursuer says in his pleadings that the disputed part was truly owned by James Craig Ltd (JCL), and that JCL can demonstrate that it obtained a good title to it by a disposition in its favour which was recorded in the Register of Sasines in September 1949. It had transferred title to the disputed part inadvertently to John Stevenson Lynch by a disposition dated 30 July 1991, which was recorded in the Register of Sasines on 15 August 1991. But Mr Lynch later acknowledged this error and accepted it. What then happened was that by letter dated 18 November 2005 the solicitors acting for JCL asserted JCLs title to the disputed part and threatened to evict RDL from it. The pursuer avers that in response to this threat RDL had to negotiate with JCL for the purchase of the disputed part, and that in order to do this it was obliged to pay JCL the sum of 70,000. In exchange it obtained a disposition of the disputed part from JCL on 9 March 2006. In recognition of the error Mr Lynch then granted a disposition of the disputed part in favour of RDL dated 30 July 2006 without any consideration having been paid to him. This disposition was then registered by the Keeper without exclusion of indemnity. That was the state of the pursuers pleadings when the case came before a temporary judge on the procedure roll for a debate as to their relevancy. The temporary judge, Rita Rae QC, held that the pursuer was entitled to a proof of his averments. The defender reclaimed, and on 5 April 2011 an Extra Division (Lords Clarke and Bracadale, Lord Bonomy dissenting) allowed the reclaiming motion and dismissed the action: [2011] CSIH 30, 2011 SC 654. Speaking for the majority, Lord Clarke said that it appeared to him from the authorities that the question whether the evicter had an unquestionable title to the subjects in question, and thus the right to evict, had to be judged at the time that eviction was sought or threatened. As JCL did not have a title to the disputed part which would have entitled it to demand possession immediately, there was no breach of warrandice: para 13. Lord Bonomy said that the unquestionable nature of JCLs title could be established by evidence relating to the circumstances of the disposition to Mr Lynch and the arrangements for reconveyance, and that there was no suggestion in the pleadings that any action that JCL might have raised in its own name or with Mr Lynchs authority could have been resisted successfully: para 17. As a result of further enquiries which followed the raising of this action, the pursuer now states in paragraph 7 of the statement of facts and issues which he has lodged for the purposes of his appeal to this court that as at November 2005 RDL and JCL both believed that JCL held the title to the disputed part. He offers to prove that neither party was then aware that the title had, in error, passed to Mr Lynch in 1991. The plans attached to the relevant titles are said to have been difficult to interpret and, just as their examination did not at first reveal that the defender did not have title to the disputed part, their examination did not reveal that JCL did not have a title to it either. JCLs threat of eviction was made in the belief that it held the title to the disputed part, and RDL yielded to that threat on the basis that there was no answer to it. There then follow these averments: Had James Craig Ltd raised proceedings against the appellant, the above mentioned error may not have been discovered. Even if it had been discovered, James Craig Ltd would have been immediately able to secure title to the disputed part in their favour as Lynchs subsequent acknowledgment of the error and co-operation demonstrates. No proceedings (or proof of title) were or would ever have been required to establish the title of James Craig Ltd to the disputed part. The defender states in her statement of facts and issues that the pursuers paragraph 7 is not agreed. In particular she disputes the assertion that if the error had been discovered JCL would have been immediately able to secure title to the disputed part and that no proceedings to establish its title would have been necessary. She states in her written case that it was only after she had pointed out that JCL had conveyed the disputed part to Mr Lynch in 1991 that RDL, having obtained what was essentially a worthless disposition from JCL in return for 70,000, investigated the position and obtained a further disposition from Mr Lynch. Further complications that she has raised are that it now appears that the missives of May 1991 which preceded the disposition of 1991 in favour of Mr Lynch proceeded in the name of James Craig (Farms) Ltd, that the proposition that the disputed part was not intended to be included in that transaction may be open to some doubt and that Mr Lynchs disposition to RDL proceeded in his own name notwithstanding the fact that on 17 June 2002 he had granted a disposition of the subjects that were conveyed to him in 1991 by JCL in favour of Lynchs Trustees. It is plain that there is a substantial dispute as to the true state of the facts. The question before us, however, is whether the pursuer is entitled to a proof of his averments. It is agreed that these must be taken to include what he has set out in his statement of facts and issues. For present purposes the assumption must be that he will be able to prove, among other things, what he avers in paragraph 7. The issue The defender states in her statement of facts and issues that the question in this case is whether a threat to evict RDL by JCL, a party whose ownership was not registered or otherwise established at the time of the threat but who subsequently was able to obtain a registered title, is sufficient to engage a remedy in warrandice. The pursuer puts the point in this way: is it sufficient to engage a remedy in warrandice if the threat was made by the true owner of the disputed part, whose ownership was not yet registered at the time of the threat but to which there was no impediment to registration and which would inevitably prevail? I think that the issue is best approached in two stages. First, there is the way the defender puts the question. In other words, as the majority in the Extra Division held, does the question whether the evicter has an unquestionable title to the subjects in question fall to be judged at the time that eviction is sought or threatened? If that question is answered in the affirmative, it is clear that the pursuers averments are irrelevant. He accepts that, contrary to what he says was understood to be the position at the time when the threat was made, JCL did not then have a title to the disputed part. But if there is room for the remedy to be engaged where the threat is made by someone who does not have a real right to the disputed part at the time of the threat because his competing title has not yet been registered, there is a further question that must be answered. What does the party with the defective title who has incurred loss as a result of a threat need to show in order to establish that the threatened demand amounted to an eviction? The state of the authorities A convenient starting point for an examination of these questions is to be found in the observations by Lord President Hope and Lord Morison in Clark v Lindale Homes Ltd 1994 SC 210 which led the majority in the Extra Division to conclude that the pursuers averments were irrelevant. At p 216B-C I said, with reference to section 895 of Bells Principles (10th ed): As I understand the statement of principle in that paragraph, eviction occurs when there is a loss to the buyer due to the fact that someone else has a competing title which is beyond doubt. Later on the same page, at p 216F, I said: The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. But at p 220C-D, having acknowledged that more was required to justify a claim under the warrandice clause than a mere deficiency in the title of the grantee, I said: Something else was required, and according to expressions used in the authorities it is eviction which gives rise to the claim. The word eviction might be thought to imply that the loss is in some respect due to action by the party who has the competing title to assert his rights In the present case there are no averments that any action was taken by the party with the competing title, and if the word eviction is to be understood in this sense that would appear to be conclusive against the pursuer in this case. Lord Morison put the point at p 224C-D in this way: If [eviction] has not been judicially established, the warrandice clause may still be invoked if eviction in the strict sense is threatened, providing that the threat is based on an unquestionable right. Such a threat could only come as a result of a demand from the competing title-holder, for no one else has any right, let alone an unquestionable right, to make it. Taken at their face value, these observations may be said to point clearly to the conclusion that, although there was a demand in this case, the pursuer cannot invoke the warrandice clause as he is not able to show that JCL, who made the demand, had a competing title to the disputed part when the threat was made. According to his averments, the registered title to the disputed part was vested at that time in Mr Lynch. But the question which had to be decided in Clark v Lindale Homes Ltd was not directed to the problem that has arisen in this case. The submission for the pursuer in Clark was that warrandice was a warranty of indemnity for all losses which the purchaser might sustain arising out of a defect in title, whether or not the purchasers had been dispossessed of the whole or any part of the property. It was sufficient for a prevailing right to have been identified by the Keeper of the Registers which resulted in loss to the purchaser: see p 213B-C. This argument was rejected on the ground that there had at least to be the threat of an eviction, provided it was based on an unquestionable right. The proposition that such a threat could only come from a party who, at the time of the threat, was the competing title holder went further than it was necessary to go for the disposal of the action. I think that it is open to us to consider whether it went too far. The first authoritative treatment of the effect of warrandice is in Stair, Institutions of the Law of Scotland (1693), II, iii, 46: The effect of warrandice is, the up-making of what is warranted, in so far as it is evicted, and the ordinary procedure in it is, when any suit is moved whereon eviction may follow, intimation is made to the warrander of the plea, that he may defend; and if eviction follow, and distress thereby, declaratory of distress, and an action of warrandice for relief is competent. Also it is effectual for decerning the warrander to free the thing warranted of that which will undoubtedly infer a distress, though it hath not actually done it Yea, warrandice will take effect where there is unquestionable ground of distress, though the fiar transacted voluntarily to prevent the distress. And though no intimation be made of the plea inferring distress, yet the warrandice taketh effect, unless the warrander had a relevant defence, and could instruct the same. The situation relevant to this case is described in the last two sentences. There was an unquestionable ground of distress, it being accepted that the defender had not given RDL a valid title to the disputed part. There was also the threat of an eviction, as JCL had called upon RDL to remove from the disputed part. RDL then transacted voluntarily with JCL to prevent the distress of an eviction. The fact that there was no intimation to the defender is no answer to the claim. The warrandice takes effect unless the defender had a relevant defence to JCLs claim. The pursuer offers to prove that there was no relevant defence as, if the fact that JCL did not have a title to the disputed part had been discovered when the threat was made, JCL would have been immediately able to secure title to it with the co-operation of Mr Lynch. On these facts, if they can be established, it would seem that the claim that the pursuer makes is within the scope of the remedy as described by Stair. There must, on his description of it, be an unquestionable ground of distress. But it is not said to be an essential requirement, assuming that a threat must be made, that the party who makes the threat must himself have an unquestionable title at the time when he makes it. What is needed is that the warrander would have had no relevant defence to the threatened eviction. That would seem to be the case if there was an unquestionable defect in the grantees title, and the party who made the threat was, as the pursuer avers, in a position by the exercise of a personal right that was vested in him at that time to obtain a real right to the subjects in question immediately. I do not think that any guidance on this point is to be found in Erskine, An Institute of the Laws of Scotland, II, iii, 30, although in Welsh v Russell (1894) 21 R 769, 773 Lord McLaren said that there could be no better authority on the subject. Erskine makes it clear that the remedy is not one of restitution but of indemnification. But he does not appear to accept that warrandice may be effectual where eviction has been threatened but has not actually occurred other than in the case of inconsistent deeds of the granter. As authority for the exception in the case of inconsistent deeds, reference may be made to Smith v Ross (1672) M 16596, in which the court sustained a submission that warrandice may take effect where there is no actual eviction, if the cause inferring eviction be evident and clear, especially if the same be the deed of the party warrander, who is most unfavourable, having granted double dispositions. It does not appear from the discussion of the point by the institutional writers, however, that there is any compelling reason why the cause inferring the eviction, if it be an unquestionable defect against which the grantee would have had no defence until the expiry of the prescriptive period, must be drawn to his attention by the party at whose instance the eviction may take place. This suggests that the law as to the requirements for there to be a relevant threat of eviction, in cases other than those arising from inconsistent deeds of the granter, was not fully developed at that stage. In Bells Principles 10th ed (1899), section 121 eviction is said to include the emerging of an unquestionable burden on the subjects purchased, which the buyer is compelled to discharge. In section 895 the point is again made that warrandice is not an obligation to protect but only to indemnify in case of eviction. Out of this peculiarity there are said to arise several important consequences: Thus there is no action of warrandice till judicial eviction, unless the ground of demand be unquestionable, and proceeding from the fault of the seller; or the obligation to relieve be disputed, in which case the action may be brought when eviction is threatened. The first of these two exceptions arises where the grantees lack of title is due to a second inconsistent deed of the seller, as was noted in Smith v Ross. That is not this case. The second arises where the threat of eviction is settled before a judicial eviction takes place. Here too there is no examination of the requirements that must be satisfied for there to be a relevant threat, other than that the ground of demand must be unquestionable. There must, as Lord Morison observed in Clark v Lindale Homes Ltd at p 224B, be compulsion exerted by a demand. But the discussion so far seems to leave open the question whether the person who makes the demand must at that time have a real right to the disputed subjects, or whether it is enough that he can demonstrate that he has an unquestionable right to obtain one. As Bell refers in support of his description of the obligation in section 121 to Pothiers Treatise on the Contract of Sale (translated 1839), it is perhaps worth noting that in para 83 Pothier observes that the term eviction is applied in practice both to the sentence which orders the abandonment and to the demand which is brought to obtain it. In para 86 he states: The term eviction is applicable, strictly speaking, to those cases only in which the buyer is deprived of the thing sold by a sentence. It is used, however, in a sense less proper, to include cases in which the buyer is deprived, without any sentence, of the power to retain the thing, in virtue of the sale. In para 95, describing the circumstances that could constitute a threatened eviction, he states that where the buyer of the thing sold has to abandon it to a third party who at the time of the contract was the owner or had at least an inchoate right to compel the buyer to abandon it, this gives rise to a warranty provided the buyer can prove that the third party really had the right which he claimed. The situation that he contemplates is one where the buyer has no power to retain the subjects but abandons it to forestall the expense of a sentence against him, provided that party to whom he abandons has the right to compel the abandonment. Brown, Treatise on the Law of Sale (1821), makes the same point in para 330, stating that the eviction must take place in consequence of a right existing in a third party. The question whether that right must be a real right to the disputed subjects, vested in the third party at the time of the demand, is not discussed. In Welsh v Russell at p 773 Lord McLaren said that the obligation of warrandice differed from all other obligations, in that it was not intended that it should be performed immediately, or within a definite time, or even within what the law describes as a reasonable time: It remains latent until the conditions come into existence that give it force and effect, and it continues to affect the granter and his heirs until the possibility of adverse claims has been extinguished by the long prescription. That was a case where a servitude right of way had been established judicially over the garden of subjects purchased by the pursuer, but the pursuer was not able to aver that he had suffered any loss through the existence of the servitude. It is an important authority on the question whether more is needed to justify a claim under the warrandice than a mere unquestionable deficiency in title. But it does not deal with the question as to the nature of the right that must be shown to be vested in the third party at the time when he makes his threat or demand. The first modern case in which it was held that a claim under warrandice was competent where there was no eviction, other than in the case of an absence of title caused by a second inconsistent deed of the granter, is Watson v Swift & Cos Judicial Factor 1986 SC 55. Lord Morison held at p 61 that an unquestionable burden on the subjects had emerged and that this situation had been created by the grant to the pursuers of a disposition which contained an unjustified warrant of its effectiveness. The property was subject to redemption under a decree of adjudication, and an action had been raised by a party who was entitled to decree ordaining the pursuers to discharge the adjudication and remove from the flat. They had no defence to the action, which was sisted for negotiations which resulted in the pursuers obtaining a valid and marketable title to the flat. As in Clark v Lindale Homes Ltd, there was no need in that case to examine the question which is before us in this case. In his essay in A Scots Conveyancing Miscellany (1987) (ed Cusine) entitled Warrandice in the Sale of Land Kenneth G C Reid, as he then was, said at p 158 that there are a number of circumstances in which eviction is not required for a claim to be brought. Two of them, he said, were well established and the possibility of additional categories was not excluded. Those that were well established were (1) where the buyers absence of title was caused by a second, inconsistent deed of the seller, and (2) where an action against the buyers title is raised but then settled without proceeding to decree, provided that the buyer had no stateable defence, as in Watson v Swift & Cos Judicial Factor. He observed that Stair, II, iii, 46 had reached substantially the same conclusion as Lord Morison did in that case 300 years earlier. The circumstances of the present case differ from those in Watson, because no action was raised before the negotiations were concluded. It does not fall within either of the two categories that, writing in 1987, Professor Reid recognised as well established. But it was held in Clark v Lindale Homes Ltd that the warrandice clause may still be invoked if eviction in the strict sense is threatened, provided that the threat is based on a right which is unquestionable. As for the question what the phrase a right which is unquestionable means, the editors of Professor McDonalds Conveyancing Manual 7th ed (2006), para 10.09 state that the warrandice obligation does not indemnify against loss or damage which the grantee may suffer from any cause, other than actual or constructive eviction by an adverse real right. But they cite no authority for this statement, and in his title on Property in the Stair Memorial Encyclopaedia Restatement, para 707, Professor Reid states that what is required is that the true owner of the property successfully assert his right against the transferee, adding in footnote 4 the words or, in the case of a voidable title, the person entitled to lead the reduction. This formulation suggests that, while the existence of an adverse real right is of course an essential requirement, the person who asserts that right need not actually be in possession of it when he leads the reduction or otherwise asserts the right against the grantee. Discussion As I said in para 12, above, it seems to me that the first question that needs to be addressed is whether, as the majority in the Extra Division held, the person who makes the threat has to have an unquestionable title to the subjects in other words, a right in rem at the time when he makes his threat. As I have indicated in my examination of the authorities, they do not appear to me to impose such a rigid requirement on the grantee. Some of the dicta in Clark v Lindale Homes Ltd might be taken as having that stark effect, but they can properly be regarded as obiter. Such discussion of the remedy as there is in the previous authorities concentrates on the point that, in order to bring the obligation into effect, there has to be an eviction or at least the threat of an eviction. Clearly, the party who seeks eviction or who threatens to do so must be in a position to make good his challenge to the title of the grantee. But there would seem to be no good reason why the way in which that challenge may be made good cannot be worked out, in the ordinary way, according to the circumstances of each case. To insist that the right on which the party who makes the threat has to found when he makes his threat must be a real right overlooks the fact that parties who have an undoubted interest in seeking to challenge the title of the grantee may not yet, for a variety of reasons, have registered a title to the subjects in their own name. Where proceedings are raised to obtain an order for eviction, the party who brings those proceedings will need to show that he has a title and interest to make the claim. But I do not see why, so far as the question of title to sue is concerned, that cannot take the form of an undoubted personal right against the person in whom the title to the land is vested by which that person can be required to transfer his real right to the party who has brought the proceedings or, if the proceedings are settled, to the grantee. Mr Reid QC for the pursuer accepted that the obligation of warrandice was a contractual remedy. But he submitted that, in a general sense, it was equitable in nature and that, for this reason, it should be accorded a degree of flexibility. I think that to adopt that approach would be to introduce too much uncertainty, and it sits uneasily with an underlying concept of the law of obligations. Contractual remedies are based on what the parties are to be taken to have agreed to, not what the court thinks just and equitable. But there is force in the idea that, in the working out of the contractual remedy, the law seeks to find practical solutions to the problems that the case gives rise to. That is why it does not insist on actual eviction as the only precondition for a claim under the obligation of warrandice. It accepts that, as Stair II, iii, 46 puts it, the grantee may act voluntarily to prevent the distress. He does not have to engage in pointless litigation. It is, of course, essential that the grantee transacts voluntarily with the right person with the person who has a title and interest to make good the threat. But to insist that the title must take the form of a real right at the time when the threat is made would be to deprive the remedy of utility in circumstances such as in this case, where it is said that the party who made the threat was nevertheless in as good a position to make good the threat as he would have been if the real right had already been vested in him. I would hold that to insist on this does not give full weight to the underlying purpose of the obligation as described by Stair, and that it is wrong in principle. As for what the grantee needs to show in order to establish that the threatened demand amounted to an eviction, he must, as I have just said, be able to show that he transacted with the right person. There must, of course, be a competing title which will prevail in a question with the grantee. And the party who makes the threat must be in a position to make it good if negotiations were to break down and the dispute were to proceed to the stage of an actual eviction. The grantee must, then, be able to show that the threat was capable of being made effective. But an incomplete title to the disputed subjects will be good enough if the party who makes the threat is undoubtedly in a position to compel the party in whom the real right is vested to transfer the title to him or, if the threat is compromised, to the grantee. I do not see this approach as undermining the principle that parties are entitled to transact with each other on the faith of the register, as the defender suggested. It is, of course, to the register that one must go to determine who has the real right. That does not mean, however, that a personal right against the holder of the real right must be left out of account when one is seeking a practical solution to problems of the kind that are illustrated by this case. Although the analogy is not precise, it is perhaps worth noting what is needed for there to be judicial interruption of prescription for the purposes of section 4 of the Prescription and Limitation (Scotland) Act 1973. This is because it could be said that there is an affinity between the judicial interruption of prescription, which if it were to be allowed to run on for the prescriptive period would provide the grantee with an unchallengeable title, and the obligation of warrandice. Warrandice remains latent until the conditions come into existence that give it force and effect. But it continues to affect the grantee until the possibility of adverse claims has been extinguished by the positive prescription. It is plain that a challenge to the possession which gives force and effect to the warrandice will interrupt the running of the prescription. Can it be said that a challenge which is sufficient to interrupt the running of the prescription let us say, on the day before the prescriptive period expires will be sufficient to give force and effect to the obligation of warrandice? As section 4(1) puts it, the interruption occurs when any person having a proper interest to do so makes a claim which challenges the possession in question. As David Johnston, Prescription and Limitation of Actions (1999) points out at p 296, there is nothing in the section to say that it matters who challenges possession, so long as he has a proper interest to do so. In Scammell v Scottish Sports Council 1983 SLT 462 Lord McDonald said that, had it been necessary for him to do so, he would have accepted that the challenger must put forward a competing right to possess by showing that he or someone else had a better title than the possessor. But Johnston suggests at p 296 that this was a rather narrow construction of the sorts of actions which amount to challenges of the required sort, and that it may be that it should not be treated as a universal requirement. I would be reluctant to accept, without further argument, that it is enough for there to be a valid threat for the purposes of the obligation of warrandice that the person who makes the threat should simply be able to assert in some general way that he has a proper interest to do so. But Lord McDonalds narrower construction of the expression in the statute, which Johnston is inclined to reject, has more to commend it. The paradigm case for the purposes of the law of warrandice is a judicial eviction. It is hard to conceive of a case where an eviction would be ordered unless the party by whom the proceedings were brought was able to show that he or someone else had a better title than the grantee, and it is hard to conceive of a case that was brought on the basis that the better title was vested in someone else unless the party who brought the proceedings could show that he had an interest to do so. But proof of the possession of an undoubted personal right which was immediately enforceable against the party with the real right in the subjects would seem to satisfy this requirement: see MRS Hamilton Ltd v Baxter 1998 SLT 1075, 1079C-D. On that approach it could be said that there was a measure of harmony between what I would hold was sufficient on the facts of this case to enable the pursuer to claim under the warrandice and what would have been sufficient for JCL to interrupt the running of prescription in the pursuers favour had appropriate proceedings been brought against him. Conclusion I would hold that the pursuer will be entitled to the remedy he seeks if he can prove that, when RDL yielded to the threat, JCL would have been immediately able to secure title to the disputed part in its favour by calling upon Mr Lynch to transfer the title that was vested in him and that no proceedings would have been required to secure that result. That is what he now offers to prove to make good his case that RDL would have had no defence to an action for its eviction (see para 9, above) and, assuming that the necessary amendment is made, I think that he is entitled to the opportunity of doing so. For these reasons and those given by Lord Reed I would allow the appeal, recall the Extra Divisions interlocutor, restore the temporary judges interlocutor and remit the case to the Outer House for the hearing of a proof before answer. One of the usual terms of a contract of sale of heritable property in Scotland, implied if not expressed, is a warranty against defects in the sellers title to the property sold. Such a warranty is normally contained in a warrandice clause in the disposition of the property. Usually, as in the present case, the clause is what is known as an absolute warrandice, that is to say a warranty against all defects in title which existed when the disposition was delivered. Like other contractual terms, the warrandice clause creates a personal obligation. The obligation is one of indemnity: the seller is obliged to indemnify the purchaser in respect of any loss which he may suffer. The obligation continues until the possibility of adverse claims against the purchaser has been extinguished by prescription (Welsh v Russell (1894) 21 R 769, 773 per Lord McLaren). Contrary to what might be expected, it has long been accepted that a defect in the sellers title to the property is not in itself a breach of the warrandice: no claim arises against the seller unless the purchaser is evicted from the property. The obligation to indemnify created by warrandice is therefore contingent upon eviction. The term eviction is used in this context in a special sense: actual ejection or removal from the property is not required. As Lord McLaren explained in Welsh v Russell (p 773), the obligation is designed to indemnify the purchaser not only against the consequences of complete eviction, but against the loss of the most inconsiderable fraction of the estate, or its diminution in value by reason of the establishment of a burden of any kind. It is because eviction, in this expanded sense, ceases to be possible once a purchaser with an ex facie valid title has enjoyed uninterrupted possession for the prescriptive period that the obligation continues for that period. This approach to the obligations arising under a contract of sale can be traced back to Roman law, under which the primary obligation of the seller was to deliver possession of the property sold. Provided the purchaser remained in undisturbed possession, any defect in his title could be cured by prescription. Putting the matter broadly, the purchaser therefore had no remedy for a lack of title, if the seller had acted in good faith, unless and until he was evicted in whole or in part by the true owner or, without actual eviction, lost the value of his purchase by reason of a defect in title: if, for example, he had to buy off the claim of the true owner, and thus had to pay twice for the same property. Some modern civilian systems, such as German law, have departed from this approach and impose an obligation to convey ownership; but Scots law, like French law, adheres to the older tradition, except in relation to the sale of goods, where a different rule, derived from English law, was introduced by statute. The circumstances of the present case have been fully set out by Lord Hope. Put briefly, Mr Morris offers in his pleadings to prove that RDL purchased the property in question from Mrs Rae in 2004. RDL were subsequently threatened with eviction from the property by JCL, the threat being initially made in 2005. The real right to the property was at that time held by Mr Lynch, but his title was voidable at the instance of JCL, the property having been conveyed to him by JCL in 1991 by mistake. In order to avoid eviction, RDL paid JCL 70,000, and JCL procured the grant of a disposition by Mr Lynch to RDL in 2006, which was then registered. Mr Morris brings these proceedings as the assignee of RDLs claim against Mrs Rae. On those assumed facts, a majority of an Extra Division of the Inner House considered that the action must be dismissed, on the basis that the threat of eviction must be made by a person who, at the time the threat is made, has an unquestionable title to the property, entitling him to demand immediate possession: Morris v Rae 2011 SC 654, para 13, per Lord Clarke, with whom Lord Bracadale agreed. Lord Bonomy dissented on the basis that JCLs threat of eviction could not have been resisted successfully: it would have been a waste of time of time and expense to have resisted eviction when JCL was ultimately bound to succeed (para 17). In the course of the present appeal Mr Morris has provided further information as to the facts, in order to avoid any misunderstanding which might otherwise arise from the pleadings. It appears that JCL granted a disposition of the property to RDL in March 2006, in return for the payment of 70,000. In about May 2006 Mrs Rae informed RDL, in her defences to the present action, that the title was held by Mr Lynch. JCL then contacted Mr Lynch, who acknowledged that the property had been conveyed to him in error and in July 2006 granted the disposition to RDL. I would observe that, if JCL had not procured the grant of that disposition (or a disposition by Mr Lynch to themselves, so as to cure by accretion the defect in their title to grant the March 2006 disposition), RDL would have been entitled to recover the 70,000. It would therefore be an over-simplification to say that RDL paid for a worthless disposition by JCL. In effect, there was a tripartite arrangement under which JCL, who had a right to the title to the property and were threatening RDL with eviction, procured the grant of a disposition to RDL by Mr Lynch, who held the title but was bound to divest himself of it when called upon to do so by JCL, in return for RDLs allowing JCL to retain the 70,000 which had previously been paid to them; and that disposition cured the defect in RDLs title and removed the threat of eviction. This further information does not appear to me to alter the fundamental features of the case as pleaded. Mrs Rae disputes Mr Morriss version of events, and has also put forward some additional information in the course of the appeal. The question however is whether Mr Morris is bound to fail on the assumed facts which he offers in his pleadings to prove. The fact that his averments are disputed is not germane to that question. The critical question in the appeal, therefore, is this: what characteristics does the law insist on for a threat of eviction, to which the purchaser accedes by buying off the threat, to trigger the sellers liability to indemnify the purchaser under the warrandice? In particular, is it essential that the threat of eviction should be made by a person who has at that time a title to the property, as the majority of the Extra Division considered? Or can a personal right ever be sufficient? If so, in what circumstances may it be sufficient? In reaching the conclusion which they did, the majority of the Extra Division relied upon dicta in Clark v Lindale Homes Ltd 1994 SC 210. In that case, Lord President Hope concluded (p 220) that since the pursuer did not aver that any action had been taken against her by the party with the competing title, the action should be dismissed; and Lord Morison said (p 224) that a threat of eviction could only come as a result of a demand from the competing title-holder, for no one else has any right, let alone an unquestionable right, to make it. These dicta must however be read in their context. The issue with which the court was concerned was whether the seller could be liable under the warrandice where a defect in title had been identified by the Keeper of the Registers but there had been no action whatsoever taken against the pursuer in consequence of the defect. The court was not concerned with the precise interest which had to be held by the competing title-holder, nor with the question whether there might be circumstances in which a person who currently had no title to the property might nevertheless be able to challenge the purchasers title. As there does not appear to be any judicial authority directly in point, it is appropriate to begin by considering the relevant principles. Stair states in his Institutions of the Law of Scotland, II.iii.46: The effect of warrandice is, the up-making of what is warranted, in so far as it is evicted, and the ordinary procedure in it is, when any suit is moved whereon eviction may follow, intimation is made to the warrender of the plea, that he may defend; and if eviction follow, and distress thereby, declarator of distress, and action of warrandice for relief, is competent. Also it is effectual for decerning the warrender to free the thing warranted of that which will undoubtedly infer a distress, though it hath not actually done it Yea, warrandice will take effect where there is an unquestionable ground of distress, though the fiar transacted voluntarily to prevent the distress. And though no intimation be made of the plea inferring distress, yet the warrandice taketh effect, unless the warrender had a relevant defence, and could instruct the same. The second sentence in this passage indicates that the sellers liability under the warrandice can be enforced in advance of actual distress, where a defect in title has emerged which will undoubtedly infer a distress. The last two sentences indicate that the seller will be liable under the warrandice where the purchaser buys off the threat of eviction, provided there is an unquestionable ground of distress. The purchasers failure to inform the seller will not prevent recovery under the warrandice unless the seller had a relevant defence to the threatened eviction. These principles have been applied in numerous cases. Two examples can be given. In Downie v Campbell, 31 January 1815, FC, the pursuer had been granted a lease to commence at a future date, with absolute warrandice, by an heir of entail. The heir of entail having subsequently forfeited his right to the estate before the commencement of the lease, the next heir declined to implement the lease. The pursuer did not contest the threat of eviction and did not intimate the threat to the granter of the warrandice, but was held entitled to recover. Lord Meadowbank, with whom the other members of the court agreed, said that the idea that the pursuer should have maintained her title was quite untenable. In Menzies v Queensberry Executors (1832) 11S 18, a tenant was held to be entitled to be indemnified under his landlords warrandice after the lease of another tenant, in identical circumstances, had been set aside in a test case. The fact that no proceedings had been taken against him, and that he had not intimated the threat to the landlord, was not a bar to recovery. Lord Cringletie observed (p 20) that it is clear that any one may abandon a subject where the right is indefensible, and it is not necessary to entitle him to damages as for eviction, that he shall have given intimation, unless the granter could show that he could have defended successfully. It is also relevant to note what was said on this subject by Pothier, whose legal writings influenced the development of the Scots law of obligations during the eighteenth and nineteenth centuries. His Trait du Contrat de Vente (1762), in particular, was extensively cited in Mungo Browns A Treatise on the Law of Sale (Edinburgh, 1821). In his treatise, Pothier states at para 84 that if a buyer pays a sum in order to prevent the loss of the estate, which he would otherwise be unable to preserve, he is entitled to recover the amount which he paid from the seller. Pothier also states at para 95 (as translated by L S Cushing, Pothiers Treatises on Contracts, Boston, 1839, Vol 1, p 55): An abandonment of the thing sold by the buyer, though without sentence [ie without a judicial decision], to a third person, who, at the time of the contract, was the owner of it, or, who, at that time, had at least an inchoate right to compel the buyer to abandon it, gives rise to a warranty, provided the buyer can prove, that the person, to whom he abandoned, really had the right which he claimed. Pothier explains the rationale of this approach as follows (para 96): The equity of this maxim is evident. Though the term eviction, in its proper sense, is applicable only to the abandonment, which one is condemned to make, by a sentence of the judge; yet, when it is proved, that the party, to whom the buyer without any sentence makes an abandonment of the thing, has a right to compel it, and that it is made only for the purpose of forestalling and avoiding the expense of a sentence, it is manifest, that in this case, it is not in the power of the buyer to retain the thing; and, consequently, that the seller does not fulfil his obligation, praestare ipsi rem habere licere, which gives rise to the warranty. These various sources agree that the ground of challenge to the purchasers title must be unquestionable, or looking at the other side of the coin that the purchasers right must be untenable or indefensible. Counsel for Mrs Rae argued that this requirement should be interpreted as meaning that there must be no stateable defence to proceedings against the purchaser. In support of that contention, reliance was placed upon Palmer v Beck 1993 SLT 485, where Lord Kirkwood said at p 488 that a claim for breach of warrandice could arise if there was a real threat of eviction, as, for example, when the true owner raises proceedings seeking to evict the purchaser and there is no stateable defence to the action. It is to be noted however that this was merely an example: Lord Kirkwood went on to say (ibid) that what constituted a threat of eviction giving rise to a claim for breach of warrandice must depend on the circumstances of each individual case. I respectfully agree. Counsel also relied upon a dictum in Holms v Ashford Estates Ltd 2009 SLT 389, where Lord Eassie, delivering the opinion of the court, said (para 45) that one way of putting the requirement that the defect in title be unquestionable was by posing the question whether, were proceedings to take place between the party to whom warrandice had been granted and the competing proprietor, it could immediately be affirmed that the title of the competing proprietor was so plainly preferable as to render the position of the party claiming warrandice unstateable. In other words, Lord Eassie added, there would be nothing that could properly be disputed or argued in such a hypothetical action on behalf of the person to whom the warrandice has been granted. That dictum goes beyond what had been stated in the earlier authorities I have mentioned, and in my opinion it sets too demanding a standard. Pothier requires only that it be proved that the challenger has a right to evict the purchaser: an objective test. Stair can be understood in the same sense. That is also consistent with the approach adopted in Clark v Lindale Homes Ltd. In that case Lord President Hope said (p 216) that the unquestionable nature of the competing title was a fact which could be demonstrated by proof; and his Lordship also observed (ibid) that the warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. This approach does not depend on whether some argument might be devised by way of a defence to a challenge, but upon whether a defence would inevitably fail. The approach adopted in the passages which I have cited from Stair and Pothier is practical and realistic. If the purchaser of land is facing the prospect of undoubted eviction, even if it is not imminent, he has an immediate practical problem. He cannot, for example, let the land to a tenant for its full value, since he cannot himself grant warrandice; he cannot spend in safety the rent received from any existing tenant, since he is liable to have to account for it to a third party; and he cannot sensibly sow crops, since a third party may be entitled to harvest them. It is important for him to be able to resolve the practical problems arising from the defect in his title as soon as he can. Furthermore, where eviction is threatened and the threat is unquestionably capable of being put into effect, the purchaser has no realistic alternative but to accede to it. To defend his title would be a waste of time and money. That may be so even where the person threatening eviction is not currently vested in the property, if for example he has an unqualified right to demand an immediate conveyance of it. In most cases, the threat of eviction will arise because the purchasers right to the property is challenged by a person who has at that time a title to the property. There is not however an invariable requirement that the challenger must have a title, in the ordinary sense of a right of property (whether in rem or ad rem), in order to be able to evict the purchaser, let alone to threaten eviction. One situation where there is no such requirement is where the purchasers title is voidable, and the challenger is a person entitled to have it set aside. In the present case, for example, supposing that Mr Lynchs title was voidable at the instance of JCL, as is averred, and further supposing that he had granted to a third party a disposition of the property other than bona fide and for value, then the third partys title would be voidable at JCLs instance, notwithstanding that JCL had no title to the property. In the event that Mr Lynch had granted absolute warrandice to the third party, a claim would surely lie under the warrandice notwithstanding that the threat of eviction had been made by a person without a title. It might however be argued that the situation is different where the only ground of challenge to the purchasers title arises from a competing title, and the challenger is not the person holding that title. In most cases, no doubt, the person holding that title will be the only person with any title or interest to challenge the purchasers right to the property, and therefore the only person whose challenge, if resisted, can give rise to liability under the warrandice; and, if a challenge cannot give rise to liability under the warrandice if it is resisted, it can hardly give rise to liability if it is acceded to. Three considerations however support the view that it need not invariably be the case that only a person holding a competing title can effectively challenge the purchasers title and thereby trigger liability under the sellers warrandice. First, it is consistent with the principles stated by Stair and Pothier that the seller should be liable under the warrandice in a case such as the present. On the facts as averred by Mr Morris, there was an unquestionable ground of distress, as RDLs title to the disputed property was unquestionably defective; and the threat of eviction made by JCL, in consequence of that defect, would undoubtedly infer a distress, even if it was necessary for JCL to obtain a conveyance from Mr Lynch or rectification of their disposition to him before distress would actually occur. RDLs title to the disputed property could properly be described as indefensible. Secondly, as I have explained, the rationale of the laws permitting a purchaser who accedes to a threat of eviction, without any judicial determination, to recover under the warrandice is essentially practical. It reflects the undesirabililty of pointless delay and expense, and pointless litigation, where eviction is ultimately inevitable. Where the title competing with the purchasers title is vested in person A, the fact that the threat of eviction is made by person B does not preclude the possibility that the purchaser may have no realistic alternative but to accede to the threat. In particular, if person B has an unqualified right to demand from person A an immediate transfer of the title vested in him if, for example, person As title is voidable at the instance of person B - then no useful purpose will be served by requiring the purchaser to resist the threat until person B has exercised his right against person A and obtained the title: the only practical result of such a requirement would be pointless delay in the resolution of the purchaser's difficulties while the formalities required for the transfer of the title from person A to person B were completed, together with pointless expense and, possibly, pointless litigation. Thirdly, in such a situation, it would be unrealistic, if not perverse, for the law to maintain that the purchaser can rely upon the sellers warrandice if he accedes to a threat by person A, but not by person B, since on the face of things the former has no real interest in threatening eviction, while the latter has an interest, although he has not yet obtained a title to the property. The concept of title, in the context of a title to property, is not however the same as the concept of a title to sue; and it would be a misunderstanding to suppose that only a person who has a title to property can ever have a title to sue to enforce rights in respect of that property. There is a line of authority establishing that there are circumstances in which proceedings may be brought by a person who does not at that time hold the right on which the proceedings are based, provided he has an undoubted entitlement to obtain the right and does so pendente processu. This matter was discussed in the case of Westville Shipping Co Ltd v Abram Steamship Co Ltd 1923 SC (HL) 68, [1923] AC 773, in which the defenders had assigned to the pursuers their rights as the purchasers of a ship under construction. The pursuers had in turn assigned the rights to a third party. Both assignations were voidable on the ground of error. The third party brought proceedings in England against the pursuers to have the second assignation set aside, and the pursuers then brought proceedings in Scotland against the defenders to have the first assignation set aside. The third party subsequently obtained judgment by consent in the English action. The pursuers were held to have had a title to bring the Scottish proceedings notwithstanding the fact that they were not entitled to have the first assignation set aside at the time when the proceedings were commenced, since the second assignation had not at that point been set aside. The matter was most fully considered in the Court of Session by Lord President Clyde, whose opinion was approved in the House of Lords. The Lord President said (1922 SC 571, 583): But the genuine and bona fide character of the English proceedings is not challenged; and, if the pursuers had no good answer to the sub- assignees' action, I cannot see that they were bound to postpone raising action in this court until the rescinding order was actually pronounced. All that actually stood between them and reinstatement in the benefits of the builders' contract was the pronouncement of this order which the sub-assignees were moving the English court to make, and which, if the above stated hypothesis is correct, the pursuers had no means of resisting. I think in these circumstances the pursuers may properly be regarded as having a substantial title to sue, and as being substantially in a position to offer restitution to the defenders. If this be so, the circumstance that the substantial right was not actually completed at the initiation of proceedings is not material. The Westville Shipping Co case is not on its facts an exact parallel to the present appeal, since the pursuers in that case were all along parties to the assignation which they challenged, but were not entitled to have it set aside so long as the second assignation, which depended upon the first, remained in force. The approach described by the Lord President has however been applied in a range of other situations which are closer to the present case. In the case of Doughty Shipping Co Ltd v North British Railway Co 1909 1 SLT 267, for example, a pursuer who had paid out the original creditors of the defender, and therefore had an entitlement to receive an assignation of their rights, did not obtain the assignation until after the proceedings had been commenced, but was held to have had a title to sue. That decision was followed, on similar facts, in the case of Lanarkshire Health Board v Banafaa 1987 SLT 229. The same conclusion was reached in Tayplan Ltd v D & A Contracts 2005 SLT 195, an action for breach of copyright in which the pursuers did not own the copyright at the time when the action was raised, but had a right to have it assigned to them. Lord Kingarth held that a clear and unqualified personal right to demand an immediate assignation of the copyright, as he described it (para 19), was sufficient to confer a title to sue. Returning therefore to the questions which I posed in para 39, it would in my opinion be just and rational for the law to answer that it is not always essential that the threat of eviction should be made by a person who has at that time a title to the property. The test which one might expect, as a matter of principle, is that the purchaser must, objectively, have no realistic alternative but to accede to the threat of eviction. Whether such an alternative exists in particular circumstances must be a matter of judgment on the facts. That judgment would have to be made by the court, in the event that the purchaser acceded to the threat and the seller subsequently disputed his liability under the warrandice. It is likely that no such alternative will exist in a situation where the person making the threat has an unqualified entitlement, exercisable immediately, to demand a transfer of the title currently vested in another person, and upon such a transfer will indubitably be entitled to evict the purchaser. Applying that approach to the present case, Mr Morris offers in his pleadings to prove that JCL were entitled to require Mr Lynch to grant them a corrective disposition, as an alternative to proceedings for the reduction or rectification of the disposition in his favour, to which there would have been no possible defence. In substance, therefore, Mr Morris is offering to prove that JCL had an unqualified entitlement, exercisable immediately, to demand a transfer of the title vested in Mr Lynch. He also offers to prove that, upon such a transfer, RDL would have had no defence to JCLs threat of eviction. In these circumstances he has in my opinion set out a relevant case against Mrs Rae. For these reasons, and those given by Lord Hope, I would allow the appeal. To one still largely unfamiliar with the intricacies of Scottish conveyancing and Scottish civil procedure, it is surprising that the soundness of the appellants claim for damages for breach of warrandice should depend, not on the assumed truth of the elaborate pleading which is before the Court, but on the assumed truth of a different pleading which has not been formulated even in draft. The more so as the rather random selection of documentary evidence which the parties have placed before the Court appears to raise doubts as to the correctness of both the existing pleading and its suggested replacement. Neither deals with Mr John Lynchs sale (for a nominal consideration) of the disputed land (together with other land) by a disposition made on 17 June 2002 in favour of himself and two co-trustees. Neither explains the references to two different companies, James Craig Ltd and James Craig (Farms) Ltd. Neither adverts to rectification being, in Scotland as in England, a discretionary remedy. These difficulties cannot however amount to grounds for a principled dissent. The appeal must be allowed for the reasons given by Lord Hope and Lord Reed. For the reasons given in the judgments of Lord Hope and Lord Reed, we too would allow the appeal. |
The anti deprivation rule and the rule that it is contrary to public policy to contract out of pari passu distribution are two sub rules of the general principle that parties cannot contract out of the insolvency legislation. Although there is some overlap, they are aimed at different mischiefs: Goode Perpetual Trustee and Flip Clauses in Swap Transactions (2011) 127 LQR 1, 3 4. The anti deprivation rule is aimed at attempts to withdraw an asset on bankruptcy or liquidation or administration, thereby reducing the value of the insolvent estate to the detriment of creditors. The pari passu rule reflects the principle that statutory provisions for pro rata distribution may not be excluded by a contract which gives one creditor more than its proper share. The anti deprivation rule What is now described as the anti deprivation principle dates from the 18th century, although the expression deprivation has been in use in this context only since the decision of Neuberger J in Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150. In 1812 Lord Eldon LC confirmed that a term which is adopted with the express object of taking the case out of reach of the Bankrupt Laws is a direct fraud upon the Bankrupt Laws from which a party cannot benefit: Higinbotham v Holme (1812) 19 Ves Jun 88, 92. Classic statements of the principle include these: the law is too clearly settled to admit of a shadow of doubt that no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not to his creditors. (Whitmore v Mason (1861) 2 J & H 204, 212, per Sir William Page Wood V C) a simple stipulation that, upon a mans becoming bankrupt, that which was his property up to the date of the bankruptcy should go over to some one else and be taken away from his creditors, is void as being a violation of the policy of the bankrupt law (Ex p Jay; In re Harrison (1880) 14 Ch D 19, 25, per James LJ). In the case of personal bankruptcy, section 306(1) of the Insolvency Act 1986 Act (the 1986 Act) provides that a bankrupts estate vests in the trustee in bankruptcy immediately upon his appointment and section 283(1) provides that a bankrupts estate comprises all property belonging to or vested in the bankrupt at the commencement of the bankruptcy; andany property which by virtue of any of the following provisions of this Part is comprised in that estate or is treated as falling within the preceding paragraph. In the case of corporate insolvency, the insolvent company continues to be owner of its property but holds it on trust for the creditors in accordance with the provisions of the 1986 Act: Ayerst v C & K (Construction) Ltd [1976] AC 167. For companies, section 436 defines Property so that it: includes money, goods, things in action, land and every description of propertyand also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property The pari passu principle In the case of personal bankruptcy, by section 328 of the 1986 Act, subject to preferential payments, and with the exception of certain deferred debts, all other debts are to be paid equally. For companies, section 107 provides that, subject to the provisions relating to preferential payments, the companys property in a voluntary winding up [should] on the winding up be applied in satisfaction of the companys liabilities pari passu. By rule 4.181 of the Insolvency Rules 1986 (SI 1986/1925) similar provision is made for a winding up by the court. In such a winding up, the liquidator must secure that the assets of the company are got in, realised and distributed to the companys creditors and, subject to that, he must take into his custody or under his control all the property and things in action to which the company is entitled (sections 143 and 144 of the 1986 Act). In British Eagle International Airlines Ltd v Cie Nationale Air France [1975] 1 WLR 758 the House of Lords by a bare majority (reversing Templeman J and a unanimous Court of Appeal [1974] 1 Lloyds Rep 429, with Russell LJ delivering the judgment of the court) decided that a clearing house arrangement between a large number of airline companies relating to debts arising as between them was ineffective as against the liquidator of one of the companies, British Eagle. All members of the House upheld the principle that contracting out of the pari passu provisions of what was then section 302 of the Companies Act 1948 was contrary to public policy and void. The difference between the majority and minority related largely (but not exclusively) to the question whether the arrangement resulted in no debt being due. The conclusion of the majority in the House of Lords was that, insofar as the arrangement purported to apply to debts which existed when the members of the company passed the resolution to go into creditors voluntary liquidation, it would have amounted to contracting out of the statutory requirement that the assets owned by the company at the date of its liquidation should be available to its liquidator, who should use them to meet the companys unsecured liabilities pari passu, under what is now section 107 of the 1986 Act. The ratio of the decision was accurately stated by Peter Gibson J in Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] Ch 207, 226, as being that where the effect of a contract is that an asset which is actually owned by a company at the commencement of its liquidation would be dealt with in a way other than in accordance with [the statutory pari passu rule] . then to that extent the contract as a matter of public policy is avoided. The distinction between the two sub rules is by no means clear cut. Several decisions which are regarded as decisions on the anti deprivation rule could also be characterised as cases in which the parties sought to disturb pari passu distribution. Ex p Mackay; Ex p Brown; In re Jeavons (1873) LR 8 Ch App 643 is usually regarded as an anti deprivation case. It involved two transactions: the first was the sale of a patent for improvements in the manufacture of armour plates by Mr Jeavons to Brown & Co and Cammell & Co in consideration of the companies paying royalties; the second was a secured loan of 12,500 from the companies to Mr Jeavons. The parties agreed that (1) the companies would keep half the royalties towards satisfying the debt, and (2) in the event of Mr Jeavons bankruptcy, they could also keep the other half of the royalties until the debt had been fully paid. It was held that provision (1) was valid against Mr Jeavons trustee, but provision (2) was not. James LJ said (at p 647) that provision (1) represented a good charge upon one moiety of the royalties, because they are part of the property and effects of the bankrupt, but provision (2) is a clear attempt to evade the operation of the bankruptcy laws as it provide[d] for a different distribution of his effects in the event of bankruptcy from that which the law provides. Mellish LJ said (citing Higginbotham v Holme 19 Ves Jun 88, 92) that the case fell within the principle that: . a person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws . (p 648) What James and Mellish LJJ said cannot be applied unconditionally, since a different distribution and additional advantage can be obtained by lawful charges between debtor and creditor and by subordination agreements between creditors, and the same applies to what Lord Cross of Chelsea said about contracting out generally. The reference, therefore, by James LJ to a different distribution of his effects in the event of bankruptcy from that which the law provides is an early expression of the pari passu principle. That is perhaps why the decision was the only prior relevant decision discussed in Lord Cross sole speech for the majority in British Eagle. He said (at 780): In Ex p Mackay 8 Ch App 643, the charge on [the] second half of the royalties wasan animal known to the law which on its face put the charge[e] in the position of a secured creditor. The court could only go behind it if it was satisfied as was indeed obvious in that case that it had been created deliberately in order to provide for a different distribution of the insolvents property on his bankruptcy from that prescribed by the law. Lord Morris of Borth y Gest, in his dissenting speech, agreed that Ex p Mackay was a case where the relevant provisions were a clear attempt to evade the operation of the bankruptcy laws, or a device for defeating the bankruptcy laws (p 770). By the time that International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3, (2008) 234 CLR 151 was decided by the High Court of Australia the rules of the clearing house scheme had been modified following the British Eagle decision so as to exclude any liability or right of action for payment between member airlines. The High Court decided by a majority (Kirby J dissenting) that the rule changes were effective to make the IATA the sole creditor of Ansett, and that the revised system did not have the effect of administering debts due to an insolvent company otherwise than in accordance with the mandatory pari passu rule. In their joint judgment Gummow, Hayne, Heydon, Crennan and Kiefel JJ also referred to Ex p Mackay and suggested that Lord Cross speech in British Eagle was based in part on the anti deprivation principle; and that there was no need for recourse to the rule that a contract which is contrary to public policy is void, because the statute was an overriding one which applied according to its terms: at paras 74 and 76. There is much to be said for the observation that recourse to public policy is unnecessary for the application of the mandatory statutory pari passu principle. There is little difference in practice between declaring a contractual provision invalid or ineffective because it is inconsistent with the statute and declaring it contrary to public policy for the same reason, but this is not the occasion for the decision in British Eagle to be reconsidered. Although it must be said that the decision of the minority and of the lower courts makes more sense commercially than that of the majority, there was no real disagreement on the applicable principles. But it does not follow from the fact that it is difficult in some cases to draw the line between the two categories that there are no relevant differences. The anti deprivation rule applies only if the deprivation is triggered by bankruptcy, and has the effect of depriving the debtor of property which would otherwise be available to creditors. The pari passu rule applies irrespective of whether bankruptcy or liquidation is the trigger. There is a question whether the bona fides of the parties is equally relevant to the application of the two principles. These points will be taken up below. This is a case in which only the anti deprivation principle is potentially applicable. The Noteholders are creditors of the Issuer. There is no question of disturbance of the pari passu rule as between the creditors of Lehman Brothers Special Financing Inc (LBSF). What is said, in effect, is that the parties have unlawfully extracted an asset belonging to LBSF, namely its first charge on the Collateral, and passed it to the Noteholders. Anti avoidance provisions There are anti avoidance provisions for personal and corporate insolvency. They are relevant on this appeal because of an argument that the anti deprivation rule dates from a time when there were anti avoidance provisions which, if they existed at all, were in their infancy, and that consequently the need for the rule needs to be re visited in the light of legislative developments. For personal bankruptcies, section 284 of the 1986 Act provides that where a person is adjudged bankrupt, any disposition of property made by that person in the period from the day of the presentation of the petition for the bankruptcy order is void except to the extent that it is or was made with the consent of the court, or is or was ratified by the court. There are claw back provisions dealing with the setting aside of transactions at an undervalue and preferences in sections 339 340 of the Act. For companies, section 127 provides that any disposition of the companys property made after the commencement of the winding up is, unless the court otherwise orders, void. Sections 238 and 239 enable a liquidator to apply to the court for an order to restore the position where the company has entered into a transaction at an undervalue, or has done anything which, in the event of the companys insolvent liquidation, would put a creditor (or guarantor) of the company in a better position than he would otherwise be in. By section 423 the court may set aside transactions entered into at an undervalue at any time if they were entered into for the purpose of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or of otherwise prejudicing the interests of such a person in relation to the claim. II Background Prior to the events which form the background to this appeal, the Lehman Brothers group was the fourth largest investment bank in the United States. On 15 September 2008, Lehman Brothers Holdings Inc (LBHI), the parent company of the Lehman Brothers group, applied to the US Bankruptcy Court for the Southern District of New York for protection under Chapter 11 of the United States Bankruptcy Code. This appeal concerns the effect of the security arrangements in a complex series of credit swap transactions under which, in effect, investors gave credit protection to Lehman Brothers by reference to the performance of a basket of underlying obligations. The Lehman Brothers vehicles used for what was called the Dante Programme (named after the first special purpose vehicle (SPV) used in the programme) were LBSF and SPVs incorporated in jurisdictions chosen for tax reasons. The programme was what was called a synthetic debt repackaged note issuance programme. At the time of the Lehman Brothers collapse in September 2008 there were 19 SPVs being used as Note issuers in the programme with a total of about 180 series of Notes with an aggregate principal amount of $12.5 billion. LBSF filed for Chapter 11 protection in the United States Bankruptcy Court for the Sothern District of New York on 3 October 2008. The documentation is complex, but, in broadest outline, the transactions in the representative example series before the court on this appeal were these: (1) Lehman Brothers set up an SPV (the Issuer) in a suitable jurisdiction (in the representative example, Saphir Finance plc, incorporated in the Republic of Ireland). (2) Investors (the Noteholders) subscribed for Notes issued by the Issuer. The Notes were floating rate medium term Notes (with a seven year maturity) with a margin of 1.3% over Australian dollar denominated 3 month bills. (3) The Issuer used the subscription moneys to purchase government bonds or other secure investments (in the representative, triple A rated floating rate Rabo Australia Ltd Notes guaranteed by Rabobank Nederland) (the Collateral). (4) The Collateral was vested in a Trustee (in the present case BNY Corporate Trustee Services Ltd) (the Trustee). (5) LBSF entered into a credit default swap agreement with the Issuer under which LBSF would pay the Issuer the amounts due by the Issuer to the Noteholders in exchange for the payment by the Issuer to LBSF of sums equal to the interest received on the Collateral. (6) The amount by which the sum payable under the swap agreement by LBSF exceeded the yield on the Collateral represented what has been described as the premium for credit protection insurance provided by the Noteholders. (7) The amount payable by LBSF to the Issuer on the maturity of the Notes (or on early redemption or termination) was the initial principal amount subscribed by the Noteholders less amounts (if any) calculated by reference to the Credit Events occurring during a specified period by reference to one or more reference entities. In return, LBSF would receive the proceeds of the Collateral. (8) The payment due from LBSF at maturity of the swap agreement (and also the outstanding principal amount of the Notes) could be reduced (in extreme circumstances to zero) during the term of the swap agreement (and the Notes) if Credit Events occurred and were notified in accordance with the terms of the swap agreement. (9) Credit protection or insurance is a misnomer because there was no requirement for LBSF to have any direct exposure to the reference portfolio (substantially the same 260 reference entities in the two tranches before the Court on the appeal): it was expressly provided that the swap did not constitute a contract of insurance and that payments would be due in the event of Credit Events without proof of economic loss to LBSF. (10) There was in effect an excess because the notified Credit Events would lead to a reduction only if they exceeded a stated subordination amount. In the representative example before the Court A$70m was the amount of the issue, the subordination amount was A$126m, and the Offering Circular indicated that the Notes would be reduced to zero when the cumulative losses on the reference portfolio reached A$196m. (11) If Credit Events did not occur the Noteholders were due to receive the full amount of the Notes, and LBSF was to put the Issuer in funds to redeem the Notes. (12) If Credit Events occurred, the amounts payable by LBSF and the principal amount due on the Notes were to be reduced from time to time as and when such Credit Events occurred and were notified. (13) Consequently the performance of the Notes was linked to the performance of the obligations of the reference entities. In effect, LBSF was speculating that sufficient Credit Events would occur for it to be required to pay less than the Noteholders had invested and to net a substantial part of the Collateral; and the Noteholders were speculating that the credit reference portfolio was safe and that any Credit Events within it would not burn through the net amount of the subordination amount. (14) The Collateral was charged by the Issuer in favour of the Trustee to secure its obligations to LBSF under the swap agreement and to the Noteholders under the terms and conditions of the Notes. (15) The claims of LBSF and the Noteholders were limited to the Collateral and they had no right of recourse against the Issuer. (16) The respective priorities of LBSF under the swap agreement and the Noteholders were described as Swap Counterparty Priority and Noteholder Priority. (17) The respective priorities of LBSF and the Noteholders depended on whether there had been an Event of Default under the swap agreement, which included the institution by LBSF (or LBHI as LBSFs Credit Support Provider under the swap agreement) of proceedings in insolvency or bankruptcy (such as filing for Chapter 11 protection). (18) If there were no such Event of Default, then LBSF would have priority in relation to the Collateral, but if there were an Event of Default in respect of which LBSF (or LBHI) was the Defaulting Party, the Noteholders would have priority over LBSF. The central issue in the proceedings and the appeal is the validity of those provisions for alteration of priority. The practical importance of the question is that under the terms of the swap, in the event of its early termination, it was to be unwound with certain Unwind Costs payable either to LBSF or to the Issuer. The Unwind Costs represented the market assessment of the amount either LBSF or the Issuer were expected to receive under the swap were it to run to maturity. The commercial purpose was to reflect the value of the swap in the market place as at the point of termination. Since, following the financial crisis, many more Credit Events were expected to occur in the future, the Unwind Costs (representing a payment for the future losses) would be due to LBSF. If Swap Counterparty Priority subsists LBSF would be entitled to recourse to the Collateral towards satisfaction of its claims. But if the Noteholders have priority, the Collateral would be exhausted in repayment of the Notes where Credit Events did not occur before termination so as to reduce the amount due on the Notes and to make some of the Collateral available to LBSF. III The litigation The first 29 respondents (which will for convenience be called the Belmont respondents after the first respondent, Belmont Park Investments Pty Ltd, or the Noteholders, depending on the context) are Australian companies, institutions, authorities and charities who are Noteholders in ten series of Notes, nine of which are involved in this appeal. After 15 September 2008, periodic payments due to the Noteholders were not made. The same applied in respect of other Note series under the Dante Programme, including two series held by Perpetual Trustee Co Ltd (Perpetual). The total outstanding under those nine series of Notes is approximately A$250.23m (approximately 155m) of which the Belmont respondents account for approximately A$91.1m. The contractual documentation differs between the various Belmont series, but the parties are content for the court to consider the Saphir 2004 4 Note documentation as, for relevant purposes, representative, and the documentation before the court has included the documents relating to two tranches. The facts set out below relate to those tranches. There are minor differences in relation to some other series, but they are immaterial for present purposes. On 15 September 2008, LBHI filed for Chapter 11 protection under the US Bankruptcy Code, and on 3 October 2008, LBSF filed for Chapter 11 protection. Later in 2008 or in March/April 2009, following directions by the Noteholders, the Trustee caused the Issuer to terminate the swap agreement. The swap termination notices served in respect of the Notes relied on the event of default constituted by LBSFs Chapter 11 filing and reserved all rights, claims and defences in relation to all other Events of Default. On 6 May 2009, the Trustee issued Condition 10 notices declaring the Notes to be due and payable at their Early Redemption Amount. LBSFs position was that the effect of the provisions for a change in priority on default was unlawfully to deprive LBSF of property to which it is entitled in its bankruptcy, because they purported to modify the priority which was enjoyed over Collateral by LBSF in favour of the Noteholders after an insolvency event; and changed the allocation of Unwind Costs in favour of the Noteholders to exclude payment to LBSF. In May and June 2009 respectively Perpetual and the Belmont respondents issued Part 8 Claims in England against the Trustee for orders designed to procure the realisation of the Collateral held by the Trustee in respect of each of the series of Notes held by them respectively and the application of the Collateral and its proceeds in favour of the Noteholders in priority to any claim of LBSF as Swap Counterparty in accordance with the contractual provisions. LBSF was subsequently joined as a party. Proceedings were also commenced (but not by the Belmont respondents) against the Trustee by LBSF (and other Lehman entities) in the United States Bankruptcy Court for the Southern District of New York claiming a declaration that the provisions in the Note issues held by Perpetual modifying LBSFs rights to a priority distribution solely as a result of a Chapter 11 filing were unenforceable because they were clauses which sought, in breach of the United States Bankruptcy Code, to modify contractual relationships due to a filing of a bankruptcy petition (ipso facto clauses). On 28 July 2009 Sir Andrew Morritt C found that the contractual provisions were effective as a matter of English law and, in particular, did not offend the anti deprivation rule; alternatively, if the provisions were capable of offending the anti deprivation rule, the rule was not engaged because an alternative Event of Default (the Chapter 11 filing by LBHI) had occurred prior to the Chapter 11 filing by LBSF, and consequently the Chapter 11 filing did not deprive LBSF of any property: Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd [2009] EWHC 1912 (Ch), [2009] 2 BCLC 400. On 6 November 2009 Sir Andrew Morritt Cs judgment was upheld by the Court of Appeal ([2009] EWCA Civ 1160, [2010] Ch 347). Following communications between the High Court in England and the Bankruptcy Court in New York, it was agreed that, in order to limit potential conflict between decisions in the two jurisdictions, relief would be limited to declaratory relief: Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd [2009] EWHC 2953 (Ch), [2010] 2 BCLC 237; Re Lehman Brothers Holdings Inc, 422 BR 407 (US Bankruptcy Court, SDNY, 2010). In January 2010 Judge Peck, sitting in the US Bankruptcy Court for the Southern District of New York, granted summary judgment in favour of LBSF on its application for a declaration that the provisions in the Perpetual documentation were ineffective because they were in breach of the US Bankruptcy Code: Re Lehman Brothers Holdings Inc, 422 BR 407 (US Bankruptcy Court, SDNY, 2010). Permission was granted by this court to LBSF to appeal from the decision of the Court of Appeal. The Trustee was given leave by the United States District Court to appeal from Judge Pecks decision. But before the appeal to the United States District Court, or the appeal to this court, were heard, the proceedings in relation to the Notes held by Perpetual were settled and the appeals were withdrawn. This appeal consequently concerns the Notes held by the Belmont respondents only. IV The contractual provisions All of the documents are expressly governed by English law. The relevant provisions of the documentation are set out in an appendix to the judgments on this appeal, but for present purposes the following account of the crucial provisions should be sufficient. The Notes are governed by: (1) a Principal Trust Deed (the Principal Trust Deed) between Dante Finance plc (Dante), the first issuer under the programme, and the Trustee under which the Dante Programme was established, which has effect in relation to any specific Note issue as amended by the Supplemental Trust Deed and Drawdown Agreement relating to that issue; (2) a Supplemental Trust Deed and Drawdown Agreement (the Supplemental Trust Deed) made between the Issuer, the Trustee (together with its associated custodian and paying agent), LBSF (described as the swap counterparty) and the Lehman company which arranged the Dante Programme, Lehman Brothers International (Europe); and (3) the Terms and Conditions of the Notes (the Terms and Conditions) which appeared in a schedule to the Principal Trust Deed and which were also supplemented or amended by additional terms were attached to the prospectus sent to potential investors. The credit default swap agreement (the Swap Agreement) is constituted by: (1) an ISDA Master Agreement, including the Schedule (and Credit Support Annex) (the ISDA Master Agreement) between Dante and LBSF (to which the Issuer subsequently acceded); and (2) a Swap Confirmation between LBSF and the relevant Issuer. The Principal Trust Deed Clause 5.5 of the Principal Trust Deed provides that: . the security . shall become enforceable if (i) any amount due in respect of the Notes is not paid or delivered when due or (ii) a Swap Agreement terminates with sums due to the Swap Counterparty [ie, LBSF]. Clause 6.1 of the Principal Trust Deed provides that moneys received, otherwise than in connection with the realisation or enforcement of the security, are to be held by the Trustee, after payment of the Trustees costs, on trust to pay, first, the amounts due to LBSF, the Noteholders and others pari passu, and, secondly, the amounts due to the Issuer. Clause 6.2 of the Principal Trust Deed directs the Trustee: . [to] apply all moneys received by it under the Principal Trust Deed and the relevant Supplemental Trust Deed in connection with the realisation or enforcement of the security as follows and goes on to provide that Swap Counterparty Priority means that the claims of LBSF are payable in priority to the claims of the Noteholders, whereas Noteholder Priority means the converse, in each case after providing for payment of certain specified costs and charges. The priority which is to apply in any particular case is that specified in the Supplemental Trust Deed. The Supplemental Trust Deed Clause 5.2 contains a charge by the Issuer as continuing security in favour of the Trustee over the Collateral and other property representing it from time to time. Clause 5.3 provides that such security is granted to the Trustee as trustee for itself and/or the holders of Notes and [LBSF] the Custodian and the Paying Agents as continuing security (i) for the payment of all sums due under the Trust Deed and the Notes, (ii) for the performance of the Issuer's obligations (if any) under the Swap Agreement . Clause 5.5 provides that: The Trustee shall apply all moneys received by it under this Deed in connection with the realisation or enforcement of the Mortgaged Property as follows: Swap Counterparty Priority unless an Event of Default (as defined in the Swap Agreement) occurs under the Swap Agreement and the Swap Counterparty is the Defaulting Party (as defined in the Swap Agreement) . in which case Noteholder Priority shall apply. Clause 8.3 provides: [LBSF] hereby agrees that, if an Event of Default (as defined in the ISDA Master Agreement) occurs under the Swap Agreement and [LBSF] is the Defaulting Party (as defined in the ISDA Master Agreement) . and Unwind Costs are payable by the Issuer to [LBSF], the Issuer shall apply the net proceeds from the sale or realisation of the Collateral (1) first in redeeming the Notes in an amount as set out in the Conditions and (2) thereafter, in payment of such Unwind Costs to [LBSF]. Terms and Conditions The second paragraph of Condition 44 (Condition 44.2) provides: if an Event of Default (as defined in the ISDA Master Agreement ) occurs under the Swap Agreement and [LBSF] is the Defaulting Party (as defined in the ISDA Master Agreement) , the Early Redemption Amount payable on each Note is to be equal to: (i) such Notes pro rata share of the proceeds from the sale or realisation of the Collateral plus (ii) (but only if payable to the Issuer) the amount of any applicable Unwind Costs divided by the total number of Notes outstanding; provided that if the amount determined pursuant to sub paragraphs (i) and (ii) above results in an Excess Amount (as defined above), such Excess Amount shall be payable by way of an additional payment of interest on each Note. In the event that Unwind Costs are payable by the Issuer to the Swap Counterparty, the Issuer shall apply the net proceeds from the sale or realisation of the Collateral as aforesaid (1) first in redeeming each Note in an amount equal to its Outstanding Principal Amount as of the Early Redemption Date plus the Accrued Early Redemption Interest Amount and (2) thereafter, in payment of such Unwind Costs to the Swap Counterparty. The ISDA Master Agreement Section 5 of the ISDA Master Agreement defines an Event of Default as being: [t]he occurrence [of certain specified events] at any time with respect to [LBSF], or if applicable, any Credit Support Provider of LBSF. According to paragraph 9(iv) of the Swap Confirmation, the Credit Support Provider is LBHI, the ultimate parent of LBSF. The defined Events of Default include (i) failure to pay any sums due under the ISDA Master Agreement (if such failure is not remedied after three local business days notice of such failure), and (ii) the institution by LBSF or by LBHI of any proceedings seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights . Section 6 of the ISDA Master Agreement deals with early termination and provides that: If at any time an Event of Default with respect to a party (the Defaulting Party) has occurred and is then continuing, the other party . may, by not more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions . V The decisions of Sir Andrew Morritt C and the Court of Appeal LBSFs position LBSFs position is, in summary, that the rights under the Swap Agreement and the rights created over the Collateral to secure them were property of LBSF within the meaning of the Insolvency Act 1986 and formed part of LBSFs insolvent estate. At the time of its filing for bankruptcy on 3 October 2008 (and at the Early Termination Date), LBSF was in the money under each of the Swap Agreements. LBSF had existing contractual rights which, on final maturity or if the Issuer elected to terminate the Swap Agreement early, would result in a right to payment to LBSF from the Issuer. That was so whether or not LBSF was the Defaulting Party under the Swap Agreement. It was illegitimate to provide for the alteration of those rights in reliance on LBSFs bankruptcy so as to deprive LBSF of the benefit of its first priority right of recourse to the Collateral. When the Issuer elected to terminate the Swap Agreements it did so expressly in reliance upon LBSF having filed for bankruptcy on 3 October 2008. That termination gave rise to a debt payable by the Issuer to LBSF and which is charged on the Collateral. The effect of the disputed clauses was to deprive LBSF of property to which it was entitled in its bankruptcy: Clause 5.5 of the Supplemental Trust Deed removed the senior ranking rights which LBSF had to the proceeds of sale of the Collateral and instead LBSF was given second ranking rights which ranked behind the claims of the Noteholders in some instances, and even further behind the Portfolio Manager in other transactions; by Condition 44.2 of the Terms and Conditions of the Notes, the amount due to LBSF in respect of its claim under the terminated Swap Agreement was disregarded when determining what the Issuer should pay to Noteholders on early redemption of the Notes. The result of the offending provisions was that the Collateral was treated as being freed from the charge to secure the debt to LBSF and was simply divided up among the Noteholders in proportion to their original subscriptions. The fundamental change brought about by the operation of these clauses depends upon the Issuer having elected to terminate the Swap Agreement in reliance on LBSFs bankruptcy. The security for the obligations owed to LBSF under the Swap Agreement cannot validly be altered in reliance on LBSFs bankruptcy, and offends against the anti deprivation rule. Consequently, the provisions are void and unenforceable under English law. On the Noteholders alternative case, that the Event of Default occurred on 15 September 2008, when LBHI filed for Chapter 11 protection, LBSF says that Clause 5.5 and the concepts of Swap Counterparty Priority and Noteholder Priority only have relevance in relation to events taking place after the Collateral has been sold. The parties could not have intended any permanent changes in the operation of Clause 5.5 and Condition 44.2 to have occurred unless and until the service of a notice by the Non defaulting Party to terminate the Swap Agreement. Sir Andrew Morritt C Sir Andrew Morritt C decided that Clause 5.5 of the STD was not contrary to public policy. The Collateral was bought by the Issuer with the money subscribed by the Noteholders. It was not derived directly or indirectly from LBSF. The court should not be astute to interpret commercial transactions so as to invalidate them, particularly when doubt might be cast on other long standing commercial arrangements. As long as the Swap Agreement was being performed it was appropriate for LBSF to have security for the obligations of the Issuer in priority to security in respect of the Issuer's obligations to the Noteholders, but the intention of all parties was that the priority afforded to LBSF was conditional on LBSF continuing to perform the Swap Agreement. Such beneficial interest by way of security as LBSF had in the Collateral was, as to its priority, always limited and conditional, and could never have passed to a liquidator or trustee in bankruptcy free from those limitations and conditions as to its priority. Alternatively, LBSF was a Defaulting Party on 15 September 2008 when LBHI filed for Chapter 11 protection, and the anti deprivation rule was not engaged if deprivation occurred on a ground other than bankruptcy of the entity alleged to be unlawfully deprived. Court of Appeal In the Court of Appeal [2009] EWCA Civ 1160, [2010] Ch 347 Lord Neuberger of Abbotsbury MRs conclusion that the provisions were valid relied to a large extent on the fact that the Collateral was acquired with money provided by the Noteholders and that the change in priorities was included to ensure that the Noteholders were repaid out of those assets: at para 67. In particular he relied on these matters (at para 61 et seq): (a) so long as there was no risk of default, the Noteholders were prepared for LBSF to have priority when it came to unwinding the transaction; (b) the scheme provided, and was sold on the basis that, if LBSF or LBHI defaulted so that they could not, or did not, pay the interest and the capital on the Notes, then it would be the Noteholders who would have priority both in relation to repayment and in relation to the Unwind Costs; (c) the effect of the flips would not be to entitle the Noteholders to more than they had subscribed, and, if there was no shortfall, LBSF would not have been out of pocket as a result of the flips. The right granted to LBSF was a security right over assets purchased with the Noteholders money, and, from the very inception, the priority, and the extent of the benefits, enjoyed by LBSF in respect of the security were contingent upon there being no Event of Default. He agreed with Sir Andrew Morritt Cs conclusion on the LBHI point. Longmore LJ agreed with Lord Neuberger MR. Patten LJ thought that the anti deprivation rule did not apply because (at paras 135 136): The reversal of the order of priority under clause 5.5 was always a facet of the security designed to regulate the competing interests over the collateral of LBSF and the noteholders. To say that its operation in the event of the company's bankruptcy constitutes the removal of an asset from the liquidation is to confuse the security itself with the operation of its terms in the events prescribed by the charge. LBSF retains the same asset as it had before its bankruptcy and is free to deal with any recoveries for the benefit of its general creditors in accordance with the applicable statutory regime. Condition 44 is said to have the effect of increasing the amount payable to noteholders in the event of LBSF being the defaulting party under the swap agreement by diverting to the noteholders moneys which would otherwise have been payable to it in order to discharge the issuers' liability for unwind costs. Although the amount of the security available to meet LBSFs claims is obviously reduced in the event of a shortfall in the value of the security over what it would have been had no event of default occurred, that is simply a function of the change in priority which was always a feature of the security which the company enjoyed. Lord Neuberger MR, while not disagreeing, had some reservations about this approach (paras 66 68), particularly because the authorities did not support the view that arrangements which were an original feature of the transaction were insulated from the anti deprivation rule. VI The principles Lord Neuberger MR rightly pointed out in his judgment (at para 32) in these proceedings that it was not easy to identify the precise nature or limits of the anti deprivation rule. He was echoing what he had said as Neuberger J in Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150, para 87, a decision which contained the first full judicial analysis of the principles: at paras 117 118. The rule has existed for nearly 200 years, and it is therefore necessary to look at the development of the rule to see what its nature and limits are. All but one of the relevant cases prior to the decision of the House of Lords in British Eagle International Airlines Ltd v Cie Nationale Air France [1975] 1 WLR 758 on the pari passu principle are cases of personal bankruptcy. The principal decisions are Whitmore v Mason (1861) 2 J & H 204 (Sir William Page Wood V C); Ex p Mackay; Ex p Brown; In re Jeavons (1873) LR 8 Ch App 643 (CA); Ex p Jay; In re Harrison (1880) 14 Ch D 19 (CA); Ex p Newitt; In re Garrud (1881) 16 Ch D 522 (CA); Ex p Barter; Ex p Black; In re Walker (1884) 26 Ch D 510 (CA); In re Detmold; Detmold v Detmold (1889) 40 Ch D 585 (North J); Borlands Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279 (Farwell J); In re Johns, Worrell v Johns [1928] Ch 737 (Tomlin J); Bombay Official Assignee v Shroff (1932) 48 TLR 443 (PC); and In re Apex Supply Co Ltd [1942] Ch 108 (Simonds J) (the sole liquidation case). The anti deprivation rule applied The anti deprivation rule was applied to invalidate contractual provisions in the following decisions. In none of them did it matter whether the provision was in a contract from the inception of the relationship. Whitmore v Mason 2 J & H 204 is a classic case of the application of the anti deprivation rule. It was concerned with a provision in a partnership deed that, in the event of the bankruptcy or insolvency of a partner, an account was to be taken, and the bankrupt partner was to lose his interest in the partnership assets (mines in Portugal) at a market valuation (save that his interest in a mining lease was to be excluded from the valuation). Sir William Page Wood V C accepted the assignees argument ( at p 207) that the exclusion of the lease was void because it was an attempt to evade the rule in bankruptcy, which provides that, upon an act of bankruptcy being committed, all the property of the bankrupt vests in his assignees, and held that, insofar as it related to the lease, the provision was void as being in fraud of the bankrupt laws (at p 213), because the law is too clearly settled to admit of a shadow of doubt that no person possessed of property can reserve that property to himself until he shall become bankrupt, and then provide that, in the event of his becoming bankrupt, it shall pass to another and not to his creditors. (p 212) So also in Ex p Mackay LR 8 Ch App 643, 648, discussed above, the agreement that the lender could keep the royalties in the event of the borrowers bankruptcy was an unlawful additional advantage. This, like several of the other decisions, is really about an unsuccessful attempt to create a charge. It was applied in Ex p Williams; In re Thompson (1877) LR 7 Ch D 138 (sham rent intended to give lender additional security of distraining on chattels). In Ex p Jay 14 Ch D 19 a clause in an agreement for a lease between a landowner and a builder (under which the builder was to build 40 houses on land in Waltham Cross) provided that, until the lease had actually been granted, in the event that the builder was in default of any of his obligations or became bankrupt, any materials on the land should be forfeited to the landowner. A few weeks later the builder granted a charge over the materials, but it was not registered as a bill of sale. At a time before the builder had completed the development or any lease had been granted, and when the builder was not in default of any of his obligations, he was made bankrupt. A dispute arose between his trustee in bankruptcy and the landowner over a quantity of building materials which the builder had brought onto the land. The Court of Appeal held that the provisions of the agreement purporting to forfeit such building materials to the landowner were void as being a violation of the policy of the bankruptcy law, and that the building materials were the property of the trustee. In Ex p Barter 26 Ch D 510 a shipbuilding contract provided that, if at any time the builder should cease working on the ship for 14 days, or should allow the time for completion and delivery of the ship to expire for one month without it having been completed and ready for delivery, or in the event of the bankruptcy or insolvency of the builder, the buyer could cause the ship to be completed, and could employ materials belonging to the builder as should be then on his premises. It was held that the clause was void as against the trustee in his bankruptcy as being an attempt to control the user after bankruptcy of property vested in the bankrupt at the date of the bankruptcy, and as depriving the trustee of the right to elect whether he would complete the ship or not as might seem most advantageous for the creditors under the bankruptcy. This decision is an application of a general principle that the bankrupts property vests in the trustee, and its user cannot be contractually controlled. In re Johns, Worrell v Johns [1928] Ch 737, concerned an arrangement between mother and son, whereby the amount repayable by the son in respect of periodic loans made by the mother (which could not exceed 650, and might be as little as 10, in all) was to increase from 650 to 1,650 (plus interest) in the event of the sons bankruptcy. Tomlin J said that the principle was that a person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws (quoting Ex p Williams; In re Thompson 7 Ch D 138, 143) and described the agreement as a deliberate device to secure that more money should come to the mother if the son went bankrupt, than would come to her if he did not; and, that being so, the device is bad (p 748). The agreement would also have offended the pari passu principle, because the claim of the mothers estate in the insolvent estate would have increased. The principle not infringed The anti deprivation principle did not apply in the following decisions. These decisions are particularly important for the light which they throw on the limits of the principle. Ex p Newitt 16 Ch D 522 was decided by the same Court of Appeal which had decided Ex p Jay a year earlier. This was also a case of a bankrupt builder. The provision for forfeiture operated on breach and not on bankruptcy, and was held to be valid. The bankrupt builder had broken the terms of his agreement with the landowner and it was provided in the agreement that the chattels would be forfeited to the landowner as and for liquidated damages, whereas in Ex p Jay the builder was not in breach of contract, and the right to forfeit was expressed to be triggered, inter alia, on the builder becoming bankrupt. James LJ said (at p 531) Another point taken before us, which does not appear to have been really argued before the judge of the county court, was this that the seizure was not made in sufficient time, that it was not made before the filing of the liquidation petition. To my mind it is immaterial at what particular moment the seizure was made. The broad general principle is that the trustee in a bankruptcy takes all the bankrupts property, but takes it subject to all the liabilities which affected it in the bankrupts hands, unless the property which he takes as the legal personal representative of the bankrupt is added to by some express provision of the bankrupt law. There is no such provision applicable to the present case. The building agreement provides, in effect, that in a certain event certain property of the builder may be taken by the landowner in full satisfaction of the agreement. It appears to me analogous to a sale of property with a power of repurchase in a certain event. The relevance of this decision lies in the effect of a provision for forfeiture on an event other than bankruptcy which takes place after bankruptcy, and it will be necessary to revert to it. In In re Detmold 40 Ch D 585 a marriage settlement provided that income on the property in the settlement (originating from the husband) should pass to the wife for life in the event of an alienation by, or the bankruptcy of, the husband. The provision was held valid against the husbands trustee in bankruptcy, on the ground that it had been triggered by the alienation effected as the result of the appointment of a judgment creditor as receiver (by way of equitable execution) of the income on the property in the settlement, prior to the commencement of the bankruptcy two months later. In re Detmold is an illustration of a provision held valid because, though it worked a deprivation, it did so prior to the onset of bankruptcy even though it was also expressed to operate on bankruptcy. In Borlands Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279 Mr Borland was a shareholder in Steel Brothers & Co Ltd. Its articles of association contained pre emption rights, the effect of which was that on a shareholder becoming bankrupt, he had, on receiving a transfer notice from the directors, to transfer his shares to a manager or assistant at a fair value calculated in accordance with the articles. Mr. Borlands trustee in bankruptcy claimed that the transfer articles were void because, among other reasons, the articles constituted a fraud upon the bankruptcy laws, and could not prevail when bankruptcy had supervened, since the effect was that the trustee in bankruptcy was forced to part with the shares at something less than their true value, with the result that the asset was not fully available for creditors. The argument was rejected. Farwell J started with the principle that a simple stipulation that upon a mans becoming bankrupt that which was his property up to the date of the bankruptcy should go over to some one else and be taken away from his creditors, is void as being a violation of the policy of the bankrupt law (at p 290, quoting Ex p Jay 14 Ch D 19, 25). The basis of the decision was that there was a commercial arrangement. The provisions were inserted bona fide and constituted a fair agreement for the purposes of the business of the company and were binding equally upon all persons who came in as shareholders. There was no suggestion of fraudulent preference of one over another. There was nothing obnoxious to the bankruptcy law in a clause which provided that if a man became bankrupt he should sell his shares. The price was a fixed sum for all persons alike, and no difference in price arose in the case of bankruptcy. The purpose was that there should be in the company, if it were so desired, none but managers and workers in Burma. There was nothing repugnant in the way in which the value of the shares was to be ascertained. It would have been different if there were any provision in the articles compelling persons to sell their shares in the event of bankruptcy at something less than the price that they would have otherwise obtained, since such a provision would be repugnant to the bankruptcy law (p 291). In Bombay Official Assignee v Shroff 48 TLR 443 the bankrupt had been a registered broker in the Bombay Brokers Hall, an unincorporated association. The rules of that association permitted only those holding a card to enter the hall and conduct business. The rules also allowed the directors to declare a member a defaulter. Following the bankrupts failure to pay funds owing to other members, he was declared a defaulter, his card and right of membership was forfeited. About a week later, he was declared bankrupt. The official assignee contended (relying on Whitmore v Mason 2 J & H 204 and In re Borlands Trustee [1901] 1 Ch 279) that his card and/or right of membership of the association or the value thereof vested in him as the assignee in the insolvency, because among other reasons, if the effect of the rules be that the proceeds of sale of the insolvent's card do not enure for the benefit of the general body of his creditors the rules are contrary to the law of insolvency. Lord Blanesburgh, speaking for the Board, said (at p 446): It being agreed that the rules of this association are entirely innocent of any design to evade the law of insolvency, it may be that even these cases, although cases of a company and a partnership, are more favourable to the [association] than to the [official assignee] [T]he real answer to this contention of the [official assignee] [is] in the nature and character of the association as they have described it whereby in the case of a defaulting member who is expelled from the association no interest in his card remains in himself, and none can pass to his assignee, whether his expulsion does or does not take place before the commencement of his insolvency. The decision of the Privy Council was applied by Neuberger J in Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150. The claimant was a member of the stock exchange and defaulted on its obligations. Under provisions in the articles of association of the stock exchange its share was transferred away and the claimant lost its membership. Neuberger J held the anti deprivation rule did not apply because the share was incapable of uncontrolled transfer and was closely connected with a right in respect of which a deprivation provision was effective, viz membership of the exchange. In In re Apex Supply Co Ltd [1942] Ch 108 a hire purchase agreement provided that if the hirer should go into liquidation, and the owner should retake possession, the hirer would pay a sum by way of compensation for depreciation. Applying Ex p Mackay and In re Johns, Simonds J held that the provision for the payment of compensation was not a fraud on the bankruptcy laws as giving the owner company an undue advantage in the event of the hirer company going into liquidation. The provision was not a deliberate device to secure that more money went to the creditor: it would be extravagant to suggest that this clause is aimed at defeating the bankruptcy laws or at providing for a distribution differing from that which the bankruptcy laws permit (at p 114). The limits of the anti deprivation rule Good faith and commercial arrangements The first question is whether absence of good faith, or an intention to obtain an advantage over creditors in the bankruptcy, is an essential element for application of the principle. From the earliest days of the rule, it has been based on the notion of a fraud, or a direct fraud (Lord Eldon LC in Higinbotham v Holme 19 Ves Jun 88, 92), on the bankruptcy laws, and that decision was taken to be authority for the proposition that where a person settles property in such a way that his interest determines on his bankruptcy that is evidence of an intention to defraud his creditors: In re Stephenson; Ex p Brown [1897] 1 QB 638, 640, per Vaughan Williams J. The overall effect of the authorities is that, where the anti deprivation rule has applied, it has been an almost invariably expressed element that the party seeking to take advantage of the deprivation was intending to evade the bankruptcy rules; but that where it has not applied, the good faith or the commercial sense of the transaction has been a substantial factor. By contrast, in the leading pari passu principle case, British Eagle [1975] 1 WLR 758, it was held by the majority that it did not matter that the clearing transaction was a sensible commercial arrangement not intended to circumvent the pari passu principle. Although Lord Morris of Borth y Gest (at p 763) placed weight in his dissenting speech on the fact that there was no trace in the scheme of any plan to divert money in the event of a liquidation his conclusion was not based on the absence of bad faith. The basis of his reasoning was that transactions had taken place and services had been rendered on the basis that clearance would follow; it was not open to the liquidator to seek to alter ex post facto the contractual arrangements pursuant to which the airlines had supplied services to British Eagle; and the effect of the clearing was that no sum was due: p 763 764. To take first the cases in which the anti deprivation rule was held to apply: in Whitmore v Mason 2 J & H 204 the exclusion of the lease on bankruptcy of the partner was void and Sir William Page Wood V C said that no one can be allowed to derive benefit from a contract that is in fraud of the bankrupt laws (p 213). In Ex p Mackay LR 8 Ch App 643, 647, James LJ said that the provision was an ineffective charge and was a clear attempt to evade the operation of the bankruptcy laws as it provide[d] for a different distribution of his effects in the event of bankruptcy from that which the law provides. As Lord Cross of Chelsea said of Ex p Mackay in British Eagle [1975] 1 WLR 758, 780: The court could only go behind [the transaction] if it was satisfied as was indeed obvious in that case that it had been created deliberately in order to provide for a different distribution of the insolvents property on his bankruptcy from that prescribed by the law; and Lord Morris agreed that Ex p Mackay was a case where the relevant provisions were a clear attempt to evade the operation of the bankruptcy laws, or a device for defeating the bankruptcy laws (p 770). In Ex p Jay 14 Ch D 19, the case of the housebuilders materials, there was no mention of evasive intent, but that was probably because it was obvious that the intention was to ensure that the property did not go to the trustee. In In re Johns, Worrell v Johns (the case of the increase of the debt on bankruptcy) the agreement was described [1928] Ch 737, 748) as a deliberate device to secure that more money should come to the mother, if the son went bankrupt, than would come to her if he did not By contrast, where the anti deprivation rule was held not to apply, good faith and the commercial sense of the transaction have been important factors. In Borlands Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279 (the case of pre emption rights on bankruptcy) Farwell J relied specifically on the fact that the provisions were inserted bona fide and constituted a fair agreement for the purposes of the business of the company, and that there was no suggestion of fraudulent preference. So also in Bombay Official Assignee v Shroff 48 TLR 443 (forfeiture of membership of the Bombay Brokers Hall) Lord Blanesburgh (at p 446) referred to the fact that it had been agreed that the rules of the association were entirely innocent of any design to evade the law of insolvency Again, in In re Apex Supply Co Ltd [1942] Ch 108 (the hire purchase case) Simonds J accepted that the provision was not a deliberate device to secure that more money went to the creditor and that it would be extravagant to suggest that this clause is aimed at defeating the bankruptcy laws or at providing for a distribution differing from that which the bankruptcy laws permit. (p 114). Thus there is an impressive body of opinion from some of the most distinguished judges that, in the case of the anti deprivation rule, a deliberate intention to evade the insolvency laws is required. That conclusion is not affected by the decision in British Eagle [1975] 1 WLR 758. The pari passu rule is clear. Parties cannot contract out of it. That is why, by contrast with the anti deprivation cases, Lord Cross was able to accept (p 772) that the clearing house was a commercial arrangement which was for the mutual advantage of the airlines, but that the power to go behind agreements, the result of which were repugnant to the insolvency legislation, was not confined to cases in which the dominant purpose was to evade its operation. It was irrelevant that the airlines had good business reasons for entering into the arrangements and did not direct their minds to the question how the arrangements might be affected by the insolvency of one or more of [them] (p 780). That does not mean, of course, that a subjective intention is required, or that there will not be cases so obvious that an intention can be inferred, as in Ex p Jay. But it does suggest that in borderline cases a commercially sensible transaction entered into in good faith should not be held to infringe the anti deprivation rule. Although he did not accept that absence of good faith was a necessary element, Neuberger J suggested in Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150, para 103 that if a deprivation provision, which might otherwise be held to be valid, could be shown to have been entered into by the parties with the intention of depriving creditors of their rights on an insolvency, then that might be sufficient to justify holding invalid the provision when it would not otherwise have been held invalid. Anti deprivation rule does not apply if the deprivation takes place for reasons other than bankruptcy By contrast with the pari passu principle, it is well established that if the deprivation takes place for reasons other than bankruptcy, the anti deprivation rule does not apply. In British Eagle [1975] 1 WLR 758 the clearing house system was ineffective to avoid the pari passu principle, even though it applied throughout irrespective of whether the airlines went into liquidation. But the position is different with regard to the anti deprivation rule, which is intended to operate only where provision is made for deprivation on bankruptcy. Thus in Ex parte Jay 14 Ch D 19 (the case of the builders materials) both Brett and Cotton LJJ accepted (p 26) that if forfeiture had taken place on the builders breach (as the provision envisaged) then it would have been valid: It appears that there was no default on the debtors part up to the filing of the petition, and the [owner] cannot, therefore, succeed except by virtue of the provision for forfeiture on bankruptcy, and according to the authorities such a stipulation is void (Brett LJ) and One of the two events is not hit by the decided cases(Cotton LJ). In Ex p Barter 26 Ch D 510 (shipbuilding materials) the contract provided for events other than bankruptcy in which the property could be seized, but it was held that it was the bankruptcy which was the basis of the powers of control exercised by the buyers: p 519. So also in In re Detmold 40 Ch D 585 (marriage settlement providing that income on the property in the settlement, originating from the husband, should pass to the wife for life in the event of an alienation by, or the bankruptcy of, the husband) the provision was held valid against the husbands trustee in bankruptcy, on the ground that it had been triggered by the alienation effected as the result of the appointment of a judgment creditor as receiver (by way of equitable execution) of the income on the property in the settlement: [T]he limitation of the life interest to the settlor was validly determined by the fact that, in consequence of the order appointing the receiver, he ceased to be entitled to receive the income. This took place before the commencement of the bankruptcy, and, therefore, the forfeiture is valid as against the trustee in the bankruptcy (p 588 per North J). In Ex p Newitt 16 Ch D 522 (as has been seen, like Ex p Jay, a case of a bankrupt builder) the provision for forfeiture was on breach and not on bankruptcy and was held to be valid. The controversial point in the case is that the forfeiture took place after bankruptcy, but it is not clear when the breach occurred. In the present case the Court of Appeal expressed the view (obiter) that the anti deprivation rule would apply in such circumstances and that once bankruptcy commences, deprivation on any grounds would be impermissible: paras 93 94 and 161 163 per Lord Neuberger MR and Patten LJ. They considered (echoing what Neuberger J had said in Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150, para 105) that the decision in Ex p Newitt 16 Ch D 522 could not survive British Eagle. Whether Ex p Newitt was correctly decided does not arise for decision on this appeal. It was cited, with apparent approval, by Harman J in Jennings Trustee v King [1952] Ch 899, 911. It was not mentioned in any of the phases of the litigation in British Eagle [1975] 1 WLR 758 other than in the dissenting speech of Lord Morris (at p 771), who used it in support of the proposition that a right in a contract is not defeated by the commission of an act of bankruptcy before the contractual right is exercised. The view of the majority was that the netting off in the clearing house which occurred after the liquidation was ineffective, and consequently the majority must be taken to have rejected the proposition. But it does not follow that the principle identified by Lord Morris is no longer good law in the context of the anti deprivation rule. On the facts of Ex p Newitt, however, the pari passu principle as well as the anti deprivation principle may have been engaged, and it may be that the right to forfeiture after bankruptcy or liquidation was not the type of equity to which a trustee or liquidator would take subject. In either of those cases, the forfeiture would not have been effective. Determinable and defeasible interests and flawed assets The law reporter, Mr Clement Swanston, summarised some of the early cases in a note to his report of the decision of Lord Eldon LC in Wilson v Greenwood (1818) 1 Swans 471, 485, and his summary was quoted with approval in Whitmore v Mason 2 J & H 204, 209 210 by Sir William Page Wood V C, by the Court of Appeal in Ex p Barter 26 Ch D 510, 519, and by Stirling J in Mackintosh v Pogose [1895] 1 Ch 505, 511. Mr Swanston said: The general distinction seems to be, that the owner of property may, on alienation, qualify the interest of his alienee, by a condition to take effect on bankruptcy; but cannot, by contract or otherwise, qualify his own interest by a like condition, determining or controlling it in the event of his own bankruptcy, to the disappointment or delay of his creditors In Whitmore v Mason 2 J & H 204, 212 Sir William Page Wood V C distinguished the exclusion of the lease on the partnership account to be taken on bankruptcy from the ordinary condition in a demise of land, that in the event of the tenant becoming bankrupt the land shall revert to the landlord. This reflected the old rule that a provision for forfeiture of a lease on winding up did not contravene the principle since it was merely a qualification of the lessees estate: Roe d Hunter v Galliers (1787) 2 Term Rep 133. A provision of this kind is common form in most leases and is recognised by sections 146(7), (9) and (10) of the Law of Property Act 1925. By providing for limited relief against the operation of such clauses, the legislation implicitly endorses the validity of such provisions at common law. The lease cases show that such a provision is regarded by the law as effective to bring the lease to an end whether the lease is expressed (a) to run until bankruptcy or (b) as a lease with a proviso for forfeiture in that event. The result has not depended upon linguistic differences of expression, and section 146(7) of the 1925 Act proceeds on the basis that no difference is to be drawn between the two situations. So also licences of intellectual property expressed to determine (or to be determinable on notice) on bankruptcy of the licensee are valid; and interests under protective trusts granted by the settlor to a beneficiary until the beneficiarys bankruptcy: Lewin on Trusts, 18th ed (2008), para 5 135; and section 33 of the Trustee Act 1925. The distinction for the purposes of insolvency law is between an interest determinable on bankruptcy/liquidation and an absolute interest which is made defeasible on bankruptcy/liquidation by a condition subsequent. A determinable interest is an interest the quantum of which is limited by the stipulated event, so that the occurrence of that event marks the end of the duration of the interest, whereas a defeasible interest is one which is granted outright and then forfeited. As Professor Sir Roy Goode points out in his comment (2011) 127 LQR 1, 8 on the decision of the Court of Appeal in this case, the difference between a determinable interest, limited to last until bankruptcy, and an interest forfeitable on bankruptcy as a condition subsequent, turning as it does on fine verbal distinctions, has been categorised as little short of disgraceful to our jurisprudence when applied to a rule professedly founded on considerations of public policy (quoting In re Kings Trust (1892) 29 LR Ir 401, 410, per Porter MR, a case on the rule against repugnancy, which is offended by forfeiture but not by termination). Professor Sir Roy Goode rightly accepts (ibid) that the principle that a determination clause is not an attempt to remove an asset from the company but simply a delineation of the quantum of the asset or the duration of the transferees entitlement is too well established to be dislodged otherwise than by legislation. That is particularly so for these reasons. It would go far beyond the judicial function to hold that the distinction is indefensible. To hold that both types of determination are contrary to the anti deprivation principle would be thoroughly destructive of commercial expectations in many areas. So also to say that both types of determination are valid would at a stroke do away with a 200 year old principle, which could only be justified if the mischief which the anti deprivation rule seeks to remedy were adequately covered by statute. No doubt to some extent the anti avoidance provisions go some way to dealing with the mischief, but they cover different ground and contain time limitations which do not constrain the common law rule. But it does not follow that any proprietary right which is expressed to determine or change on bankruptcy is outside the anti deprivation rule, still less that a deprivation which has been provided for in the transaction from the outset is valid. If it were so, then the anti deprivation rule would have virtually no content. This is the flawed asset theory, the idea that, where it is an inherent feature of an asset from the inception of its grant that it can be taken away from the grantee (whether in the event of his insolvency or otherwise), the law will recognise and give effect to such a provision. If that theory were generally applicable, it would represent such an easy way of avoiding the application of the principle, that the principle would be left with little value: Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150, at paras 91 92, per Neuberger J. The theory is also inconsistent with most of the cases in which the principle has been applied: see especially Whitmore v Mason 2 J & H 204; Ex p Mackay LR 8 Ch App 643; Ex p Jay 14 Ch D 19; Ex p Barter 26 Ch D 510. To the extent that this idea underpins Patten LJs judgment in the present case (which is by no means certain), it should not be accepted because it would empty the basic rule of any substantive content. For the same reason the answer cannot be found by characterising or describing the right as limited by the condition. If it were possible to characterise LBSFs right as a right to be repaid in priority to the Noteholders when there was not at the date of termination an Event of Default in relation to which it was the Defaulting Party then it would have been possible so to characterise the rights in cases in which the rule has been applied: eg an interest in the partnership mine if not bankrupt (Whitmore v Mason); or a right to royalties if not bankrupt (Ex p Mackay). Acquisition of property with own assets said: In Whitmore v Mason 2 J & H 204, 214 215 Sir William Page Wood V C If his co partners had advanced a definite sum of money on account of his share, then the property might have been considered to the extent of the money so advanced by them, as identically their money; but this has not been done. Sir William Page Wood V Cs statement was based on a marriage settlement case, Lester v Garland (1832) 5 Sim 205, which confirmed a long line of cases which had established that the wifes portion would be protected in the event of the husbands bankruptcy: A variety of cases, beginning with the case of Lockyer vs Savage [(1732) 2 Str 947], which was decided about 100 years ago, have established that, though there cannot be a settlement of the husbands own estates so as to make his life interest cease in the event of his becoming a bankrupt, in order that the benefit of the estate might be given to the wife or children of the marriage, yet the wifes estate may be so settled. (p 222) As Stirling J put it in Mackintosh v Pogose [1895] 1 Ch 505, 511: it has long been established that if husband and wife both bring property into such a settlement [viz, a marriage settlement], a trust of the income of the wifes property in favour of the husband until his bankruptcy is good, while a similar trust of the income of the husbands property is bad . The basis of the rule was that the courts treated the property of the husband as being in substance the property of the wife [and] as the identical property brought by her into settlement (at 514 515). In Higinbotham v Holme 19 Ves Jun 88, 92 93, Lord Eldon LC distinguished the case of the settlement by the bankrupt husband on himself of a life interest, from, firstly, the case of the wifes property limited until the bankruptcy of her husband; that is, where she reserves a power over her own property, and, secondly, the case of a lease made determinable by the bankruptcy of the lessee: that is a reservation by the owner of the property of a power over it. The marriage settlement cases are not far removed from the category of determinable and defeasible interests or flawed assets, but they do suggest that the source of the assets is an important element in determining whether there has been a fraud on the bankruptcy laws. Lord Neuberger MRs conclusion [2010] Ch 347, para 64 was that Whitmore v Mason is authority for the view that the anti deprivation rule may have no application to the extent that the person in whose favour the deprivation of the asset takes effect can show that the asset, or the insolvent persons interest in the asset, was acquired with his money. That conclusion is supported by the very frequent formulation of the anti deprivation rule in terms of the bankrupts own property. Thus in Holmes v Penney (1863) 3 K & J 90, 102, Sir William Page Wood V C stated the general principle as being that a trader cannot, even for valuable consideration, settle his own property in such a manner as that he should take an interest in it until his bankruptcy, and afterwards, it should be held in trust for his wife and children. (emphasis added) and there are many similar references in the older cases to the settlement or disposition of the bankrupts own property: eg In re Detmold 40 Ch D 585, 588 per North J; In re Stephenson [1897] 1 QB 638, 640 per Vaughan Williams J; In re Halstead, Ex P Richardson [1917] 1 KB 695, 709 per Warrington LJ. The anti deprivation rule of course only applies where the bankrupts own property is in issue, and these dicta do not show that the rule has no application where the source of the bankrupts asset is the person to whom it is to go on bankruptcy. Nor would it be right for there to be a general and universally applicable exception to the general rule based simply on the source of the assets. But if the source of the assets is the person to whom they are to go on bankruptcy that may well be an important, and sometimes decisive, factor in a conclusion that the transaction was a commercial one entered into in good faith and outside the scope of the anti deprivation rule. Provision operating on insolvency (as distinct from bankruptcy/liquidation) This point does not arise for decision on this appeal. The only potentially relevant Events of Default are the Chapter 11 filings by LBSF and LBHI. The point was considered in Whitmore v Mason 2 J & H 204, where it was held that it did not matter that under the partnership deed the account was to be taken in the event of bankruptcy or insolvency, and insolvency had occurred before any act of bankruptcy: A bankrupt is usually insolvent before he commits an act of bankruptcy. First he becomes insolvent, and then bankrupt; and if that construction were to prevail the bankrupt laws might, in all cases, be defeated. (p 215) Executory contracts It is a very common provision in commercial contracts that performance may be withheld in the case of the other partys bankruptcy or liquidation. In Lomas v JFB Firth Rixson Inc [2010] EWHC 3372 (Ch) interest swap counterparties withheld payments due to Lehman Brothers International (Europe) in reliance on a provision of the ISDA Master Agreement that a partys payment obligations were subject to the condition precedent that there was no continuing Event of Default with respect to the other party. On the question whether the anti deprivation principle applied, Briggs J considered that the authorities justified a distinction between (a) cases where the asset of the insolvent company was a chose in action representing the quid pro quo for something already done, sold or delivered before the onset of insolvency; and (b) cases where the right in question consists of the quid pro quo (in whole or in part) for services yet to be to be rendered or something still to be supplied by the insolvent company in an ongoing contract. He held that in the former situation the court would more readily hold that the anti deprivation rule applied. This decision was distinguished in Folgate London Market Ltd v Chaucer Insurance plc [2011] EWCA Civ 328, where there was a contractual provision for a right of indemnity to be terminated in the event of liquidation: it was a naked attempt to provide that the obligation to pay was to be extinguished if payment would be available for creditors generally in the event of insolvency: para 22. The Swap Agreement in the present case is subject to the same provision, but its effect is not in issue in these proceedings. Accordingly the important and difficult question of the extent to which payment obligations in executory contracts are affected by the anti deprivation rule does not arise on this appeal, and since it is a live issue in other proceedings it is best not to express a view on it, except to say that accrued property rights such as debts must be at least capable of being caught by the rule. VII Conclusions It would go well beyond the proper province of the judicial function to discard 200 years of authority, and to attempt to re write the case law in the light of modern statutory developments. The anti deprivation rule is too well established to be discarded despite the detailed provisions set out in modern insolvency legislation, all of which must be taken to have been enacted against the background of the rule. As has been seen, commercial sense and absence of intention to evade insolvency laws have been highly relevant factors in the application of the anti deprivation rule. Despite statutory inroads, party autonomy is at the heart of English commercial law. Plainly there are limits to party autonomy in the field with which this appeal is concerned, not least because the interests of third party creditors will be involved. But, as Lord Neuberger stressed [2010] Ch 347, para 58, it is desirable that, so far as possible, the courts give effect to contractual terms which parties have agreed. And there is a particularly strong case for autonomy in cases of complex financial instruments such as those involved in this appeal. No doubt that is why, except in the case of a blatant attempt to deprive a party of property in the event of liquidation (Folgate London Market Ltd v Chaucer Insurance plc [2011] EWCA Civ 328), the modern tendency has been to uphold commercially justifiable contractual provisions which have been said to offend the anti deprivation rule: Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150; Lomas v JFB Firth Rixson Inc [2010] EWHC 3372 (Ch); and the judgments of Sir Andrew Morritt C and the Court of Appeal in these proceedings. The policy behind the anti deprivation rule is clear, that the parties cannot, on bankruptcy, deprive the bankrupt of property which would otherwise be available for creditors. It is possible to give that policy a common sense application which prevents its application to bona fide commercial transactions which do not have as their predominant purpose, or one of their main purposes, the deprivation of the property of one of the parties on bankruptcy. Except in the case of well established categories such as leases and licences, it is the substance rather than the form which should be determinant. Nor does the fact that the provision for divestment has been in the documentation from the beginning give the answer, nor that the rights in property in question terminate on bankruptcy, as opposed to being divested. Nor can the answer be found in categorising or characterising the property as property subject to divestment on bankruptcy. If the anti deprivation principle is essentially directed to intentional or inevitable evasion of the principle that the debtors property is part of the insolvent estate, and is applied in a commercially sensitive manner, taking into account the policy of party autonomy and the upholding of proper commercial bargains, these conclusions on the present appeal follow. The answer is not to be found in the Noteholders argument that (a) LBSFs property was a beneficial interest under a trust, of which it was one of a number of beneficiaries (Clause 5.3 of the STD) and that (b) LBSF retains its beneficial interest under the trust to this day. The fact that the security interests were held by the Trustee is not determinative. The court has to look to the substance of the matter, which is that LBSF had a security interest, the content and extent of which altered when it filed for Chapter 11 protection. Nor is it to be found in the fact that the potential for change in priority was in the documentation from the beginning, nor in the flawed asset argument or variant of it, that the security interest, or the right under the trust to have the trust property administered in accordance with Swap Counterparty Priority, was inherently qualified or limited, because it applied only for so long as there had been no Event of Default under the Swap Agreement for which the Swap Counterparty was the Defaulting Party. The answer is to be found in the fact that this was a complex commercial transaction entered into in good faith. Although, as a matter of law, the security was provided by the Issuer out of funds raised from the Noteholders, the substance of the matter is that the security was provided by the Noteholders and subject to a potential change in priorities. The security was in commercial reality provided by the Noteholders to secure what was in substance their own liability, but subject to terms, including the provisions for Noteholder Priority and Swap Counterparty Priority, in a complex commercial transaction entered into in good faith. There has never been any suggestion that those provisions were deliberately intended to evade insolvency law. That is obvious in any event from the wide range of non insolvency circumstances capable of constituting an Event of Default under the Swap Agreement. The Offering Circular Supplement emphasised that, in addition to the Notes being credit linked to the reference portfolio, Noteholders would also have exposure to the Collateral, and impairment of the Collateral might result in a negative rating action on the Notes. The document went on: Purchasers of Notes should conduct such independent investigation and analysis regarding the Issuer, the security arrangements and the Notes as they deem appropriate to evaluate the merits and risks of an investment in the Notes. In particular, purchasers should note that the credit risk of the Notes includes that of the Collateral, the Swap Counterparty and the Reference Entities and that the Notes allow a purchaser to obtain the stated coupon in exchange for assuming such credit risk. The coupon and Initial Principal Amount may be at risk if one or more Credit Events occur and in certain circumstances the Notes may redeem at zero. There were three main risks for Noteholders: (1) Credit Event risk, that is, the risk that Credit Events might occur and be notified under the Swap Agreement, reducing the amount payable by the Issuer; (2) Collateral risk, being the risk that the Collateral might default or decline in value (a more likely eventuality in modern conditions than it might have seemed in 2004); and (3) LBSF risk, being the risk that LBSF might not be in a position to provide sufficient funds to the Issuer for it to pay the Noteholders interest or principal. The documents were intended to regulate the delicate relationship between Noteholders risk and LBSFs risk. The Noteholder Priority provisions were intended to deal with LBSF risk. The fact that, in certain circumstances, the change in priority would lead to a (possibly unanticipated) benefit to the Noteholders and to the loss of LBSFs security rights in the Collateral in respect of Unwind Costs does not unravel this highly complex transaction. These transactions were designed, arranged and marketed by the Lehman group. The investors who bought the Notes were in the main not banks. In the case of the Belmont Noteholders they were Australian local authorities, pension funds, private investment companies and private individuals. There was evidence that the fact that the Noteholders would have priority over the Collateral in the event of LBSFs insolvency was a very material factor in obtaining Triple A credit ratings which enabled Lehman to market the Notes. For these reasons Sir Andrew Morritt C and the Court of Appeal were right to find that the key provisions were valid and enforceable. VIII The LBHI point This point does not arise in view of the conclusion that the Noteholders are right on the main point. LBHI filed for Chapter 11 relief on 15 September 2008. If that was an Event of Default on that date for the purposes of Clause 5.5 of the STD and Condition 44 of the Terms and Conditions, then Noteholder Priority replaced Swap Counterparty Priority and Condition 44.2 replaced Condition 44.1. If that occurred before, and not because of, LBSFs filing for Chapter 11 relief, the anti deprivation rule would not be engaged because the change in LBSFs priority would not have been because of its filing, but because of LBHIs filing. The anti deprivation rule has no application where an entity is deprived by a person of its property prior to bankruptcy and on grounds which do not depend upon bankruptcy. Sir Andrew Morritt C and the Court of Appeal accepted that the Noteholders were right on this point. LBSFs position was as follows: (1) Clause 5.5 of the STD and Condition 44.2 of the Terms and Conditions, and the concepts of Swap Counterparty Priority and Noteholder Priority, only had relevance in relation to events taking place after the Collateral has been sold. (2) Condition 44.2 of the Notes prescribed how the Early Redemption Amount payable to Noteholders on an Early Redemption Date was to be calculated. (3) But Early Redemption could only take place after service of a notice by the Issuer following termination of the swap transaction or service of a notice by the Issuer to accelerate the Notes following an Event of Default. (4) On the true interpretation of the arrangement, the parties could not have intended any permanent changes in the operation of Clause 5.5 and Condition 44.2 to have occurred unless and until the service of a notice by the non Defaulting Party to terminate the Swap Agreement. (5) Clause 5.5 and Condition 44.2 operated with respect to the payments which would be due to LBSF and the Noteholders on early termination of the swap transaction and Early Redemption of the Notes. (6) Neither of those events would occur automatically upon an Event of Default occurring under the Swap Agreement: each required the service of a notice by the Issuer terminating the Swap Agreement. (7) Part 1(h) of the Schedule to the ISDA Master Agreement contained the option for the contracting parties to select Automatic Early Termination (AET) of their Swap Agreement. (8) If AET was selected, termination of the swap was deemed to occur automatically on the occurrence of a specified number of Events of Default, including bankruptcy. (9) The AET option was not taken in respect of any of the Swap Agreements in issue in this case. (10) The result was that the mere happening of an Event of Default based upon bankruptcy was plainly not intended to, and did not, result in the automatic termination of the Swap transaction. (11) Parties to a swap agreement need to know, with certainty, a number of fundamental matters. They need, for example, to know whether or not the transaction is still operative or has been terminated; if it has been terminated, they need to know with certainty when it terminated, and which of them is the Defaulting Party and which is not. (12) In the absence of AET, it is the service of a notice under section 6(a) which fixes those rights and obligations. In my judgment, Sir Andrew Morritt C and the Court of Appeal were right on this point. The combined effect of section 5 of the ISDA Master Agreement and paragraph 9(iv) of the Swap Confirmation is that the institution by LBHI (a Credit Support Provider) of proceedings for Chapter 11 relief is an Event of Default. The direction to the Trustee in Clause 5.5 of the STD is to apply Noteholder Priority if an Event of Default has occurred under the Swap Agreement and the Swap Counterparty is the Defaulting Party. For this purpose LBSF is the Defaulting Party: section 6(a) of the ISDA Master Agreement. Condition 44.2 of the Terms and Conditions provides that if an Event of Default has occurred under the Swap Agreement and the Swap Counterparty is the Defaulting Party, then, where Unwind Costs are payable by the Issuer to the Swap Counterparty, the Issuer is to apply the Collateral proceeds first in redeeming the Notes. Consequently the priorities were fixed on the happening of the Event of Default. There is nothing in the documents to require a notice of termination for this purpose, by contrast with the procedure in clause 6(a) of the ISDA Master Agreement for early termination. Under clause 5.5 of the Principal Trust Deed the security became enforceable when any amount due in respect of the Notes was not paid. LBSF in effect asks the court to write in a further condition that notice of termination has been given in respect of that Event of Default. This would be unnecessary and contrary to principle. The fact that it might make more commercial sense (to LBSFs benefit) should yield to the following considerations: first, the documents were prepared and marketed by Lehman Brothers, who could reasonably have been expected to ensure that their interests were adequately protected. Secondly, the Notes were bearer instruments intended to be widely marketed, and it is particularly important in such circumstances for the documents themselves to be capable of being relied on in the market. In this connection it is worthy of note that the Offering Circular Supplement itself (under Security Arrangements) substantially repeated clause 5.5 of the STD. Noteholders were entitled to rely on the documents as presented to them. I would therefore dismiss the appeal. LORD WALKER I gratefully acknowledge Lord Collins summary of the complicated documentation in this case, and his comprehensive survey of the authorities on the anti deprivation rule. Between them Lord Collins in his judgment in this Court, and Lord Neuberger of Abbotsbury MR in his judgment in the Court of Appeal (Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd [2010] EWCA Civ 1160, [2010] Ch 347) have analysed the cases most thoroughly. What emerges from the analysis is that the rule is a general principle of public policy which (in the traditional phrase) prevents a fraud on the insolvency statutes: as Lord Rodger of Earlsferry put it in R v J [2004] UKHL 42, [2005] 1 AC 562, para 64, The notion of a fraud upon an Act, acting in fraudem legis, is ancient. Although the outer limits of the doctrine remain notoriously difficult to define, this case at least falls squarely within its scope. There is a good deal of common ground between Lord Collins and Lord Neuberger. Where they differ in their analysis I respectfully prefer the view taken by Lord Collins, and I am hesitant about adding anything that might in any way obscure the clarity of his judgment. What follows should be read as no more than footnotes. The outer limits of the anti deprivation rule are indeed difficult to define. There are some reasonably well demarcated areas in which it is clear that the principle does not apply. One is the grant of a lease, in which the reservation of a power of re entry and forfeiture in the event of bankruptcy is standard practice, is unquestionably valid, and is recognised by statute. This is noted by Lord Collins (paras 84 and 85) and Lord Neuberger MR (para 64), citing Whitmore v Mason (1861) 2 J & H 204, 209 210, and Ex p Barter; Ex p Black; In re Walker (1884) 26 Ch D 510, 519 520. Another area in which the principles are well established is in the law of trusts. This was, in the early days of the anti deprivation rule, the area in which most of the relevant cases were decided, the earliest notable decision being that of Lord Eldon LC in Higinbotham v Holme (1812) 19 Ves Jun 88, where by a marriage settlement the husband conveyed land which he owned to trustees in trust for himself for life unless he shall embark in trade, and in the life of his wife become bankrupt (as happened a few years later). Lord Eldon LC stated (at pp 92 93), It is not competent to a party, giving a consideration for a contract, that is a direct fraud upon the Bankrupt Laws, to have the benefit of it. I cannot assimilate this to the case of the wifes property limited until the bankruptcy of her husband; that is, where she reserves a power over her own property; or to the case of a lease made determinable by the bankruptcy of the lessee: that is a reservation by the owner of the property of a power over it . But (as Lord Eldon implies in that passage) a settlor can validly settle his own property so as to confer on another person an interest terminable on the bankruptcy of that other person. That also has received statutory recognition in the statutory protective trusts in section 33 of the Trustee Act 1925, subsection (3) of which provides that the section does not operate to validate any trust which would, if contained in the instrument creating the trust, be liable to be set aside. A further much more limited exception has been made for assets (in particular, shares in an incorporated professional or business association) which are closely linked with professional or business activities for which bankruptcy is a disqualification: Bombay Official Assignee v Shroff (1932) 48 TLR 443; Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150. It is hard to see how much of the old learning about marriage settlements can be applied to a highly sophisticated commercial transaction such as that now before the court. But the old cases leave us in no doubt that among the landed gentry in the 18th and 19th centuries (especially before the Married Womens Property Act 1882) marriage, if not a commercial transaction, had financial implications which were taken very seriously. In Lester v Garland (1832) 5 Sim 205, for instance, the wife (who was under 21) was entitled under her uncles will to a legacy of 1,000 contingently on attaining full age, and the legacy would on her marriage vest in her husband; this legacy, and a further 4,000 paid by her father to her husband, was treated as if it had been settled by the wife, and not by the husband, so as to accelerate the wifes interest in that part of the settled property on his bankruptcy. The Court of Chancery was there looking at what happened as a matter of substance rather than form. Lester v Garland was considered in a commercial context in Whitmore v Mason 2 J & H 204. In that case the bankrupt, Mr Smith, had been a partner in a firm that had a 50 year lease of mines in Portugal. Mr Smith had paid in one thirteenth of the firms capital of 6,500. The impugned provision of the partnership deed directed that on a partners bankruptcy his interest in the lease should be discounted in the taking of a partnership account. It is instructive to look at the report of counsels arguments. The argument for the partners was that partnership deeds were exceptional, and that such a provision was frequently inserted in them. Mr Rolt QC argued In forming a partnership each partner is making a bargain with the rest, and is entitled to stipulate for such advantages as he can obtain from the rest; and he referred by way of analogy to a lease (p 209). After the Vice Chancellor had made a discouraging reference to Wilson v Greenwood (1818) 1 Swans 471 Mr Giffard QC, following, argued that even on the rule as stated in Mr Swanstons note to Wilson v Greenwood (at p 485) the rule would allow two co partners, part owners of a mine, to limit their shares to each other until bankruptcy, and then over; and the limitation over would be valid. (p 210) That is the context of the Vice Chancellors dictum at pp 214 215: If his co partners had advanced a definite sum of money on account of his share, then the property might have been considered to the extent of the money so advanced by them, as identically their money; but this has not been done. The Vice Chancellor had already rejected Mr Giffards over ingenious argument. His dictum implies that it might have been different if Mr Smith had introduced no partnership capital of his own, and had merely covenanted to perform his partnership obligations, including paying off the initial advance of capital from his partners. This suggests, putting it more generally, that even in fully commercial transactions, if the bankrupt was not in substance the provider of the asset of which he is to be divested, the anti deprivation rule may not apply. If a party to a transaction brings to it nothing but his own covenant, like a tenant under a lease, the property interest which he takes is what the landlord agrees to grant him. The maxim cujus est dare ejus est disponere (mentioned by the Vice Chancellor 2 J & H 204, 212 213 in relation to a lease) is not restricted to gratuitous dispositions. Briggs J, who has wide experience of litigation relating to interest rate swaps, seems to have taken a similar view in Lomas v JFB Firth Rixson Inc (International Swaps and Derivatives Association Inc Intervening) [2010] EWHC 3372 (Ch), 21 December 2010 (a case on facts very much closer to those of this appeal). Having referred to Ex p Mackay; Ex p Brown; In re Jeavons (1873) LR 8 Ch App 643, British Eagle International Airlines Ltd v Cie Nationale Air France [1975] 1 WLR 758 and the judgment of the Court of Appeal in this case as each concerned with a chose in action with a built in flaw triggered by bankruptcy, Briggs J observed (paras 108 110): Where the asset of the insolvent company is a chose in action representing the quid pro quo for something already done, sold or delivered before the onset of insolvency, then the court will be slow to permit the insertion, even ab initio, of a flaw in that asset triggered by the insolvency process. By contrast, where the right in question consists of the quid pro quo (in whole or in part) for services yet to be rendered or something still to be supplied by the insolvent company in an ongoing contract, then the court will readily permit the insertion, ab initio, of such a flaw, there being nothing contrary to insolvency law in permitting a party either to terminate or adjust what would otherwise be an ongoing relationship with the insolvent company, at the point when it goes into an insolvency process. Examples of the former type are the royalty stream in Ex p Mackay, which was the quid pro quo for a patent sold outright by the person who later became bankrupt, and the debt owed by Air France to British Eagle, which was for services already rendered by British Eagle to Air France prior to the commencement of its winding up. Familiar examples of the latter category are leases and licences, where the right to enjoy the underlying asset accrues over time, in exchange, also over time, for payment of rent or fees, and which have always been terminable on bankruptcy without infringing the rule: see Perpetual [2010] Ch 347, para 64. Briggs J then went on to refer to the security right enjoyed by LBSF. This proposed test inevitably lacks precision, but it is in my respectful opinion a valuable contribution to the search for principle in this area. Moreover the more contrived and unconventional the chose in action is (unconventional, that is, outside the bizarre world of swaps) the stronger are the arguments for taking the chose in action as the parties have fashioned it. I am therefore inclined to give some weight to asking what it is that the bankrupt has brought to the transaction, so long as that is looked at as a matter of substance, and contrived arrangements or analyses (such as that suggested by counsel in Whitmore v Mason) are disregarded. In this case the noteholders were, as a matter of substance, the only party who contributed real assets in many cases the pension funds of hard working Australian citizens. LBSF contributed only promises, and then proved unable to perform them. Its only proprietary interest was under a charge to secure sums that might become due to it on due performance of its obligations. But these are, as I have said, only footnotes. The essential ground of the decision is set out in para 108 of the judgment of Lord Collins, with which I am in full agreement. I also agree with Lord Collins on what he refers to as the LBHI point. I would therefore dismiss this appeal on both grounds. LORD MANCE Introduction This appeal concerns a Lehman Brothers product called the Dante Programme. Sir Andrew Morrit C outlined its essential elements ([2009] EWHC 1912 (Ch); [2009] 2 BCLC 400, para 1) in a description adopted by the Court of Appeal ([2009] EWCA Civ 1160; [2010] Ch 347, para 5): (l) the issue of notes [the notes] to investors by a special purpose vehicle (the issuer) formed by a Lehman company in a tax friendly jurisdiction; (2) the purchase by the issuer with the subscription money paid for the notes of government bonds or other secure investments (the collateral) vested in a trust corporation; (3) a swap agreement entered into by a Lehman company and the issuer under which the Lehman company paid the issuer the amounts due by the issuer to the noteholders in exchange for sums equal to the yield on the collateral; (4) the amount by which the sum payable under the swap agreement by the Lehman company exceeded the yield on the collateral represented the premium for the, in effect, credit insurance provided by the noteholders; (5) the amount payable by the Lehman company to the issuer on the maturity of the notes (or on early redemption or termination) was the initial principal amount subscribed by the investors less amounts calculated by reference to events defined as credit events occurring during a specified period by reference to one or more reference entities, thereby giving effect to the effective insurance aspect of the programme; (6) the collateral was charged by the issuer in favour of the trust corporation to secure its obligations to the noteholders and the Lehman company on terms which changed their respective priorities on the occurrence of certain specified events, including the insolvency of the Lehman company, (7) each of the transactions summarised above (except the purchase of the collateral) is governed by English law. In the absence of any insurable interest, the description credit insurance is, on any view, colloquial or commercial rather than strictly legal. Under the particular tranche of the representative series put before the Supreme Court, the issuer was Saphir Finance plc (Saphir), the Lehman company which was Saphirs counter party in the swap was Lehman Brothers Special Financing Inc (LBSF) and the trust corporation was BNY Corporate Trustee Services Ltd (BNY). The notes were issued in July 2004 and were due to mature after seven years. The amount expressed to be payable by the issuer to LBSF on their maturity was an amount equal to the amount realised from the collateral (which would be netted off against the amount payable by LBSF to the issuer as mentioned in point (5) above, giving a net sum payable one way or the other). As a result of non recourse clauses, Saphir was not itself liable to either the Noteholders or LBSF beyond the amount realised by the collateral. The collateral was highly secure, consisting of A$40m triple A rated floating notes issued by Rabo Australia Ltd and guaranteed by Rabobank Nederland. Due to its floating rate, the value of the collateral would not alter significantly, upwards or downwards. The reference entities were at least double A rated, the credit events which might trigger a reduction in the amounts (capital, and as a result interest) due under the notes were of some severity, and the Noteholders had the further protection of a subordination amount of A$72m (over 50% higher than the Standard & Poors recommended level): only after that amount had been burned through by losses resulting from credit events would the amounts outstanding under the notes reduce, leading also to a reduction in the total payable thereon by way of interest. The reference entities were not entities with which LBSF necessarily had any financial relation, and the extent to which the programme or this tranche covered, directly or indirectly, any actual market exposure of LBSF is unclear. The attraction for Noteholders was an interest rate on their notes of 1.30% above that earned by the Rabo collateral. If there were no credit events at all, then during the period of their notes the Noteholders would receive interest at this uplifted rate on the notes face value (their only effective security in respect of the 1.30% uplift being LBSF), and on the notes maturity they would receive repayment in full via Saphir from LBSF. In return, LBSF would receive via Saphir during the period of the notes an amount equivalent to the interest payable on the Rabo collateral and on maturity the value of the collateral (less minor trustee, etc. fees). If there were duly notified credit events giving rise to losses above the subordination level, the downside for Noteholders was that the amount outstanding on their notes, and so also the interest payable from time to time, would be reduced (even to zero). In that event, LBSF would on maturity receive credit in the full value of the collateral, while crediting correspondingly less to Saphir for the benefit of the Noteholders, thereby making a credit insurance recovery. With the hindsight of the credit crisis of 2007 onwards, it can be seen that, however safe a bet the transaction may have appeared in July 2004, its timing was unfortunate. The contract documentation is of a purgatorial complexity fitting the programmes name. The judgments below have set out many detailed provisions, and the Appendix contains the most salient. These defined and regulated, in particular, the consequences of an Event of Default in respect of which LBSF was the Defaulting Party, and provided for early termination (clauses 5 and 6 of the ISDA Master Agreement). In the event, there were two relevant Events of Default, one consisting of the commencement on 15 September 2008 of Chapter 11 proceedings involving Lehman Brothers Holdings Inc (LBHI LBSFs parent and guarantor in the transaction) and the second consisting of the commencement on 3 October 2008 of such proceedings in respect of LBSF itself. The latter Event of Default led Saphir on 24 March 2009 to give notice specifying that Event of Default only and designating 24 March 2009 as an early termination date in respect of the swap. This appeal concerns the provisions governing an Event of Default and/or Early Termination. In summary, on Early Termination, the Noteholders were to be paid by Saphir their share of the outstanding amount of the notes, that is the face value reduced by reference to any credit events which had already occurred and had been duly notified after they had burned through the subordination amount. The swap was to be unwound by making a market based estimation of any credit events likely to occur during the remaining period of the notes, and by taking into account on the other side the future interest payments which LBSF would have had to make, had the transaction run to maturity. A balance, described as Unwind Costs, was thus to be struck, one way or the other, to unwind the swap (clauses 5.5 and 8.3 of the Supplemental Trust Deed (STD), read with condition 44 of the Offering Circular Supplement (OCS)). In the absence of any Event of Default involving LBSF as the Defaulting Party, the result on early termination was to mirror in effect that which it was estimated would exist on maturity (clauses 5.5 and 8.3 of the STD and condition 44 of the OCS). In the case of a balance due to the issuer (which would in practice only occur, as a result of the interest rate uplift of 1.30%, where there were no or few credit event losses above the subordination amount), the Noteholders would receive its benefit. In the event of a balance due to LBSF, the Noteholders would suffer diminution in their recovery by reference to both past and estimated further credit events in excess of the subordinated amount; on the other side of the coin, LBSF would be covered and secured via Saphir out of the collateral in respect of losses from both past and estimated future credit events. In the case of an Event of Default where LBSF was the Defaulting Party, a different scheme was to apply. The Noteholders were to continue to be entitled to be paid their share of the outstanding amount of the notes, that is their face value reduced by reference to any credit events which had already occurred and been duly notified. The swap was to be unwound, and a balance of Unwind Costs struck, in the same way as where there had been no default. In the case of a balance struck favouring Saphir, the Noteholders position was to be as before. In the case of a balance struck in favour of LBSF, the Noteholders were to be entitled to first recovery. LBSF was to remain entitled to the balance struck in its favour, but only after Saphir had, out of the collateral, satisfied the Noteholders prior claim to recovery of their share of the outstanding value of the notes (STD, clauses 5.5 and 8.3 and OCS, condition 44). Since the value of the collateral was not envisaged or intended to increase, and since there was no recourse against Saphir itself, LBSFs entitlement to the balance struck in its favour was more theoretical than practical. The collateral would be exhausted in (a) meeting any past credit losses in excess of the subordination amount incurred prior to early termination and (b) paying the Noteholders the outstanding amount of their notes. There would be nothing left to meet estimated future credit losses (reflected in the Unwind Costs), if they were not deducted by Saphir from the amount payable to Noteholders and passed on by way of a correspondingly increased payment out of the collateral to LBSF. The present dispute This change (or flip as it has been called), between the positions where there has not been and where there has been an Event of Default with LBSF the Defaulting Party, gives rise to the present appeal. LBSF is the appellant. The respondents are Belmont Park Investments Pty Ltd, a Noteholder, 28 other Australian charities and public bodies who are also Noteholders, and BNY. The primary issue is whether the loss by LBSF in such an event of its priority in respect of future estimated credit losses is invalidated by a principle (which I can conveniently call an anti deprivation principle), preventing a person from being deprived of his, her or its property upon insolvency. There is a further issue whether, on the facts of this case, the loss did occur upon LBSFs insolvency, bearing in mind that there was an Event of Default affecting its parent, LBHI, which occurred some two weeks before LBSF was subject to Chapter 11 proceedings. In this connection, the parties disagree as to whether the occurrence of an Event of Default (here, that involving LBHI on 15 September 2008) automatically introduces Noteholder Priority as opposed to Swap Counterparty Priority, or whether priority depends upon the giving of notice, and the realisation or enforcement of the collateral, pursuant to a particular Event of Default (here, the notice given on 24th March 2009 relying on the Event of Default relating to LBSF). The starting point of LBSFs case is the wide definition of property in section 436 of the Insolvency Act 1986 to include: money, goods, things in action, land and every description of property and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property. LBSFs case is that, prior to its insolvency, it had property in the form of a present, future or contingent interest in the collateral, securing a prior claim to Unwind Costs due to it on termination, that it was deprived of the claim and/or collateral upon or by reason of its insolvency, and that such a deprivation is invalid as contrary to the policy of the insolvency legislation. Neither of the courts below has accepted LBSFs case. Sir Andrew Morritt C noted five points ([2009] 2 BCLC 400, para 45): the money used by the issuer to buy the collateral derived from the Noteholders, not LBSF; the courts should not be astute to upset commercial transactions; it was appropriate for LBSF to have prior security over the collateral only so long as it continued to perform the swap; LBSFs priority had never extended to a time after the event of default in respect of which it was the defaulting party; and LSBFs prior security was thus always limited and conditional. In the Court of Appeal, Patten LJ [2010] Ch 347, para 135 considered that, whether or not the date for determining priority under clause 5.5 of the STD was 15 September 2008 or 24 March 2009: the only interest or property which [LBSF] ever enjoyed in the collateral was a charge granted by [Saphir] on the terms of the [STD]. That security interest remains part of the property of [LBSF] unchanged by the event of its bankruptcy. The reversal of the order of priority under clause 5.5 was always a facet of the security designed to regulate the competing interests over the collateral of LBSF and the Noteholders. To say that its operation in the event of the companys bankruptcy constitutes the removal of an asset from the liquidation is to confuse the security itself with the operation of its terms in the events prescribed by the charge. LBSF retains the same asset as it had before its bankruptcy and is free to deal with any recoveries for the benefit of its general creditors in accordance with the applicable statutory regime. Patten LJ applied similar reasoning (in para 136) to condition 44 of the Offering Supplementary Circular, holding that the operation of condition 44 does not give to the Noteholders more than the right to recover the whole of the sums due under the Notes in priority to any claim over the collateral by LBSF for the Unwind Costs. It simply adjusts the balances on early termination to ensure that the Noteholders are paid the whole of what is due to them in priority to the sums payable to LBSF. If there is no shortfall in the security LBSF will recover the sums due to it in full. Condition 44 does not therefore remove an asset from LBSF. Nor does it give to the Noteholders security over an asset in which they previously had no interest. It merely regulates the order in which the company and the Noteholders are entitled to be recouped out of the security. Although the amount of the security available to meet LBSF's claims is obviously reduced in the event of a shortfall in the value of the security over what it would have been had no Event of Default occurred, that is simply a function of the change in priority which was always a feature of the security which the company enjoyed. In para 174, Patten LJ summarised his view as being that: it is not possible to strike down the provisions of clause 5.5 and condition 44 merely because their operation may affect the value of the security available to LBSF in the event of a shortfall. There is nothing in the English authorities which supports the extension of the anti deprivation principle to encompass transactions which do not alter the property of the insolvent company in the asset in question . He also expressed doubt (paras 171 173) whether, in the light of the statutory provisions for setting aside transactions in insolvency, there was any scope for any anti deprivation principle, apart from that applied by the House of Lords in British Eagle International Airlines Ltd v Cie Nationale Air France [1975] 1 WLR 758 which precludes a disposition of property in insolvency otherwise than pari passu in accordance with the legislative scheme. Lord Neuberger of Abbotsbury MR, with whose reasoning Longmore LJ concurred, identified a number of features as supporting the Chancellors decision: first, and it appears most importantly in his view, he stressed that the collateral has been funded by the Noteholders money (paras 61 64); second, from the very outset the scheme provided and was marketed on the basis that, if LBSF or LBHI defaulted, the Noteholders would have priority; third, LBSF retained their right to be paid, did not lose any vested asset and would merely rank behind rather than ahead of the Noteholders in relation to the collateral, and not be out of pocket if there was no shortfall (paras 61 and 63 64); fourth, a charge or provision for repayment, while not identical to a lease or licence, has features of similarity and differs from ownership (para 64). The Master of the Rolls saw Patten LJ as having decided the case on the simple basis that the flip, that is, the reversal of the order of priority against a company as the holder of a charge, in favour of another chargee over the same assets, cannot be caught by the rule, even if it operates after the liquidation of the company, at least if such a reversal was an original feature of the company's charge when it was granted. (para 66) He said that he had considerable sympathy with that view, but preferred to rest his conclusion on a more limited ground, namely that: in addition to the facts relied on by Patten LJ, the assets over which the charge exists were acquired with money provided by the chargee in whose favour the flip operates, and that the flip was included merely to ensure, as far as possible, that that chargee is repaid out of those assets all that he provided (together with interest), before the company receives any money from those assets pursuant to its charge. He thought that, without these additional facts: there may be room for argument that, in the absence of these additional facts, the arrangement in this case would have fallen foul of the analysis in Ex p Mackay 8 Ch App 643 (which was arguably approved in the British Eagle case ), on the basis that the right in that case to retain the second half of the royalties in the event of bankruptcy was, like the flip provisions here, an original feature of the contractual arrangement, and the right to recoup money under a change in priority to another chargee is every bit as much of an asset as the right to moneys (in the form of royalties) arising in the future. There is also a danger that the simple analysis adopted by Patten LJ could, in the light of the very limited circumstances in which the court will hold a transaction to be a sham, make it very easy to dress up sale transactions in such a way as to enable the rule to be circumvented. (para 67) An anti deprivation principle? I am satisfied that there are, and ought to be, two principles in this area. One is the principle applied in British Eagle, which precludes a bankrupt from agreeing to distribute his, her or its property other than pari passu in bankruptcy (although it does not preclude creditors from agreeing inter se on the distribution inter se of their pari passu shares: In re Maxwell Communications Corpn plc [1993] 1 WLR 1402). The other is a concurrent principle, whereby dispositions of property on bankruptcy may be invalidated as being in fraud or an evasion of the bankruptcy laws. The only challenge to the former principle has been in written submissions made by The Premier League as interveners (closely related to pending proceedings brought against it by Her Majestys Revenue and Customs). I see no basis for any fundamental challenge to the principle, and I shall in view of the pending proceedings say nothing about particular issues which may arise there about the scope of the principle or its application to direct payment clauses such as those discussed in paragraph 6 11 of Professor Sir Roy Goodes Principles of Corporate Insolvency Law, 3rd ed (2005). It is the latter principle which is in issue on this appeal. This, an anti deprivation principle, was examined and applied by Lord Eldon in Higinbotham v Holme (1812) 19 Ves Jun 88, and in a series of later cases, such as Lester v Garland (1832) 5 Sim 205, Whitmore v Mason (1861) 2 J & H 204, Ex p Mackay; Ex p Brown; In re Jeavons (1873) LR 8 Ch App 643 (CA), Ex p Jay; In re Harrison (1880) 14 Ch D 19 (CA), Ex p Barter; Ex p Black; In re Walker (1884) LR 26 Ch D 510 (CA) and In re Johns; Worrell v Johns [1928] Ch 737 and, more recently, Mayhew v King [2010] EWHC 1121 (Ch). It was recognised and considered, without adverse comment, by the Privy Council in Bombay Official Assignee v Shroff (1932) 48 TLR 443 and by the House of Lords in British Eagle [1975] 1 WLR 758. Section 33(1)(ii) of the Trustee Act 1925 also assumes the existence of such a principle. While the two principles are conceptually distinct, they are quite closely allied. British Eagle addresses what happens in bankruptcy. An anti deprivation principle addresses what happens on bankruptcy. If contracting out of the statutory rule requiring pari passu distribution in bankruptcy is impermissible, it would be surprising if there were no concurrent principle capable of invalidating certain dispositions which, by removing property from the bankrupt on bankruptcy, had the same ultimate effect. The general principle of pari passu distribution in bankruptcy would otherwise easily be evaded, as the court observed in Ex p Mackay LR 8 Ch App 643. It is also unsurprising that the facts of some of the authorities (eg Whitmore v Mason 2 J & H 204 and Ex p Mackay) might plausibly have been analysed as falling within either principle. Further, it is clear that there is no conceptual difference between removing specific property from the bankrupt estate for no consideration (Whitmore v Mason), increasing the security given to a particular creditor (Ex p Mackay) and increasing the bankrupt estates liability to a particular creditor (In re Johns [1928] Ch 737). All these fall within the anti deprivation principle. The existence in the Insolvency Act 1986 of other provisions protecting the interests of creditors in bankruptcy does not supersede or make redundant an anti deprivation principle. First, the 1986 Act must have been enacted against the background of the case law establishing that certain deprivations on bankruptcy are impermissible and void. Second, the statutory provisions cover different ground. Section 127 concerns dispositions after the commencement of the winding up, section 238 transactions at an undervalue and section 239 preferences. Sections 238 and 239 only avoid transactions within specified periods ending with the onset of insolvency (from six months to two years). Section 423 requires proof of both a transaction at an undervalue and a specific intent to put assets beyond the reach of or prejudice a potential claimant. These provisions have their own historical antecedents, dating back to the Fraudulent Conveyances Act 1571 (13 Eliz 1, c 5) and the doctrine of fraudulent preference formulated by Lord Mansfield in 1768 (see Alderson v Temple (1768) 4 Burr 2235 and later incorporated in statutory form in the Companies Act 1862 (25 & 26 Vict, c 89)). The more difficult question concerns the character of transaction and the state of mind which will attract the operation of the anti deprivation principle. In my opinion, the court has to make an objective assessment of the purpose and effect of the relevant transaction or provision in bankruptcy, when considering whether it amounts to an illegimate evasion of the bankruptcy law or has a legitimate commercial basis in other considerations. The references in the cases to fraud of the bankruptcy law are not to fraud in a strict sense or even to conduct which is morally opprobrious. Equity took a broader approach to fraud: Snells Equity, 32nd ed (2010), para 8 001; and see eg the cases on fraudulent concealment preventing the running of a limitation period: Kitchen v Royal Air Force Association [1958] 1 WLR 563; Tito v Waddell (No 2) [1977] Ch 106, 245B C. Counsel for the unsuccessful wife in Higinbotham v Holme 19 Ves Jun 88 made the distinction between actual and other fraud clear when he said, at p 90, that the settlement being free from objection for want of consideration or upon actual fraud could only be represented as a fraud upon the bankruptcy law in one of two ways, either on the basis of (the then existing, but in that case irrelevant and since the Insolvency Act 1985 finally abolished) doctrine of reputed ownership or by considering it as a subtraction from the creditors of his estate, which he enjoys and possesses for every other purpose. In a number of the old authorities, a conclusion that the anti deprivation principle applied was expressed in terms referring to an express or deliberate object of evading the bankruptcy law. Lord Eldon LC in Higinbotham v Holme and the Court of Appeal in Ex p Mackay LR 8 Ch App 643 based themselves on an analysis of the transaction which led them to conclude that the express object was to take the case out of the reach of the bankruptcy laws. The palpably artificial scheme in In re Johns [1928] Ch 737 was described as a deliberate device to secure that more money should come to the mother, if the son went bankrupt, than would come to her if he did not (p 748). In dicta in British Eagle [1975] 1 WLR 758, 780, Lord Cross of Chelsea said that existences of a charge in Ex p Mackay meant that The court could only go behind it if it was satisfied as was indeed obvious in that case that it had been created deliberately in order to provide for a different distribution of the insolvents property on his bankruptcy from that prescribed by the law. Other cases have however stated an anti deprivation principle in terms focusing on the character of the transaction or provision, identified objectively. In a note to Wilson v Greenwood (1818) 1 Swans 471 (another decision of Lord Eldon) which was subsequently quoted by Lord Hatherley LC in argument in Whitmore v Mason 2 J & H 204, 209 210 and by Fry LJ in Ex p Barter LR 26 Ch D 510, 519 520, Mr Swanston stated simply that the owner of property may, on alienation, qualify the interest of his alienee by a condition to take effect on bankruptcy; but cannot by contract or otherwise qualify his own interest by a like condition, determining or controlling it in the event of his own bankruptcy, to the disappointment or delay of his creditors. That is an objective test. In Ex p Jay 14 Ch D 19 a building owner demised land to a builder for 99 years, with detailed covenants to build thereon within certain times and subject to a power of distress and entry in case of either default in performance or bankruptcy or insolvency on the part of the builder, in either of which cases all the builders improvements, plant and chattels on site were to be forfeited to the building owner. There was a commercial advantage behind the forfeiture provision, and Bacon CJ in fact said at first instance that There was no fraud, but a transaction perfectly consistent with the speculation into which both parties had entered, that the materials brought upon the land were to be used in constructing the buildings (p 23). But the Court of Appeal held that (there having been, prior to the bankruptcy, no default which could by itself have triggered the forfeiture) the forfeiture was void in the event that happened, of its being triggered by the builders bankruptcy. In Ex p Barter 26 Ch D 510, a similar point arose under a shipbuilding contract, which entitled the owners, in various events including the builders cessation of work for 14 days or bankruptcy or insolvency, to take possession of the vessel and complete it using such of the builders materials as were on their premises intended for use in completion. The builders went bankrupt and the owners claimed the right to use their materials. In justification, they argued strenuously the question was whether at the time when the contract was entered into the parties intended to defeat the bankruptcy law; whether it was an honest or a dishonest contract (p 515), and the clause was for the builders benefit since completion of the ship would reduce their bankrupt estates liability. The Court of Appeal noted that the latter argument was fallacious, since the effect of the clause was to transfer to the owner the trustees right to elect whether or not to complete. The court went on to reject the owners case without reference to any state of mind, on the simple basis of the rule stated by Mr Swanston. To similar effect is, as Neuberger J noted in Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd [2002] 1 WLR 1150, para 102, a passage in the judgment of Farwell J in Borlands Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279, 291. In the Borlands case, Farwell J, while accepting that the second principle did not apply to provisions compelling sale of shares on bankruptcy at their fair value, added that a provision compelling their sale at something less than the price they would otherwise obtain would be repugnant to the bankruptcy law. The reasoning of Lord Blanesburgh in Bombay Official Assignee v Shroff 48 TLR 443, 446, to which Neuberger J also referred is, as I see it, equivocal and the judgment went off on another point. An objective approach is also consistent with authorities which show that what matters is whether the deprivation was triggered by bankruptcy, and that, if it is, it is irrelevant that there was also events other than bankruptcy, which if they had occurred would have triggered deprivation, but which did not in fact occur. In Higinbotham v Holme 19 Ves Jun 88 there was a settlement by a prospective husband of moneys on trust for the husband unless and until he should, during his wifes lifetime, die or become bankrupt in which case she should receive an annuity. The annuity in favour of the wife was held void as regards the period between the husbands bankruptcy and death, but Lord Eldon made clear that it would still be payable as and from the date when her husband later died. In Ex p Jay 14 Ch D 19 and Ex p Barter 26 Ch D 510 the relevant clauses authorised forfeiture of the builders materials on certain defaults in performance as well as on bankruptcy, but no such other events had occurred prior to the builders bankruptcy, upon which the clauses were actually operated. In re Detmold; Detmold v Detmold (1889) 40 Ch D 585, a settlor made a marriage settlement settling income on himself for life or until he shall become bankrupt, or shall assign, charge, or incumber the said income, or shall do or suffer something whereby the same would through his act, default, or by operation or process of law become vested in or payable to some other person . A judgment creditor obtained the appointment of a receiver over the income on 19 July 1888 and on 29 July 1888 the settler was adjudicated bankrupt. The wifes interest vested on the appointment of the receiver and was held valid as against the creditors. In Whitmore v Mason 2 J & H 204, the fact that the trigger for the anti deprivation principle is bankruptcy was ingeniously invoked in an argument that, since the clause purportedly removing property from the bankrupt partners estate was expressed to take effect in the event of bankruptcy or insolvency, it therefore took effect in this case immediately the partner was unable to pay his debts, and consequently before any act of bankruptcy under which his assignees could claim; but Page Wood V C gave the argument short shrift, saying that a bankrupt is usually insolvent before he commits an act of bankruptcy and if that construction were to prevail, the bankrupt laws might, in all cases, be defeated (p 215). In contrast, in Ex p Newitt; In re Garrud (1881) 16 Ch D 522 the clause in a building lease entitled the building owner to re enter, and provided for forfeiture on re entry of the builders materials by way of liquidated damages, if the builder defaulted in fulfilling the agreement. The builder defaulted but, on one view of the facts, there was no re entry and forfeiture prior to bankruptcy. The Court of Appeal held that, since the trustee in bankruptcy took possession subject to any pre existing rights, the right to re enter and forfeit could be exercised even after the bankruptcy. In the present case, Lord Neuberger MR and Patten LJ [2010] Ch 347, paras 93, 163 thought that the decision in In re Newitt cannot survive British Eagle [1975] 1 WLR 758, in so far as it held that a right to forfeit could be exercised after bankruptcy. But it is unnecessary in this case to consider whether that is correct. A further point is that it may be possible to sever a transaction or provision which infringes the anti deprivation principle, avoiding it only to the extent that it has this character. This is indicated by Lester v Garland 5 Sim 205 (where a husbands provision that moneys settled on himself should on his bankruptcy go to his wife and children was held valid as to 15 sixty sixths, on the basis that so much of the moneys derived from her father and could be treated as coming from her, and void as to the rest). Lord Eldons indication in Higinbotham v Holme 19 Ves Jun 88 that it was only in the period between the settlors bankruptcy and death that the creditors would take priority over the wife is in the same sense. Mr Swanstons note to Wilson v Greenwood 1 Swans 471 covers two categories of situation: first, the owner of property may, on alienation, qualify the interest of his alienee by a condition to take effect on bankruptcy; the anti deprivation principle does not prevent that; but, secondly, he cannot by contract or otherwise qualify his own interest by a condition, determining or controlling it in the event of his own bankruptcy. A straightforward instance of the first situation is provided by the protective trust, within the meaning of section 33 of the Trustee Act 1925, created by a third party: Money Markets International Stockbrokers Ltd [2002] 1 WLR 1150, paras 47 49, and Sir Roy Goode, Perpetual Trustee and Flip Clauses in Swap Transactions [2011] LQR 1, 8. Provisions for the forfeiture of leases on a tenants bankruptcy were seen as falling within the same category (Whitmore v Mason, 2 J & H 204, 212 213). This was despite their mutual aspect (perhaps because it was assumed that landlords could dictate their own terms). Such provisions are now recognised as valid in section 146(9) of the Law of Property Act 1925. A straightforward instance of the second situation is the settlement by a person of his own property on terms depriving him (and so his creditors) of it upon his bankruptcy. Early examples are Higinbotham v Holme 19 Ves Jun 88 and Lester v Garland 5 Sim 205. Contractual situations present more difficulty. As Mr Swanstons note makes clear, the fact that two contracting parties have agreed a provision does not make it valid. The autonomy of contracting parties cannot axiomatically prevail over the interests of third party creditors in bankruptcy. By the same token, it can be no answer to a suggestion of evasion of the bankruptcy law that the provision for deprivation was in the contractual arrangements from the outset. That will commonly be the case (and was so in many of the cases, eg Whitmore v Mason 2 J & H 204, Ex p Mackay LR 8 Ch App 643, Ex p Jay 14 Ch D 19 and Ex p Barter LR 26 Ch D 510). However, it is reasonably clear that Mr Swanstons note was focusing on contracts affecting a pre existing property interest. Even in that connection, the note would, read literally and generally, go too far, as the position regarding leases shows. Where the property interest arises out of or in close connection with the relevant contract providing for its determination on bankruptcy, it may be easier to suggest a real commercial or other basis for the deprivation provision, and correspondingly more difficult to invoke the anti deprivation principle. Thus, in Borlands Trustee [1901] 1 Ch 279 the purpose of the requirement, that any holder of the companys shares who became bankrupt should sell them at a specified price, was that the company should remain under the control of its managers and workers in Burma. There was, Farwell LJ said, at p 291, nothing repugnant to any bankruptcy law in such a provision as that. Turning to the price, he said that there was also nothing repugnant in that, since it was a fair value, although there would have been, had the obligation been to sell the shares at a lesser price (p 291). In the Money Markets International Stockbrokers Ltd case [2002] 1 WLR 1150, Neuberger J identified deprivation provisions operating on bankruptcy in relation to valueless assets or to assets ownership of which depends upon the personal characteristics of their owner as likely also to fall outside the second principle. He noted that it was presumably on this basis that the loss of membership of the relevant stock exchange on bankruptcy had not been challenged in Bombay Official Assignee v Schroff 48 TLR 443 or in Money Markets. In the former case, Lord Blanesburgh said, at p 445, that if such an organisation is to attain its ends membership must plainly be a personal thing, incapable of uncontrolled transfer: expulsion from membership must normally follow default or misconduct: upon expulsion all interest of the defaulting member in the property of the organisation must cease. In Money Markets, Neuberger J extended this approach to an ancillary asset in the form of a share in the London Stock Exchange which was liable to rescission for no consideration on bankruptcy. It is unnecessary to engage with the detail of the case or its outcome, but the conclusion that assets which are ancillary to a personal right may be forfeited on bankruptcy is understandable, although I believe that the terms of forfeiture might require particular consideration if there was nothing personal about the assets themselves and they were detachable and separately alienable. The existence of a contractual scheme, which is said to create the relevant property interest, but at the same time to include provisions providing for its illegitimate deprivation on bankruptcy, raises several questions: First, how far did the scheme confer any property interest on the subsequently bankrupt party? Second, how far did it deprive him of any such property on bankruptcy? Third, in so far as it did deprive him of any such property on bankruptcy, did this amount to an illegitimate evasion of the anti deprivation principle? The first question is exemplified by the difference between the majority and minority in British Eagle as to whether the International Air Transport Association (IATA) arrangements then in force had given rise to any indebtedness between IATA members, and by the conclusion of the majority of the High Court of Australia in International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3, (2008) 234 CLR 151 that the modified IATA arrangements did not do so. The parallel issue in the present case is whether the swap between Saphir and LBSF gave LBSF any property in the form of either or both of a contractual right to priority in respect of Unwind Costs and a proprietary interest in the collateral to secure such Unwind Costs. In answering that question, it is necessary to examine the terms and effect of the contractual arrangements, summarised above. There can be a fine distinction between arrangements conferring a limited or determinable benefit and arrangements conferring a larger benefit but making it forfeitable in circumstances including bankruptcy. Such a distinction has also been examined in the context of the common law rule of repugnancy which prevents a condition subsequent from being attached to an outright gift. The court was invited to sweep away any such distinction, at least in the present context. Mr Snowden made the invitation on the basis that limited or determinable interests should be assimilated with conditions subsequent, rendering the termination potentially invalid in all cases; Mr Salter and Mr Howard made it on the opposite basis that conditions subsequent should be assimilated with limited or determinable interests, and party autonomy given effect in all such situations. In the context of the rule against repugnancy, the distinction between limited or determinable interests and conditions subsequent has been regularly criticised although, one notes, with few positive suggestions as to what might replace it. Porter MR In re Kings Trust (1892) 29 LR Ir 401, 410 thought it little short of disgraceful to our jurisprudence that in reference to a rule professedly founded on public policy there should be a distinction between a gift of an annuity for life coupled with a proviso for cessation if the donee married (treated as giving a life interest) and a gift until he marries (treated as giving an interest only until marriage). Porter MRs criticism appealed, in similar contexts, to Pennycuick V C In re Sharps Settlement Trusts [1973] Ch 331, 340G and to Rattee J In re Scientific Investment Pension Plan Trusts [1999] Ch 53, 59F G, as well as to Professor Sir Roy Goode (Principles of Corporate Insolvency Law, 3rd ed, pp 186 187 and (2011) 127 LQR 1, 8. However, all of these authorities have taken the distinction as well established and one which has to be accepted, and either of the extremes embraced by Mr Snowden on the one hand and Mr Salter and Mr Howard on the other could have far reaching implications. But I think that there is some scope for looking at the substance, rather than the form, when considering whether an agreement confers a limited or determinable interest or amounts to a condition subsequent depriving the bankrupt of property on bankruptcy. This would be consistent with the first instance decision in Mayhew v King [2010] EWHC 1121 (Ch), which no one challenged before the Supreme Court, and which was upheld by the Court of Appeal after the hearing before the Supreme Court, sub nom Folgate London Market Ltd (formerly Towergate Stafford Knight Co Ltd) v Chaucer Insurance plc [2011] EWCA Civ 328. The brokers undertaking by the settlement agreement in that case to indemnify the lorry owners (Millbank Trucks Ltd) against their liability to Mr Mayhew as to 85% up to 1 m, and as to 100% above 1 m clearly reflected effective acceptance of a pre existing exposure to the lorry owners in negligence, and the clause limiting or terminating that agreement upon the lorry owners bankruptcy can have had no commercial or other object, except to prevent the lorry owners continuing to have the benefit of the indemnity to meet the claims of Mr Mayhew and/or their other creditors in whatever way would ordinarily follow in the event of such a bankruptcy. (In fact the lorry owners administrators had assigned the benefit of the indemnity to the lorry owners insurance company which had had under section 151 of the Road Traffic Act 1988 to meet Mr Mayhews claim against the lorry owners.) Professor Worthington in Insolvency Deprivation, Public Policy and Priority Flip Clauses (2010) 7 International Corporate Rescue 28, 36 also criticises a distinction which hangs on the form of words or wafer thin differences in language, but herself advances a more substantive distinction between necessarily time limited interests (like leases) and others. I do not accept that distinction, which would have its own incongruities: a 999 year lease is to all practical intents a permanent interest, and it is hard to see, in its potential termination in say 900 years, any relevance to the question whether its termination on the tenants bankruptcy should be permissible; a distinction between such a lease and a permanent licence is equally unconvincing. In Ansett (2008) 234 CLR 151, paras 151 to 179 Kirby J (dissenting) was, if necessary, prepared to look behind or through the parties actual contractual arrangements, in order to identify a deprivation of property in a contractual scheme which as a matter of law eliminated any indebtedness between IATA members at any time. That must, I think, also go too far and appears to me inconsistent with the assumption of both the majority and the minority in British Eagle. Courts cannot rewrite or review contractual arrangements to give them an effect contrary to the substance of what the parties have agreed, even though this means that the bankrupt has less property than would otherwise be the case before and when he becomes bankrupt. Analysis In the present case, the first question is whether LBSF had, under the contractual arrangements, any relevant property, whether limited and determinable or forfeitable. The parties submissions have focused on the difference in priorities in relation to the collateral between the situations of Swap Counterparty Priority and Noteholder Priority. As a matter of contract, as Patten LJ noted, LBSF retained the right to recover any Unwind Costs payable to it in either situation. But the priority accorded to this right, as against both Saphir and the collateral, depended upon which form of priority applied: see in particular clauses 5.5 and 8.3 of the Supplemental Trust Deed, as well as the Conditions of the OCS referred to in clause 8.3. Since there was by agreement no recourse against Saphir except to the extent covered by the collateral, the real right was against the collateral, to the extent that the collateral was sufficient to enable payment. Since the collaterals value would remain stable, priority was essential to the effectiveness of the right. References in the Court of Appeal judgments (see paras 144 and 146 above) to there being no shortfall in the collateral might suggest that the present dispute arises from some problem with the collateral and its performance. Far from it. The expectation of notified credit events in excess of the subordination amount, giving rise to Unwind Costs payable to LBSF, coupled with provision that no deduction should be made for such Unwind Costs from the amounts payable to Saphir and the Noteholders, simply meant that the total claims against the collateral exceeded any value that it was ever contemplated that the collateral could or would have. The reality is therefore that, if Unwind Costs were payable to LBSF, but the transaction was closed by payment to Saphir and so the Noteholders out of the collateral of the current value of the notes, without reduction for such Unwind Costs, LBSF would have no effective right to recover such Unwind Costs. The difference between Swap Counterparty Priority and Noteholder Priority is a difference between different priority contractual rights against Saphir secured by different priority rights against the collateral held by BNY. In reality, however, it amounts to a difference between having a right and having no effective right. The collateral on which most of the argument in this case has focused is a more visible form of property than a bare claim, but a bare contractual claim is also a form of property. If Saphir, as LBSFs contractual counterparty, had been liable without limit and good financially, the difference in priority over the collateral would have had no significance. But here there was an effective limit on Saphirs liability as counterparty, consisting of the value of the collateral. Hence, the focus on the significance of priority in respect of the collateral. On one reading of paras 135, 136 and 174 of his judgment, Patten LJ took the view that the only asset that LBSF ever had was security over the collateral, and that Swap Counterparty Priority did not involve a different form of property interest to Noteholder Priority. For the reasons I have given, I do not accept that analysis. The two types of priority over the collateral involve different property interests, but so too do the two types of contractual priority created by the parties arrangements. However, these paragraphs in Patten LJs judgment also point towards a different truth. The collateral was acquired by Saphir and given to BNY as trustee expressly to await events. All the relevant provisions relating to priority are expressly relevant only in connection with the realisation or enforcement of the collateral: clause 6.2 of the Principal Trust Deed, clauses 5.5 and 8.3 of the STD and condition 44 of the OCS. What events occurred determined who acquired priority. As it happened, the relevant event was one of default, with LBSF the Defaulting Party, and priority fell accordingly to be given to the Noteholders. Prior to the occurrence of an event determining which form of priority was to apply, I do not consider that LBSF could be said to enjoy either. This is a conclusion which is equally applicable to the question whether LBSF could be regarded as having been deprived of property in the form of a contractual right to priority. It follows that the occurrence of an event determining that Noteholder Priority applied did not deprive LBSF of any previous property in the form of Swap Counterparty Priority. The event prevented LBSF from acquiring Swap Counterparty Priority, rather than deprived it of such Priority. I add that, even if it were right to regard LBSF as having enjoyed property in the form of Swap Counterparty Priority unless an event of default occurred with LBSF being the defaulting party, the case would fall within the category of interests limited to last until a certain event, rather than that of interests forfeitable upon a certain event. These conclusions also correspond, as I see it, with the Chancellors pithy reasoning: see para 143 above. If a contrary answer were given to the first question identified in paragraph 161 above, the second question, how far LBSF was deprived of such property on bankruptcy, would arise. That involves in this case the issue about the trigger and timing of any deprivation identified in paragraph 141 above. I will leave that issue for the moment, and assume that there was a deprivation by reason of a switch in priority on LBSFs bankruptcy. The third question is then whether this amounted to an illegitimate evasion of the anti deprivation principle. In answering this third question in the Court of Appeal [2010] Ch 347, Lord Neuberger attached considerable significance to the fact that the Noteholders put up the money with which Saphir purchased the collateral held by BNY as trustee. Lord Neuberger referred to Whitmore v Mason 2 J & H 204, where partners had agreed that, on the bankruptcy of any one of them, his interest in partnership mines and premises, except for one specified lease, grant and concession, should be valued and paid to him. The exception was held invalid, but Page Wood V C, after referring to Lester v Garland, said that If his co partners had advanced a definite sum of money on account of his share, then the property might have been considered to the extent of the money so advanced by them, as identically their money (pp 214 215). This generous dictum, derived from old authority decided in an era in which wives could not own separate property, is a tenuous basis for enabling a particular creditor to stipulate for priority in his debtors bankruptcy, without having previously taken any security. In any event, the dictum is in my view difficult to apply to the facts of the present case, involving not an out and out contribution to marriage or another venture, but security in respect of complex contractual arrangements. First, it was the essence of the transaction that the collateral should stand as neutral security for (indeed as the limit of) potential indebtedness of Saphir to either LBSF or the Noteholders. The case cannot be approached on the basis that the Noteholders had an inherent or pre existing right either to contractual priority or to the collateral. Their rights depended upon the terms agreed in the documentation. Secondly, although the reality in this case is that LBSF would never be paid unless it retained priority over the collateral, one can imagine a case where there was no collateral, but a simple contractual provision depriving LBSF of the right to payment (or subordinating its right to payment to those of others, in such a way that it would not in practice be paid) in the case of a default where LBSF was the defaulting party. The present problem could not then be solved by enquiring into the source of the collateral, since there would be none. Yet it is difficult to think that the answer to the present problem turns on whether or not there was collateral. For these reasons, I would not subscribe to the line of reasoning suggested in paragraphs 92 98 of Lord Collins judgment. If one is assuming, as I presently am, that LBSF had a first priority property right to recover Unwind Costs payable to it and that it was deprived of this and the collateral securing it upon its bankruptcy, some other justification for this deprivation must be found than the fact that the Noteholders funded the security. Accordingly, bearing in mind the reality that the difference in priority over the collateral amounts to a difference between having and not having any right to recover Unwind Costs, it is I think instructive to start by considering to what extent English bankruptcy law permits contracting parties to agree that one shall have the right to terminate or vary the priority of rights, as well as security in respect of rights, under a contract upon the bankruptcy of the other. In Principles of Corporate Insolvency Law, para 7.11, Professor Sir Roy Goode notes that it is generally assumed that provisions for termination of leases or the hiring of chattels or, indeed, of any kind of agreement, upon the bankruptcy or liquidation of a party are valid. However, he also suggests that the general American bankruptcy rule, that ipso facto termination clauses are ineffective, is one which English law could sensibly follow. He adds that it is a matter for some astonishment that the validity of contractual provisions for termination of rights on winding up has yet to be authoritatively determined. It is relevant to note that the American bankruptcy rule invalidating ipso facto termination clauses is a product of legislation: section 365(e) of the Bankruptcy Code 1978, which was considered by The Hon James M Peck, United States Bankruptcy Judge, in his ruling in the parallel United States litigation concerning the Dante Programme. Section 365(e)) provides that: an executory contract . may not be terminated or modified , and any right or obligation under such contract . may not be terminated or modified, at any time after the commencement of the case solely because of a provision in such contract . that is conditioned on . the commencement of a case under this title . This is complemented by section 541(c) which provides that any interest of the debtor in property becomes property of the estate . notwithstanding any provision in an agreement . that is conditioned on the commencement of a case under this title and that effects or gives an option to effect a forfeiture, modification, or termination of the debtors interest in property. The anti deprivation principle recognised in English case law finds a parallel in section 541. But the English case law has to date focused on deprivation of property, and has not recognised any equivalent principle to that enacted in section 365(e). Further, section 365(e) is itself qualified by the safe harbour provisions of section 560, which specifically protect a non defaulting swap participants contractual rights to liquidate, terminate or accelerate a swap agreement because of a condition of the kind specified in section 365(e)(1), that is the insolvency or financial condition of the debtor and the commencement of a bankruptcy case. District Judge Peck considered section 560 inapplicable because, he concluded, there was nothing in the ISDA Master Agreement or the Swap Agreement referring to the STD or Noteholder Priority or condition 44 of the OCS; and the provisions of the latter documentation, while dictating the means by which the proceeds of each swap agreement would be distributed, were not part of the swap agreement. It is not for this court to go further into that conclusion, which may yet be challenged in further United States litigation. What it does suggest is that any general rule invalidating ipso facto termination clauses ought to be a matter for legislative attention, rather than novel common law development. How far contracting parties may validly agree to one party terminating further performance on the bankruptcy of another was recently considered at first instance in Lomas v JFB Firth Rixson Inc [2010] EWHC 3372 (Ch). The case was decided after the present Court of Appeal decision. It concerned five fixed rate/floating rate swaps to which another Lehman company (LBIE) was party. An event of default as defined in the contract documentation occurred on 15 September 2008 consisting of LBIEs entry into administration. Under section 2(a)(iii) of the ISDA Master Agreement, each partys obligation to make payment or delivery under the swaps was subject to (1) the condition precedent that no Event of Default . with respect to the other party has occurred and is continuing, (2) the condition precedent that no Early Termination Date in respect of the relevant transaction has occurred or been effectively designated . LBIE would have benefited from the continuation of the swaps to their natural expiry dates. LBIEs counterparties relied upon clause 2(a)(iii) to withhold further performance, netting off against amounts owed by LBIE the amounts they owed to LBIE but for LBIEs default. LBIE argued that the power to withhold further performance infringed the second principle. Briggs J rejected the submission. He distinguished between an asset in the form of a chose in action, representing the quid pro quo for something already done, sold or delivered before the onset of insolvency and a right consisting of the quid pro quo (in whole or in part) for services yet to be rendered or something still to be supplied by the insolvent company in an ongoing contract. He held that there is nothing contrary to insolvency law in permitting a party either to terminate or adjust what would otherwise be an ongoing relationship with the insolvent company, at the point when it goes into an insolvency process (para 108), and that: Reduced to its bare essentials, the condition precedent that there should be (inter alia) no bankruptcy event of default was a provision designed to ensure that LBIE would only receive its quid pro quo for providing an interest rate hedge for as long as it was in a financial condition to be able to do so. (para 112) In Lehman Brothers Special Financing Inc v Carlton Communications Ltd [2011] EWHC 718 (Ch), Briggs J followed his previous decision and applied similar reasoning to an interest rate swap on the basis that the condition precedent in section 2(a)(iii) of the ISDA Master Agreement was valid to relieve the non defaulting party from payment obligations for as long as the defaulting party is, by reason of the bankruptcy, incapacitated from providing the promised hedge, whenever during the life of the transaction such incapacity arose (para 38). I would accept that the forfeiture of contractual rights on the bankruptcy of the party enjoying them is in some circumstances capable of constituting a deprivation of property within the principle precluding evasion of the bankruptcy law. This is so not only with accrued rights, but may also be the case with other rights, as, for example, where the bankrupt has performed his part before going bankrupt or the right can fairly be treated as independent of any as yet unperformed obligation. I question, even at common law, whether an insured who enjoys third party liability cover for a period on a claims made basis and goes bankrupt part way through that period could properly be deprived of the benefit of such cover in respect of claims arising from his activities prior to his bankruptcy. To that extent, section 1(3) of the Third Parties (Rights against Insurers) Act 1930 may well have done no more than reflect what would have been held to be the common law. However, Mr Snowden advanced propositions which would mean that any provision for termination on bankruptcy, which would deprive the trustee or liquidator of the opportunity of continuing the contract and so the bankrupt estate of future potential advantage, would infringe the principle. There is in my opinion no basis for any such rule. Where a contract provides for the performance in the future of reciprocal obligations, the performance of each of which is the quid pro quo of the other, I see nothing objectionable or evasive about a provision entitling one party to terminate if the other becomes bankrupt. That is particularly so, having regard to the purpose and character of the present transaction, viewed rather more broadly than the Court of Appeal did in its detailed reasoning. As Sir Andrew Morritt C stated, in the passage quoted in paragraph 135 of this judgment, the transaction provided LBSF with a benefit, which can loosely be described as credit insurance, in return for which LBSF was to pay interest to Saphir for the benefit of the Noteholders at a rate higher than the Rabo Bank rate. Under an insurance in return for the payment periodically of premium, it is natural that the one should be made conditional upon the other. Just so, under the present transaction, it is natural that payment of the interest should be made a condition of LBSF benefitting. Mr Snowden submits that this raises no problem, since LBSF could only obtain continuing benefit under the present transaction by confirming it and continuing to credit Saphir with the full amount of the interest due until expiry. No doubt that is so. It is what LBSF would have wished to be able to do, since the transaction was probably already profitable from its viewpoint, it could not become less so and it was certainly predicted that it would become more so. Hence the present litigation. But the submission misses the point. Had the transaction neither given rise, nor appeared likely to give rise, to credit events exceeding the subordination amount, LBSF could and would have disclaimed it. Saphir would then have been left to prove in LBSFs liquidation for the benefit of the Noteholders for such percentage of the already outstanding and future interest payments as they could recover. In LBSFs liquidation, therefore, the position would be one way. Saphir (and through it the Noteholders) could only lose. That is a risk that no insurer would ordinarily run. Nor is a conventional right to determine on LBSFs default of assistance to Saphir or Noteholders in this situation. There will be no default unless LBSF would lose money by continuing the contract. I see no reason therefore why the law should preclude a commercial party in the position of Saphir (acting for the benefit of Noteholders) from insisting that it would only provide the desired cover so long as LBSF was able, whatever the predicted outcome of the transaction, to perform its part in full. The purpose and effect of such a provision is not to evade the bankruptcy law. It is to protect the natural interest of any contracting party, and particularly someone who is providing in effect credit insurance, that it should not find itself having to perform to its disadvantage, without being able to enforce performance if this would be to its advantage. It is a prudent limitation on the duration and operation of the contract. The result reached by Briggs J in Lomas v JFB Firth Rixson Inc was correct in relation to the mutual contractual obligations with which he was concerned. For reasons I have already explained, no different result can follow in the present case, where, although a prior right over the collateral may be more obviously identifiable as property within the principle precluding evasion of the bankruptcy law, it is no more than collateral for (and indeed the measure of liability under) a chose in action. It would be curious if termination of the right to future performance of the chose in action was itself permissible, but became impermissible if collateral had been provided for its performance. This is particularly so in the present case where the collateral and the cause of action are effectively indistinguishable. Timing The further question (the second identified in paragraph 161 above) is whether, in this case, the loss did occur upon LBSFs insolvency, bearing in mind that there was an event of default affecting its parent, LBHI, which occurred some two weeks before LBSF was subject to Chapter 11 proceedings. In view of the conclusions I have already reached, this question does not require decision. Saphir and BNY submit that the replacement of Swap Counterparty Priority by Noteholder Priority was and is, under clause 5.5, the automatic result of the occurrence of any Event of Default. Whether anyone acts on the Event of Default, and whether the collateral is realised or enforced in relation to the Event of Default is immaterial. Even though the event of default passes unnoticed and even if it is cured, Noteholder Priority persists. Here, there was an event of default, consisting of LBHIs Chapter II bankruptcy on 15 September 2008, that no one had ever acted upon. Nonetheless, they submit, that is sufficient to ensure Noteholder Priority in respect of the event of default which was acted upon, LBSFs Chapter 11 bankruptcy, which occurred on 3 October 2008. I prefer to reserve my position on the correctness of these submissions. The contrary argument is that they do not marry with the general scheme effected by the documentation as a whole. As already emphasised, clauses 5.5 and 8.3 and condition 44 of the OCS are all expressly and solely concerned with situations where Saphir or BNY is applying moneys received in connection with the realisation or enforcement of the collateral. It is in that context only that it is agreed that, if an Event of Default . occurs under the Swap Agreement and the Swap Counterparty is the Defaulting Party . or a tax event occurs, then Noteholder rather than Swap Counterparty Priority will apply. Mr Salter accepts that the only situation in which the difference between Swap Counterparty and Noteholder Priority is relevant or comes into operation is where there has been early termination. The sole purpose of the flip is to deal with Unwind Costs in the manner indicated in clause 8.3 and condition 44, in other words to avoid Saphir and through it the Noteholders having actually to bear the burden of any future credit events in excess of the subordination amount which might on Early Termination be taken into account to their disadvantage in calculating the Unwind Costs. A past event of default which has not been acted upon will have no connection with any early termination or with the realisation or enforcement of the collateral in any circumstances. The natural inference of clause 5.5 and especially clause 8.3, confirmed by the present tense occurs, is that they contemplate an Event of Default connected with the realisation and enforcement of the collateral. The reference in clause 5.5 to a Defaulting Party is a reference to clause 6(a) of the ISDA Master Agreement, which deals with Early Termination following an Event of Default, and requires not more than 20 days notice specifying the relevant Event of Default and designating a day not earlier than the day such notice is effective as an Early Termination Event in respect of all outstanding Transactions. The requirement to specify the relevant Event of Default suggests that Early Termination is to work itself out by reference to the Event of Default so specified. Condition 44, one of the conditions to which clause 8.3 refers, is concerned with Early Redemption Amounts payable under the notes in various circumstances, but its second paragraph makes specific provision for the Early Redemption Amount payable when an Event of Default occurs under the swap and LBSF is the Defaulting Party, as well as for Unwind Costs. These are defined as meaning the value of the termination payment due from or to LBSF under the swap. Again, the inference is that Early Termination under the swap works itself out by reference to a specific Event of Default. The alternative is that an Event of Default which has perhaps not even been detected and certainly has not been acted upon can dictate priority if there should at any subsequent date be Early Termination not involving any further default on the part of the Swap Counterparty. On the actual termination, Saphir and the Noteholders could then avoid having to credit any Unwind Costs otherwise due to LSBF in respect of anticipated future credit events. The justification for such an analysis would seem questionable, when the swap will, by definition, have been satisfactorily performed in the meanwhile and LBSF will not have been responsible for its actual termination. Accordingly, since it is unnecessary for the decision in this case, I prefer not to express any view on the second issue. Conclusion For the reasons I have given in relation to the first issue, I would dismiss the appeal. LORD PHILLIPS, LORD HOPE, LADY HALE AND LORD CLARKE The Issuer with full title guarantee and as continuing security grants in favour of the Trustee such charge and/or security interest as set out in the relevant Supplemental Trust Deed in respect of the relevant Series. 2. Clause 5.2: For each Series, the charges and/or security interest created pursuant to sub Clause 5.1 are granted to the Trustee as continuing security (i) for the payment of all sums due under the Trust Deed and the Notes and the Coupons of such Series, and (ii) for the performance of the Issuer's obligations (if any) under certain agreements as set out in the relevant Supplemental Trust Deed in respect of such Series. The Trustee shall release from such charges any part of the Mortgaged Property when it becomes payable or deliverable to the extent that payment or delivery of it may be obtained and duly paid or made (as the case may be) to a Swap Counterparty under a Swap Agreement and/or to the holders of Notes, Coupons and Receipts . 3. Clause 5.5: . the security . shall become enforceable if (i) any amount due in respect of the Notes is not paid or delivered when due or (ii) a Swap Agreement terminates with sums due to the Swap Counterparty [ie LBSF]. 4. Clause 5.6 provides that: at any time after any security . shall have become enforceable . the Trustee shall (. subject to it having been indemnified to its satisfaction . ) enforce the security over the Mortgaged Property if so directed by the Noteholders in certain specified circumstances, or otherwise at its discretion. 5. Clause 6.1 provides that moneys, received otherwise than in connection with the realisation or enforcement of the security, are to be held by the Trustee, after payment of the Trustees costs, on trust to pay, first, the amounts due to LBSF, the Noteholders and others pari passu, and, secondly, the amounts due to the issuer. 6. Clause 6.2 directs the Trustee: . [to] apply all moneys received by it under this Principal Trust Deed and the relevant Supplemental Trust Deed in connection with the realisation or enforcement of the security as follows and went on to provide that Swap Counterparty Priority means that the claims of LBSF are payable in priority to the claims of the Noteholders, whereas Noteholder Priority means the converse, in each case after providing for payment of certain specified costs and charges. The priority which is to apply in any particular case is that specified in the Supplemental Trust Deed. 7. Clause 7.2: In relation to any Series in respect of which there is a Swap Counterparty, such Swap Counterparty shall, by execution of the relevant Supplemental Trust Deed, covenant and agree: 7.2.1: that its recourse in respect of its claims under the Swap Agreement is limited to the proceeds of the Mortgaged Property in relation to such Series as it is entitled to, as provided in the Trust Deed and no debt shall be owed by the Issuer in respect of any shortfall 8. Schedule 2 Part C contains terms and conditions of the Notes to be applied to all Notes of any series, subject to the terms of the relevant Supplemental Trust Deed and the Terms and Conditions in the Note series prospectus. 9. Condition 10 of Part C of Schedule 2 provides that in certain events (including default for a specified period by the issuer in payment under the Notes) the Trustee may, and if requested by holders of at least one fifth in principal amount of the Notes or if directed by an Extraordinary Resolution of the Noteholders must, give notice to the issuer that the Notes are, and shall immediately become, due and payable at their Early Redemption Amount (a Condition 10 notice). 10. Condition 6(d)(ii) of Part C of Schedule 2 also provides for the early redemption of the Notes if a Swap Agreement is terminated. In that event, the issuer is required to give the Trustee, the Noteholders and LBSF notice, at the expiration of which the Notes are to be redeemed at their Early Redemption Amount. Condition 6(d)(ii) was amended by Condition 38 in the Terms and Conditions (below, para 17) The Supplemental Trust Deed 11. Clause 5.2 contains a charge by the issuer as continuing security in favour of the Trustee over the Collateral and other property representing it from time to time. 12. Clause 5.3 provides that such security is granted to the Trustee as trustee for itself and/or the holders of Notes, and [LBSF], the Custodian and the Paying Agents as continuing security (i) for the payment of all sums due under the Trust Deed and the Notes, (ii) for the performance of the Issuer's obligations (if any) under the Swap Agreement . 13. Clause 5.5: The Trustee shall apply all moneys received by it under this Deed in connection with the realisation or enforcement of the Mortgaged Property as follows: Swap Counterparty Priority unless an Event of Default (as defined in the Swap Agreement) occurs under the Swap Agreement and the Swap Counterparty is the Defaulting Party (as defined in the Swap Agreement) . in which case Noteholder Priority shall apply. 14. Clause 8.3: [LBSF] hereby agrees that, if an Event of Default (as defined in the ISDA Master Agreement) occurs under the Swap Agreement and [LBSF] is the Defaulting Party (as defined in the ISDA Master Agreement) . and Unwind Costs are payable by the Issuer to [LBSF], the Issuer shall apply the net proceeds from the sale or realisation of the Collateral (1) first in redeeming the Notes in an amount as set out in the Conditions and (2) thereafter, in payment of such Unwind Costs to [LBSF]. Terms and Conditions 15. The prospectus to which the Terms and Conditions are attached points out that the Notes are credit linked to the reference entities (ie the securities whose credit was being, in effect, insured). The prospectus also points out that the Noteholders have exposure to the value of the Collateral so that Impairment of the Collateral may result in a negative rating action on the Notes. 16. Condition 6 of the Terms and Conditions as set out in Schedule 2 to the Supplemental Trust Deed contains the details of how and by how much the principal amount due on the Notes is reducible in the event of credit events affecting a reference entity. 17. Condition 38 in the Terms and Conditions specifies or refers to certain events which can give rise to early redemption of the Notes including termination in whole or in part of the relevant Swap Agreement (see Condition 6(d)(ii) in Part C of Schedule 2 to the Principal Trust Deed) and default in payment of any interest due for the period specified in the Condition (which period varies from each series of Notes). If any such event occurs, Condition 38 requires the relevant issuer to serve a notice notifying the Trustee, the relevant rating agency and the Noteholders, of the occurrence of the event and giving notice of the date fixed for redemption of the Notes. In the event of such a notice being served the Notes become redeemable at their Early Redemption Amount. 18. Condition 40 (ii), headed Security Arrangements, provides for the Trustee to apply all moneys received by it in the following order of priorities: Swap Counterparty Priority unless (i) an Event of Default (as defined in the ISDA Master Agreement) occurs under the Swap Agreement and the Swap Counterparty is the Defaulting Party (as defined in the ISDA Master Agreement) or (ii) a Tax Event (as defined in the ISDA Master Agreement) occurs under the Swap Agreement and the Swap Counterparty is the sole Affected Party (as defined in the ISDA Master Agreement), in which case Noteholder Priority shall apply. 19. Condition 44 deals with the determination of the Early Redemption Amounts referred to in Conditions 6(d) and 10 of Part C of Schedule 2 to the Principal Trust Deed. It also includes a definition of Unwind Costs, being the amount due to or, as the case may be, from LBSF, by way of termination payment under the relevant Swap Agreement at its early termination. That amount is to be assessed in accordance with the provisions of the relevant Swap Agreement including by reference to quotations taken in the market, when the relevant Swap Agreement terminates, for what a third party would pay to enter into a swap arrangement on similar terms, or, alternatively, what the issuer would have to pay a third party to enter into such a swap arrangement. 20. The first paragraph of Condition 44 (Condition 44.1) provides that Subject to the immediately succeeding paragraph below the Early Redemption Amount payable on each Note is to be the amount equal to: (i) such Notes pro rata share of the proceeds from the sale or realisation of the Collateral plus (if payable to the Issuer) or minus (if payable to [LBSF]) (ii) the amount of any applicable Unwind Costs 21. Under Condition 44.1, if termination occurs early, an Early Redemption Amount is to be calculated, and if Unwind Costs are payable under the swap to LBSF on termination, they are to be deducted when calculating any amount which would be due to the Noteholders, and if such Unwind Costs are payable to the Issuer, they are to be added to the amount payable to the Noteholders. Condition 44.1 continues: provided that if the amount determined pursuant to sub paragraphs (i) and (ii) above exceeds (the amount of any such excess being the Excess Amount) such Notes Outstanding Principal Amount as of the Early Redemption Date together with interest accrued from, and including, the immediately preceding Interest Payment Date to, but excluding, such Early Redemption Date (such interest being the Accrued Early Redemption Interest Amount) and, such Excess Amount shall be payable by way of an additional payment of interest on each Note. 22. The second paragraph of Condition 44 (Condition 44.2) provides: Notwithstanding the above, if an Event of Default (as defined in the ISDA Master Agreement) occurs under the Swap Agreement and [LBSF] is the Defaulting Party (as defined in the ISDA Master Agreement) , the Early Redemption Amount payable on each Note was to be equal to: (i) such Notes pro rata share of the proceeds from the sale or realisation of the Collateral plus (ii) (but only if payable to the Issuer) the amount of any applicable Unwind Costs divided by the total number of Notes outstanding; provided that if the amount determined pursuant to sub paragraphs (i) and (ii) above results in an Excess Amount (as defined above), such Excess Amount shall be payable by way of an additional payment of interest on each Note. In the event that Unwind Costs are payable by the Issuer to the Swap Counterparty, the Issuer shall apply the net proceeds from the sale or realisation of the Collateral as aforesaid (1) first in redeeming each Note in an amount equal to its Outstanding Principal Amount as of the Early Redemption Date plus the Accrued Early Redemption Interest Amount and (2) thereafter, in payment of such Unwind Costs to the Swap Counterparty. The ISDA Master Agreement 23. Section 5 of the ISDA Master Agreement defines an Event of Default as being: [t]he occurrence [of certain specified events] at any time with respect to [LBSF], or if applicable, any Credit Support Provider of [LBSF]. According to paragraph 9(iv) of the Swap Confirmation, the Credit Support Provider is LBHI, the ultimate parent of LBSF. 24. The defined Events of Default include (i) failure to pay any sums due under the ISDA Master Agreement (if such failure is not remedied after three Local Business Days notice of such failure), and (ii) the institution by LBSF or by LBHI of any proceedings seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights . 25. Section 6 of the ISDA Master Agreement deals with early termination and provides that: (a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect to a party (the Defaulting Party) has occurred and is then continuing, the other party . may, by not more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions . 26. In all cases, the parties selected Second Method and Market Quotation as the valuation mechanisms for the Swaps. In addition, in all cases, the parties did not select Automatic Early Termination (AET) of the Swap Agreements under Part 1(h) of the Schedule to the ISDA Master Agreement, which would have resulted in the Swaps being deemed automatically to have terminated on the occurrence of specified Events of Default, including bankruptcy. However, in the Swap Confirmations for all cases the parties did specify certain events (such as the Notes being declared due and payable) which would be Additional Termination Events upon the occurrence of which an Early Termination Date for the Swap would immediately occur. 27. Part 5(g) of the Schedule to the ISDA Master Agreement provides: In relation to each Transaction, each party confirms that it is bound by the terms of the Trust Deed and that the terms of such Trust Deed prevail to the extent they conflict with terms relating to such Transaction. [LBSF] agrees that its recourse against [the Issuer] in respect of the relevant Transaction is limited to the assets on which the liabilities of [the Issuer] under the relevant Transaction are secured pursuant to the Trust Deed and that its right to enforce the Security created by [the Issuer] over those assets is limited as provided in the Trust Deed. If the net proceeds of realisation of the Security are insufficient to meet all claims secured thereon, the obligations of [the Issuer] in respect thereof will be limited to such net proceeds and accordingly no debt shall be owed by [the Issuer] in respect of any shortfall remaining after realisation of the Security and application of the proceeds in accordance with the Trust Deed Swap confirmation 28. Paragraph 9 of the Swap Confirmation includes an acknowledgment by the issuer and LBSF that the transaction was not intended to constitute insurance business so that payments by each party under the transaction were independent and not dependent on proof of economic loss of the other. 29. The credit protection provided to LBSF under the Swap Agreement related to the occurrence of Credit Events in relation to the Reference Entities set out in the Swap Confirmation. 30. The payment obligations of the Buyer (LBSF) and Seller (issuer) are specified in paragraphs 3 and 4 of the Swap Confirmation. For the reasons given by Lord Collins and Lord Walker, with which we are in agreement, we too would dismiss this appeal. Appendix The Principal Trust Deed 1. Clause 5.1: |
The respondent, Hussain Zulfiquar Alvi, is a citizen of Pakistan. He was born on 5 November 1977. On 20 September 2003 he entered the United Kingdom as a student, with leave to remain until 31 January 2005. After completing his studies he applied for leave to remain here as a physiotherapy assistant. On 10 February 2005 he was granted leave to remain as a qualifying work permit holder until 10 February 2009. For the next four years he worked as a physiotherapy assistant at a clinic in Kensington. On 9 February 2009 Mr Alvi applied for further leave to remain in this country. A few months prior to that date the work permit regime had been replaced by a points based system. It came into effect on 27 November 2008. So Mr Alvi applied for leave to remain under that system as a Tier 2 (General) Migrant. His application was rejected as invalid on 24 February 2009 because a mandatory section of his application form had not been completed. He re submitted his application on 24 March 2009. It was refused on 18 June 2009 because the Secretary of State was not satisfied that his salary was appropriate for a job at the required level. On 21 September 2009 Mr Alvi applied for judicial review of the Secretary of States decision. On 9 February 2010 the refusal of 18 June 2009 was replaced by a revised decision letter. In that letter it was stated that Mr Alvi did not satisfy the requirements of the Immigration Rules for the relevant category because his job title as an assistant physiotherapist was not of the level of skilled occupations required by the rules. The ground of refusal was set out in the letter of 9 February 2010 in these terms: On 24 March 2009 you applied for leave to remain in the United Kingdom as a Tier 2 (General) Migrant under the Points Based System (PBS). An official has considered your application on behalf of the Secretary of State. You have claimed 50 points under certificate of sponsorship, but your clients [sic] job title stated on the application form and Certificate of Sponsorship as Assistant Physiotherapist does not meet as a job role that is above NVQ or SVQ level 3. The codes of practice document at the time of the application stated that this job role is below N/SVQ level 3. You have not therefore been awarded any points under certificate of sponsorship. Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules. Mr Alvi was given permission to apply for judicial review on 17 March 2010. The application was heard on 28 September 2010. It was common ground that his occupation as a physiotherapy assistant did not fall within the list of skilled occupations as required by paragraph 82(a)(i) of Appendix A to the Immigration Rules. The following arguments were advanced on his behalf: (1) that he did not need to comply with paragraph 82(a)(i) as he had an existing work permit, so all he had to do was to satisfy the transitional provisions set out in paragraph 83 of the Appendix to which the list of skilled occupations does not apply; and (2) that in any event the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971. His claim for judicial review was dismissed on 25 October 2010. The Deputy Judge, Lord Carlile of Berriew QC, did not deal expressly with the first of these two arguments but his disposal of the claim shows that he must have rejected it. As for the second argument, his conclusion was that it was not the intention of Parliament that the list of skilled occupations, which was to be found in the UK Border Agencys website in the Tier 2 Codes of Practice, should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval: [2010] EWHC 2666 (Admin), para 31. Mr Alvi was given permission to appeal to the Court of Appeal. On 9 June 2011 the Court of Appeal (the President (Sir Anthony May), Jackson and Tomlinson LJJ) allowed his appeal on the second argument and quashed the Secretary of States decision of 9 February 2010 to refuse his application for leave to remain. On 18 November 2011 the Secretary of State was given permission to appeal to this court. Her appeal was heard together with the appeal in R (Munir and another) v Secretary of State for the Home Department [2012] UKSC 32. The legislative framework Section 1(2) of the Immigration Act 1971 provides that those not having a right of abode in the United Kingdom may live, work and settle here by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act. Section 1(4) is in these terms: (4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom. Section 3(1), as amended by section 39 of the British Nationality Act 1981 and paragraphs 43 and 44(1) of Schedule 14 to the Immigration and Asylum Act 1999, provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under the Act, that he may be given leave to enter or remain for a limited or for an indefinite period and that if he is given leave to enter or to remain in the United Kingdom it may be given subject to conditions restricting his employment or occupation or requiring him to register with the police. the rules mentioned in section 1(4) above. It provides: Section 3(2) of the 1971 Act makes the following provision with regard to (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). It is common ground that the code of practice document referred to in the refusal letter of 9 February 2010, which stated that the appellants job role was below N/SVQ level 3, had not been laid before Parliament under this subsection. Sections 3A and 3B of the 1971 Act, which were inserted by sections 1 and 2 of the Immigration and Asylum Act 1999, state that the Secretary of State may by order make further provision with regard to the giving, refusing or varying of leave to enter and leave to remain. Section 3C, as substituted by section 118 of the Nationality, Immigration and Asylum Act 2002, confers similar powers on the Secretary of State with regard to the continuation of leave pending a decision to vary. Section 4(1) provides that the power under the 1971 Act to give or refuse leave to enter the United Kingdom is to be exercised by immigration officers, and that the power to give leave to remain in the United Kingdom or to vary any leave is to be exercised by the Secretary of State. Paragraph 1(3) of Schedule 2 to the Act provides that in the exercise of their functions immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given to them by the Secretary of State. Questions as to the meaning and effect of section 3(2) of the 1971 Act lie at the heart of this appeal, and I will have to return to them later. For the time being I note that in Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, para 6 Lord Hoffmann said: The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. That case involved a change to the entitlement of persons who had medical qualifications to leave to remain as post graduate doctors. Previously that entitlement was unrestricted. The issue was whether a statement of changes to the Immigration Rules which confined that entitlement to persons with medical qualifications from UK institutions applied to all cases in which leave had still to be granted, or only to those who had not yet applied. In para 7 Lord Hoffmann said the rules were not to be construed as creating rights which subsequent rules should not, in the absence of express language, be construed as removing: They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules. The 1971 Act received the Royal Assent on 28 October 1971. Section 3(2) came into force on 1 January 1973: Immigration Act 1971 (Commencement) Order 1972 (SI 1972/1514). Draft immigration rules had been published and were available during the debates on the Bill in Parliament. On 23 October 1972 the Secretary of State laid two sets of immigration rules before Parliament: a Statement of Immigration Rules for Control on Entry (Cmnd 4606); and a Statement of Immigration Rules for Control after Entry (Cmnd 4792). These statements were disapproved after a debate on the floor of the House of Commons on 22 November 1972. But they were the rules under which the Act was administered until two new sets of rules, one for Commonwealth citizens and the other for foreign nationals, were laid on 23 January 1973: HC (1972 1973) Nos 79 82. The current Immigration Rules have their origin in a Statement of Changes in the Immigration Rules (HC 395) which was laid before Parliament on 23 May 1994. The system which the Secretary of State operates today in the administration of the 1971 Act is far removed from that which was contemplated at the time when the Bill that became that Act was being discussed in Parliament. The first versions of the rules were 17 and 20 pages long. The 1994 Statement of Changes in Immigration Rules (HC 395) extended to 80 pages. There have been over 90 statements of change since then, and HC 395 has become increasingly complex. The current consolidated version which is available on line from the UKBA website extends to 488 pages. Extensive use is now made of the internet, a system for the dissemination of information to the public that was, of course, unknown 40 years ago. 19 statements of changes in the Immigration Rules have been published on the website since February 2010. There have been four this year, the last of which was in June 2012. The ease with which information on a website can be removed, added to or amended encourages resort to these techniques to a degree that would have been wholly impracticable in the days of the mechanical typewriter. In DP (United States of America) v Secretary of State for the Home Department [2012] EWCA Civ 365, para 14 Longmore LJ lamented, with good reason, the absolute whirlwind which litigants and judges now feel themselves in due to the speed with which the law, practice and policy change in this field of law. The points based system The points based system, proposals for which were published in March 2006 and further explained in May 2008, was introduced as Part 6A of the Immigration Rules by a Statement of Change which was laid on 4 November 2008 (HC 1113). The system took effect from 27 November 2008. It applies to non European Economic Area (EEA) nationals who wish to work or study in the United Kingdom. Tier 1 (General) allows the entry of highly skilled workers who do not need to be sponsored by an employer. Tier 2 (General) applies to skilled workers. They do need to be sponsored. This system replaced the then existing system of work permits. Instead it provides the mechanism by which employers may employ non EEA workers to fill particular posts which cannot be filled by UK residents or workers from the EEA. As a result of changes which have been made since February 2010, when Mr Alvis application was refused, the provisions with which his case is concerned no longer appear under the same numbering on the UKBA website. The numbering that I will be using for the purposes of this judgment is that which was current in February 2010. Paragraph 245ZF provides: To qualify for leave to remain as a Tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Among the requirements listed in that paragraph are provisions which state that to obtain entry clearance or leave to remain a Tier 2 (General) Migrant needs to obtain a total of 70 points, which must include at least 50 points for attributes, 10 points for English language skills and 10 points for maintenance. Paragraph 245ZF(e) provides that points for attributes are to be awarded under paragraphs 59 84 which HC 1113 inserted into Appendix A to the Immigration Rules. Paragraph 59 of Appendix A restates the requirement that an applicant applying for entry clearance or leave to remain as a Tier 2 (General) Migrant must score 50 points for attributes. Paragraph 60 states that, subject to paragraph 61, available points for entry clearance or leave to remain are shown in Table 10. But in paragraph 61(b) an applicant who, like Mr Alvi, had or was last granted entry clearance, leave to enter or leave to remain as a qualifying work permit holder is told that, in his case, available points for leave to remain are shown in Table 11. Table 10 divides the migrants who may score points under it into four categories, one of which is where the job offered to him passes the resident labour market test. Among the notes on sponsorship set out under that table is paragraph 71, which states that, in order for the applicant to be awarded points for a job offer that passes the resident labour market test, the certificate of sponsorship checking service entry must indicate that the sponsor has met the requirements of that test, as defined in guidance published by the United Kingdom Border Agency, in respect of the job. A further set of notes on sponsorship is set out below Table 11. It states in paragraph 81 that paragraphs 63 to 68 of the notes that apply to cases under Table 10 apply in this case also. Paragraph 71 is not mentioned, as the resident labour market test does not apply to cases under Table 11. The notes to this table then include the following paragraph: 82. No points will be awarded for sponsorship unless: (a) (i) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agencys list of skilled occupations, or (ii) the applicant is a Senior Care Worker or an Established Entertainer, and (b) (unless the applicant is an Established Entertainer) the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a)(i). The Secretary of State first published Occupation Codes of Practice under the sponsored skilled migrant tier of the points based system on the website of the United Kingdom Border Agency (UKBA) on 17 September 2008. Their main function was to provide guidance to persons who were proposing to sponsor a skilled migrant as to how to meet the criteria that would be applied in determining the application. This is indicated by the following directions which appeared under heading The process to follow to find the code of practice on the first page of the introduction: The process you should follow to find out if you can sponsor a skilled migrant for your job under this tier is: Choose your sector Choose the Standard Occupational Classification (SOC) code closest to your job, using the information in the sector table [Insert drop down list or menu of all sector pages] If you already know which SOC code is most appropriate, select the code of practice from the following list: [Insert drop down list of all SOC codes that have a code of practice] Find out the skill level, appropriate rate of pay and how to meet the resident labour market test The Codes contained a list of occupations that were recognised by the Secretary of State as sufficiently skilled to qualify under Tier 2. On the second page of the introduction that was published in 17 September 2008 this explanation is given: How the codes have been developed These codes of practice have been drawn up based on advice from industry experts and the Migration Advisory Committee. They are the official guidance for sponsors and caseworkers. The Migration Advisory Committee is a non statutory public body set up to provide advice to the government and sponsored by UKBA. The codes were divided into sections organised by industry. Section Q dealt with human health and social work activities. On 27 November 2008, when the Statement of Change (HC 1113) took effect, UKBA published a slightly revised version of Occupation Codes of Practice on its website. It contained some changes to the list of skilled occupations and made some other minor amendments to the previous version which had been published on 17 September 2008. In a preface to the list of occupations the following advice was given to sponsors: This page explains the codes of practice that you must use to check the skill level and appropriate rate for the job you want to employ the migrant for, in tiers 2 and 5 of the points based system, and advice on where to advertise the job. Before you can sponsor a skilled migrant, you need to check that the job you are sponsoring them to do meets the requirements of the skilled migrant tier: The job must be skilled at N/SVQ level 3 or above; and The job must be paid at the appropriate rate or above; and You must normally have carried out a resident labour market test for the job before sponsoring a skilled migrant. This section contains codes of practice for every occupation. The codes of practice give information on skill levels and appropriate rates, and advice on where to advertise the job. This is so that you can check that the job meets these requirements. If the job does not meet these requirements you cannot issue a certificate of sponsorship. National Vocational Qualifications (NVQs) are competence based qualifications which are available in England and Wales and Northern Ireland. They teach practical, work related tasks which are designed to develop the skills and knowledge to do a job effectively and can be studied at work, at a college or as part of an apprenticeship. In Scotland they are known as SVQs. They are available in a wide range of subjects, and there are five levels of award. Level 1 focuses on basic work ability. Level 5 is for senior management. Although these levels are not formally defined in terms of academic equivalents, level 2 can be taken to be equivalent to five GCSEs at A* to C and level 3 to two or more A levels. The codes of practice that were in operation in February 2010 have been replaced by a new set of codes for sponsor organisations and sponsor workers wishing to apply under tiers 2 and 5 of the points based system on or after 6 April 2012, and the required skill level which was not mentioned in the rules in February 2010 is now stated explicitly in paragraph 77E of Appendix A. A sponsor help document is available on the UKBA website which explains that a certificate of sponsorship is not an actual certificate or paper document but is a virtual document similar to a database record. It has to be created by using the online sponsor management system for each individual who is being sponsored. The description that follows is based on the system that was in operation in February 2010. Code 3221 is the section in the Occupation Codes of Practice that applies to physiotherapists. It contains the following information: This page explains the skill level and appropriate salary rate for physiotherapists, and tells you how to meet the resident labour market test. Under the heading Skill level the code sets out the requirement that all jobs are at or above NVQ or SVQ level 3. It then states that the jobs of assistant practitioners, physiotherapists and senior physiotherapists are at or above that level, and that the jobs of physiotherapy assistants and technical instructors are below it. Under the heading Appropriate salary rate it sets out the minimum rates of salary for the jobs listed as being above the N/SVQ level 3, derived from the Annual Survey of Hours and Earnings or, where alternative salary data is available, from an alternative code of practice. Under the heading resident labour market test reference is made to Jobcentre Plus, to national newspapers, to two professional journals and to 16 websites to which resort may be had for advertising on the internet. Mr Alvis application was rejected because his job, which is that of an assistant physiotherapist, did not meet the requirement set out in paragraph 82(a)(i) of Appendix A to the Immigration Rules. This was because, although it appeared on the UKBAs list of skilled occupations, it was not shown on that list as an occupation that was above NVQ or SVQ level 3. This meant that it did not meet the requirement under the Occupation Codes of Practice under the skilled migrant tier that the job must be skilled at N/SVQ level 3 or above. This in turn meant that Mr Alvi could not satisfy the requirement set out in paragraph 245ZF of the Immigration Rules because he could not obtain the minimum number of points under paragraphs 59 84 of Appendix A. The issues The question which lies at the heart of this appeal is whether the reference in paragraph 82(a)(i) of Appendix A to the United Kingdom Border Agencys list of skilled occupations was sufficient to satisfy the requirements of section 3(2) of the 1971 Act. Neither the statement in the preface to the list that the job must be skilled at N/SVQ level 3 or above nor the list itself which showed that Mr Alvis occupation was below that level formed part of the Immigration Rules as laid before Parliament. Were these provisions rules within the meaning of section 3(2) of the 1971 Act? The issue that this question raises is set out in the agreed statement of facts and issues in these terms: What is the meaning and effect of section 3(2) of the 1971 Act? Is the decision of the Court of Appeal in Pakina correct: namely, that section 3(2) of the 1971 Act meant that the Immigration Rules could not lawfully incorporate provisions set out in another document which had not been laid before Parliament, and which was able to be changed after the Rule in question had been laid before Parliament? Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2011] QB 376 was the first case to consider the changes effected by the points based system: see para 43, below. Mr Swift QC for the Secretary of State submitted that the question can be broken down into three parts. First, to what extent is it open to the Secretary of State to refer in the rules to matters the details of which are set out in material which is outside the rules themselves? Second, if it is open to the Secretary of State to do this, can those details be changed without laying the changes before Parliament under section 3(2) of the 1971 Act? Third, can the Secretary of State control immigration in ways that are not covered by the Immigration Rules by means of a published policy which is not in conflict with what the rules provide for? In response to the issue raised by the first of Mr Swifts questions Mr Drabble QC, for the Joint Council for the Welfare of Immigrants (intervening, but taking a leading role in the appeal), accepted that it was open to the Secretary of State to refer in a rule to another document which was available when the rule, or a statement of changes in the rules, was laid before Parliament. But it would be so only if the content of that other document was fixed and thus not open to change at the Secretary of States discretion without further reference to Parliament. The key question in Mr Alvis case, therefore is the second question which Mr Swift identified. Put more precisely to fit the facts of this case, was it sufficient for the Secretary of State to state in paragraph 82(a)(i) that no points would be awarded for sponsorship unless that job for which the person was being sponsored appeared on UKBAs list of skilled occupations if that list was not fixed but was open to change at the discretion of the Secretary of State? But within the second question lies a further question which is really what this appeal is all about. Mr Drabble made it clear that it was not his case that no change whatever could be made to details set out in the other document without laying that change before Parliament. It would be open to the Secretary of State to include in the rule a formula or criterion for making changes which could be applied objectively and could not be the subject of controversy, such as for the adjustment of rates of pay according to the Retail Prices Index. Although he said that he was inclined to say that everything should be laid before Parliament because to do otherwise would enable the Secretary of State to introduce hurdles in the way of applicants which were not subject to Parliamentary scrutiny, it is questionable whether that submission goes too far, given the extent and nature of all the details set out in the Occupation Codes of Practice on UKBAs website. But it would not be right for us to hold that it goes too far unless we can say where, and how, the line is to be drawn between those changes which it is open to the Secretary of State to make without reference to Parliament and those that must be subjected to Parliamentary scrutiny. The third question is not directly in point in Mr Alvis case. It arises in R (Munir and another) v Secretary of State for the Home Department, because the issue in the cases of Mr Munir and Mr Rahman is whether it was open to the Secretary of State to withdraw the so called 7 year children concession policy in DP5/96 without laying the statement of withdrawal before Parliament under section 3(2) of the 1971 Act. But Mr Swift relied on the points that it raises in Mr Alvis case too. He submitted that it was within the power of the Secretary of State to control immigration in ways not covered by the rules. This could be done in the exercise of her common law powers under the prerogative, assuming that this was in ways that were not in conflict with what the rules provide for. He relied in support of this proposition on a passage in the speech of Lord Brown of Eaton under Heywood in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, para 35 where he said that the Secretary of States Immigration Rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control. This question too must be addressed, as part of the background, in Mr Alvis case. But I can do so briefly, as I am in full and grateful agreement with the way Lord Dyson has dealt with this issue in his judgment in Munir, paras 23 33. Background: the prerogative The key question in Mr Alvis case cannot be answered satisfactorily without understanding the system that was envisaged when section 3(2) of the 1971 Act was enacted, and the effect that the Act has had on the system of immigration control exercised by the Secretary of State. Prior to the enactment of the 1971 Act Parliament did not exercise formal control over the rules and instructions that the Secretary of State issued from time to time for the administration and control of immigration. As Lord Bingham of Cornhill observed in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC 1003, para 4, it is one of the oldest powers of a sovereign state to decide whether any, and if so which, non nationals shall be permitted to enter its territory, and to regulate and enforce the terms on which they may do so. In Rex v Bottrill [1947] 1 KB 41, 51 Scott LJ declared that the King, under our constitution, is under no obligation to admit into the United Kingdom, or to retain here when admitted, any alien. Prior to the passing of the Commonwealth Immigrants Act 1962 Commonwealth citizens had the right, in common with all British subjects, to enter the United Kingdom without let or hindrance when and where they pleased and to remain here as long as they liked: Reg v Bhagwan [1972] AC 60, 80 per Lord Diplock. They were not aliens: Reg v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department [1990] 1 WLR 1126, 1134, per Stuart Smith LJ. But the Secretary of State had unfettered control over aliens in the exercise of the prerogative. The exercise of a prerogative power may however be suspended, or abrogated, by an Act of Parliament: Attorney General v De Keysers Royal Hotel [1920] AC 508, per Lord Atkinson at pp 539 540. So a statute which operates in the field of prerogative may exclude the possibility of exercising prerogative powers. Where a complete and exhaustive code is to be found in the statute, any powers under the prerogative which would otherwise have applied are excluded entirely: see, eg, Re Mitchell [1954] Ch 525. Any exercise of a prerogative power in a manner, or for a purpose, which is inconsistent with the statute will be an abuse of power: R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, per Lord Nicholls of Birkenhead at p 576. As Lord Bingham observed in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, para 6, successive administrations over the years have endeavoured in Immigration Rules and administrative directions, revised and updated from time to time, to identify those to whom leave to enter and remain should be granted, and such rules, to be administratively workable, require that a line must be drawn somewhere. The Immigration Appeals Act 1969 first introduced the concept of immigration rules and conferred rights of appeal on Commonwealth citizens. By section 8(1)(a)(i) it was provided that an adjudicator was to allow an appeal if he considered that the decision or action in question was not in accordance with the law or with any immigration rules applicable to the case. Section 14(1) enabled provision to be made by Order in Council under the Aliens Restriction Act 1914 for appeals in connection with the powers for the time being exercisable in respect of the admission into and removal from the United Kingdom of aliens. The expression immigration rules was defined in section 24(2) as meaning rules made by the Secretary of State for the administration of the control of entry into the United Kingdom of persons to whom the Act applied and the control of such persons after entry. But no provision was made for the laying of those rules before Parliament. The 1971 Act was, according to its long title, enacted to amend and replace the present immigration laws. One of its main objectives was to assimilate controls over immigrants from Commonwealth countries to the corresponding rules for aliens. Section 1(2) subjected them all to such regulation and control of their entry into, stay in and departure from the United Kingdom as was imposed by the Act. Section 3(1) extended those controls to all persons, including Commonwealth citizens who did not have a right of abode in this country under section 2 of the Act, who were not patrial. As amended by section 39 of the British Nationality Act 1981, this subsection now extends to everyone who is not a British Citizen. Section 33(5) provides: This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative. But it is hard to see how that provision, which may have been thought appropriate 40 years ago, can have any practical effect today. One has only to think of the possibility of a challenge under article 5 of the European Convention on Human Rights, which declares that no one shall be deprived of his liberty save in accordance with a procedure prescribed by law. The old order, under which such a sweeping power could be exercised at will by the executive, is now long gone. In R v Secretary of State for the Home Department, Ex p Ounejma (1989) Imm A R 75, 80 per Glidewell LJ said that the residual prerogative powers remain, and in Macdonald, Immigration Law and Practice in the United Kingdom 8th ed (2010), para 2.35 it is asserted that the prerogative power is not impaired or superseded, merely put in abeyance. But these propositions understate the effect of the 1971 Act. It should be seen as a constitutional landmark which, for all practical purposes, gave statutory force to all the powers previously exercisable in the field of immigration control under the prerogative. It is still open to the Secretary of State in her discretion to grant leave to enter or remain to an alien whose application does not meet the requirements of the Immigration Rules. It is for her to determine the practice to be followed in the administration of the Act. But the statutory context in which those powers are being exercised must be respected. As their source is the 1971 Act itself, it would not be open to her to exercise them in a way that was not in accordance with the rules that she has laid before Parliament. What then is one to make of Lord Browns observation in Odelola, para 35 on which Mr Swift relies? Are the Immigration Rules to be seen, as Lord Brown said, as an indication of how it is proposed to exercise the prerogative power of immigration control? Lord Hoffmanns description of them in para 6 as detailed statements of how the Crown proposes to exercise its executive power to control immigration avoids attributing the source of that power to the prerogative, and it is unexceptionable. Although I said in para 1 of Odelola that I agreed with Lord Browns opinion, I think that it must be recognised that his statement as to the source of the power was wrong. The entry to and stay in this country of Commonwealth citizens was never subject to control under the prerogative. The powers of control that are vested in the Secretary of State in the case of all those who require leave to enter or to remain are now entirely the creature of statute. That includes the power to make rules of the kind referred to in the 1971 Act. I would therefore hold that Mr Swifts submission that it is open to the Secretary of State to control immigration in a way not covered by the Immigration Rules in the exercise of powers under the prerogative, assuming that there is no conflict with them, must be rejected. As Lord Hoffmann said in Odelola, para 6, the rules are not subordinate legislation. They are therefore to be seen as statements by the Secretary of State as to how she proposes to control immigration. But the scope of that duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law prerogative. It excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the rules. The negative resolution procedure The system that was introduced by the 1971 Act was that control over the content of the Immigration Rules was to be exercised by Parliament. Section 3(2) provides that this is to be carried out under the negative resolution procedure. The Home Secretary, Mr Maudling, explained that there was a case for making the rules subject to Parliamentary control because they would extend to Commonwealth citizens, not just to aliens, and that the negative procedure was chosen in the interests of flexibility: Hansard HC Deb 16 June 1971, cols 482 483. This procedure enables the policy content of the rules to be considered in either House. In practice, the merits of all statements of changes to the Immigration Rules are examined by the Secondary Legislation Scrutiny Committee (formerly the Merits Committee) in the House of Lords, which by long tradition has peers who have held high judicial office among its membership. Written and oral evidence may be called for from, among others, the Secretary of State herself. The result of these inquiries is made the subject of a detailed report, in which the changes to the rules may be drawn to the special attention of the House. The Committee aims to do this within 12 to 15 days of laying, so that there is time for members of the House to give the instruments further scrutiny within the 40 day period. Reports of this kind are issued not infrequently: for some recent examples from Session 2010 2011, see HC 1148 in the Committees 35th report; HC 1511 in its 40th report; and HC 1888 in its 58th report. As was noted in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWCA Civ 3524, para 12, the statement of changes in HC 59 which was laid before Parliament on 28 June 2010 was considered by the Merits Committee in its 4th report for the session of 2010 2011. It was drawn to the special attention of the House on the ground that it gave rise to issues of public policy likely to be of interest to it. A statement of changes to the Immigration Rules cannot be amended under this procedure. But it is open to the Committee to call for an extraneous document to which it refers to be produced if it has not been laid already, to raise the question whether it was appropriate for the contents of that document or any part thereof not to be set out in the rules themselves and to require the Secretary of State to explain why this was not done. A motion may be made to enable either House to examine the actions of the Secretary of State, either by means of a motion to disapprove the rules or a motion of regret to enable the issue to be debated. For example, Lord Hunt of Kings Heath moved a motion regretting that the government had not published a comprehensive explanation of the findings from the consultation on Tiers 1 and 2 about significant changes in the Statements of Changes in Immigration Rules (HC 863) to implement the Governments strategy for reducing non EEA economic migration. Attention had been drawn to these findings in the 27th Report of Session 2010 2011 from the Merits Committee. His motion was debated in the Chamber and replied to by the Minister of State in the Home Office, Baroness Neville Jones, on 3 May 2011: HL Deb 3 May 2011, col 409. The control that can be exercised by means of this procedure, however diligent and far reaching, is nevertheless incomplete. It is dependent to a large extent on what the statements of changes themselves provide. The effect of provisions in the external document may not be apparent, and the ability of the Secretary of State to make changes to it without laying a fresh statement of changes before Parliament may not be obvious either. It is also very rare for a motion against an instrument under the negative resolution procedure to be carried. The Secretary of State can be called to account, and may feel that further changes should be made to meet an objection to a Statement of Changes which she regards as having real substance. But she can usually expect her views as to what they should contain to command the support of a majority in either House. Moreover, as Lord Hoffmann pointed out in Odelola, para 6, the Immigration Rules create legal rights as, under section 84(1)(a) of the Nationality, Immigration and Asylum Act 2002, a person may appeal against an immigration decision on the ground that it is not in accordance with what they provide. So I do not think that oversight of the content of the rules can be left entirely to Parliament. The rule of law requires that the Secretary of State must fulfil the duty that has been laid on her by section 3(2) of the 1971 Act. In the event of a challenge it is for the courts to say whether or not she has done so. The Asylum and Immigration Appeal Tribunal observed, in its decision in Pankina v Secretary of State for the Home Department (IA 01396 09), para 17, that it would quite easy to say that the provision objected to had been approved by Parliament and to leave the matter there. But, as the tribunal went on to point out, the effect of what was done in that case without laying a Statement of Changes before Parliament was to restrict the substance of the provisions which up to then had been part of the Immigration Rules, and to prevent some people from satisfying them in their new version. I would hold therefore that the courts have a responsibility in this matter too. The right of appeal under section 84(1)(a) of the 2002 Act on the ground that the decision in question is not in accordance with the Immigration Rules would be seriously undermined if it was open to the Secretary of State to change the rules at her own discretion in a way that was to the appellants prejudice without laying those changes before Parliament. Although Lord Denning MR said in R v Secretary of State for the Home Department, Ex p Hosenball [1977] 1 WLR 766, 781 that the rules do not amount to strict rules of law, section 86(3) of the 2002 Act includes Immigration Rules in the law to which the adjudicator must have regard when determining an appeal: see also section 84(1)(e). The system that the right of appeal relies on assumes that the rules have been made available by the Secretary of State to Parliament for scrutiny in the performance of her duty under the statute. In Reg v Secretary of State for Social Services, Ex p Camden London Borough Council [1987] 1 WLR 819, 827 828 Slade LJ referred with approval to Macpherson Js observations in the court below about the technique of reference to outside documents in a statutory instrument. The judge said that, provided the reference was to an existing document and there was no question of sub delegation, there was no objection to this practice in the eyes of the Joint Committee on Statutory Instruments and that there had been an increasing tendency to resort to this technique. The courts task was to look to see whether the reference offended against the provisions of the enabling statute and was in truth simply part of the regulations by which the Secretary of State purported to exercise his powers. If that inquiry is negative, then all is well. Any control of the extended use of references which are permissible in their own statutory context was a matter for Parliament and its practices. There is, of course, no enabling statute in this case. But the 1971 Act must now be seen as the source of the powers vested in the Secretary of State, and it is the Act which provides the statutory machinery for their exercise. The content of the rules is prescribed by sections 1(4) and 3(2) of the 1971 Act in a way that leaves matters other than those to which they refer to her discretion. The scope of the duty that then follows depends on the meaning that is to be given to the provisions of the statute. What section 3(2) requires is that there must be laid before Parliament statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the Act for regulating the control of entry into and stay in the United Kingdom of persons who require leave to enter. The Secretary of States duty is expressed in the broadest terms. A contrast may be drawn between the rules and the instructions (not inconsistent with the rules) which the Secretary may give to immigration officers under paragraph 1(3) of Schedule 2 to the 1971 Act. As Sedley LJ said in ZH (Bangladesh) v Secretary of State for the Home Department [2009] Imm AR 450, para 32, the instructions do not have, and cannot be treated as if they possessed, the force of law. The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement. Resort to the technique of referring to outside documents, which the Scrutiny Committee can ask to be produced if it wishes to see them, is not in itself objectionable. But it will be objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament. In R v Immigration Appeal Tribunal, Ex p Bakhtuar Singh [1986] 1 WLR 901, 917 918 Lord Bridge of Harwich said that the rules, as they stood at that time, frequently offered no more than broad guidance as to how discretion was to be exercised in different typical situations. That is no longer true. The introduction of the points based system has created an entirely different means of immigration control. The emphasis now is on certainty in place of discretion, on detail rather than broad guidance. There is much in this change of approach that is to be commended. But the rigidity and amount of detail that comes with it has a direct bearing on the scope for an appeal against a decision that is adverse to the applicant. As the content of the rules will determine the scope of any appeal under section 84(1)(a) of the 2002 Act, it is all the more necessary to achieve clarity as to what must be in the rules and what need not be. The increasing complexity of the system and the resort to modern technology for its administration, for which detailed instructions have to be given to those who wish to make use of it, makes this a difficult exercise. The Pankina line of cases The first case to consider the changes effected by the points based system was Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2011] QB 376. In that case Sedley LJ said in para 21 that the Parliamentary intention which lay behind the requirement that the rules must be laid before it was that the rules were being elevated to a status akin to that of law, and that it followed that only that which secured Parliaments authority by the absence of a negative resolution within 40 days after laying was entitled to the quasi legal status of Immigration Rules. I shall attempt in the following paragraphs to summarise the way successive judges have attempted to apply that basic principle to a variety of objections raised by claimants whose applications have been refused on grounds that required reference to be made to material that was not disclosed in the rules themselves. The point in Pankinas case related to the requirement that an applicant for leave to remain as a post study migrant must have sufficient funds to maintain himself. Detailed maintenance provisions were set out in a Statement of Changes (HC 607). Paragraph 2 of Appendix C to the Immigration Rules (later amended by HC 1113 by inserting a new paragraph 1A) provided that the migrant must be able to show 800 in his bank account for a period of time set out in the guidance and to provide the specified documents, those being the documents specified by the Secretary of State in the policy guidance for the route under which the applicant was applying. Failure to produce those would mean failure to meet the requirement. The Secretary of State issued guidance within the period of 40 days while HC 607 was still before Parliament, but the guidance was not itself laid. It was stated in the guidance that the specified documents were personal bank accounts and building society statements showing that the applicant had held at least 800 for the three months immediately prior to the date of the application. The Court of Appeal affirmed the decision of the Asylum and Immigration Tribunal (see para 43, above). It held that the only relevant criterion was that the applicant should have 800 at the time of the application. As the policy guidance could be changed at any time in the discretion of the Secretary of State, the requirement that 800 must be held continuously for the three month period did not form part of the Immigration Rules and was of no effect. In giving his reasons for this decision, with which Rimer and Sullivan LJJ agreed, Sedley LJ accepted that there was no absolute rule against the incorporation by reference of material into a measure which has legal effect, even when the measure is required to be laid before Parliament: para 24. But the case for the Secretary of State was that the requirement in the policy guidance that 800 had to be held during the three month period was by incorporation part of the Immigration Rules. That in itself required the three month criterion to form part of the rules laid before Parliament. But the critical point was that the requirement was open to change at any time. That meant that a discrete element of the rules was placed beyond Parliaments scrutiny: para 29. In para 31 he said that the statutory recognition of rules which are to have the character and, on appeal, the force of law required them to be certain. That did not shut out extraneous forms of evidence of compliance, so long as they were themselves specified. But it did shut out criteria affecting an individuals status and entitlements which had not themselves been tendered for parliamentary scrutiny and, even if ascertainable at that point of time, might be changed without fresh scrutiny: para 33. The decision in Pankina was soon followed by a number of other similar challenges. In R (English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin) the issue related to a provision in paragraph 120(a) of Appendix A which provided that one of the requirements that had to be met to obtain the requisite points was that the course must meet the minimum academic requirements as set out in sponsor guidance published by UKBA. The minimum level of course specified in the guidance was later altered by specifying a different level of course as the minimum. Having considered Pankina, Foskett J said that its ratio appeared to him to be that a provision that reflected a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involved a true Parliamentary scrutiny, and that there was no doubt that the changed approach in the new guidance did operate to change materially the substantive criteria for entry for foreign students who wished to study English in the United Kingdom. The next case to reach the administrative court was that of Mr Alvi: [2010] EWHC 2066 (Admin). As already noted in para 5 above, Lord Carlile of Berriew held that it was not the intention of Parliament that the skills list in the UKBAs list of skilled occupations should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval. In para 29 he said that it should be borne in mind that the list of skilled occupations was a very large volume that would require to be amended and added to from time to time and would not be suitable for inclusion in the rules. It was enough that it was referred to in the rules, which were approved by Parliament. In para 31 he said that it would be unrealistic to require every job and skill to be listed in detail in the rules themselves and that this was certainly not a legal requirement. In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin) the issue was directed to a provision in the statement of proposed changes HC 59 relating to applications under Tier 1 of the points based system. Among the changes it introduced was a provision which enabled a limit to be set on the number of grants of entry clearance or leave to enter which might be granted in respect of a particular route during the relevant grant allocation period. It was stated that the interim limit for the purposes of Tier 1 would be published by the Secretary of State on UKBAs website. The fact that the actual limit to be imposed was not in the statement itself was the subject of adverse comment by the Merits Committee in the House of Lords in a report which was published on 16 July 2010. The information that was available on the website at that date did not disclose what the actual limit was. But on 15 October 2010, in response to a query as to what the limit actually was, UKBA amended its website to include the information that it was administering the limit on a monthly basis and that the limit was 600 issued Tier 1 (General) visas every calendar month. Similar information about limits on numbers which had not previously been disclosed was published with regard to Tier 2. The claimants challenged the lawfulness of the interim limits for Tier 1 and Tier 2 on the ground, among others, that the manner in which the limits were imposed was unlawful in the light of the decision in Pankina. Sullivan LJ noted in para 38 that the court was bound by Pankina. But he said nevertheless that he would follow it, even if not bound. In para 42 he said that he accepted the argument that there was a spectrum, and that in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of States practice, however minor, should be subject to the scrutiny of Parliament. But, accepting that there was a spectrum, both the overall limit and any changes to it were a critically important part of the rules: para 46. What the material that had been laid before Parliament failed to do was to specify the limits that were being applied to individual sponsors. It followed that no interim limits were lawfully published or specified by the Secretary of State for either tier and that there was not, and never had been, a limit on the number of applicants who might be admitted under either Tier 1 or in the number of certificates of sponsorship that might be issued to Tier 2 sponsors: para 47. There then followed the decision of the Court of Appeal in the present case: [2011] EWCA Civ 681. The test that was applied by Jackson LJ, with whom the President and Tomlinson LJ agreed, was whether the specification of jobs as falling within paragraph 82(a)(i) of Appendix A was a substantive matter rather than a minor alteration to the Secretary of States practice. He held that there was no doubt that the governing principle set out in the list that all jobs which qualify under section Q were at or above NVQ or SVQ level 3 was a substantive matter which had to be set out in the rules if it was to be valid. In R (Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin), para 39 Singh J said that it seemed to him that the governing principle laid down by Pankina as understood and applied in subsequent cases was that a substantive or material change to the content of the Immigration Rules must be made by way of amending rules which must be laid before Parliament, and that it was not permissible to cross refer to the possibility of further substantial or material changes in documents such as policy guidance statements which are not subject to the negative resolution procedure. In para 41 he said that the distinction was between the substantive requirements that an applicant has to meet and the means of proving such eligibility which can properly be the subject of policy guidance. In R (Purzia) v Secretary of State for the Home Department [2011] EWHC 3276 (Admin) Ian Dove QC, sitting as a Deputy Judge of the High Court held at para 17 that there is a spectrum that operates on the extent to which the requirement is substantive at one end of the spectrum and or relates to matters that are procedural at the other. In R (New London College Limited) v Secretary of State for the Home Department [2012] EWCA Civ 51 the issue was whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non EEA students lacked the necessary legislative authority because the system under which the decision was taken was contained in policy guidance, not in the Immigration Rules. Richards LJ, with whom Mummery and Rimer LJJ agreed, examined all the previous cases on what he referred to as the Pankina issue. In para 48 he said that the ratio of Pankina was correctly identified by Foskett J in English UK as relating to the substantive criteria for entitlement to leave to enter or remain. The particular issue was whether a substantive criterion laid down in the rules could be qualified by changeable policy guidance. What Sedley LJ referred to in that case as criteria affecting individuals status and entitlements was the content of the substantive criteria themselves, not extraneous factors which might affect the ability of an applicant to fulfil the relevant criteria. The substantive criteria governing entitlement to leave to enter or remain as a Tier 4 (General) Student were laid down in the rules and were not supplemented or qualified by guidance. Whether the sponsor held a sponsor licence did have an indirect effect on an applicants entitlement, in that it affected his or her ability in practice to meet the criteria. It followed that the criteria for the grant, suspension or withdrawal of a sponsor licence would have that effect. But this was materially different from the substantive criteria and did not affect their content. I make no comment as to whether the decisions that are not before us in this appeal were rightly decided. It should be noted that the New London College case is awaiting a decision as to whether permission should be given for an appeal to this court. What they do reveal however is a variety of approaches, and the use of a variety of expressions, to determine where the line must be drawn in order to determine whether material in an extraneous document which is not set out expressly in the rules can validly be relied on to determine an applicants claim. Like Lord Dyson (see para 92, below), I do not find any of the suggested solutions to this difficult problem entirely satisfactory. The test for validity The picture that this rapid succession of cases presents is disturbing. The points based system, which is the source of the problem, is not itself objectionable. But its effective operation is being put at risk by the opportunities it presents for challenges of this kind. Lord Bingham recognised in Huang v Secretary of State for the Home Department [2007] 2 AC 167, para 6, that the system of immigration control should be administratively workable. He also accepted that, in the administration of the system, a line had to be drawn somewhere. I think therefore that it would be right to approach the question as to the scope of the Secretary of States duty under section 3(2) on the basis that it was not Parliaments intention that the procedure which it laid down should impede the administration of the system. Questions as to where the line was to be drawn with regard to the content of the rules were for the Secretary of State to determine as matters of policy. What Parliament was insisting on was that she should lay her cards on the table so that the rules that she proposed to apply, and any changes that were made to them, would be open to scrutiny. To a large extent her approach to this task cannot be faulted. The enormous amount of detail that has been built into the Immigration Rules speaks for itself. And it makes good sense for guidance and codes of practice which are designed to assist those who must make the system work to be kept separate from the rules themselves. What the cases have revealed however is that the balance between what ought to be in the Immigration Rules themselves and what can properly be dealt with by referring to extraneous material has not always been struck in the right place. The system of sponsorship, on which much of the points based system depends, requires those who undertake the task of sponsoring an applicant to ensure that the applicant qualifies for sponsorship under the scheme. A certificate from a sponsor for a person who does not qualify will be rejected. Sponsors and those whom they are sponsoring need guidance as to what the qualifications are and how they are to meet the criteria that will be applied in determining the application. That is what the Occupation Codes of Practice on UKBAs website are designed to do. Some of the content of the Codes, which are described as the official guidance for sponsors and caseworkers (see para 17, above), is just guidance. The sponsor needs guidance as to how to fill in the certificate of sponsorship and, in cases to which this requirement applies, where to look to assess whether the resident labour market can supply workers to fill the job for which the skilled migrant is being sponsored. He also needs information about the minimum rate of pay that will be regarded as appropriate for the purposes of paragraph 82(a)(ii) of the Appendix, and as to what jobs are regarded as skilled for the purposes of paragraph 82(a)(i) and what are not. It is primarily to him that this information is addressed, as it is the sponsor who is required to complete the certificate of sponsorship. The caseworker too needs guidance when considering whether the application meets the relevant criteria. The problem that Mr Alvis case reveals, however, is that the Codes contain material which is not just guidance. They contain detailed information the application of which will determine whether or not the applicant will qualify. I agree with Lord Dyson (see para 94, below) that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word. So a fair reading of section 3(2) requires that it be laid before Parliament. The problem is how to apply that simple test to the material that is before us in this case. I am inclined think that information as to where to look to assess the state of the resident labour market is not of that character. It is referred to in the preface to the list of occupations as advice and in paragraph 71 of Appendix A as guidance. The language that the list itself uses is, of course, not determinative. A provision that is called guidance can nevertheless be a rule if it satisfies the test which we have identified. But it seems to me that to call it guidance is apt in the case of this material. It tells the sponsor what procedure he should follow, and the kind of evidence he should examine, in order to fulfil his duties as sponsor to test the resident labour market in cases where that test must be satisfied. The rule in those cases is that the resident labour market must be tested, that it must be tested at Jobcentre Plus, that the job must be advertised and that the sponsor has to give details of where and when the post was advertised. Failure to carry out that procedure will, of course, have an effect on whether or not the sponsorship certificate will assist the applicant. It will lead to the refusal of the application because the rule has not been satisfied. Lord Dyson and I are agreed on that point. But it seems to me that information as to where the job may be advertised does not amount to the laying down of a rule that is determinative. As one would expect, the guidance as at April 2012 shows some changes in the list of newspapers, journals and websites which are regarded as relevant from those which were listed in February 2010. We do not need to decide the point in this case. But if a decision were needed, I would have been inclined to hold that changes of that kind do not require to be laid under section 3(2). The references in the Codes to the appropriate rates for the job are, however, of an entirely different character. It will be recalled that the ground of refusal in the Secretary of States letter of 18 June 2009 was that she was not satisfied that Mr Alvis salary was appropriate for a job at the required level. As this ground was superseded by the letter of 9 February 2010 it has not been necessary to examine the point in this appeal. But it can be said that the lists of minimum salaries that the Codes set out, no doubt with the aim of protecting the UK labour market from being undermined by employing cheap labour from abroad, present two problems. The first is that this information is not set out in the rules themselves. All one has is the reference to the appropriate rate for the job in paragraph 82(a)(i). The second is that the rates themselves are susceptible to change because of the effects of wage inflation and perhaps for other reasons too. Reference to the guidance as at April 2012 shows that all the rates that were current in February 2010 have been increased. The criterion which has been used to arrive at these increases is not disclosed anywhere in the Immigration Rules. As the migrant must be paid at or above the appropriate rate for the job to qualify, the conclusion that information as to what that rate is has the character of a rule seems to me to be inescapable. As the Codes are said to have been drawn up based on advice from the industry experts and the Migration Advisory Committee, the rates themselves must be taken to have been determined by the Secretary of State or on her behalf by UKBA. As the rules do not set out any objective criterion that is to be applied to determine the amount of any increases, the question whether there should be increases and, if so, by how much, is left to the discretion of the Secretary of State. As the rates themselves are to be seen as rules, any changes to them must be held to be changes to the rules within the meaning of section 3(2) of the 1971 Act. It follows that the rates themselves and any changes to them must be laid before Parliament. It would be open to the Secretary of State to avoid having to lay changes if it was provided by the rules that an objective criterion, such as one of the recognised indices for measuring inflation, was to be used. But, as her ability to make changes is not limited by reference to any such criterion, each and every change to these rates must be regarded as falling with the scope of the obligation under section 3(2). The list of jobs that the Occupation Codes of Practice set out both in the preface and in the Codes themselves, of which Code 3221 with which we are concerned in this case is an example, seem to me to be of the same kind. The statements that the job must be skilled at N/SVQ level 3 or above, and that the job of a physiotherapy assistant is below that level, set out criteria which have all the character of a rule, as the ground of refusal in the letter of 9 February 2010 made clear: see para 3, above. Whether the job that the applicant is applying for or occupies is above or below that level will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied. The wording of paragraph 82(a)(i) is misleading, because UKBAs list of skilled occupations includes skilled occupations of both kinds. As it includes those which are below N/SVQ level 3 as well as those above, Mr Alvis occupation as an assistant physiotherapist would appear if the paragraph is to be taken at its face value to satisfy the requirement. It also leaves it open to the Secretary of State to vary the level at which the occupation will satisfy the requirement, and to vary the descriptions of the jobs that are to be taken to be above or below that level, without disclosing those changes to Parliament. The level of skill required for a skilled tier migrant is not just a technicality. It is a means of controlling the numbers of skilled migrants who may be given leave to enter or remain in this country. It is not inconceivable that from time to time it may be thought necessary for the level to be changed. I can see no good reason why the simple but very important statement that the preface to the Occupation Codes of Practice sets out could not have been included in paragraph 82(a)(i). I would hold that it should have been and that, because this statement has not been laid before Parliament, it is not open to the Secretary of State to rely on it as a ground for rejecting Mr Alvis application. For the same reason, as the detailed information about which occupations are to be taken to be at or above the relevant skill level is open to change at the discretion of the Secretary of State, these details and any changes that may be made to them in the future too must be laid before Parliament. Various expressions have been used to identify the test which should be used to determine whether or not material in the extraneous document is a rule which requires to be laid before Parliament. It is not easy to find a word or phrase which can be used to achieve the right result in each case. I agree with Lord Dyson (see para 88, below) that it is not helpful to say that there is a spectrum. A more precise expression is needed. The word substantive was identified by Foskett J in English UK and by Singh J in Ahmed. But even this word needs some explanation. I would prefer to concentrate on the word rule which, after all, is the word that section 3(2) uses to identify the Secretary of States duty and to apply the test described in para 57, above. The Act itself recognises that instructions to immigration officers are not to be treated as rules, and what is simply guidance to sponsors and applicants can be treated in the same way. It ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases. I see no escape from the conclusion that the question whether or not material in an extraneous document is a rule, or a change in the rules, will have to be determined on the facts of each case. But I hope that the test which we are suggesting will enable those who are responsible for the points based scheme to identify which of the statements in the Occupation Codes of Practice or their current equivalent need to be included in the Immigration Rules, and to ensure that anything that is of that character which it is thought necessary to include in the Codes or any other extraneous document in the future will be disclosed in that way to Parliament also. But the fact that Lord Dyson and I differ as to whether changes in the list of newspapers, journals and websites where advertisements may be placed for the purposes of the resident labour test are changes to the rules may serve as a warning that the wiser course is to assume that everything that is contained in a rule making document such as that which is before us in this case is caught by the requirement that section 3(2) sets out, and that any changes to any of the material that it contains must be laid before Parliament. I am conscious of the burden which this finding will impose on the Scrutiny Committee: see para 35, above. The volume of the material it will have to look at, within what is necessarily a very short timetable, may be such as to defeat the object of section 3(2) of the 1971 Act which must be taken to have been to ensure that the rules, and any changes to them, were subject to effective scrutiny. The Committee cannot be expected to look at every detail. The greater the detail, the greater the risk that matters of real importance will be overlooked and not drawn to the Houses attention. The situation that has created this problem is so far removed from what it was in 1971 that one wonders whether the system that was designed over forty years ago is still fit for its purpose today. The procedure by which material is laid before Parliament requires hard copies to be laid in each House and, as proof of laying is an essential requirement, this is probably unavoidable. But there are obvious benefits in making use of the ability of the UKBA website to disseminate changes to the rules at minimum cost in a way that is immediately accessible. I hope that it may be possible for a method to be devised of laying changes which require reference to be made to extensive material in very large documents which can be accessed and searched electronically that will keep the number of documents to be laid and circulated in hard copy in each House each time a change is made to an absolute minimum. But any changes to the system must be a matter for Parliament. Conclusion The test to which I refer in para 57, above should be applied in preference to those described by Sedley LJ in Pankina v Secretary of State for the Home Department [2011] QB 376, para 33 and the subsequent cases referred to in paras 46 52. In my opinion the Court of Appeal was right to hold that Mr Alvi succeeds in his challenge to the Secretary of States decision of 9 February 2010. The statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act. As they were not laid, it was not open to the Secretary of State to rely on them as part of the Immigration Rules. I would dismiss this appeal. I agree with Lord Hope that this appeal should be dismissed. LORD DYSON Section 3(2) of the Immigration Act 1971 (the 1971 Act) provides: The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying., then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution. The question that lies at the heart of this appeal is: what is a rule laid down by the Secretary of State as to the practice to be followed in the administration of this Act? This seemingly simple question of statutory interpretation has given rise to much difficulty and has been answered in different ways in a number of recent court decisions. Section 33(1), which defines immigration rules as the rules for the time being laid down as mentioned in section 3(2) above does not shed any light on the problem. The statutory scheme The Secretary of State for the Home Department is charged with maintaining immigration control: see sections 1(4) and 3(2) of the 1971 Act. She is responsible for granting or refusing leave to enter and leave to remain in the United Kingdom for those who do not have the right of abode here. Section 4(1) provides that the power under the 1971 Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and the power to give leave to remain or vary any leave shall be exercised by the Secretary of State. Part 1 of Schedule 2 to the 1971 Act contains general provisions in relation to immigration officers. Paragraph 1(3) provides that, in the exercise of their functions under the 1971 Act, immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State. In March 2006, A Points Based System: Making Migration Work for Britain (CM 6741) was published. This set out proposals to bring in a points based system for non EEA nationals wishing to work or study in the United Kingdom. It specified five Tiers of workers, including Tier 1 (highly skilled individuals) and Tier 2 (skilled workers with a job offer to fill gaps in the United Kingdom labour force). Applications for leave to enter and leave to remain under this points based system are required to meet three sets of criteria. These are (i) the requirements of the specific rule itself (including the number of points necessary for a successful application); (ii) the requirements of specific appendices to the rules (Appendix A, for example, details the general attributes required to qualify under each Tier); and (iii) the requirements set out in material outside the rules (such as Codes of Practice). Central to the new points based system is the idea that those who benefit directly from migration, namely employers of migrants, should play their part in ensuring that the system is not abused. A system of sponsorship has therefore been introduced whereby all migrants, with the exception of those in Tier 1, must be sponsored by an employer, educational institute or certain other bodies. On 6 May 2008, the Secretary of State published a Statement of Intent for Tier 2 of the points based system which explained how it was intended that Tier 2 would operate. All Tier 2 migrants would be required to have a certificate of sponsorship issued by a prospective employer who was a licensed sponsor. Migrants needed to obtain a total of 70 points to obtain entry clearance or leave to remain within Tier 2. The Statement of Intent provided that a job must be at National Vocational Qualification (NVQ) or Scottish Vocational Qualification (SVQ) Level 3 or above to be considered for Tier 2. The Statement of Intent provided that the United Kingdom Border Agency (UKBA) would publish a list of occupations which were at or above NVQ/SVQ level 3 and a list of those which were below those standards. It also stated that the migrant had to be paid at the United Kingdom appropriate rate for the occupation. On 17 September 2008, the Secretary of State published on the UKBA website Codes of Practice for Tier 2 Migrants. These are very detailed documents. They are divided into sections. Occupations are classified by reference to the Standard Occupational Classification 2000 (SOC). Each code includes (i) a list of skilled jobs at NVQ/SQV level 3 or above in each occupation for which sponsors are permitted to issue a certificate of sponsorship; (ii) the minimum appropriate salary rates; and (iii) the acceptable methods for meeting the resident labour market test. The Codes of Practice have been revised from time to time, but the revisions are not material to the issues that arise on this appeal. At the time of Mr Alvis application for leave to remain, an occupation was regarded as skilled if all jobs in that SOC code were at NVQ/SVQ level 3 or above. An occupation was borderline if some jobs in that SOC code were at NVQ/SVQ level 3 or above and some were below that level. An occupation was lower skilled if there were no jobs in that SOC code at NVQ/SVQ level 3. Section Q of the Codes of Practice deals with human health and social work activities. It identifies those health/social work roles that are skilled, borderline and lower skilled. For those roles that are borderline, section Q indicates which roles are at or above NVQ/SVQ level 3 and which are not. Physiotherapists have the SOC code 3221. The relevant page states: this page explains the skill level and appropriate salary rate for physiotherapists, and tells you how to meet the resident labour market test. Under the heading Skill level it states that physiotherapy assistants and technical instructors are below NVQ/SVQ level 3. Under the heading Appropriate salary rate, it states the job must be paid the minimum salary below and the minimum rates are specified for the various jobs. Under the heading Resident labour market test, it states that the market must have been tested by means of advertisement in Jobcentre Plus, national newspapers, specified professional journals and one of a number of websites. On 4 November 2008, the Secretary of State laid before Parliament a Statement of Changes in Immigration Rules (HC 1113). This inserted into Immigration Rules (HC 395) new paragraphs 245ZB 245ZH in relation to Tier 2 Migrants. The key provision for present purposes is paragraph 245ZF which is headed Requirements for leave to remain and provides: To qualify for leave to remain as a tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets those requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Requirements: . (e) if applying as a Tier 2 (General) Migrant.the applicant must have a minimum of 50 points under paragraphs 59 84 of Appendix A. Relevant details of Appendix A are set out by Lord Hope at paras 14 and 15 of his judgment. The issue Mr Alvis application for leave to remain was refused because his job, as a physiotherapy assistant, was shown as an occupation that was below NVQ/SVQ level 3 and was therefore not included in the UKBAs list of skilled occupations. This meant that he could not satisfy the requirements of paragraph 245ZF because he could not obtain 50 points under paragraphs 59 84 of Appendix A. The issue is whether the statement in section Q of the Codes of Practice that a physiotherapy assistant is below NVQ/SVQ level 3 (and therefore attracts no points) is a rule within the meaning of section 3(2) of the 1971 Act. Discussion The primary submission on behalf of the Secretary of State is that there is no statutory duty to make immigration rules and lay them before Parliament. I would reject this for the reasons that I have stated in my judgment in Munir and Rahman v Secretary of State for the Home Department [2012] UKSC 32 at paras 27 to 29. Mr Swifts next submission is that section 3(2) of the 1971 Act is not prescriptive as to the particular content of the immigration rules. He says that there is nothing in the language of the subsection that requires the rules to be an exhaustive statement of the criteria affecting the status and entitlement of individuals. It is a matter for the Secretary of State in the exercise of her discretion to decide what to include in the rules and what to exclude from them. This exercise of discretion is subject only to the control of Parliament itself and to court challenge on standard public law grounds. I cannot accept this submission either. As I said in Munir, the whole point of section 3(2) is to give Parliament a degree of control over the practice to be followed by the Secretary of State in the administration of the 1971 Act for regulating immigration control. If she were free not to lay down rules as to her practice, the plain purpose of section 3(2) would be frustrated. Parliament has required of the Secretary of State that she lay all rules as to her practice, although the content of the rules is a matter for her. As Lord Windelsham said in the passage that I quoted in para 29 of my judgment in Munir, migrants are entitled to know under what rules they are expected to act and it would be impossible for the immigration service to operate otherwise than on the basis of published rules. Nevertheless, section 3(2) raises a difficult question of interpretation. What is a rule as to the practice to be followed in the administration of the 1971 Act? Parliament drew a distinction between rules within the meaning of section 3(2) and instructions (not inconsistent with the immigration rules) given to immigration officers by the Secretary of State within the meaning of para 1(3) of Part 1 to Schedule 2 to the 1971 Act. Rules cannot, therefore, encompass the instructions and guidance issued to case workers and other staff to assist them with processing applications, although in a sense these documents describe some of the practice followed in the administration of the 1971 Act. But the statute itself recognises that instructions to immigration officers as to how they are to apply the rules are different from the rules themselves. The recognition that the 1971 Act distinguishes between rules and instructions to immigration officers does not, however, shed light on where the statute draws the line between them. Various attempts have been made in recent cases to define rules. Lord Hope has referred to a number of the cases at paras 43 to 52 above. Solutions suggested in other cases In Pankina v Secretary of State for the Home Department [2011] QB 376, Sedley LJ said that criteria affecting individuals status and entitlements were rules within the meaning of section 3(2) of the 1971 Act, whereas the means of proving eligibility were not: see paras 6 and 33. In R (English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin), Foskett J said that the ratio of Pankina was that a provision that reflects a substantive criterion for eligibility for admission or leave to remain is a rule (para 59). In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin), Sullivan LJ said that there was a spectrum and that, in enacting section 3(2), Parliament did not intend every alteration to the Secretary of States practice, however minor, to be subject to its scrutiny (para 42). He suggested that the UKBAs list of skilled occupations was at the lower end of the spectrum, such that alterations in them would not be subject to section 3(2). In the present case, Jackson LJ said that there was a case for saying that the specification of particular jobs as falling within paragraph 82(a)(i) of Appendix A is a substantive matter rather than a minor alteration to the Secretary of States practice. But he said that it was not necessary to explore that question, since the governing principle that all jobs which qualify under section Q are at or above NVQ/SVQ level 3 was a substantive matter which had to be set out in the immigration rules. 2855 (Admin), Singh J said at para 41: In R (Ahmed) v Secretary of State for the Home Department [2011] EWHC In essence the distinction which both as a matter of principle seems sensible and is supported by the authorities is that between (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules and (ii) the means of proving such eligibility: see paragraph 6 of Sedley LJs judgment in Pankina itself. The former can only be changed by amending the immigration rules and in accordance with the negative resolution procedure. The latter need not be and can properly be the subject of policy guidance. In each of these cases, the court has attempted to amplify the meagre definition of a rule which Parliament has provided. This is no easy matter. The court has to do its best to interpret section 3(2) in a sensible manner which gives effect to what Parliament must be taken to have intended. I think that there are some limited clues in the statute itself. First, the word rules is not qualified. Parliament has not referred to principal rules or rules containing the governing principles. It has simply referred to the rules. Secondly, the fact that section 3(2) refers to rules including any rules as to the period for which leave is to be given and conditions to be attached in different circumstances suggests that Parliament was interested in some aspects of detail and not merely broad principles. Thirdly, the fact that the laying of the rules was to be subject to the negative resolution procedure also suggests that Parliament contemplated that some of the rules might be relatively minor. If the rules were limited to important statements of general principle, it would have been surprising if Parliament had been willing to agree to the negative resolution procedure. It goes without saying that the principle de minimis non curat lex (the law is not concerned with very small things) applies in the present context as in most others. Leaving that principle on one side, however, I do not consider that the metaphor of the spectrum is apposite here. It connotes some form of sliding scale. But how does one decide where on the spectrum a particular requirement lies? Where did Parliament intend the boundary to be drawn between a requirement that is a rule and one that is not? These questions admit of no obvious answer. The difficulty is well illustrated by the fact that in the JCWI case Sullivan LJ suggested that the list of skilled occupations was at the lower end of the spectrum (and not subject to section 3(2)). This is to be contrasted with the statement by Jackson LJ (at para 40) in his judgment in the present case that, despite the observations of Sullivan LJ, there was a case for saying that the specification of particular jobs as falling within paragraph 82(a)(i) of Appendix A was a substantive rather than a minor alteration to Secretary of States practice which (inferentially) was towards the higher end of the spectrum. I can find no warrant in the statute for a spectrum with all its attendant uncertainties. But what about the distinction between (i) substantive criteria affecting individuals status and entitlements and (ii) the evidential means by which those criteria are satisfied? At first sight, this seems to have much to commend it. The distinction between a substantive criterion and the means by which it is satisfied seems clear enough; and it is tempting to say that Parliament is unlikely to have intended that it should be concerned with matters of evidence at all. But I do not think that the distinction is as clear cut as it might at first sight appear to be. I would readily accept, as a general proposition, that there is conceptual difference between a substantive requirement and the means by which it is satisfied. But the efficacy of the distinction depends on there being a clear definition of a substantial requirement. That is what is missing here. The 1971 Act contains no definition. In my view, without the fixed point of a defined substantive requirement, the suggested definition of a rule becomes a chimaera. Take the present case. What is the substantive requirement that Mr Alvi had to meet in order that his application should succeed? On one view, it is that he had to score 50 points for attributes; and the requirement that the job that he was to be employed to do was shown on SOC 3221 as at or above NVQ/SVQ level 3 was merely the evidential means by which that substantive requirement was satisfied. But on another view, what Mr Alvi had to do in order to score 50 points was itself a substantive requirement. If the requirement that the job is at or above NVQ/SVQ level 3 is a substantive requirement, then it is difficult to see why the same cannot also be said of the statement at SOC 3221 that certain classes of physiotherapist are at or above that level and others (including physiotherapist assistants) are not. As regards the appropriate salary rate, the same question arises. Is the minimum salary specified at SOC 3221 a substantive requirement that the migrant has to meet or is it merely the evidence required to satisfy the substantive requirement of entitlement to 50 points? On the other hand, as regards the payment of the appropriate salary, the requirement of proof by the production of a Certificate of Sponsorship Checking Service entry in accordance with paragraph 82(b) of Appendix A to rule 245ZF clearly is an evidential requirement. It is somewhat ironic that this requirement is in the immigration rules. But for the reasons that I have given, I do not find that the suggested dichotomy between (i) a substantive requirement and (ii) the evidential means of meeting it is a satisfactory basis for deciding what is and what is not a rule within the meaning of section 3(2). My preferred solution So far, I have engaged in what may appear to be the rather negative exercise of explaining why I have difficulty in accepting the solutions that have been put forward hitherto. I accept that a line has to be drawn somewhere. The court has to do its best to provide a solution which (i) is consistent with such clues as are to be found in the statute, (ii) is not administratively unworkable and (iii) is reasonably certain and easy to apply, thereby minimising the risk of unwelcome litigation. In my view, the solution which best achieves these objects is that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision as to the period for which leave is to be given and the conditions to be attached in different circumstances (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined. It may be said that Parliament would not have been interested in scrutinising details such as increases in the appropriate salaries stated in SOC 3221 or changes in the requirements of the resident labour test or even changes in what constitutes a job at or below NVQ/SVQ level 3. I do not think that we can be confident as to what Parliament would have said if it had foreseen the possibility that immigration control would become as complicated as it has become. We know that Parliament wanted to control the making of immigration rules. The most important rules are those by which applications for leave to enter and remain are determined. I see no reason to think that Parliament would not have been interested in having the opportunity to scrutinise the critical aspects of those rules, in particular the provisions which set out the criteria which determine the outcome of applications. It seems to me that this approach best reflects what Parliament must be taken to have intended when it enacted section 3(2). There is no evidence that it would be unduly burdensome, let alone administratively unworkable for the Secretary of State. It causes her no administrative difficulty to make the most detailed rules and lay them before Parliament. I acknowledge the burdens that would be imposed on the Scrutiny Committee to which Lord Hope refers at para 65. It is, however, a striking fact that the immigration rules are already hugely cumbersome. The complexity of the machinery for immigration control has (rightly) been the subject of frequent criticism and is in urgent need of attention. But that is not relevant to the present issue. If the boundary is drawn where I have suggested, that should introduce a degree of certainty which ought to reduce the scope for legal challenges. The key requirement is that the immigration rules should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain. I would conclude by saying that, if my interpretation of section 3(2) is unacceptable to the Secretary of State, she can seek to amend the 1971 Act and introduce a clear expanded definition of what constitutes a rule. Guidance and rules It was no part of Mr Swifts case that the key distinction is between a rule and guidance or that, for the most part, the content of the Codes of Practice is not rules but merely guidance which is primarily addressed to the sponsor and not the migrant. But as Lord Hope points out at para 56, sponsors and those whom they are sponsoring need guidance as to what the qualifications are and how they are to meet the criteria that will be applied in determining the application. As he says, some of the content of the Codes is just guidance and it is primarily addressed to the sponsor. The sponsor needs to know how he is to fill in the certificate of sponsorship and he needs information about the minimum rate of pay that will be regarded as appropriate for the purposes of para 82(a)(ii) of the Appendix and so on. But even if it is right to regard what appears in the Codes of Practice as guidance to a sponsor on how to meet the criteria that are applied in determining a migrants application, it also sets out the criteria that the migrant must satisfy if his application is to succeed. These are requirements which are rules within the meaning of section 3(2) of the 1971 Act. Paragraph 245ZF of the Immigration Rules is headed requirements for leave to remain. It identifies the requirements that the migrant must meet if his application is to succeed. Sub paragraph (e) provides that an applicant for leave to remain must have a minimum of 50 points under paragraphs 59 to 84 of Appendix A. Paragraph 59 states that an applicant must score 50 points for attributes. Para 82 of Appendix A provides: No points will be awarded for sponsorship unless: (a) (i) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agencys list of Skilled occupations. (b) .the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a)(i) It is to the relevant Codes of Practice that one must go to find what these requirements are. Para 82 is not expressed in the language of guidance, unless the word guidance is used to mean no more than that the statements provide information to sponsors as to what they have to do. Rather, it is expressed in mandatory terms: unless the requirements are met, the applicant will be awarded no points and his application will be refused. I would, therefore, hold that the statement in the first box in SOC 3221 that a physiotherapy assistant is below NVQ/SVQ level 3 is not guidance. Read in conjunction with para 82(a)(i) of Appendix A, it is an unequivocal statement that a migrant who seeks leave to enter or remain for the purposes of employment as a physiotherapy assistant will be awarded no points and, on that account, his application will be refused. Similarly, para 82(b) of Appendix A states explicitly that no points will be awarded unless the salary that the certificate of sponsorship states that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations. The appropriate rate is the minimum salary set out in SOC 3221. I agree with Lord Hope (paras 59 to 61) that both of these requirements are rules within the meaning of section 3(2) of the 1971 Act. But Lord Hope says at para 58 that information as to where to look to assess the state of the resident market is guidance and not a rule within the meaning of section 3(2). He says that it tells the sponsor what procedure he should follow, and the kind of evidence he should examine, in order to fulfil his duties as sponsor to test the resident labour market in cases where that test must be satisfied. But he accepts that the requirement to test the resident labour market is a rule as is the requirement that the sponsor should give details of where and when the post was advertised. Nevertheless, he says, changes in the list of newspapers, journals and websites are not changes in the rules. I respectfully disagree. As Lord Hope says (para 14), the requirement to meet the resident labour market test does not apply to Mr Alvi. That is because he had previously been granted leave to remain as a qualifying work permit holder and was therefore subject to Table 11 in Appendix A. What Lord Hope says at para 58 is, however, applicable to migrants who are subject to Table 10. Para 63 of Appendix A provides in order to obtain points under any category in the Sponsorship column, the applicant will need to provide a valid Certificate of Sponsorship reference number for sponsorship in the sub category of Tier 2 under which he is applying. Para 71 provides in order for the applicant to be awarded points for a job offer that passes the resident labour market test, the Certificate of Sponsorship Checking Service entry must indicate that the Sponsor has met the requirements of that test, as defined in guidance published by the United Kingdom Border Agency, in respect of the job. Thus, in order to obtain any points at all, an applicant who is subject to Table 10 must provide a valid certificate of sponsorship; and the certificate must indicate that the sponsor has met the requirements of the resident labour market test as defined in the published guidance. This understanding is supported by the statement in the Codes of Practice (issued on 17 September 2008) under the heading Occupation codes of practice under the skilled migrant tier: Before you can sponsor a skilled migrant, you need to check that the job you are sponsoring them to do meets the requirements of the skilled migrant tier: The job must be skilled at N/SVQ level 3 or above; The job must be paid at the appropriate rate or above; You must normally have carried out a resident labour market test for the job before sponsoring a skilled migrant. This section contains codes of practice for every occupation. The codes of practice give information on skill levels and appropriate rates, and advise on where to advertise the job. This is so that you can check that the job meets these requirements. If the job does not meet these requirements you cannot issue a certificate of sponsorship. (emphasis added). In my view, it follows that any migrant to whom Table 10 applies must meet the requirements of the resident labour market test as a condition of being granted leave to enter or remain on an application of the test that I have suggested at 94 above. This means that these requirements are rules within the meaning of section 3(2) and any changes in the requirements are changes in the rules. Since the requirements include advertising the post in the specified newspapers, journals and websites, it must follow that any changes in these requirements are changes in the rules. In other words, I agree with Lord Hope that a failure to give details of whether and when the post was advertised will lead to the refusal of the application because the rule has not been satisfied (emphasis added). This is a straightforward application of the test that I have suggested. The inevitable consequence of this is that any changes in the requirements as to the newspapers, journals and websites in which a post must be advertised is a change in the rules. The present case Lord Hope has set out the relevant part of the refusal letter at para 3 above. The ground of refusal was that the Code of Practice, at the time of Mr Alvis application, stated that his job role as a physiotherapy assistant was below the NVQ/SVQ level 3. For that reason, he had not been awarded any points. In the Court of Appeal, Jackson LJ said at para 40 that the governing principle is that all jobs which qualify under section Q are at or above NVQ or SVQ level 3. This governing principle was, therefore, a rule within the meaning of section 3(2). For the reasons that I have given, I would dismiss this appeal on the grounds that the rules should have specified that a physiotherapy assistant was below NVQ/SVQ level 3 and they did not do so. LORD WALKER Disposal of the appeal This is an important and difficult case touching on matters of deep and widespread public concern. I am grateful to Lord Hope and Lord Dyson for the close analysis and insights in their judgments. On the central points in the case, on which Lord Hope and Lord Dyson agree, I respectfully concur and have little to add. I also agree with Lord Hopes observations (paras 26 to 33) on the subject of the prerogative. Lord Hope and Lord Dyson differ on the issue of the resident labour market test. On that issue I prefer to express no opinion. I regard it as close to the borderline, and it is not necessary to the disposal of the appeal. For my part I hope that Parliament may soon have the opportunity of considering whether the simple terms of section 3(2) of the Immigration Act 1971 are still adequate, 40 years on, to cope with the problems of immigration control as they are today. I would therefore dismiss the appeal. I wish to add a few general observations. They are not intended to cut down or qualify my agreement with Lord Hope and Lord Dyson on the central points on which they agree. Flexibility or predictability? This appeal is an unusually stark illustration of the tension, in public law decision making, between flexibility in the decision making process and predictability of its outcome. Both are desirable objectives. But the more there is of one, the less room there is for the other, and getting the balance right is often difficult. In recent decades there has been a marked tendency of government to favour predictability over flexibility. The points based system for controlling immigration for purposes of employment is a paradigm example. Other examples that come to mind are the statutory rules as to child tax credit, recently considered by this Court in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18 [2012] 1WLR 1545 and the old system of child support, considered by the House of Lords in Smith v Smith [2006] UKHL 35 [2006] 1 WLR 2024. As Lord Hope says in his judgment (para 42), there is much in this tendency that is to be commended. The pressure under which the system of immigration control now operates makes it desirable that outcomes of decision making should be as predictable as possible, and the need for detailed consideration of individual cases reduced. But this comes at a considerable price in terms of rigidity and complexity. Had Parliament foreseen this development, it might well have required the immigration rules to set out (a possibility to which Lord Dyson refers in para 87 of his judgment) only the principal rules or the governing principles, with more detailed rules and guidance to be promulgated in some other way, without the need for their being laid before Parliament. But as it is such limited clues as section 3(2) gives tend to point the other way. Rules, guidance and evidence I do not find it particularly helpful to engage on the exercise of construing the word rules in section 3(2). That there is a difference in the general sense conveyed by rules (on the one hand) and guidance (on the other hand) is obvious. The general sense of rules is prescriptive and mandatory; that of guidance more open textured and advisory. But there is no clear dividing line between them. Lawyers and judges are very familiar with rules of all sorts immigration rules, prison rules, civil procedure rules, insolvency rules, to mention but a few. Such rules may provide for the exercise of discretion, either generally or in exceptional cases. They may contain mandatory or non mandatory procedural requirements or recommendations. The inclusion of non mandatory or advisory material cannot affect the validity of rules, although it may make them longer (and, possibly, less clear, in that the reader may have to work out whether some provision is mandatory or not). But the omission of a mandatory provision that is, a condition which an applicant must satisfy if the application is to succeed would be a serious defect. In this case, as we all agree, the immigration rules laid before Parliament should have specified (as they now do) that the position of physiotherapy assistant was below the level of NVQ/SBQ3 and so was not regarded as a skilled job. Sedley LJ (in Pankina v Secretary of State for the Home Department [2011] QB 376) and Singh J (in R(Abdullah Bashir Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin)) have drawn a distinction between (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules and (ii) the means of proving such eligibility (Singh J in Ahmed, para 41, paraphrasing Sedley LJ in Pankina, para 6). That distinction can easily be recognised in much earlier versions of the immigration rules. To take a random example, the original Statement of Immigration Rules for Control after Entry (EEC and other non Commonwealth Nationals) laid before Parliament on 25 January 1973 has three successive paragraphs which repeatedly refer to matters on which evidence is required. Para 19 (businessmen and self employed persons) provides that persons admitted as visitors may apply to set up in business: Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicants part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Para 20 provides for the position of someone such as a writer or artist who may be granted an extension of stay if the applicant can produce satisfactory evidence that he is [without taking work for which a permit is necessary] supporting himself and his dependents. Para 21 provides for a woman entering the United Kingdom for early marriage to a man settled here. If the marriage does not take place within three months an extension of stay is to be granted only if good cause is shown for the delay and there is satisfactory evidence that the marriage will take place at an early date. When the immigration rules were in that form it would have been perfectly lawful, and of practical utility, for the Secretary of State to have issued guidance as to the sort of evidence which would normally be regarded as adequate. But the new points based system is aimed at eliminating any need or possibility of further evidence being produced in support of an application. In this area at least, the aim is for the decision making process to involve as little discretion or judgment as possible. In consequence the distinction between substantive requirements and evidence becomes largely irrelevant, as Lord Dyson illustrates (paras 89 92). It might be possible to imagine a system of immigration control with the same underlying policy as the present points based system, but with the essential elements expressed in general terms of one or more of job skills; (i) (ii) appropriate rate for the job; (ii) (iv) shortage occupations; and resident labour market test, underpinned by non mandatory guidance as to the evidence to satisfy the requirements promulgated in a form which was not part of the immigration rules and was not laid before Parliament. That would amount to the means of proving such eligibility that is, meeting a requirement expressed in general terms. Such a system could have the advantage of providing flexibility in relation to variations in the employment market as between different industries and different regions. But it would be less easy to administer and less predictable in its decision making. At present the position is that these four general requirements (or such of them as are relevant in a particular case) are to be conclusively determined by a detailed code which has not been laid before Parliament, and which the Secretary of State can and does change from time to time as she thinks fit. For that reason the appeal must be dismissed. LORD CLARKE I agree that this appeal should be dismissed. The question is what is meant in section 3(2) of the 1971 Act by the expression rules, laid down by [the Secretary of State] as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of relevant persons. I agree with Lord Hope and Lord Dyson that in this context a rule is something different from guidance but the question remains what is a rule. A statement which is referred to as guidance may be a rule within the meaning of section 3(2). It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result. I agree with Lord Dysons views expressed at paras 84 to 92 that none of the tests so far suggested in the cases is of any real assistance. In particular, the distinction between (i) substantive criteria and (ii) the evidential means by which those criteria are met is not a satisfactory basis for deciding what is and what is not a rule within the meaning of section 3(2). Lord Dyson uses different language in paras 94 and 97 to identify what is meant by a rule. In para 94 he says that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or remain, as well as any provision as to the period for which leave is to be given and the conditions to be attached in different circumstances. At paragraph 97 he summarises the test of a rule as including all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain. As I see it, there is no distinction between those two formulations of the principle. In my view this is a principled, clear and workable approach. The touchstone is criticality: if a change in practice has the potential to determine the outcome of any application for leave to enter or remain then it must be laid before Parliament. Section 3(2) was designed to ensure effective Parliamentary oversight of the Secretary of States power to promulgate rules regulating the power to grant leave to enter and leave to remain. Lord Dysons approach accords with that aim. I entirely agree with Lord Dysons analysis in paras 99 to 106 under the heading Guidance and rules. In para 102 he expressly agrees with Lord Hope (at paras 59 to 61), for essentially the same reasons, that the list of minimum salaries set out in the Codes of Practice and the statements that the job must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level are rules within the meaning of section 3(2) of the Act. It follows that I agree that the appeal must be dismissed. However, Lord Hope and Lord Dyson do not agree that the requirements of the resident market test are rules: cf Lord Hope in paras 57 and 58 and Lord Dyson in paras 103 to 106. I respectfully prefer the views of Lord Dyson to those of Lord Hope. In particular, I agree with Lord Dysons conclusions in para 106: (a) that any migrant to whom Table 10 applies must meet the requirements of the resident labour market test as a condition of being granted leave to enter or remain, (b) that those requirements include advertising the post in the specified newspapers, journals and websites, (c) that, as Lord Hope puts it at para 58, a failure to give details of whether and when the post was advertised will lead to the refusal of the application and (d) that it follows that a straightforward application of the criticality test leads to the conclusion that a change in the requirements as to the newspapers, journals and websites in which a post must be advertised is a change in the rules and must be laid before Parliament under section 3(2). Finally, I agree with the conclusions and reasoning to the same effect set out by Lord Wilson at para 130. I would only add that it was not suggested that a case involving the requirements of the resident labour market test is analogous to a case where the rules provide for changes to be made from time to time by reference to the use of a published index, such as RPI or CPI, which is independently produced and does not depend upon an assessment by the UKBA or the Secretary of State. If the initial rules which were laid before Parliament provided for alterations by reference to such an index, there would be no problem. That is not because of the size or extent of the alteration but because an ambulatory rule in such a form would have been approved (or at least not objected to) by Parliament and any subsequent alteration could be objectively ascertained by a reference to the index and would not be a change of rule made by the Secretary of State. LORD WILSON Under English law a rule can mean both a legal requirement and a particular instrument in which a legal requirement may be cast. In the crucial section 3(2) of the 1971 Act the word is used in the former sense. The early reference to statements of the rules makes it clear: the phrase would be tautological if the word rules was used in the latter sense. In my view there is an unintended error on the part of the Queens Printer in the punctuation of the crucial subsection. Its correction does not assist resolution of the task before the court but perhaps it remains worthwhile to point it out. As printed, the subsection provides that the Secretary of State shall from time to time. lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to. But the requirement to lay before Parliament statements of the rules . laid down by him makes no sense. The comma after the phrase changes in the rules is in the wrong place. But, if it is moved down the sentence so that, instead, it follows the word him, the provision makes perfect sense: the Secretary of State is then required to lay before Parliament statements of the rules, or of any changes in the rules laid down by him, as to. Without enthusiasm I have become convinced by the reasoning of Lord Hope at para 57 and of Lord Dyson at para 97, endorsed by Lord Walker at para 109 and by Lord Clarke at para 122, that the rules to be laid pursuant to the subsection are, in the words of Lord Dyson at para 97, all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain. Such is, as My Lords have well demonstrated, the only principled conclusion. My lack of enthusiasm is born only of concern at the breadth of the duty thus imposed not only upon the Secretary of State in the light of the astonishingly prescriptive system which she has chosen to introduce but also, and in particular, upon Parliament in attempting to decide, within only 40 days, whether to disapprove a rule or (as Lord Hope helpfully explains at para 35) at least to require the Secretary of State to come and discuss it. I write this judgment only because of a minor difference of opinion between, on the one hand, Lord Hope at para 58 and, on the other hand, Lord Dyson at paras 104 to 106 and Lord Clarke at para 125, in respect of which Lord Walker, at para 109, prefers not to express an opinion. The difference relates to some of the material, presently included by the Secretary of State only in codes of practice and other guidance, in relation to the resident labour market test. It has nothing to do with the facts of the case. But, since I have arrived at the view again without enthusiasm and for the same reasons that Lord Dyson and Lord Clarke are correct, I consider that I should say so: a majority view of this court on this point will not be binding because it will not form any part of the basis of the decision but in practice it might persuade the Secretary of State of a courts likely reaction to any contrary stance. (a) Everyone who is not an EEA national can apply for a visa to enter or remain in the UK on the footing that he will be in skilled employment. (b) To obtain such a visa he is required to score a minimum number of points. (c) His prospective employer must be a licensed sponsor. (d) Once a licensed sponsor has issued to him a certificate of sponsorship, identified by a reference number, the applicant can apply for a visa. (e) By reference to the certificate of sponsorship, and to a checking service entry relating to the certificate which the sponsor will have made for her benefit on line, the Secretary of State calculates whether the applicant has scored the requisite number of points. (f) Many applicants for leave to enter or remain as a Tier 2 (General) Migrant are required to score points on the basis that the proposed employment passes the resident labour market test, i.e. that the sponsor has made a genuine attempt to fill the vacancy with a settled worker. (g) The sponsors checking service entry must indicate that the sponsor has met the requirements of that test, as defined in guidance published by UKBA in respect of the job: para 78A of Appendix A to the rules currently in force. If either the sponsor or the applicant fails to satisfy a requirement set out in UKBA guidance and referred to in the rules, the applicant fails to meet the related requirement in the rules: Rule 245A(c). (h) (i) Paragraph 278 of the Guidance for Sponsors in relation to Tiers 2 and 5 of the Points Based System, effective from 6 April 2012, states: You must have advertised the vacancy as set out in this guidance and in the code of practice specific to the type of job. This includes mandatory advertising in Jobcentre Plus . for jobs under Tier 2 (General), plus one other advertising method permitted by the relevant code of practice. (j) Paragraph 280 states that the advertisements must remain for 28 days and paragraph 282 confirms that the use of one of the permissible methods of advertising other than at the Jobcentre is mandatory. (k) The relevant code of practice for, let us say, a physiotherapist shows that the other mandatory method of advertising must either be in a national newspaper or in one or other of two specified professional journals or on one of 16 specified websites: Skilled Occupation Code 3221. I am driven to the conclusion that a failure to place the other advertisement in one of the locations specified from time to time in the guidance will lead to the failure to pass the resident labour market test; and that in this respect the guidance is therefore identifying a rule which must be laid before Parliament under the subsection. |
This is an appeal brought by three companies, MVF 3 APS (formerly known as Vestergaard Frandsen A/S), Vestergaard Frandsen SA, and Disease Control Textiles SA, which are effectively in common ownership, and can conveniently be referred to compendiously as Vestergaard. Their appeal is against the Court of Appeals reversal of a decision by Arnold J that Mrs Trine Sig was liable to Vestergaard for misuse of their trade secrets after she ceased her employment with them. The basic factual background A major aspect of Vestergaards business is the development, manufacture and marketing of insecticidal bednets, whose purpose is to prevent the sleeper from being bitten by mosquitos, and also to reduce the mosquito population. An important challenge of the relevant technology is to find ways of ensuring that such bednets retain their insecticidal activity over a long period of time, despite vicissitudes such as repeated washing. To that end, Vestergaard developed techniques (which I shall call the techniques) which enabled them to manufacture and sell long lasting insecticidal nets, known as LLINs. The techniques involved incorporating insecticide and other additives into molten polyethylene, before it is extruded into filaments, which are then knitted to form LLINs. Mrs Sig was employed by Vestergaard from late 2000, initially as a sales and marketing assistant, and later as a regional sales manager for Europe and Latin America. By clause 8 of her employment contract, she agreed to: keep absolutely confidential all information relating to the employment and any knowledge gained in the course of the employment and which inherently should not be disclosed to any third party. The absolute duty of confidentiality also applies after [Mrs Sig] has terminated the employment . Mr Larsen, a chemical engineer, was employed by Vestergaard in November 2000 as head of production. His employment contract included provisions (i) preventing him from competing with Vestergaard for a period of one year after his employment ceased, and (ii) requiring him to respect the confidentiality of Vestergaards trade secrets. Dr Skovmand, a consultant biologist specialising in insect control, started working as a consultant for Vestergaard in 1998 until some time in 2005. He had no formal service contract. During the time he worked for Vestergaard, Dr Skovmand played a major role in developing the techniques. In particular, he helped to identify a way of preventing the insecticide from being lost during the extrusion of the polyethylene. At the beginning of 2004, he was seeking to prevent the loss of insecticide by evaporation caused by the high temperature of the polyethylene during manufacturing. The information concerning the techniques was contained in a so called Fence database maintained by Vestergaard. In the spring of 2004, Mr Larsen and Mrs Sig decided to start a new business manufacturing and selling LLINs in competition with Vestergaard. They discussed this with Dr Skovmand, who agreed to work with them, on the basis that he would have a financial interest in the new business. Accordingly, Mrs Sig resigned from her job with immediate effect in June 2004, and Mr Larsen did so a month later, and his employment ceased at the end of August 2004. By this time, the new business had already been under way for some five months, because in early April 2004 Dr Skovmand set about developing a new LLIN for Mr Larsen and Mrs Sig, using a polyester base. About a month later, Dr Skovmand informed them that he would be able to develop a LLIN more quickly if he used polyethylene rather than polyester. Mrs Sig instructed him to proceed on this basis, because he told her that a polyethylene based LLIN, which was in due course manufactured and called Netprotect, could be placed on the market by the end of 2004. In early August 2004, Mr Larsen and Mrs Sig formed a Danish company (Intection), with Mrs Sig as the sole director, for the purpose of developing, manufacturing and marketing the Netprotect product. The following month, Mrs Sig and Mr Larsen went to India with a view to finding prospective manufacturers for the product. In their discussions with the prospective manufacturers, they stipulated that any agreement with Intection would contain confidentiality provisions in relation to the details of the manufacturing of the product. Meanwhile, with the assistance of Mr Larsen, Dr Skovmand was organising the testing of Netprotect products, and those tests proved sufficiently successful for Intection to arrange a launch for October 2005. Vestergaard learned of this, and sought to stop the testing and future marketing of the new product. They issued proceedings in Denmark against Intection, and, by an amendment to those proceedings made in June 2005, they alleged breach of their trade secrets. In October 2005, the day before the proceedings were due to be heard, Mrs Sig resigned as a director of Intection, which then ceased to trade. A new English company, Bestnet Europe Ltd (Bestnet), was immediately formed, with Mrs Sig as the sole director, and her father, another investor, and Dr Skovmand, as the main shareholders. The Judge found that Mr Larsen and Mrs Sig moved the business to England with the express intention of trying to avoid the consequences of the Danish litigation. Mrs Sig and Mr Larsen provided their services to Bestnet through another English company, 3T Europe Ltd (3T), whereas Dr Skovmand worked directly for Bestnet in connection with the testing, development, and projected manufacturing and marketing of Netprotect. His work was successful, and Netprotect LLINs were, from some time in 2006, manufactured for and marketed by Bestnet. The procedural history In early 2007, Vestergaard began the present proceedings seeking damages and other relief for misuse of their confidential information, against Bestnet, 3T, Mr Larsen, and Mrs Sig (and two other companies which need no further mention). Following a 16 day hearing, Arnold J gave a judgment on 3 April 2009, in which he had to deal with a large number of issues of fact, expert evidence and law [2009] EWHC 657 (Ch). Of particular relevance for present purposes, the Judge made the following findings: (i) Dr Skovmand was under a duty to Vestergaard not to use any confidential information which he had acquired in the course of his consultancy work for Vestergaard; (iii) The contents of the Fence database constituted confidential information, namely trade secrets, owned by Vestergaard; (iv) Dr Skovmand knew of this confidential information as a result of working for Vestergaard, and he had appreciated at all times that it constituted Vestergaards trade secrets; (iv) Dr Skovmand had used such information about the techniques in the Fence database as a starting point for the development of the Netprotect product; (v) By July 2004 at the latest, Mr Larsen was aware of the fact that Dr Skovmand was using confidential information in the Fence database to develop that product; (vi) While in the employ of Vestergaard, Mrs Sig did not have access to the Fence database, and at no time did she have knowledge of any of the trade secrets which it contained; (vii) Although, by September 2004, Mrs Sig was aware that the Netprotect product was based on trade secrets, she believed that they originated from Dr Skovmands work for Intection (and, subsequently, Bestnet); (viii) By June 2005 Mrs Sig was aware of Vestergaards allegations, the Judge did not reject her evidence that she had not appreciated that the Netprotect product was conceived with the assistance of Vestergaards trade secrets; (ix) At trial, Dr Skovmand and Mr Larsen had put forward an untrue account of the development of Netprotect, including the production of forged documents, but there was no suggestion that Mrs Sig was involved in that. Unsurprisingly in the light of these findings, the Judge found that Dr Skovmand was liable in breach of confidence to Vestergaard (although there was no question of a judgment against Dr Skovmand, as he was not a party to the proceedings). The Judge then stated at [2009] EWHC 657 (Ch), para 625, that, if Dr Skovmand had committed an actionable breach of confidence, it was not dispute[d] that Mr Larsen, Mrs Sig, Bestnet [and] 3T were also liable on one basis or another. Counsel for Mrs Sig then challenged the proposition that she did not dispute liability, and the Judge reconsidered her liability at a further hearing concerned with remedies. Following that hearing, the Judge gave a second judgment on 26 June 2009, [2009] EWHC 1456 (Ch), in which he said this: 23. Mrs Sig was subject to an express obligation of confidentiality contained in clause 8 of her contract of employment. This obligation explicitly continued after termination of her employment. After termination, however, the obligation is only enforceable in so far as it prevents Mrs Sig from misusing [Vestergaard]s trade secrets. In the absence of an express term, Mrs Sig would be subject to an implied term to that effect. Although Mrs Sig was not personally involved in devising the initial Netprotect recipes or carrying out the trials, she was closely involved in setting up Bestnet and in the commercial side of the development of Netprotect. In my judgment, this is sufficient to render her liable for breach of her own obligation of confidence. 24. Counsel submitted that Mrs Sig could not be liable for breach of confidence absent a finding that she knew that the initial Netprotect recipes were derived from the Fence database. I do not agree. A person can be liable for breach of confidence even if he is not conscious of the fact that what he is doing amounts to misuse of confidential information: see Seager v Copydex Ltd [1967] 1 WLR 923. I would agree that a person who is not otherwise subject to an obligation of confidence (eg by contract) will not come under an equitable obligation of confidence purely as a result of the receipt of confidential information unless and until he or she has notice (objectively assessed by reference to a reasonable person standing in the shoes of the recipient) that the information is confidential; but that is a different point. A number of the aspects of the two judgments were appealed by the defendants to the Court of Appeal, which, in a judgment given by Jacob LJ (with which Jackson LJ and Sir John Chadwick agreed), upheld Arnold J on all points, save one. That point was the Judges conclusion that Mrs Sig was liable in breach of confidence [2011] EWCA Civ 424, paras 44 50. Jacob LJ said that Seager [1967] 1 WLR 923 was distinguishable because there the defendants were actually using the information which had been imparted to them, albeit they were doing so unconsciously. That is not so in the case of Mrs Sig. In the following paragraph, he said that he did not consider that there can be an implied term imposing strict liability. There is no business reason to imply a term of that harsh extent. All the principles of implication of a term into a contract (which I do not set out here they are too well known) militate against it. Vestergaard now appeal to this Court. Breach of confidence: preliminary observations Vestergaards contention that Mrs Sig is liable for breach of confidence is, as I understand it, put on three different bases. First, she is said to be liable under her employment contract, either pursuant to the express terms of clause 8 or pursuant to an implied term. Secondly, she is said to be liable on the basis that she was party to a common design, namely the design, manufacture and marketing of Netprotect, which involved Vestergaards trade secrets being misused. Thirdly, she is said to be liable for being party to the breach of confidence, as she had worked for Vestergaard, and then formed and worked for the companies which were responsible for the design, manufacture and marketing of Netprotect. In my opinion, each of these three arguments must fail because of the combination of two crucial facts. The first is that Mrs Sig did not herself ever acquire the confidential information in question, whether during the time of her employment with Vestergaard or afterwards. The second crucial fact is that, until some point during the currency of these proceedings (possibly not until Arnold J gave his first judgment), Mrs Sig was unaware that the Netprotect product had been developed using Vestergaards trade secrets. It would seem surprising if Mrs Sig could be liable for breaching Vestergaards rights of confidence through the misuse of its trade secrets, given that she did not know (i) the identity of those secrets, and (ii) that they were being, or had been, used, let alone misused. The absence of such knowledge would appear to preclude liability, at least without the existence of special facts. After all, an action in breach of confidence is based ultimately on conscience. As Megarry J said in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 46, [t]he equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust. The classic case of breach of confidence involves the claimants confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential see eg per Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. Thus, in order for the conscience of the recipient to be affected, she must have agreed, or must know, that the information is confidential. The decision in Seager v Copydex Ltd [1967] 1 WLR 923, on which Arnold J relied, was an entirely orthodox application of this approach. The plaintiff passed on to the defendants a trade secret about his new design of carpet grip, and although the defendants realised that the secret was imparted in confidence, they went on to use that information to design a new form of carpet grip, which they marketed. What rendered the case unusual was that the defendants (i) did not realise that they had used the information, as they had done so unconsciously, and (ii) believed that the law solely precluded them from infringing the plaintiffs patent. However, neither of those facts enabled them to avoid liability, as, once it was found that they had received the information in confidence, their state of mind when using the information was irrelevant to the question of whether they had abused the confidence. Liability for breach of confidence is not, of course, limited to such classic cases. Thus, depending on the other facts of the case, a defendant who learns of a trade secret in circumstances where she reasonably does not appreciate that it is confidential, may nonetheless be liable to respect its confidentiality from the moment she is told, or otherwise appreciates, that it is in fact confidential. From that moment, it can be said that her conscience is affected in a way which should be recognised by equity. Further, while a recipient of confidential information may be said to be primarily liable in a case of its misuse, a person who assists her in the misuse can be liable, in a secondary sense. However, as I see it, consistently with the approach of equity in this area, she would normally have to know that the recipient was abusing confidential information. Knowledge in this context would of course not be limited to her actual knowledge, and it would include what is sometimes called blind eye knowledge. The best analysis of what that involves is to be found in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, especially at pp 390F 391D, where Lord Nicholls approved the notion of commercially unacceptable conduct in the particular context involved, and suggested that [a]cting in reckless disregard of others rights or possible rights can be a tell tale sign of dishonesty. Further, even a person who did not know that the information which is being abused is confidential could nonetheless be liable if there were relevant additional facts. Thus, if a person who directly misuses a claimants trade secret does so in the course of her employment by a third party, then the third party could (at least arguably) be liable to the claimant for the breach of confidence. However, I turn, then, to consider the three grounds upon which it is said that, despite that would simply involve the application of one well established legal principle, vicarious liability, to another, misuse of confidential information. In this case, subject to considering Vestergaards arguments in a little more detail, the position would seem to me to be as follows. First, unless her employment contract with Vestergaard imposed such a liability, Mrs Sig could not be primarily liable for misuse of confidential information, because she received no confidential information, or at least no relevant confidential information. Secondly, subject to the same qualification, she could not be secondarily liable for such misuse, as she did not know that Dr Skovmand was using, or had used, Vestergaards confidential information in order to develop the Netprotect product. Thirdly, it was not contended that Mrs Sig could be vicariously liable for any misuse of Vestergaards confidential information by Dr Skovmand (perhaps unsurprisingly, as it would seem that Dr Skovmand worked for Intection and then Bestnet, as did Mrs Sig, either as director, or through 3T). these points, Mrs Sig is liable to Vestergaard. The first ground: the terms of Mrs Sigs contract The express provisions of clause 8 of her employment contract are of no assistance to Vestergaards case. The confidential information wrongly used by Dr Skovmand to develop the Netprotect product was plainly neither information relating to [her] employment nor knowledge gained in the course of [her] employment. It was knowledge gained by Dr Skovmand in the course of his consultancy work for Vestergaard. It is not seriously arguable that a term can properly be implied into Mrs Sigs employment contract to the effect that she would not assist another person to abuse trade secrets owned by Vestergaard, in circumstances where she did not know the trade secrets and was unaware that they were being misused. To impose such a strict liability on Mrs Sig appears to me to be wrong in principle as it is (i) inconsistent with the imposition of the more limited express terms of clause 8, (ii) unnecessary in order to give the employment contract commercial effect, and (iii) almost penal in nature, and thus incapable of satisfying either of the well established tests of obviousness and reasonableness. The second ground: common design I turn, then, to the second, and most strongly advanced, ground upon which Vestergaards case rests, namely that Mrs Sig was liable for breach of confidence on the basis of common design. This argument proceeds on the basis that Dr Skovmand, Mr Larsen and Mrs Sig all worked together to design, manufacture and market Netprotect products, and as these products were designed by Dr Skovmand in a way which involved his wrongfully misusing Vestergaards trade secrets so as to render him liable for breach of confidence, Mrs Sig and Mr Larsen are liable together with him. I accept that common design can, in principle, be invoked against a defendant in a claim based on misuse of confidential information; I am also prepared to assume that, in the light of the findings made by the Judge, Mr Larsen was liable on that ground (as he knew that Dr Skovmand was misusing, and had used, Vestergaards trade secrets when designing Netprotect). However, I cannot see how Mrs Sig could be so liable, in the light of her state of mind as summarised in para 22 above. As Lord Sumption pointed out in argument, in order for a defendant to be party to a common design, she must share with the other party, or parties, to the design, each of the features of the design which make it wrongful. If, and only if, all those features are shared, the fact that some parties to the common design did only some of the relevant acts, while others did only some other relevant acts, will not stop them all from being jointly liable. In this case, Mrs Sig neither had the trade secrets nor knew that they were being misused, and therefore she did not share one of the features of the design which rendered it wrongful, namely the necessary state of knowledge or state of mind. Accordingly, although she was party to the activities which may have rendered other parties liable for misuse of confidential information, she cannot be liable under common design. A driver of the motor car who transports a person to and from a bank to enable him to rob it, would be liable in tort for the robbery under common design or some similar principle, but only if she knew that her passenger intended to rob, or had robbed, the bank. So, in this case, given the ingredients of the wrong of misuse of confidential information, and given that she never had any relevant confidential information, Mrs Sig cannot be held liable in common design for exploiting with others, on behalf of Intection and then Bestnet, a product which, unknown to her, was being and had been developed through the wrongful use of Vestergaards trade secrets. We were taken to two decisions, which, it was suggested, are inconsistent with that conclusion. The first is Unilever Plc v Gillette (UK) Ltd [1989] RPC 583, 609, where Mustill LJ said that, in order to show that a defendant was secondarily liable for infringement of a patent, there [was no] need for a common design to infringe, as it was enough if the parties combine to secure the doing of acts which in the event prove to be infringements. I do not doubt the correctness of that statement, but it has no application here. Patent infringement is a wrong of strict liability: it requires no knowledge or intention on the part of the alleged infringer, whose state of mind is wholly irrelevant to the issue of whether she infringes the patent. Thus, the fact that the alleged infringer did not know of the existence, contents or effect of the patent is completely irrelevant to the question of infringement, even if she had thought the invention up for herself. Accordingly, it is entirely logical that a person who, while wholly innocent of the existence, contents or effect of the patent, is nonetheless secondarily liable if she assists the primary infringer in her patent infringing acts. It cannot possibly follow that the same approach is appropriate in a case for a person who assists the primary misuser of trade secrets, given that it is necessary to establish the latters knowledge and/or state of mind (as explained in paras 22 25 above) before she can be liable for the misuse. The second case relied on by Vestergaard is Lancashire Fires Ltd v S A Lyons & Co Ltd [1996] FSR 629. In that case, an injunction to restrain the misuse of the plaintiffs confidential information was granted against a Ms Magnall on the ground she had had a common design with [another] to manufacture [certain products] and the process used was found to be confidential to the plaintiff p 677. It appears that, while she had been aware of the nature of the process, Ms Magnall had not been aware of the fact that the manufacture of those products involved a process which had been wrongly developed with the benefit of the plaintiffs trade secrets. Sir Thomas Bingham MR said at p 677, that it was just that Susan Magnall should be precluded from disclosing the information to others and therefore granted an injunction against her. As already explained in para 25 above, I have no difficulty with the idea that a person who receives and uses confidential information, but does not appreciate that it is confidential, can be liable for using that information once she appreciates that it is indeed confidential. Accordingly, in this case, the grant of an injunction against Mrs Sig, if she was threatening to use or pass on Vestergaards trade secrets, might well be justified, once it could be shown that she appreciated, or, perhaps, ought to have appreciated, that they were confidential to Vestergaard. However, I do not see how that can entitle Vestergaard to damages from Mrs Sig in respect of losses suffered from misuse of their trade secrets at a time when Mrs Sig was honestly unaware of the fact that there had been any misuse of their trade secrets. I note that in Lancashire, immediately after the short passage I have just quoted, Sir Thomas Bingham MR added that [i]f the plaintiff seeks financial relief against Susan Magnall, we shall need to hear further argument before deciding the point. (I should add that it appears that Lancashire may not have been as fully argued as it might have been in one respect, in that, at least at first instance, it was apparently conceded that the principle in Unilever, as discussed above, applied to confidential information cases, whereas, for the reason I have given in para 37 above, this is wrong.) The third ground: Mrs Sigs unusual position In so far as I understand the third way of putting Vestergaards case, (i) it involves saying that Mrs Sig had blind eye knowledge of the fact that Dr Skovmand was using Vestergaards trade secrets, or (ii) it amounts to contending that Mrs Sig should be liable for misuse of confidential information, as she must have appreciated that she was, to use a well worn metaphor, playing with fire, when she started up the new business with Mr Larsen, employing Dr Skovmand, in 2004. These two alternative ways of presenting Vestergaards third ground are quite close in their import, and in a sense they can both be said to involve an attempt to conflate the first and second grounds, albeit in a somewhat incoherent way. In the end they each must fail, essentially because of findings of fact made (or, in many respects, understandably not made) by the Judge. So far as argument (i) is concerned, it cannot succeed without a finding against Mrs Sig of dishonesty of the sort characterised by Lord Nicholls in Royal Brunei, as discussed in para 26 above. There is no such finding, and it seems to me clear from the conclusions which the Judge did reach, as summarised in para 15 above, that there was no basis for his making any finding of relevant dishonesty on the part of Mrs Sig. As to argument (ii), it is not enough to render a defendant secondarily liable for misuse of trade secrets by another to establish that she took a risk in acting as she did. The fact that she took a risk might often render it easier to hold that she was dishonest, but, by definition, it is not enough on its own. To revert to the metaphor, if one plays with fire, one is more likely to be burnt, but it does not of itself mean that one is burnt. Conclusion Looking at this case a little more broadly, I would add this. Particularly in a modern economy, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets (and other intellectual property rights) and (ii) not unreasonably inhibiting competition in the market place. The importance to the economic prosperity of the country of research and development in the commercial world is self evident, and the protection of intellectual property, including trade secrets, is one of the vital contributions of the law to that end. On the other hand, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers. In my judgment, quite apart from being inconsistent with legal principle for the reasons discussed above, it would be inconsistent with maintaining that balance to hold Mrs Sig liable to Vestergaard for misuse of their confidential information on the facts found by the Judge. Given that she did not learn of any relevant trade secrets owned by Vestergaard when she was employed by them, and did not appreciate that any such secrets were being used by an employee of the company of which she was a founder and director, it would be oppressive to hold Mrs Sig (as opposed to the employee or the company) liable to Vestergaard for breach of confidential information, whether or not she had previously worked for Vestergaard pursuant to a contract containing a standard sort of provision aimed at protecting Vestergaards trade secrets. Accordingly, I would dismiss Vestergaards appeal. |
The respondents to the Lord Advocates appeal in these three cases are Raymond Jude, Michael Hodgson and Josh Birnie. They were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this court in Cadder v HM Advocate [2010] UKSC 43, 2011 SC(UKSC) 13; [2010] 1 WLR 2601. As was the practice at that time, they did not have access to legal advice either before or during their police interviews. In the course of their interviews they said things in reply to questions put to them by the police on which the Crown relied at their trials. They were convicted and sentenced to various periods of imprisonment. They then appealed against these convictions. Their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. Among other grounds of appeal in the High Court of Justiciary the respondents advanced submissions which raised a devolution issue. This was that the leading of evidence of statements which they made during their police interviews was a breach of their rights under articles 6(3)(c) and 6(1) of the European Convention on Human Rights and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. They referred to the decision in Cadder in support of this ground of appeal. For Birnie it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under article 6(1) of the Convention and at common law. The Crowns response to these submissions was that, for various reasons, the principle that was established in Cadder did not apply in these cases. The High Court of Justiciary decided to deal with this response as a preliminary issue, and it was referred to a court of five judges. On 11 May 2011 the Appeal Court (the Lord Justice Clerk (Gill) and Lords Osborne, Eassie, Clarke and Mackay of Drumadoon) repelled the Crowns objections and continued the appeals for hearing on the remaining grounds of appeal: [2011] HCJAC 46, 2011 SLT 722. The Crown was given leave to appeal against that decision to this court under para 13 of Schedule 6 to the Scotland Act 1998. The issues raised by the Crowns response to the devolution issue were as follows: (1) that in the case of each respondent section 118(8) of the Criminal Procedure (Scotland) Act 1995 was an absolute bar to any challenge to the evidence of the police interviews, as objection was not taken at or before the trial to the leading of that evidence; (2) that each of the respondents had waived their right of access to a lawyer when they were interviewed; (3) that by failing to object to the evidence through their respective legal representatives they had waived the right to take the point as a ground of appeal; and (4) in Judes case only, that the point had been taken too late as section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place. The Crown did not seek leave to appeal from the Appeal Courts decision in relation to the application of section 118(8) of the 1995 Act. Leave was sought and granted in relation to the issues of waiver and the application to Judes case of section 100(3B) of the Scotland Act. In his written case to this court the Lord Advocate made it clear that he did not intend to pursue the point that the respondents had waived their right to object to the admissibility of the evidence of the police interviews because their legal representatives did not object to that evidence at the trial. This was because he accepts that, at the time when the respondents were tried, a person who was detained under section 14 of the 1995 Act did not have an express right in Scots law to legal advice before or during his police interview. As for the issue of individual waiver, his position was that the only point in these appeals which was likely to be of importance for future cases was that raised in the case of Birnie. Unlike the other two respondents Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The advocate depute, Miss Cherry QC, confined her submissions about waiver in these three cases to the question whether Birnie waived his right to a lawyer when he made his unsolicited statement. She made no submissions in support of the proposition that the respondents had waived their right to a lawyer at their police interviews. That issue was however the subject of detailed submissions in the Lord Advocates reference in McGowan (Procurator Fiscal, Edinburgh) v B, which was heard at the same time as these appeals. The court has issued a separate judgment in that case: [2011] UKSC 54. In the result the only matters which remain for consideration in relation to these three appeals are (1) whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal, (2) whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview and (3) whether the reliance by the Crown upon his admissions in these circumstances deprived him of his right to fair trial under article 6(1) of the Convention. No issue now arises in regard to the preliminary points that were taken by the Crown in Hodgsons appeal. Section 100(3B) Jude went to trial in the High Court of Justiciary at Aberdeen on an indictment which libelled one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape. On 5 June 2008 he was convicted of one charge of indecent assault and of both charges of assault with intent to rape. On 28 August 2008 he lodged a notice of his intention to appeal against his conviction. On 17 February 2009 his appeal was deemed to have been abandoned because his note of appeal had not been lodged within the period referred to in section 110(1)(a) of the 1995 Act. On 5 October 2010 he lodged an application for extension of time under section 111(2) of that Act along with a note of appeal. His application for extension of time was granted on 6 October 2010 and his note of appeal was received on the same date. It is plain, and not disputed, that the time bar which would have otherwise have applied under section 110 of the 1995 Act was removed when the Appeal Court decided on 6 October 2010 to grant Judes application for an extension of time under section 111(2). At the end of his judgment in Cadder Lord Rodger drew attention to the provisions of section 100 of the Scotland Act, as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009: 2011 SC(UKSC) 13, paras 104 106. In its amended form, the relevant provisions of that section are as follows: (1) This Act does not enable a person (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights. (3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied. (3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights. (3B) Proceedings to which this subsection applies must be brought before end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (3E) The reference in subsection (3A) to proceedings brought on or after 2 November 2009 includes proceedings relating to an act done before that date. As Lord Rodger observed in para 104 of his judgment in Cadder, the effect of these provisions was not mentioned by any of the counsel who appeared to argue that case in the Supreme Court. Nevertheless he went on to express his opinion on it. He referred in the following paragraph to the fact that the amendment to section 100 was made in response to the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45, [2007] 1 WLR 2734, in which it was held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. Having set out the terms of the section in its amended form, he said that the proceedings in Cadders case were proceedings to which that section applied. So, by reason of section 100(3B), to be competent any such proceedings would need to have been commenced before the end of a year beginning with the date on which the Crown led the evidence, or within such longer period as the court considered equitable having regard to all the circumstances: paras 105 106. I endorsed what he said in those paragraphs in para 60 of my own judgment, when I included appeals that had been brought timeously among the list of cases that would have to be dealt with in the light of Cadder on the basis that a person who was detained must have had access to a lawyer before being questioned by the police. The Crowns attempt to rely on Lord Rodgers analysis in support of its argument that Judes appeal was out of time because the act that was relied on took place more than one year before the lodging of his note of appeal was rejected by the Appeal Court. The Lord Justice Clerk said that he could not follow why Lord Rodger should have taken the view that section 100(3B) applied to these proceedings. In his opinion it applied only to claims made in civil proceedings and then only when they were brought by virtue of the Scotland Act. That was not so in Judes case, as his appeal had been brought under the 1995 Act: 2011 SLT 722, paras 37 38. Lord Rodgers observations in paras 105 106 of Cadder were of course obiter. They must nevertheless be treated with respect. He was, after all, a master of the art of statutory construction. As he declared in one of his unpublished lectures, for him the subject of attention in these matters always was the text of the statute. His hope was that, by immersing himself in the text and the scheme of the legislation, he would be able to see what the experts who had devoted months and months to preparing and adjusting the text saw and, more importantly, what they meant and how it should be applied. His dissenting judgment in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40 provides ample evidence of his concern for accuracy and for attention to the detail of the language used by the draftsmen and women when carrying out this exercise. He brought to the question as to the meaning and effect of section 100(3B) his deep familiarity with the provisions of the Human Rights Act 1998 which he had developed since he first engaged with the subject in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 157 163, and his participation in the carefully argued decision of the House of Lords in Somerville. As Lord Hamilton points out (see para 40, below), he referred to the Somerville case in para 105 of his judgment in Cadder when he was describing the context in which the amendments to section 100 were made. The challenge to the accuracy of his conclusion that section 100(3B) applies to proceedings brought by way of an appeal under the 1995 Act raises two questions. The first is whether, as the Lord Justice Clerk indicated in para 38 of his opinion, that section is rendered inapplicable simply because criminal appeals are brought under the 1995 Act and not under the Scotland Act. The second is whether the wording of the amended section 100 of the Scotland Act itself shows that it has no application to any criminal proceedings, even at the stage of an appeal. I do not think that it is difficult to see why it did not occur to Lord Rodger that the fact criminal appeals are brought under the 1995 Act of itself meant that these appeals lay outside the scope of section 100(3B) of the Scotland Act. He would have concentrated on the wording of the Scotland Act, as I would too. Section 100(3B) refers to proceedings brought by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive. As I said in Somerville, 2008 SC (HL) 45, para 10, anybody who wishes to bring proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on the Convention rights in any proceedings, needs to know whether he must do this under sections 6 to 8 of the Human Rights Act or whether he must do so, or can do so only, on the ground that the act or the failure to act is contrary to the provisions of the Scotland Act. This is so whether the proceedings in question are civil or criminal, as issues about Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise. A criminal appeal in which it is said that the leading and relying on evidence by the Lord Advocate was contrary to the appellants Convention rights, and that in terms of section 57(2) of the Scotland Act he had no power to lead that evidence, falls plainly into the category of a proceeding that is by virtue of the Scotland Act. It is the Scotland Act which provides the basis for the appeal. The fact that the procedure under which the complaint is made is provided by the 1995 Act is neither here nor there so far as this point is concerned. So I think that the key to the soundness or otherwise of Lord Rodgers reasoning lies in the answer that is to be given to the second question. Section 100(3A) of the Scotland Act refers to any proceedings brought on or after 2 November 2009 by virtue of that Act. In para 106 of his judgment Lord Rodger said that the proceedings in Cadder were proceedings brought on the ground that it was incompatible with articles 6(1) and (3)(c) for the Lord Advocate to lead evidence of answers elicited by the police questioning. In my opinion it would not be a misuse of language to use the word brought in relation to proceedings which take the form of an appeal under section 106 of the 1995 Act. After all, section 106(3) of that Act states that by an appeal under subsection (1) of that section a person may bring under review of the High Court any alleged miscarriage of justice in the proceedings in which he was convicted. The word bring is not used in section 175 which provides for appeals in summary proceedings, but the idea that the appellant is bringing appeals under that procedure is not unreasonable. The wording of section 106(3) also suggests that it would not be a misuse of language to say that the appeal was a separate proceeding from the proceedings in which the appellant was convicted. But that is not an end to the problems that have to be solved in order to understand what is meant by the word proceedings in section 100(3A). One must go back to the opening subsection, which Lord Rodger did not mention in para 106 of his judgment in Cadder. It makes the same distinction as that which is to be found in section 7(1) of the Human Rights Act 1998 between (a) bringing proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights and (b) relying on any of the Convention rights in any such proceedings. Section 100(1)(a) of the Scotland Act does not reproduce exactly the wording of section 7(1)(a) of the Human Rights Act, as it does not refer to the appropriate court or tribunal which section 7(2) explains as meaning such court or tribunal as may be determined in accordance with rules. The words in any such proceedings do not reproduce exactly the wording of section 7(1)(b) of the Human Rights Act either, as the equivalent phrase in that Act is in any legal proceedings. But I think that they have the same effect. I read the word such in subsection (1)(b) as referring back to the words in a court or tribunal in subsection (1)(a). The distinction between subsections (1)(a) and (1)(b) of section 7 of the Human Rights Act is maintained by section 7(5) of that Act, which provides expressly that proceedings under subsection (1)(a) must be brought before the end of the period to which it refers. It does not impose any time bar on proceedings of the kind referred to in section 7(1)(b). The question then comes to be whether the reference in section 100(3A) of the Scotland Act to any proceedings brought must be taken to refer to proceedings of the former kind only, and not to proceedings of the kind referred to in section 100(1)(b). It seems to me, although it does not of course say so expressly, that the wording of section 100(3A) shows that it has that effect and that the time bar in section 100(3B) does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings of the kind referred to in subsection (1)(b) are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights. In the case of the proceedings referred to in subsection (1)(a), the person to whom the time bar is applied is the person who has brought those proceedings before the court or tribunal in order to obtain a remedy. It is the civil courts that have jurisdiction in cases of that kind, as the rules to which I referred in R v Kansal (No 2) [2002] 2 AC 69, para 63 make clear in the case of the Human Rights Act. The absence of a time bar on the bringing of proceedings of the kind referred to in section 100(1)(a) of the Scotland Act was the problem that was addressed in Somerville, where it was held that the limitations which section 7(5) of the Human Rights Act imposed on remedies sought under that Act did not apply where the case that was brought was that the act or failure to act was outside competence under the Scotland Act: 2008 SC (HL) 45, para 38. The question then is, into which category do appeals that are brought under the 1995 Act fall for the purposes of the Scotland Act? By whom are these proceedings brought? The Lord Justice Clerk said an appeal is part of the prosecution process brought against the appellant by a member of the Scottish Executive: para 38. There is no doubt that this is a correct description of the proceedings up to and including the trial in which the appellant was convicted. The Advocate Depute, Mr Brodie QC, conceded that this was so, and I think that he was right to make this concession. But that is not an end of the matter. The Lord Advocate is the master of the instance. The proceedings are brought in his name. He remains in control of them even after they have been brought into court, and this is so even after the verdict has been returned: Hume, Commentaries on the Law of Scotland Respecting Crimes, (1844), vol II at p 134; Montgomery v HM Advocate 2001 SC (HL) 1, pp18 19. The focus of attention changes when there is an appeal, but the proceedings remain throughout under the ultimate control of the Lord Advocate. The purpose of those proceedings is to secure the conviction and punishment of those who are guilty of committing acts of the kind that the law regards as criminal. That is their only purpose, and it remains their purpose from the start to the very end. The conclusion that an appeal against conviction or sentence, like any other proceeding in any of the criminal courts in Scotland, is still part of the prosecution process that has been brought in the public interest by the Lord Advocate seems to me to be inescapable. It is only fair to Lord Rodger to point out that he mentioned section 100(3B) because he was concerned, as I was too, to try to minimise the effect of the decision in Cadder: see para 60, where to assist this process I invoked the principle of legal certainty. But I am persuaded that the advice which he was offering in paras 105 106 of his judgment was mistaken. I agree with the Appeal Court that the time bar in section 100(3B) of the Scotland Act has no bearing on Judes appeal. I am fortified in this view by the fact the 1995 Act contains in sections 109 and 110 its own system of time limits for the bringing of solemn appeals, as it does in section 176 for an application by stated case. It would be very odd to find, in a case where the High Court had already granted an extension under section 111(2) of the period referred to in section 110(1)(a) of the 1995 Act or under section 181(1) of that Act in an appeal by stated case, that it was open to the Crown to invoke another time limit under another section in a different Act. It is not easy to identify the precise scope or ambit of the mischief which the amendment that section 100(3B) introduced into the Scotland Act was intended to remedy: see Bennion on Statutory Interpretation, 5th ed (2008), p 929, where the importance of achieving precision on this point is emphasised. The fact that the amendment was enacted in response to the decision in Somerville does not exclude the possibility that the time bar was intended to have a wider application than the facts of that case, by themselves, might suggest. But the concluding words of section 100(3B) show that the draftsman was aware that stricter time limits might be found in legislation relating to the procedure in question and that it was not the intention that it should override those other time limits or decisions made under a dispensing power to extend them. So I think that one can be reasonably confident that the view which I have arrived at by studying the language of these provisions is not contrary to what Parliament had in mind when it introduced this amendment. Birnies unsolicited statement According to the agreed statement of facts and issues, two issues arise in Birnies appeal. The first is whether he was offered rights of access to a solicitor prior to and during the taking of his unsolicited statement after his police interview. The second is whether, if he was offered them, he expressly waived those rights. But an examination of the facts shows that this formulation of the issues does not accurately focus the real point which is at issue on this branch of the case. This is because Birnie was offered access to a solicitor before he made his unsolicited statement and he did decline the offer expressly. It is best focused by the additional ground of appeal that was advanced in his case in the High Court of Justiciary: see para 2, above. The question that it poses is whether reliance by the Crown upon the admissions that he made in his unsolicited statement deprived him of the fair trial to which he was entitled under article 6(1) of the Convention. Reference was also made in that ground of appeal to his right to a fair trial at common law. That, of course, does not raise an issue which can be considered by this court, as it is not a devolution issue. But there is, in practice, no difference between these two bases for invoking the right to a fair trial. Birnie went to trial in the Sheriff Court at Aberdeen on 7 December 2009 charged with abduction and assault with intent to rape, a breach of the peace and a contravention of section 127(1)(a) of the Communications Act 2003 by sending sexually explicit messages to a female complainer. He pled guilty to the statutory offence during the trial, and his plea of not guilty to the charge of breach of the peace was accepted at that stage. The Crown led evidence at his trial of answers he gave to the police while he was being questioned as a detainee under section 14 of the 1995 Act without access to a solicitor. It also led evidence of an unsolicited statement which he made to the police following that interview. The jury found him guilty of the first charge under deletion of various averments including that of intent to rape. The facts which provide the background to the argument in Birnies case are as follows. He was interviewed under caution in a police station on Friday 14 August 2009 between 1034 and 1220 hrs with a break between 1118 and 1206 hrs. At the time of his interview he was 18 years of age. He had been on probation since 2008 in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender. He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003. He had also previously been interviewed by the police as a suspect. As already mentioned in para 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act. Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her. He said that this was consensual. He was asked during his interview what expression he would use to describe touching his girl friends private parts, to which he replied with a question: fit like poking her? When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina. After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him. He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages. After further questioning he was charged with sending indecent messages to that complainer. Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears. At 1223 hrs he asked what was happening to him. He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009. On being advised of this he burst into tears and said spontaneously I poked her. He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied Yes. He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments. At 1235 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf. He gave the name of a solicitor. It was not until about two hours later, at 1428 hrs, that a message was left with the solicitors secretary to advise him of the arrest. Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone. Birnie then told the police that he wished to make a further statement, which he did at about 1345 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the inquiry. Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it. He replied that he did not. He was asked whether he wished a solicitor to be present while he was making it. He again said that he did not. He was then cautioned and asked whether he understood the caution, to which he replied Yeah. He then said: I want to admit poking [AR]. She asked me to do it and we did give each other love bites. He was asked to say what he meant by poking, to which he replied that meant putting your fingers in her vagina. He then said: I never locked her in. I never locked her in her house. I asked her several times if she wanted to leave but she says no. I didnt threaten her in any way. It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both of these offers. The question is whether, on these facts, his statement was admissible. The Crown submits that it was. This is because the statement was severable from the prior police interview on two grounds: first, it was preceded by a valid waiver of the right of access to a solicitor and, second, because it was voluntary and not elicited by police questioning. The Appeal Court did not address its reasoning to these points, although it had been addressed on them in the course of the hearing of the appeal. The Lord Justice Clerk said in para 32 of his opinion that he accepted that the rights of a detainee or of an accused person under article 6 were capable of being waived, but that the argument for the Crown failed in the case of each of the three respondents. This was because the law at the time did not allow the accused to have access to a lawyer at the time of the pre trial procedure and because the consent to be interviewed in each case was not informed by legal advice. He dealt more fully with the latter ground for rejecting the Crowns argument in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision. Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had not reason to think that he had any such right and had not had access to legal advice on the The agreed facts show that Birnie was told that he had this right before he made his unsolicited statement following his police interview. As for the objection that he did not have access to legal advice on the point before he declined the offer of access to a solicitor, I would hold that the answer to it is that there is no absolute rule that the accused must have been given legal advice on question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see my judgment in McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54. Lord Kerr says that it is an indispensible prerequisite that there must be some means of ascertaining the reason why the accused did not avail himself of this right: para 53, below. But it was not suggested at any time in the course of the argument that an absolute rule to that effect is to be found in the jurisprudence of the Strasbourg court nor do I find this in Lord Kerrs analysis of the authorities in McGowan. This point is of crucial importance to the proper exercise of the jurisdiction that has been given to this court by the Scotland Act. The only question for us is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. That is the limit of our jurisdiction. A rule of the kind that Lord Kerr has suggested might perhaps be recognised at common law. But it is not for us to say how the law and practice respecting crimes should be developed by the common law in Scotland. That must be left to the High Court of Justiciary, whose decisions on all matters relating to the domestic criminal law of Scotland are final. The fact that the accused did not receive legal advice on the point and was not asked why he did not want to speak to a lawyer need not be left out of account altogether for the purposes of article 6. These are circumstances which can be taken into account in the assessment as to whether he understood the right that was being waived. But they are no more than that. I do not think that the Strasbourg jurisprudence requires us to hold that it would necessarily be incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on evidence of answers given by a suspect during a police interview just because it was not ascertained why he did not want to speak to a lawyer. A descent to that level of detail in the laying down of incontrovertible rules is contrary to the approach that the court itself has adopted. The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510. The Supreme Court should, I believe, be no less careful in the way that it deals with Scottish criminal law and procedure. There remains the question whether the statement is properly to be regarded as severable from the police interview so that it can be held to be voluntary and not elicited by the previous police questioning. It is not in doubt that an unsolicited admission which is truly spontaneous and voluntary is admissible. In Cadder Lord Rodger observed that it is quite common for those who have been arrested to decide to make admissions to the police and not to exercise their right to obtain legal advice before doing so: 2010 SLT 1125, para 96. A person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. The common law test as to what may be regarded as voluntary was described in Manuel v HM Advocate 1958 JC 41, 48 by Lord Justice General Clyde. He said that, to be voluntary, the statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said. The crucial question then is whether this statement freely given? Or was it the result of some kind of pressure or inducement by the police? We were not referred to any jurisprudence of the Strasbourg court on this precise point. But in Oregon v Elstad 470 US 298 (1985), pp 317 318 Justice OConnor, giving the opinion of the US Supreme Court, observed that some courts had applied that courts precedents, including Miranda v State of Arizona 384 US 436 (1966), relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. She went on to add these words: Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspects initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. In Missouri v Seibert (2004) 542 US 600, where the suspect made an initial confession without having been given a Miranda warning, a majority of the court held that his second statement after a Miranda warning was inadmissible. They rejected the minoritys criticism that this was inconsistent with Elstad, on the ground that the failure to give the warning in Elstad was a good faith mistake which was open to correction by careful warnings before systemic questioning in that particular case took place: p 615. In R v Cherie McGovern (1990) 92 Cr App R 228 the Court of Appeal held that a second interview, where a solicitor was present, was tainted by the fact that at her first interview which took place the previous day the appellant had been denied access to a solicitor. There were special features in that case. The appellant, who was aged 19, pregnant and of limited intelligence, was said to have been particularly vulnerable. Farquharson LJ said at p 234 that if the solicitor who was present at the second interview had known that the appellant had been wrongfully denied access to a solicitor at the first interview he would in all probability not have allowed the second interview to take place. Such authorities as there are on this issue suggest that each case must be examined carefully on its own facts. There are signs in this case, as in R v Cherie McGovern, that Birnie was particularly vulnerable when he made what I have referred to as his statement. It was unsolicited. He was no longer being interviewed. But the interval between his making it and the end of the police interview was very short. He had just been told that he was to be detained over the weekend, and he had been crying. It is at least questionable whether he would have made this statement if he had said that he wished to consult a solicitor and he had then received the legal advice to which he was entitled before making it. This is not a question that needs to be answered in every case. But in the circumstances of this case it is not one that can be left out of account in considering whether there was a breach of the right to a fair trial. I think that it is plain that there is room for argument as to whether the statement that Birnie made was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. Lord Kerr says that on the available evidence the only possible conclusion is that that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation: see para 57, below. But here again the limits of our jurisdiction must be respected. It is not our function to act as a second court of appeal on matters that depend on the application of the domestic law. The question whether there has been a breach of the fundamental Convention right to a fair trial is within our jurisdiction. But, as I would hold that it was not necessarily incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on this evidence, I consider that the question of fairness for the purposes of article 6(1) must be examined in the light of all the facts and circumstances. This is pre eminently a matter for determination in the first instance by the High Court of Justicary. As the Appeal Court has not yet addressed itself to this issue, I would remit it to that court for determination as part of the continued hearing of Birnies appeal. Conclusion I would dismiss the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. I would dismiss its appeals on the issue as to waiver in regard to the police interviews in all three cases. I would allow its appeal on the question whether it was incompatible with Birnies right to a fair trial under article 6 of the Convention for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remit that matter for determination by the High Court of Justiciary. LORD BROWN on these appeals and would dispose of them as Lord Hope proposes. I am in full agreement with the judgments of Lord Hope and Lord Hamilton LORD DYSON I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes. LORD HAMILTON I agree with Lord Hope as to the disposal of all three of these appeals and adopt his narrative of the pertinent circumstances. I also adopt his reasoning in relation to Birnies unsolicited statement. I add a few words of my own on the issue of interpretation of section 100(3B). The question is whether an appeal against a conviction, obtained on indictment or on complaint, is proceedings brought by virtue of [the Scotland Act] against [the Lord Advocate] within the meaning of subsection (3A) of the Scotland Act (as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009). The scope of subsection (3A) must ultimately be determined by the statutory language used. But it is necessary to have regard to that language in the context of the legislation in which it appears and, in my view, in the context also of such other legitimately available material as may assist in the exercise of interpretation. This may involve identifying the mischief at which the enactment was directed. In Bennion on Statutory Interpretation, 5th ed (2008), p 938 it is stated: These presumptions [that Parliament intended to suppress the mischief and that it did not intend to apply coercive measures going wider than was necessary to remedy the mischief in question] as to Parliaments intention may help in construing an enactment whose wording is doubtful. The importance of the mischief goes further than this, however. We cannot be sure whether there is real doubt or not unless we have the mischief in mind. This is one function of the informed interpretation rule. In the consideration of opposing constructions of an enactment in relation to a particular factual situation, we may find that bringing the mischief into account helps to decide whether the enactment is intended to be given a wider or narrower construction. The first thing to notice is that the amendment made by the 2009 Act is an amendment to section 100 itself by adding two subsections to it. That suggests that the intendment of the legislature was to make an improvement, as it saw it, to the effect of section 100 as originally enacted. The nature of that intended improvement is not difficult to find. As Lord Rodger himself said in Cadder v HM Advocate 2011 SC (UKSC) 13, at para 105: In Somerville v Scottish Ministers [2008 SC (HL) 45] the House of Lords held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scotland Act 1998. It followed that, subject to any common law limitations or any specific statutory time limit, such proceedings could be brought at any time. The Scottish Parliament eventually responded to that decision by passing the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which amended section 100 of the Scotland Act so as to introduce a one year time limit like the one in section 7(5) of the Human Rights Act. Somerville was a civil case in which the House of Lords relied significantly upon section 100 of the Scotland Act (as originally enacted) as well as on the other provisions of that statute. Of course, the statutory response may, intentionally or inadvertently, have been wider than to deal with the prior statutory effect which was thought to be undesirable. But all the indications are the other way. The limitation on the bringing of proceedings provided for by section 100(3B) is for practical purposes identical to that provided by section 7(5) of the Human Rights Act 1998. That subsection applies, and applies only, to proceedings brought under section 7(1)(a). Such proceedings are civil proceedings (R v Kansal (No 2) [2002] 2 AC 69, per Lord Hope of Craighead at paras 58 63). This is to be contrasted with section 7(1)(b) which allows for reliance on the Convention right or rights concerned in any legal proceedings a term defined comprehensively by section 7(6). Such reliance can accordingly be had in criminal as well as in civil proceedings. It is difficult to suppose that the Scottish Parliament would have, in effect, adopted the exact language used for civil proceedings in the Human Rights Act if it had intended to provide for criminal as well as for civil proceedings. Further, it is difficult to conceive why the Scottish Parliament should think it appropriate to provide for criminal appeals a limitation period such as that made by section 100(3A) and (3B). The Criminal Procedure (Scotland) Act 1995 makes its own provision for the timeous taking of appellate steps. Section 106 allows a person convicted on indictment, with leave granted in accordance with section 107, to appeal in accordance with that Part of the Act to the High Court against various things, including conviction and sentence. Section 109(1) prescribes that, where a person desires to appeal against any of the things referred to in section 106(1), he shall within two weeks of the final determination of the proceedings, lodge with the Clerk of Justiciary written intimation of intention to appeal . Section 110(1)(a) provides that, in the case of an appeal against conviction, the convicted person may, subject to section 111(2), within eight weeks of lodging intimation of intention to appeal lodge a written note of appeal . A shorter (four weeks) period is allowed for appeals other than appeals against conviction (section 110(1)(b)). Section 111(2) provides: Any period mentioned in section 109(1) or 110(1)(a) of this Act may be extended at any time by the High Court in respect of any convicted person . Thus, as regards proceedings on indictment, the 1995 Act provides its own (much shorter) temporal restrictions on bringing appeals with a similar power in the court to extend the period on equitable grounds. As regards summary proceedings, section 175 allows a convicted person to appeal with leave to the High Court. The more usual mode of appeal is by stated case (section 176), for which again a short timetable is prescribed. Section 181(1) empowers the High Court to direct that such further time as it may think proper be afforded to the applicant to comply with the requirements as to time. The statute recognises other common law modes of appeal (by, for example, bill of suspension). At common law there was no time limit for the bringing of a suspension but acquiescence in the judgment complained of might be inferred from undue delay (Renton and Brown Criminal Procedure, para 33 09). A statutory time limit (three weeks) for bringing a bill of suspension was introduced by section 6(1) of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. It is difficult to suppose that, in inserting section 100(3)(A) and (3B) into the Scotland Act in 2007, the Scottish Parliament had in mind common law remedies in summary matters. Accordingly, there are persuasive reasons, in my view, for concluding that subsections (3A) and (3B) of section 100 (as amended) were designed to apply only to civil proceedings. Although not spelt out in the legislation, that restriction is consistent with the statutory language used. Against that background the expression any proceedings brought by virtue of this Act against [the Lord Advocate] is to be construed. It is conceded, inevitably, that criminal proceedings at first instance are not within the ambit of section 100(3A). While Part VII of the 1995 Act (headed Solemn Proceedings) is dealt with distinctly from Part VIII (headed Appeals from Solemn Proceedings), it involves, in my view, some artificiality of language to construe any proceedings brought as apt to include an appeal taken against conviction or sentence. In effect, there are single proceedings initiated by service of the indictment or complaint, the appeal by a convicted person being a step taken within these single proceedings. I am not persuaded that the terms of section 106(3) (By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice) assist in determining whether an appeal is proceedings (distinct from the prosecution) brought by the convicted person. More importantly, in my view, the expression any proceedings brought in subsection (3A) appears to pick up the language to bring any proceedings in subsection (1)(a), which in turn reflects the language of section 7(1)(a) of the Human Rights Act a provision concerned with civil proceedings (supra). In any event, if there is ambiguity about the interpretation of subsection (3A), the considerations referred to earlier would, in my view, conclusively point to a criminal appeal not being within the scope of this provision. There remains for consideration by virtue of this Act. Some elaboration of that phrase is provided by section 126(11) which tells us that by virtue of includes by and under. In Somerville an issue was whether the obiter observations by Lord Hope and by Lord Rodger in R v HM Advocate 2003 SC (PC) 21 as to the effect of the Scotland Act (and in particular section 100(1) of it) were well founded. In R Lord Rodger had said at para 123: Section 100 has a counterpart in section 7 of the Human Rights Act, subsection (1) of which is expressed slightly more fully: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. Especially in the light of that provision, I would infer from section 100(1) of the Scotland Act that the Act itself enables a person, who claims that an act or proposed act of a member of the Scottish Executive is incompatible with his Convention rights, to bring proceedings in a court or tribunal or to rely on his Convention rights in any proceedings in a court or tribunal. Convention rights and the remedies for vindicating them belong in the sphere of public rather than private law. What particular form the remedy or reliance will take depends on the court or tribunal, and on the jurisdiction, in which the matter arises. In an appropriate court the person affected can seek damages under the Scotland Act in respect of an incompatible act. The majority in Somerville in effect approved that approach namely, that section 100 was, by inference, an enabling provision which, among other things, allowed a victim of an infringement of section 57(2) to rely on the Convention right or rights concerned in any legal proceedings, including criminal proceedings. Thus, while the procedural vehicle by which a person convicted in solemn proceedings brings his conviction or sentence under review is by an appeal under section 106 of the 1995 Act, it is the Scotland Act which enables him in that appeal to rely upon the alleged infringement of that right or those rights. Both statutes have thus a part to play. While I think it is a nice question, I have come with hesitation to the view that it can meaningfully be said that an appeal which relies upon an alleged infringement of a Convention right is one brought by virtue of the Scotland Act. I would accordingly not support the High Courts reasoning in this respect. LORD KERR As Lord Hope has pointed out (in para 5 of his judgment), the advocate depute has confined her challenge to the outcome of the appeals in Jude, Hodgson and Birnie to the claim that Birnie had waived his right to a lawyer when he made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. It is not now argued that Jude or Hodgson waived their right to a lawyer. It is, of course, suggested that the Appeal Court was wrong in each of the cases in concluding that an effective waiver of their rights under article 6 of ECHR could only be made after they had received legal advice. A further discrete ground was advanced on behalf of the Lord Advocate in the case of Jude to the effect that section 100(3B) of the Scotland Act 1998, as amended by section 1 of the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, precluded a challenge to the Lord Advocates leading evidence of the statement which Jude made because that challenge was made too late. I agree with all that Lord Hope and Lord Hamilton have had to say on that subject and do not propose to expatiate further on it. As I stated in my judgment in the reference (McGowan, Procurator Fiscal v B) I agree with Lord Hope that there is no absolute rule to be derived from the case law of the European Court of Human Rights (ECtHR) that an effective waiver of the right to legal assistance can only take place after the person purporting to waive the right has received legal advice on whether that course should be followed. I believe that generally this will be the most effective way of ensuring that there has been an effective waiver but Strasbourg jurisprudence has not yet developed to the point where that is an essential prerequisite. That fact alone would not have deterred me from concluding that this was necessary if I had felt that the article 6 rights of the respondents could not otherwise be secured see my judgment in Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011 SLT 1005. But I am not persuaded that the only possible means of ensuring that there has been an effective waiver is by having the suspect who waives the right receive legal advice on that course before he does so. I have explained in my judgment in McGowan why I consider that such safeguards as are currently available in Scottish law to protect the interests of a suspect are not efficacious to ensure that a decision not to have legal assistance constitutes an effective waiver. In particular, I have pointed out that it is an indispensable prerequisite that there must be some means of ascertaining the reason that a decision not to avail of this fundamental right has been taken. Birnies case strikingly illustrates the elementary need for some inquiry to be made of a suspect as to why he has decided not to have the advice of a solicitor before interview unless the reasons for that are otherwise clearly obvious. Although he was no stranger to the criminal law, Birnie was only eighteen years old when he was interviewed by police. Following interview he was on the verge of tears. When he was told that he was going to be kept in custody he broke down and made what has been said to be an unsolicited admission. It is difficult to imagine that this admission and Birnies breaking down were unrelated to his being told that he was going to be detained over the weekend. At 12.35 pm, some twelve minutes after he had made the admission, he was asked whether he wished to have a solicitor contacted on his behalf. He nominated a firm of solicitors to contact but a message was not left with that firm until some two hours later. He also wanted his mother to be informed of his arrest but that proved impossible. The fact that he wanted both his solicitors and his mother to be informed that he was in detention is at least relevant to his state of mind at that time and his ability to cope without legal assistance during any further questioning. Birnie told police that he wanted to make a statement some time before 1.45 pm notably, some 43 minutes before the solicitors whom he had been asked to be informed of his arrest were given that information. Before he made his further statement at 1.45 pm he was asked whether he wished to consult his solicitor before making it and he replied that he did not, and when asked whether he wished to have a solicitor present while he was making it, again said that he did not. In the circumstances the second inquiry might seem otiose but it was the product of a pro forma procedure. Some such procedure is, of course, required to ensure that a consistent practice is followed but, because of the routine way in which it must be applied, it is hardly the most efficient way to examine whether a suspect has fully understood the importance of the right which is being relinquished. Lord Hope has observed that Birnie expressly declined both offers of legal assistance. This is true but it seems to me inescapable that his decision to do so could not in any circumstance be regarded as an effective waiver of his right to legal counsel and I believe that it is inconceivable that any court could be satisfied of that to the requisite standard. Birnie was not asked why he did not want to speak to a lawyer, notwithstanding that he had nominated a firm of solicitors something over an hour before. He was not told that he could speak to a solicitor by telephone. No inquiry was made as to whether the decision to make a statement at that time was related to the intention of police to detain him over the weekend. That this was, at the very least, a distinct possibility must have been obvious to the police officers who interviewed him. Quite apart from the fact that the unsolicited statement was made shortly after he had been interviewed without having been informed of his right to legal assistance and leaving aside the possible impact that this might have on the admissibility of his later statement, the circumstances in which his unsolicited statement was made raise substantial and inevitable doubts that his waiver of the fundamental right to legal assistance was effective. For these reasons I would hold that it is unnecessary to remit Birnies case to the Appeal Court. I am of the view that, on the available evidence, the only possible conclusion is that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation. For these reasons I consider that it has not been and on the available evidence cannot be established that Birnies decision not to consult a solicitor constituted an effective waiver of his right to legal consultation. On that account, I would dismiss the appeal in his case. I would dismiss the appeals in Jude and Hodgson for the reasons given by Lord Hope. In para 29 of his judgment Lord Hope has fastened on my statement (at para 53 above) that it is an indispensable prerequisite that there must be some means of ascertaining the reason that an accused did not wish to avail himself of the right to legal assistance and has characterised this as an absolute or incontrovertible rule. I had not intended to propound any new principle, much less an inflexible rule. In saying that a means must exist for understanding why someone has declined to exercise his right to legal assistance before finding that there has been an effective waiver, I was merely reflecting what I understand to be the unmistakable effect of current Strasbourg jurisprudence. I was not constructing some unheralded, disquieting rule. This can be demonstrated by a few simple propositions: (i) For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. I do not understand the majority in this case to suggest otherwise; (ii) In a case where the effectiveness of the waiver is in dispute, it is for the prosecution to prove that it is effective. Again I do not believe that this is controversial; (iii) It is well recognised that reasons other than those which would qualify as sufficient to support the conclusion that a knowing and intelligent decision has been made will frequently motivate a suspect to decline the right to legal assistance; (iv) In order for the prosecution to show that such reasons do not obtain and that a knowing and intelligent decision has been made, it is necessary to have some insight into why the right has been declined. The requirement that a means exist of obtaining that insight does not involve the creation of some startling new rule. It merely follows the flight of the arrow of logic to its obvious destination. In these circumstances, I respectfully question whether the passage from the paper by the President of ECtHR, Sir Nicolas Bratza, quoted by Lord Hope has any relevance to the current debate. Sir Nicolas had made the entirely unexceptionable statement that the Strasbourg court has been careful to refrain from imposing specific requirements on the State. Quite so but that does not impinge on the conclusion that I have reached about the effect of the case law of the European Court of Human Rights. I have merely indicated where I believe the jurisprudence of that court in this area leads. It was not my intention to descend to a level of detail in laying down an incontrovertible rule. Indeed, I have made it clear that an inquiry into the reasons for a purported waiver is required only when those reasons are not obvious from the circumstances in which it was made. |
The ability of asylum seekers who make unsuccessful claims to be allowed to remain to discover further reasons why they should not be removed from the country where they seek refuge is an inescapable feature of any system that is put in place to meet a States obligations under the Geneva Convention on the Status of Refugees and article 3 of the European Convention on Human Rights. The opportunity for further reasons to be put forward is enhanced by the fact that a series of decisions may need to be taken before a persons immigration status is resolved. Various measures have been put in place by the United Kingdom to deal with this phenomenon. Some of these measures are to be found in the Immigration Rules, and on occasion the meaning that is to be given to them is the subject of controversy: see ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348. In this case however we are concerned with meaning and effect of the statute. The relevant provisions are to be found in Part 5 of the Nationality, Immigration and Asylum Act 2002, which deals with immigration and asylum appeals. The question is whether the expression an asylum claim, or a human rights claim in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been accepted as a fresh claim by the Secretary of State under rule 353 of the Immigration Rules. The facts The first respondent BA is a citizen of Nigeria. He is married to a British citizen, by whom he has four children. He entered the United Kingdom in 1988 as a visitor. Initially he was given six months leave to enter. Later he was granted leave to remain as a student until the end of August 1991. He was granted indefinite leave to remain on 25 May 1994 on the basis of his marriage. On 20 May 2005, however, he was served with a decision by the Secretary of State that he was to be deported following his release on licence from a 10 year sentence of imprisonment for conspiracy to import class A drugs. His appeal against this decision to the asylum and immigration tribunal on human rights grounds failed. On 25 May 2007 he was served with a deportation order. On 25 June 2007 and 8 August 2007 further submissions were made on his behalf as to why he should not be deported. The Secretary of State agreed to consider his reasons for seeking revocation of the deportation order, but she declined to revoke it. Directions were then given for him to be removed from this country on 29 December 2007. The respondent PE is a citizen of Cameroon. He entered the United Kingdom clandestinely in August 2004. On 19 May 2005 he applied for asylum. The Secretary of State refused his application on 5 July 2005. On 9 July 2005 it was decided that directions were to be given for his removal to Cameroon. He did not appeal against this decision. Before it was put into effect however he was sentenced to twelve months imprisonment for having a forged passport and using it to obtain work, to which he had pleaded guilty. As a result of this conviction the Secretary of State decided to make a deportation order against him. He appealed against this decision on asylum and human rights grounds, but his appeal was dismissed. The deportation order was signed, and it was served on him on 10 January 2007. On various dates thereafter his representatives made written representations on his behalf for the decision to be reconsidered. They claimed that he had been and would be persecuted in Cameroon on account of his homosexuality. The Secretary of State declined to reconsider her decision, as in her view his further representations did not amount to a fresh claim within the meaning of rule 353 of the Immigration Rules. He appealed to the tribunal against the Secretary of States refusal to revoke her decision to make the order. The tribunal held that this decision was not an appealable decision. On 27 December 2007 BA applied for judicial review of the directions for his removal. He contended that he had a further in-country right of appeal. It was no part of his case that his further representations amounted to a fresh claim under rule 353 of the Immigration Rules. PE had already applied for judicial review of the decisions that had been made against him. He claimed that he had a right of appeal against a refusal to revoke the deportation order, that this right was exercisable in-country and that in any event the representations amounted to a fresh claim under rule 353. Permission was given in each case, and the applications were heard together by Blake J: [2008] EWHC 1140 (Admin); [2008] 4 All ER 798. The judge held that what determined whether there was an in- country right of appeal was whether or not the Secretary of State was satisfied under rule 353 there was a fresh claim: para 62. In his opinion neither claimant had an in-country right of appeal simply by virtue of having made a protection claim or having made fresh representations supported by different material: para 74. In PEs case he quashed the decision that his was not a fresh claim and remitted it for redetermination by the Secretary of State. He said that if the Secretary of State were to conclude that the claim is a fresh one but it was still refused, PE would have access to a right of appeal in-country before removal. But if it was not a fresh claim, his right to appeal would have to be exercised from abroad. As Sedley LJ observed in the Court of Appeal, this conclusion raises the same issue as that raised by BAs appeal: [2009] EWCA Civ 119; [2009] 2 WLR 1370, para 4. Rule 353 of the Immigration Rules, on which the Secretary of State relies, is headed Fresh claims. It provides: 353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. Rule 353A, which needs to be read together with rule 353 to complete the picture, provides: 353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise. This paragraph does not apply to submissions made overseas. The 2002 Act This Act was passed in the light of strong pressure to streamline appeals against immigration decisions in the light of objections that were taken to the large number of repeat claims. Part 5 of the Act provides a general right of appeal against an immigration decision to an adjudicator: section 82(1). The expression immigration decision is defined in section 82(2). It includes, among other things, a decision that a person is to be removed from the United Kingdom who is here unlawfully, a decision to make a deportation order under section 5(1) of the Act and a refusal to revoke a deportation order under section 5(2): sections 82(2)(g), (j) and (k). Having defined this expression, the statute proceeds to lay down an elaborate system for the handling of appeals. Section 84(1) provides that an appeal under section 82(1) against an immigration decision must be brought under one or more of the grounds specified in that subsection. They include the following ground, with a view to ensuring that the United Kingdom complies with its international obligations: (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellants Convention rights. This is the ground on which both BA and PE rely. Section 92, as amended, provides: (1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. (2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d),(e), (f) . . . and (j). (3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if (a) at the time of the refusal the appellant is in the United Kingdom, and (b) on his arrival in the United Kingdom the appellant had entry clearance. (4) This section also applies to an appeal against an immigration decision if the appellant (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or (b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellants rights under the Community Treaties in respect of entry to or residence in the United Kingdom. The respondents case is that section 92(4)(a) confers a suspensive in-country right of appeal unless the appeal has been certified under either section 94 or section 96 of the 2002 Act. It is suspensive because it suspends the operation of the immigration decision appealed against until the appeal has been disposed of. Section 94 excludes appeals in asylum and human rights cases if the Secretary of State certifies that they are clearly unfounded. The relevant subsections, as amended, provide as follows: (1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both). (2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded. (9) Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal under section 82(1) while outside the United Kingdom, the appeal shall be considered as if he had not been removed from the United Kingdom. Section 96 removes the right of appeal altogether if the Secretary of State or an immigration officer certifies that the person has dealt with, or ought to have dealt with, the issue in an earlier appeal. The relevant subsections of section 96, as amended, are in these terms: (1) An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person was notified of a right of appeal under that section against another immigration decision (the old decision) (whether or not an appeal was brought and whether or not any appeal brought has been determined), (b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision. (2) An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision, (b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice. The expressions asylum claim and human rights claim are each defined in section 113(1). It provides: In this Part, unless a contrary intention appears asylum claim means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would breach the United Kingdoms obligations under the Refugee Convention, human rights claim means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights Section 12 of the Immigration, Asylum and Nationality Act 2006 amends those definitions prospectively by adding in each case a provision that the expression: does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with the immigration rules. As Sedley LJ observed in the Court of Appeal, under this amended formula a claim in any case where an earlier challenge to removal has been made and failed will only rank as an asylum claim or a human rights claim if it is a fresh claim under rule 353: [2009] 2 WLR 1370, para 27. The amendment has not yet been brought into force, as the entire system of immigration law is now under review. A Green Paper containing proposals to simplify the law was published in February 2008, and it is expected that a Bill to simplify the law will be published towards the end of this year. No certificates under either section 94 or section 96 have been issued to the respondent in either case. They maintain that in these circumstances they are entitled to have their appeals heard in-country under section 92(4)(a), and that they cannot be removed from the United Kingdom until their appeals have been dealt with. The Secretary of States contention is that an appeal against an immigration decision is available only out of country where, as in BAs case, the further representations have not been advanced as a fresh claim or, as in PEs case, have not been accepted as such by the Secretary of State. He maintains that their appeals must now be pursued out of country. If so, there is now no obstacle to the respondents being deported in accordance with the deportation orders that have been served on them. The competing arguments in more detail For the Secretary of State Miss Laing QC did not dispute that a right of appeal arises under section 82(1) when a decision that is an immigration decision is taken. Nor does she dispute that the Secretary of States refusal in these cases not to revoke the deportation orders were immigration decisions within the meaning of section 82(2)(k) of the 2002 Act. What was in issue was whether the right of appeal against those decisions was to be exercised from within the United Kingdom. Her submission was that the words an asylum claim, or a human rights claim in section 92(4)(a) mean a first asylum or human rights claim or a second or subsequent asylum or human rights claim which has been accepted as a fresh claim under rule 353 of the Immigration Rules. She acknowledged that this was not the literal meaning of this provision, as the definitions of these expressions made no reference to the fact that the claims to which they referred had to be a first or a fresh claim. But she said that they had to be construed in the context of the scheme of the statute as a whole, and that they had to be read in the way she suggested to avoid an absurdity. She submitted that the authorities also showed that they had to be read subject to this qualification. She based this submission on two decisions of the Court of Appeal: Cakabay v Secretary of State for the Home Department (Nos 2 and 3) [1999] Imm AR 176 and R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768. In each of these cases observations were made about the treatment of repeat claims for asylum in the context of the provisions of the Asylum and Immigration Appeals Act 1993. In Cakabay v Secretary of State for the Home Department (Nos 2 and 3) [1999] Imm AR 176, 180-181, Schiemann LJ said: The statute makes no express provision as to what is to be done in the case of repeated claims for asylum by the same person. The second claim may be identical to the first (a repetitious claim) or may be different (a fresh claim). It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim whereas a repetitious claim does not. In the case of a repetitious claim no more is required to be done: the first decision has ensured that the United Kingdom has complied with its obligations under the Convention. Section 6 of the 1993 Act creates no inhibition on the claimants removal: the Secretary of State has on the occasion of his decision on the first claim decided the repetitious claim. So far as the decision on the claimants repetitious application for leave to enter is concerned, the claimant will be told that leave has already been refused and that there is no need for any new decision. In R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768 the court had to consider whether, as a matter of law, a person might make more than one claim for asylum within the meaning of section 6 of the 1993 Act during a single uninterrupted stay in the United Kingdom. The Secretary of State argued that, once a person had made a claim for asylum, had had that claim refused and had unsuccessfully exercised his rights of appeal under section 9 of that Act, his legal rights were exhausted. There could be no further claim for asylum unless the claimant left the United Kingdom and returned before making a fresh application. At p 781 Sir Thomas Bingham MR rejected that argument. He said that it would undermine the beneficial object of the Convention if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh claim for asylum. He then discussed what constituted a fresh claim. At pp 783-784 he said that the acid test must always be whether, comparing the new claim with that which had been rejected, and excluding material on which the claimant could reasonably be expected to rely in the earlier claim, the new claim was sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim. Miss Laing said that the same approach should be taken to the words used in section 92(4)(a) of the 2002 Act. She submitted that the intention of Parliament when enacting this provision had to be derived from the context, the legislative history and the requirements of the international instruments. The essential features of the 2002 Act remained the same as those in the 1993 Act. It was to be assumed that where the same words were used they were intended to have the same meaning. It was implicit in the approach that was taken in Ex p Onibiyo that the Convention did not require protection against removal if all that the further representations were doing was to repeat an earlier claim which had been considered and rejected on appeal. What the international instruments required was compliance, not redundancy. It was only a fresh claim that would be an obstacle to the claimants removal, by converting what would otherwise be an out of country appeal into an appeal that must be dealt with in-country. As for the prospective amendment of section 113, she said that it did two things. It removed the requirement that a claim be made at a place designated by the Secretary of State. And it clarified what section 113 should be taken to have meant on enactment. In the words of the Explanatory Notes, its purpose is to clarify that further submissions which follow the refusal of an asylum or human rights claim but which do not amount to a fresh claim will not carry a further right of appeal. But it was of no assistance in resolving the argument either way as to the meaning of the definitions in their current form. Lloyd LJ was right when he said in the Court of Appeal that the amendment should be ignored: [2009] 2 WLR 1370, para 35. Mr Husain too submitted that the meaning of the words used in section 94(2)(a) must be understood from their context. But he said that the context was markedly different from that in the 1993 Act. There was now a series of statutory provisions against abuse which were not to be found in the earlier legislation. It was those provisions, and not those instituted under the Immigration Rules by the executive, that should be used if it was thought that the appeals should not be dealt with in-country. The Secretary of States approach rendered the new provisions otiose and unworkable in the case of second claims. For example, Parliament had provided by section 84(1)(g) that an appeal against an immigration decision might be taken on the ground that the persons removal from the United Kingdom would breach the States obligations under the Refugee Convention. Section 84(1)(c) dealt with the situation where it was contended that the decision was unlawful under section 6 of the Human Rights Act 1998. But the rights conferred by the European Convention on Human Rights were, in various respects, not the same: JM v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 27, per Laws LJ. If the Secretary of State was right that the appeal could only be taken in-country if it was certified under rule 353, the person would be forced to take his appeal out of country even although it was on grounds referred to in section 84(1)(g), which could be different from those advanced at an earlier stage under section 84(1)(c). As he would be without a certificate under section 94, he would be deprived of the benefit of section 94(9). As for what was said in R v Secretary of State for the Home Department, ex p Onibiyo, Mr Husain said that it was not the only relevant authority. Prior to the enactment of the 2002 Act there were two other important decisions to which reference should be made. In R (Kariharan) v Secretary of State for the Home Department [2002] EWCA Civ 1102, [2003] QB 933, reference was made to the one-stop procedure that was introduced by sections 74-77 of the Immigration and Asylum Act 1999 and to section 73 of that Act, which enabled the Secretary of State to certify that a claim that a decision of a decision-maker was in breach of the appellants human rights could reasonably have been made earlier, the effect of which was that the appeal was to be treated as finally determined: see Auld LJ, para 30. In para 36 Sedley LJ said that those provisions gave ample powers to the Secretary of State to dispose summarily of repetitive and abusive appeals. In R v Secretary of State for the Home Department, ex p Saleem [2001] 1 WLR 443, 449, Roche LJ accepted that the right of appeal to an independent appellate body was a fundamental or basic right akin to the right of unimpeded access to a court, an infringement of which must be either expressly authorised by or arise by necessary implication from an Act of Parliament. Furthermore the approach that was taken in R v Secretary of State for the Home Department, ex p Onibiyo to the problem of repeat claims was imprecise and had been rendered unnecessary by the current legislation. In that case, as Sir Thomas Bingham MR recorded at p 783, counsel for the applicant, Mr Blake QC, as he then was, had conceded that that a fresh claim for asylum could not be made by advancing, even with some elaboration or addition, a claim already made or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. A similar concession was made in Manvinder Singh v Secretary of State for the Home Department [1995] EWCA Civ 53, where Stuart-Smith LJ noted that in his skeleton argument Mr Blake QC had accepted that Parliament could not have intended removal to be indefinitely deferred pending successive identical appeals. The observations in Ex p Onibiyo had been inspired by the possibility of abuse. The contours of the legislation had now changed. The opportunity to resolve the issue by bringing the amendment of the definitions in section 113 into force had not been taken. It was difficult to understand why, if its purpose was simply to clarify, it had not been brought into force. As it was, the legislation had to be taken as it stood without regard to what may have been contemplated by the amendment. Discussion I have set out the competing arguments at some length, partly out of respect for the excellent submissions that were advanced by counsel on either side in the Chamber of the House of Lords on the occasion of the last sitting of the House in its judicial capacity, and partly because they demonstrate very clearly the essence of the issue that we must decide. Miss Laing invites us to follow Sir Thomas Bingham MRs analysis of the problem in R v Secretary of State for the Home Department, ex p Onibiyo, to hold that the words an asylum claim, or a human rights claim in section 92(4)(a) of the 2002 Act mean a first asylum or human rights claim or a second or subsequent claim which has been accepted by the Secretary of State as a fresh claim, and that the procedure for determining whether or not a second or subsequent claim is a fresh claim is to be found in rule 353 of the Immigration Rules. Mr Husain on the other hand invites us to examine those words in the context of the current legislation read as a whole, taking full account of the progress of thinking since Ex p Onibiyo as to how the problem of repeat claims should be addressed. He submits that there is no justification, in the light of the provisions for dealing with repeat claims that the 2002 Act contains, for enlarging upon the plain words of the statute. The strength of Miss Laings argument lies in the fact that the definition of the phrase claim for asylum has remained, in substance, the same since its first appearance in section 1 of the 1993 Act where it was said to mean a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdoms obligations under the Convention for him to be removed from, or required to leave, the United Kingdom. The Convention there referred to was, of course, the Refugee Convention. The definition in section 167 of the 1999 Act was in substantially the same terms. Section 113 of the 2002 Act varies the language a little bit, because it calls this kind of claim an asylum claim, introduces a requirement for it to be made at a place designated by the Secretary of State (no such place has been designated) and adds a definition in almost identical terms of a human rights claim. The relevant phrase throughout is a claim. In R v Secretary of State for the Home Department, ex p Onibiyo the Secretary of States argument that once there had been a claim for asylum and one appeal there could be no further claim for asylum unless the claimant had left the United Kingdom and returned before making the fresh application was rejected. It was held that there could be a fresh claim for asylum with the same consequences as to the right of appeal as follow on the refusal of an initial claim, provided that the Secretary of State recognised the fresh claim as a claim for asylum. If one looks no further and applies what Bennion on Statutory Interpretation (5th ed, 2008), section 201 and Part XIV described as the informed interpretation rule, there is plainly much to be said for the view that the definitions that are set out in section 113 of the 2002 Act should be read in the same way. The procedure for determining whether a repeat claim is or is not a fresh claim is set out in rule 353 of the Immigration Rules, the effect of which I attempted to explain in Z T (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 33. It is a short step to conclude that a repeat claim which is not held under rule 353 to be a fresh claim falls to be disregarded as an asylum claim, or a human rights claim for the purposes of section 92(4)(a). Like Lloyd LJ, I would not draw an inference either way from the amendment of section 113 by section 12 of the 2006 Act as it is not yet in force. It is an elementary principle, however, that the words of a statute should be construed in the context of the scheme of the statute as a whole. And it is plain that the scheme of the 2002 Act is not the same as that of the 1993 Act to which Sir Thomas Bingham MR addressed himself in Ex p Onibiyo. The problem to which he addressed himself was created by the absence of any provision in the statute to prevent abuse. The question was how that gap might best be filled, having regard to the fact that the blunt solution that was proposed by the Secretary of State would, as the Master of the Rolls pointed out at p 781, undermine the beneficial object of the Convention and the measures giving effect to it in this country. Parliament might, of course, have stood still and left the matter to be dealt with under the Immigration Rules. But it has not stood still. The experience of the intervening years has been taken into account. First, there were the provisions against abuse in sections 73 to 77 of the 1999 Act. Now there is a set of entirely new provisions in the 2002 Act. As Lord Hoffmann said in A v Hoare [2008] UKHL 6, [2008] 1 AC 844, para 15, while there is a good deal of authority for having regard in the construction of a statute to the way a word or phrase has been construed by the court in earlier statutes, the value of such previous interpretation as a guide to construction will vary with the circumstances. In this case the phrase in question has remained, in essence, unchanged. But the system in which it must be made to work is very different. This is a factor to which full weight must be given. The new system contains a range of powers that enable the Secretary of State or, as the case may be, an immigration officer to deal with the problem of repeat claims. The Secretary of States power in section 94(2) of the 2002 Act to certify that a claim is clearly unfounded, if exercised, has the effect that the person may not bring his appeal in-country in reliance on section 92(4). The power in section 96 enables the Secretary of State or an immigration officer to certify that a person who is subject to a new immigration decision has raised an issue which has been dealt with, or ought to have been dealt with, in an earlier appeal against a previous immigration decision, which has the effect that the person will have no right of appeal against the new decision. It is common ground that the present cases are not certifiable under either of these two sections. Why then should they be subjected to a further requirement which is not mentioned anywhere in the 2002 Act? It can only be read into the Act by, as Sedley LJ in the Court of Appeal put it, glossing the meaning of the words aclaim so as to exclude a further claim which has not been held under rule 353 to be a fresh claim: [2009] 2 WLR 1370, paras 20, 30. The court had to do this in Ex p Onibiyo. But there is no need to do this now. It is not just that there is no need now to read those words into the statute. As Mr Husain pointed out, the two systems for excluding repeat claims are not compatible. Take the system that section 94 lays down for dealing with claims that the Secretary of State considers to be clearly unfounded. If he issues a certificate to that effect, the appeal must be pursued out of country. But the claimant will have the benefit of section 94(9), which provides that where a person in relation to whom a certificate under that section subsequently brings an appeal under section 82(1) while outside the United Kingdom the appeal will be considered as if he had not been removed from the United Kingdom. He will have the benefit too of the passage in parenthesis in section 95, which provides: A person who is outside the United Kingdom may not appeal under section 82(1) on the ground specified in section 84(1)(g) (except in a case to which section 94(9) applies). If Miss Laing is right, the effect of a decision by the Secretary of State that the representations that a person makes against an immigration decision of the kind mentioned in section 82(1)(k) a refusal to revoke a deportation order is not a fresh claim will be that an appeal against that decision must be brought out of country. But the interpretative route by which she reaches that position does not save that person from the exclusionary rule in section 95, unless which has not been done in these cases the claims are also certified under section 94(2) as clearly unfounded. The ground of appeal referred to in section 84(1)(g) has been designed to honour the international obligations of the United Kingdom. To exclude claims which the Secretary of State considers not to be fresh claims from this ground of appeal, when claims which he certifies as clearly unfounded are given the benefit of it, can serve no good purpose. On the contrary, it risks undermining the beneficial objects of the Refugee Convention which the court in Onibiyo, under a legislative system which had no equivalent to section 95, was careful to avoid. In my opinion Lloyd LJ in the Court of Appeal was right to attach importance to this point: [2009] 2 WLR 1370, paras 39-40. As he said, the development of the legislative provisions and the powers given to the Secretary of State to limit the scope for in country appeals deprive Miss Laings submissions of the foundation which they need. There is obviously a balance to be struck. The immigration appeals system must not be burdened with worthless repeat claims. On the other hand, procedures that are put in place to address this problem must respect the United Kingdoms international obligations. That is what the legislative scheme does, when section 95 is read together with section 94(9). It preserves the right to maintain in an out of country appeal that the decision in question has breached international obligations. I would hold that claims which are not certified under section 94 or excluded under section 96, if rejected, should be allowed to proceed to appeal in-country under sections 82 and 92, whether or not they are accepted by the Secretary of State as fresh claims. There is no doubt, as I indicated in Z T (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 33, that rule 353 was drafted on the assumption that a claimant who made further submissions would be at risk of being removed or required to leave immediately if he does not have a fresh claim. That was indeed the case when this rule was originally drafted, as there was no equivalent of section 92(4) of the 2002 Act. But Mr Husains analysis has persuaded me that the legislative scheme that Parliament has now put in place does not have that effect. Its carefully interlocking provisions, when read as a whole, set out the complete code for dealing with repeat claims. Rule 353, as presently drafted, has no part to play in the legislative scheme. As an expression of the will of Parliament, it must take priority over the rules formulated by the executive. Rule 353A on the other hand remains in place as necessary protection against premature removal until the further submissions have been considered by the Secretary of State. Conclusion I would dismiss these appeals and affirm the orders made by the Court of Appeal. I have had the advantage of reading in draft the judgment of Lord Hope and am persuaded that for the reasons he has given these appeals should be dismissed. I am in full agreement also with the comments made by Lord Brown whose judgment I have also had the advantage of reading in draft. I agree with the judgment of Lord Hope and with the additional observations of Lord Brown. The submission for the Home Secretary that the expression an asylum claim in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 should be given the same meaning as Sir Thomas Bingham gave to the expression a claim for asylum in section 6 of the Asylum and Immigration Appeals Act 1993 is at first sight compelling. Certainly, the change in the form of the expression is irrelevant. The contexts within which the two expressions have to be interpreted are, however, relevant. And, as Lord Hope explains, they are significantly different, since the 2002 Act contains a new scheme for dealing with abusive claims. Given that new scheme, there is no longer the same need to adopt the former interpretation and, indeed, the one now adopted fits the new context better. I am afraid that I have reached a different conclusion from the other members of the Court. There is no need to explain my views in detail as it will make no difference to the result. We are concerned with the meaning of the word claim in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002. When that Act was passed, it had been understood since 1996 that in this context the word claim referred to a first claim, or to a second or subsequent claim which was different from any earlier claim, but not to a second or subsequent claim which was merely repetitious of an earlier claim. This eminently sensible conclusion had been reached by a Court of Appeal led by Sir Thomas Bingham MR in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768. It is a well-known principle of statutory interpretation that when Parliament re-enacts words which have already been the subject of judicial interpretation it intends them to have the same meaning. There was no need, therefore, for Parliament to spell out what it meant by a claim in section 92(4)(a). It was already well-known. In Onibiyo the Court also considered whether the decision that a claim was a claim was a question of precedent fact for the court to decide or a question for the Secretary of State to decide subject to challenge on the usual judicial review grounds. It was not necessary to decide this question in that case, but the Master of the Rolls inclined to the latter view. This was adopted by the Court of Appeal in later cases: see eg WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, [2007] Imm A R 337; R (AK) (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447. Rule 353 of the Immigration Rules sets out the test which the Secretary of State applies in making his decision. It should not be thought, however, that Miss Laings argument depends upon the existence and wording of rule 353. That merely provides for how the Secretary of State reaches his decision as to whether or not a claim is a claim. It is not the end of the matter. The Secretary of States test might come under attack for not reflecting the acid test laid down by the Master of the Rolls in Onibiyo. His conclusion reached in an individual case might come under attack on Wednesbury or other conventional grounds. The conclusion of the Court of Appeal, that this is not a question of precedent fact, to be determined by the appellate authorities and ultimately by the courts, might be challenged in the Supreme Court. Miss Laings argument is simply that when Parliament enacted section 92(4)(a) of the 2002 Act it thought that the meaning of an asylum claim, or a human rights claim, was already well established and did not include a claim which was merely repetitious of an earlier one. She is not relying on rule 353 to construe the 2002 Act. I am not persuaded by Mr Husains argument, attractively though it was put, that the new powers under sections 94 and 96 to restrict or deny appeals put such an entirely new complexion on matters that Parliament is to be taken to have abandoned the old meaning of claim without saying so. This would be astonishing given that it is apparently common ground that neither of these claims would have been certifiable under either section. Section 94 removes the right of in-country (but not out-country) appeal if an asylum or human rights claim is clearly unfounded. Yet apparently it is not suggested that the fact that a claim has been made previously and rejected necessarily means that it is clearly unfounded. Section 96 removes the right of appeal altogether if a claim or application raises matters which could have been raised on an appeal against an earlier decision. This does not deal with a claim which raises exactly the same matters as were rejected on an earlier occasion. So it is common ground that these new powers are not apt to cater for repetitious claims. If so, I cannot understand how Parliament, by introducing them, can be taken to have departed from an established interpretation which was designed to deal with a different problem. Nor am I persuaded by the argument that, if an asylum or human rights claim is certified under section 94, the claimant can still raise his asylum or human rights arguments in an out-of-country appeal, but that otherwise section 95 prevents a person from raising asylum or human rights grounds from outside the country. A person whose claim is certified under section 94 is denied any right of appeal in this country, but may appeal from outside. It is only right in those circumstances that he should be able to appeal on the same grounds that he could have raised in this country. A person whose claim is not a claim at all, because essentially the same claim has already been determined, has already enjoyed rights of appeal on asylum or human rights grounds in this country. There is no reason to give him a second bite at the cherry whether here or abroad. This country is bound not to expel people in breach of their human rights or when they have a well-founded fear of persecution in their home country. We must of course have a fair system for deciding whether expulsion will be in breach of those obligations. An initial decision followed by an appeal system in this country is sufficient to do this. This country is not bound to allow people to make essentially the same claim time and time again as a way of staving off their departure. The interpretation put forward by Miss Laing accords with our international obligations, as well as with principle and practicality. I would have allowed this appeal. I have had the advantage of reading in draft the judgment of Lord Hope and am in full agreement with him that these appeals should be dismissed. I would make it clear, however, that this is not a conclusion at which I readily arrived and I reached it only on the basis that, as Mr Husain in his enticing submissions readily accepted, the statutory solution to the problem of abuse created by the making of repeat asylum claims lies not in construing an asylum claim in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 as the Court of Appeal in R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768 construed a claim for asylum in section 6 of the Asylum and Immigration Appeals Act 1993 but rather in the Secretary of State issuing certificates where appropriate under sections 94 or 96 of the 2002 Act (no equivalent provisions having been available under the 1993 Act). True it is, as observed by Lord Hope in paragraph 29 of his judgment (and noted also at paragraph 13 of Sedley LJs judgment in the Court of Appeal [2009] 2 WLR 1370), that it is common ground between the parties that the present cases are not certifiable under either of these sections. That, however, as I understand it, is solely because, so far as section 94 is concerned, it applies only where the appellant has made an asylum claim or a human rights claim (or both) (subsection 1). By the same token that, on the Secretary of States argument, a repeat claim does not fall within those words in section 92 (4)(a), so he contends that it does not do so for section 94 purposes. Given, however, as Mr Husain submits and I would accept, that a repeat claim does involve making a claim for the purposes of section 92(4)(a), so too it enables the Secretary of State to certify it as clearly unfounded if he so regards it under section 94. Moreover, consistently with what the House said in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 (Lord Neubergers views expressed at paragraphs 80-81 of his opinion being determinative on this point), there will be precious few cases in which that test differs from the rule 353 test as to whether a claim has a realistic prospect of success. The major reason why finally I am persuaded that the respondents approach is the correct one is that, so far from leaving the critical words an asylum claim in section 92(4)(a) to be construed as the Court of Appeal in Onibiyo construed a claim for asylum in the 1993 Act, Parliament in the 2002 Act not only made express provisions to deal with abusive claims but split up different aspects of the possible abuse between sections 94 and 96. Sir Thomas Bingham MR in Onibiyo had said (at pp783-784): The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim. [Ex]cluding material on which the claimant could reasonably have been expected to rely in the earlier claim is now expressly dealt with by section 96. As already explained, ordinary repeat claims fall to be excluded under section 94. As Lord Hope points out, moreover, there is one very clear advantage in providing for any abuse by making repeat claims to be dealt with by section 94 rather than rule 353: by virtue of sections 94(9), 95 and 84(1)(g) it allows an out of country appeal to be brought on human rights grounds when otherwise that would not be possible. For these reasons, therefore, which in large part echo those given in Lord Hopes altogether fuller judgment, I too would dismiss these appeals. For these reasons, therefore, which in large part echo those given in Lord Hopes altogether fuller judgment, I too would dismiss these appeals. For this reason I do not agree with the approach of Lord Wilson to this issue. Lord Neuberger of Abbotsbury MR at para 53 remarked that todays journalism is tomorrows archive and at para 58 In the case of journalism, above all news journalism, information held for purposes of journalism may soon stop being held for that purpose and be held, instead, for historical or archival purposes. I imagine that the Bank of England also archives information initially used for the purposes of carrying out its functions. No doubt the BBC has recourse to its archives for journalistic purposes from time to time and, if held for purposes of journalism is given a broad meaning it could be said in relation to the BBC that one of the purposes of holding archived material is journalism, albeit a relatively remote purpose. However, Lord Neuberger accepted that archived material would not, as such, fall within the protection afforded by the definition. I consider that he was right to do so. Disclosure of material that is held only in the archives will not be likely to interfere with or inhibit the BBCs broadcasting functions. It ought to be susceptible to disclosure under the Act. If possible information held for purposes other than those of journalism, art or literature should be given an interpretation that brings archived material within that phrase. Can this be achieved? I believe that Lord Walker has the answer. He has concluded, as have I, that the protection is aimed at work in progress and BBCs broadcasting output. He suggests that the Tribunal should have regard to the directness of the purpose of holding the information and the BBCs journalistic activities. I agree. Information should only be found to be held for purposes of journalism, art or literature if an immediate object of holding the information is to use it for one of those purposes. If that test is satisfied the information will fall outside the definition, even if there is also some other purpose for holding the information and even if that is the predominant purpose. If it is not, the information will fall within the definition and be subject to disclosure in accordance with the provisions of Parts I to V of the Act. This appeal requires the Supreme Court to focus closely on the language and legislative purpose of the provisions of the Freedom of Information Act 2000 (FOIA) dealing with public authorities to which that statute has limited application. Without that focus, a long trawl through the Strasbourg jurisprudence on article 10 of the European Convention on Human Rights is of little assistance. The relevant provisions are in section 7 of and Schedule 1 to FOIA. Section 7(1) provides that where a public authority is listed in Schedule 1 only in relation to information of a specified description, nothing in Parts I to V of the Act is to apply to any other information held by the authority. Schedule 1, Part VI lists the British Broadcasting Corporation (BBC) in respect of information held for purposes other than those of journalism, art or literature. A similar form of words appears (in adjectival form) in section 3 of the Data Protection Act 1998, which defines the special purposes as meaning any one or more of the following (a) the purposes of journalism, (b) artistic purposes, and (c) literary purposes. Section 32 of the Data Protection Act gives a limited exemption where personal data is processed with a view to the publication by any person of any journalistic, literary or artistic material, and the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and that compliance with some specified provisions of the Data Protection Act would be incompatible with the special purposes. Both sets of statutory provisions are evidently aimed at promoting freedom of expression, the value embodied in article 10 of the European Convention on Human Rights. There is no relevant definition of journalism, art or literature in either statute. The three words are abstract nouns which can be used to describe either an activity or the product of that activity. Journalism is a word introduced into the English language from French in the 19th century. The Oxford English Dictionary gives its primary meaning (by reference to journalist) as the occupation of editing or writing for a public journal. In a loose sense it can cover the production of just about anything published in a newspaper (or, today, broadcast on sound radio or television). But in the context of FOIA, its collocation with art and literature suggests that journalism is used to refer primarily to output on news and current affairs (no doubt including sport, an important part of the BBCs output); and the composite expression journalism, art or literature seems to be intended to cover the whole of the BBCs output in its mission (under article 5 of its Royal Charter) to inform, educate and entertain the public. On that comprehensive approach the purposes of journalism, art or literature would be, quite simply, the purposes of the BBCs entire output to the public. Mr Jeremy Clarkson must, it seems, have moved from the pigeonhole of journalism to that of literature when, as Irwin J recorded in British Broadcasting Corporation v Information Commissioner [2009] EWHC 2348 (Admin), [2010] EMLR 121, para 36, it was decided for editorial reasons to change the format of Top Gear so that it became primarily an entertainment programme rather than a consumer programme, [which] increased the production costs to an important degree. British Broadcasting Corporation v Information Commissioner [2009] EWHC 2348 (Admin) (the financial information case) was heard by Irwin J immediately after he heard the case [2009] EWHC 2349 (Admin) in which this appeal is brought, and he handed down his judgment in the two cases on the same day, 2 October 2009. Important parts of the two judgments are, as Irwin J noted in the first paragraph of each judgment, expressed in identical or very similar terms. There is also one other first-instance judgment calling for mention, that is the judgment of Davis J in the first round of Mr Sugars litigation, British Broadcasting Corporation v Sugar [2007] EWHC 905 (Admin), [2007] 1 WLR 2583. The judgment of Davis J contains a valuable discussion of the relevant provisions of FOIA but proceeds on the footing that the Information Tribunal (the Tribunal) had no jurisdiction, in the circumstances, to hear an appeal from the Information Commissioner (the Commissioner). That premise was later shown by the decision of a bare majority of the House of Lords to be erroneous: [2009] UKHL 9, [2009] 1 WLR 430. One of the most important issues of law considered by Irwin J in his twin judgments is whether, as a matter of construction, the word predominantly should in effect be inserted in Schedule 1, Part VI before the phrase for purposes other than those of journalism, art or literature). Irwin J described this (in para 3 of each judgment) as a concession made by the BBC before the Tribunal, but that description depends on the spectators viewpoint. The Court of Appeal (Lord Neuberger MR, para 36) described it as a successful argument. So it is worth looking at how this point developed. Apart from any de minimis principle, which the Court of Appeal (Lord Neuberger MR, para 59) rightly regarded as unhelpful in this context, there are four possible categories of information held by the BBC that need to be considered: (1) information held exclusively for non-journalistic purposes; (2) information held predominantly, but not exclusively, for non-journalistic purposes (the other purposes being those of journalism); (3) information held predominantly, but not exclusively, for journalistic purposes (the other purposes being non-journalistic); and (4) information held exclusively for journalistic purposes. Before the Tribunal Mr Sugar argued that the BBCs immunity under Schedule 1 Part VI (as opposed to its possible exemption under other particular provisions of FOIA) was limited to information in category (4). In other words he was insisting on disclosure (apart from particular exemptions) of categories (1), (2) and (3). The BBC did not oppose categories (1) and (2) (so that category (2) could be termed a concession) but opposed disclosure of category (3), and was successful in that argument. Irwin J felt unable to accept the concession, either in the Sugar appeal or in the appeal in the financial information case. He held that category (1) was the only category of information that the BBC had to disclose (again, subject to particular exemptions). His reasons are at paras 44 to 66 of his judgment in the Sugar case and at paras 53 to 73 of his judgment in the financial information case, which are in almost identical terms. The Court of Appeal agreed with his reasoning and conclusions (Lord Neuberger MR, paras 39 to 52). I respectfully agree. In my judgment the correct view is that (as Lord Neuberger MR put it at para 44): once it is established that the information sought is held by the BBC for the purposes of journalism, it is effectively exempt from production under the Act, even if the information is also held by the BBC for other purposes. So in effect there are only two categories: one is information held for purposes that are in no way those of journalism, and the other is information held for the purposes of journalism, even if it is also held for other (possibly more important) purposes. That conclusion follows both from FOIAs legislative purpose and from its language. First, legislative purpose. It is common ground that FOIA was enacted in order to promote an important public interest in access to information about public bodies. There are (as Schedule 1 to FOIA reveals) thousands of public authorities, large and small, which are paid for out of public funds, and whose actions or omissions may have a profound effect on citizens and residents of the United Kingdom. There is a strong public interest in the press and the general public having the right, subject to appropriate safeguards, to require public authorities to provide information about their activities. It adds to parliamentary scrutiny a further and more direct route to a measure of public accountability. There is therefore force, in relation to FOIA as well as in relation to the Freedom of Information (Scotland) Act 2002, in the proposition that, as the whole purpose of the 2002 Act is the release of information, it should be construed in as liberal a manner as possible. That is how it was put by Lord Marnoch in Common Services Agency v Scottish Information Commissioner [2006] CSIH 58, 2007 SC 231, para 32, approved by Lord Hope in the House of Lords [2008] UKHL 47, [2008] 1 WLR 1550, para 4. But Lord Hope continued: But that proposition must not be applied too widely, without regard to the way the Act was designed to operate in conjunction with the [Data Protection Act 1998]. It is obvious that not all government can be completely open, and special consideration also had to be given to the release of personal information relating to individuals. So while the entitlement to information is expressed initially in the broadest terms that are imaginable, it is qualified in respects that are equally significant and to which appropriate weight must also be given. The scope and nature of the various exemptions plays a key role within the Acts complex analytical framework. (The Commons Services Agency case serves to explain the position on freedom of information in Scotland, which is not immediately apparent from FOIA itself. FOIA extends to Scotland and so applies to operations in Scotland of public authorities which operate throughout the United Kingdom; but Scotland also has its own statute applying to Scottish public authorities.) In this case, there is a powerful public interest pulling in the opposite direction. It is that public service broadcasters, no less than the commercial media, should be free to gather, edit and publish news and comment on current affairs without the inhibition of an obligation to make public disclosure of or about their work in progress. They should also be free of inhibition in monitoring and reviewing their output in order to maintain standards and rectify lapses. A measure of protection might have been available under some of the qualified exemptions in Part II of FOIA, in particular those in sections 36 (Prejudice to effective conduct of public affairs), 41 (Information provided in confidence) and 43 (Commercial interests). But Parliament evidently decided that the BBCs important right to freedom of expression warranted a more general and unqualified protection for information held for the purposes of the BBCs journalistic, artistic and literary output. That being the purpose of the immunity, section 7 and Schedule 1 Part VI, as they apply to the BBC, would have failed to achieve their purpose if the coexistence of other non-journalistic purposes resulted in the loss of immunity. That is confirmed by the language of these statutory provisions. The disclosable material is defined in terms (held for purposes other than those of journalism, art or literature) which are positive in form but negative in substance. The real emphasis is on what is not disclosable that is material held for the purposes of the BBCs broadcasting output. It is the most natural construction, which does not depend on reading in any words. That was the view formed both by Irwin J (see especially paras 55 to 58 and 63 to 65 of his Sugar judgment) and by Lord Neuberger MR (see especially paras 40 to 42, 44 to 46, and 49 of his judgment). Mr Eicke QC was critical of para 49, submitting that it assumed the very answer that the Court of Appeal was seeking to justify. I consider that criticism to be unjustified, though the reasoning was perhaps rather compressed. The unspoken premise is that Parliament must have intended to lay down a workable test, and both an exclusively and a predominantly test would raise almost insoluble problems in their practical application. That is not to say that the test approved by Irwin J and the Court of Appeal is without its difficulties. Parliament has, in trying to provide machinery for determining where the stronger public interest lies, placed a heavy burden on the Tribunal as an expert decision-maker. Davis J cited the well-known speech of Lord Mustill in R v Monopolies and Mergers Commission, Ex p South Yorkshire Transport Ltd [1993] 1 WLR 23, 32-33 (where the relevant statute referred to a substantial part of the United Kingdom): But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] AC 14. The present is such a case. Even after eliminating inappropriate senses of substantial one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. I consider that Davis J was right to regard the present case as falling within that category. He was however mistaken in supposing that the Tribunal had no jurisdiction to hear an appeal, and so he should have treated the Tribunal, and not the Commissioner, as the crucial decision-maker. Irwin J concluded (para 66 of his Sugar judgment) that the Tribunal had erred in law in applying the predominant purpose test. So did Lord Neuberger MR (para 62). So did Moses LJ (para 73), though I have some difficulty with the way his reasoning is expressed on this point, as it seems to come close to conflicting with the reasoning of the majority of the House of Lords in the first round of litigation, [2009] 1 WLR 430. Munby LJ agreed with both judgments. I would therefore dismiss this appeal, but for reasons different from those set out in the judgment of Lord Wilson. I would add that I am conscious that this interpretation of the limitation may be seen as conferring on the BBC an immunity so wide as to make the particular statutory redemptions redundant, and leave the BBC almost free of obligations under FOIA. As the Tribunal observed (paras 96 and 102): On a broad definition, it could be argued that all of the activities of the BBC are for the purposes of journalism, art and literature, as these are broad descriptions of a substantial part of its broadcast output . . . However, if a very broad definition was intended, there would be little point in including the BBC in Schedule 1, Part VI of FOIA. The BBC could have been omitted altogether from the scope of the Act. The same point was made by Davis J [2007] 1 WLR 2583, para 55. In my view the correct approach is for the Tribunal, while eschewing the predominance of purpose as a test, to have some regard to the directness of the purpose. That is not a distinction without a difference. It is not weighing one purpose against another, but considering the proximity between the subject-matter of the request and the BBCs journalistic activities and end-product. As Irwin J observed in the financial information case, para 87, in the context of a critique of what was operational: The cost of cleaning the BBC Boardroom is only remotely linked to the product of the BBC. I respectfully agree with the measured comments of Lord Neuberger MR (para 55): In my view, whatever meaning is given to journalism I would not be sympathetic to the notion that information about, for instance, advertising revenue, property ownership or outgoings, financial debt, and the like would normally be held for purposes . . . of journalism. No doubt there can be said to be a link between such information and journalism: the more that is spent on wages, rent or interest payments, the less there is for programmes. However, on that basis, literally every piece of information held by the BBC could be said to be held for the purposes of journalism. In my view, save on particular facts, such information, although it may well affect journalism-related issues and decisions, would not normally be held for purposes . . . of journalism. The question whether information is held for the purposes of journalism should thus be considered in a relatively narrow rather than a relatively wide way. That is the best way forward in order to strike the difficult balance of competing interests for which Parliament must be taken to have been aiming. But it will still leave some difficult decisions for the Commissioner and, on appeal, the Tribunal. There cannot be (in the words of Davis J, para 57) any unequivocal, bright-line test. All of us agree that on any conventional approach to the construction of the Freedom of Information Act 2000 (the Act) and in particular the expression information held for purposes . . . of journalism within the meaning of Schedule 1 to the Act, it clearly encompasses the Balen Report (the Report) throughout the whole period that the BBC has held it. It is the appellants contention, however, that this approach to the construction of the Act and the consequent non-disclosure of the Report would violate article 10 of the European Convention on Human Rights and that the Court is accordingly bound, consistently with section 3 of the Human Rights Act 1998, to read and give effect to the Act so as to require the Reports disclosure. It is this contention that I am here principally concerned to address. Given, however, that a disagreement exists within the Court as to whether information held for the purposes of journalism but held also for other purposes must be subjected to a test as to which purpose is predominant and disclosed if the predominant purpose is non-journalistic, I shall in conclusion briefly address this issue too, irrelevant though it is to the outcome of this particular appeal. The appellants article 10 contention is not one that appears to have been advanced before Irwin J at first instance (certainly there is no mention of article 10 in his judgment). Article 10 was, however, invoked in the Court of Appeal, indeed by both sides. The BBC submitted that disclosure of the Report (and any other information held for the purposes of journalism) would have a chilling effect upon their right to freedom of expression; the appellant submitted that, subject only to narrow exceptions (none being applicable here), article 10 gives him a right of access to all such information. The Court of Appeal, however, derived no assistance from article 10 either way, Moses LJ (at para 77) finding it impossible to identify within the jurisprudence any pointer for or against the rival contentions. Before this Court Mr Eicke QC has vigorously returned to article 10 and advances what is essentially a two stage argument. First, he contends, in reliance principally upon a trilogy of Strasbourg decisions Matky v Czech Republic (Application No 19101/03) (unreported) 10 July 2006, (Matky), Tarsasag A Szabadsagjogokert v Hungary (2009) 53 EHRR 130 (14 April 2009) (Tarsasag), and Kenedi v Hungary (Application No 31475/05) (unreported) 26 August 2009 (Kenedi) that the ECtHR has recently moved towards the recognition of a right of access to information and that in the particular circumstances of the present case an interpretation of the Act which withholds from disclosure a document such as the Report interferes with the right of access to information protected by article 10(1). Secondly he submits that such interference is not necessary in a democratic society so as to be justified under article 10(2). He not only disputes that the release of the Report would have a chilling effect on freedom of expression but submits that only the need to protect journalistic sources or perhaps, indeed, more narrowly still, the need to protect sources who might otherwise be deterred from assisting journalists would constitute an overriding requirement of the public interest sufficient to justify this interference with the citizens article 10(1) right of access to information. Before turning to the trilogy of decisions upon which the appellant mainly relies it is helpful first to note the well-established body of Strasbourg jurisprudence which is recognised to define, generally speaking, the nature and extent of the right under article 10(1) to receive . . . information and ideas without interference by public authority. It is sufficient for present purposes to cite a short passage from the unanimous Grand Chamber decision in Roche v United Kingdom (2005) 42 EHRR 599 at para 172: The Court reiterates its conclusion in Leander v Sweden (1987) 9 EHRR 433 and in Gaskin v United Kingdom (1989) 12 EHRR 36 and, more recently, confirmed in Guerra v Italy (1998) 26 EHRR 357, that the freedom to receive information prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him and that that freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to . . . disseminate information of its own motion. It is right to observe, before moving on, that the circumstances of those particular cases were that the applicants were attempting to obtain information respectively about their being regarded as a security risk (Leander), about their childhood (Gaskin), about a chemical factory (Guerra) and about long-past Porton Down tests in which they had participated (Roche). I come then to the first of the trilogy of cases on which the appellant so strongly relies: Matky. The complainant there was seeking, against the background of a general right to information under the Czech legal system, access to documentation concerning the construction of a new nuclear power station and in particular was challenging a requirement of the domestic legislation (article 133 of the Building Act) that a request for information had to be justified. The Court accepted that the rejection of his request constituted an interference with the complainants right to receive information. But it held that the decision could not be considered arbitrary, recognised that Contracting States enjoy a certain margin of appreciation in this area and unanimously rejected the complaint as manifestly ill-founded. Matky seems accordingly an unpromising foundation upon which to build any significant departure from what may be called the Roche approach to the freedom to receive information protected by article 10. Nevertheless, in Tarsasag (the second in the appellants trilogy of cases) it was to Matky that the Second Section of the Court referred as (the sole) authority for the proposition that, the Leander line of authority notwithstanding, the Court has recently advanced towards a broader interpretation of the notion of freedom to receive information and thereby towards the recognition of a right of access to information. In Tarsasag the court upheld a complaint by the Hungarian Civil Liberties Union that a refusal by the Constitutional Court to grant them access to an MPs pending complaint as to the constitutionality of certain proposed amendments to the Criminal Code breached its article 10 right to receive information. The Government having accepted that there had been an interference with the applicants article 10 rights, Mr Eicke relies in particular upon the following passage in the Courts judgment: [The Court] considers that the present case essentially concerns an interference by virtue of the censorial power of an information monopoly with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. . . . Moreover, the states obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. (para 36) Kenedi, the third in the trilogy of cases, was decided just four months after Tarsasag, also by the Second Section of the Court (including six of the same seven judges who had decided Tarsasag). The applicant there was a historian specialising in the functioning of the secret services of dictatorships. Although a succession of domestic court judgments had held him to be entitled to access to various documents for research purposes, the Ministry had refused to disclose them. Once again, hardly surprisingly in this case, the government conceded that there had been an interference with the applicants article 10 rights. The Court had no difficulty in finding in the result a violation of article 10: the Court cannot but conclude that the obstinate reluctance of the respondent States authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness. In my judgment these three cases fall far short of establishing that an individuals article 10(1) freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents. Of course, every public authority has in one sense the censorial power of an information monopoly in respect of its own internal documents. But that consideration alone cannot give rise to a prima facie interference with article 10 rights whenever the disclosure of such documents is refused. Such a view would conflict squarely with the Roche approach. The appellants difficulty here is not that Mr Sugar was not exercising the functions of a social watchdog, like the press. (Perhaps he was.) The Jewish Chronicle would be in no different or better position. The appellants difficulty to my mind is rather that article 10 creates no general right to freedom of information and where, as here, the legislation expressly limits such right to information held otherwise than for the purposes of journalism, it is not interfered with when access is refused to documents which are held for journalistic purposes. True it is, as Lord Judge CJ noted when giving the judgment of the Court in Independent News and Media Ltd v A [2010] 1 WLR 2262 (para 42), that the Venice Commission has described Tarsasag as a landmark decision on the relation between freedom of information and the . . . Convention. Whatever else might be said about Mr Eickes trilogy of cases, however, they cannot to my mind be said to support his first proposition having regard to the particular relationship between the parties in this case. I should perhaps add for the sake of completeness that there is absolutely nothing in Independent News and Media Ltd v A, still less in R (Mohamed) v Secretary of State for Foreign Affairs (No 2) [2011] QB 218, to support Mr Eickes reliance on article 10 in the present context. It follows that for my part I would hold that the appellants article 10 case fails at the first stage. There was no interference here with Mr Sugars freedom to receive information. The Act not having conferred upon him any relevant right of access to information, he had no such freedom. Even were that not so, however, I would reject the second stage of Mr Eickes argument too. Even were one to start with the supposition that any refusal by a public authority to disclose information involves a prima facie interference with a persons freedom to receive that information, it seems to me open to the State to legislate, as here, a blanket exclusion of any requirement to disclose information held (whether predominantly or not) for the purposes of journalism. The appellants contrary argument fixes in particular upon a line of Strasbourg cases concerned essentially with journalistic sources: Goodwin v United Kingdom (1996) 22 EHRR 123, Nordisk Film and TV A/S v Denmark (Application No 40485/02) (8 December 2005) and Sanoma Uitgevers BV v The Netherlands (Application No 38224/03) (14 September 2010). What must be recognised, however, is that in each of these cases it was the journalists who were the complainants, that what they were complaining about were domestic court orders requiring disclosure of their sources or research material, and that the starting point for the Strasbourg Courts consideration of these complaints was, as the Grand Chamber noted at paragraph 59 of its judgment in Sanoma: In its earlier case-law the Court has found various acts of the authorities compelling journalists to give up their privilege and provide information on their sources or to obtain access to journalistic information to constitute interferences with journalistic freedom of expression. The applicant in Goodwin succeeded on the basis that he had been ordered to reveal the identity of a person who had provided him with information on an unattributable basis. The applicant in Nordisk failed because on the particular facts of that case (which it is not here necessary to rehearse) the applicant was not being ordered to disclose its journalistic source of information but rather part of its research material and that, even though the latter may have a chilling effect on the exercise of journalistic freedom of expression, there it was justified by an overriding requirement in the public interest: assisting in the prosecution of paedophiles. The applicant company in Sanoma succeeded because there was an order for the compulsory surrender of journalistic material containing information capable of identifying journalistic sources, an interference with its article 10 rights which the Court there held was not prescribed by law: the quality of the law was deficient in that there was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources. (para 100) Helpful though these cases may be, however, in explaining the limitations placed upon a journalists prima facie right to protect both his sources and his research material from compulsory court orders for their disclosure, they say little if anything about what other interests and concerns may properly be invoked by journalists in resisting the disclosure to others (whether or not themselves journalists) of other information held for journalistic purposes (ie information apart from that necessary to protect confidential sources and research material, including for example the Balen Report). To my mind it stands to reason that the disclosure of a document such as the Report would be likely to affect the candour of any similar future report. As the Information Tribunal itself found in the present case (at para 116): Self-critical review and analysis of output is a necessary part of safeguarding and enhancing quality. The necessary frankness of such internal analysis would be damaged if it were to be written in an anodyne fashion, as would be likely to be the case if it were potentially disclosable to a rival broadcaster. (Or, one may add, to anyone else.) In short I would reject also the second stage of the appellants argument: the contention that section 3 of the Human Rights Act should be invoked here to limit the information stipulated by the Act to be undisclosable through being held for the purposes of journalism merely to that held for the purpose of safeguarding the BBCs confidential sources. I turn then briefly to the question whether, in a case where information is held partly for journalistic and partly for non-journalistic purposes, it is necessary to ask which purpose is predominant and to disclose any information held predominantly for non-journalistic purposes. I conclude, in common with Lord Phillips and Lord Walker (and, indeed, with the Court of Appeal), but in respectful disagreement with Lord Wilson, that the answer is No. My reasons being essentially the same as those given by both Lord Phillips and Lord Walker (although perhaps more particularly those of Lord Walker), I can explain my concurrence very shortly indeed. Really it comes to this. With regard both to the BBC (together with the three other listed broadcasters) and the Bank of England, Parliament, for differing but in each case compelling reasons of national interest, was concerned not to subject these institutions to the operation of the Act including, for example, the need to resort to Part II of the Act to justify any reluctance to withhold some particular information from disclosure save only in strictly limited circumstances. In the case of the BBC and other broadcasters it is only in respect of information held for purposes other than those of journalism, art or literature. In the event that information is held to any significant degree (and we are all agreed that the de minimis principle would otherwise apply) for the purposes of journalism, then to my mind it would seem artificial and impermissible to construe the Act as applying to that information. Quite simply, it remains information held for the purposes of journalism and therefore constitutes (within the meaning of section 7) other information than information held for purposes other than those of journalism. The mere fact that it may be held (even perhaps to a predominant extent) also for purposes other than those of journalism cannot sensibly serve to enlarge the basic category of information in respect of which the BBC is listed and with regard to which, therefore, the Act is not disapplied by section 7. In short, like Lord Walker, I find that the natural construction of the Act, and Parliaments evident concern to ensure that the interests of free expression trump without more those of freedom of information, supports the BBCs case on this issue. As for the point at which information will cease to be held to any significant degree for the purposes of journalism and become held instead, say, solely for archival purposes, that necessarily will depend on the facts of any particular case and involve a question of judgment. I too agree with Lord Walker that the central question to be asked in such a context will be, not which purpose is predominant, but rather whether there remains any sufficiently direct link between the BBCs continuing holding of the information and the achievement of its journalistic purposes. I too would dismiss this appeal. The question on this appeal is whether the Balen Report commissioned by the BBC in relation to its Middle Eastern coverage and completed in July 2004 constituted information held for purposes other than those of journalism, art or literature (within Part VI of Schedule 1 to the Freedom of Information Act 2000). The appeal falls to be approached on the basis that the Report was at the material time held predominantly for journalistic but partly also for other purposes. The material time was in 2005, when Mr Sugar first requested disclosure of the Report. I agree with the other members of the Court that this appeal should be dismissed. However, there is a difference in the basis upon which different members of the Court would dismiss it. Lord Wilson would only dismiss it on the basis that the critical test is whether the BBC held the Report predominantly for the purposes of journalism. Were this not the test, he would have regarded the existence of other not insignificant purposes as sufficient to mean that the Report was held for purposes other than those of journalism, art or literature, and so disclosable. The other members of the Court take an opposite view: once it is established that the BBC held the Report for purposes of journalism, art or literature, the Report was exempt from disclosure, and would have been even had these not been the predominant purposes for which it was held. The rival arguments on this point are finely balanced, and its resolution in the present appeal on the basis of sparse facts causes me a certain concern. However, after some hesitation, I have come to the conclusion that the test applied by Lords Phillips, Walker and Brown is to be preferred. The Freedom of Information Act 2000 reflects the value to be attached to transparency and openness in the workings of public authorities in modern society, and its provisions should be construed in as liberal a manner as possible: Common Services Agency v Scottish Information Commissioner [2008] UKHL 47, [2008] 1 WLR 1550, para 4 per Lord Hope. But, as Lord Walker notes (para 77), Lord Hope went on to add that that proposition must not be applied too widely, and special considerations may lead to restrictions. In the present case, the special consideration to which the legislator gave effect was the freedom of the BBC as a public service broadcaster in relation to its journalistic, artistic and literary output. Information held for any such purposes of journalism, art or literature was absolutely exempt from disclosure. The legislator was not content with the more qualified protection from disclosure, often depending on a balancing exercise or evaluation, which would anyway have been available under section 2, read with sections 28, 29, 36, 41 and 43. To read into the words information held for purposes other than those of journalism, art or literature a need to evaluate whether such purposes were dominant seems to me unjustified. I share Lord Walkers view (para 79) that the real emphasis of the words is on what is not disclosable, so that the exemption applies, without more, if the information is held for any journalistic, artistic or literary purpose. That conclusion is to my mind also fortified by consideration of the exemption relating to certain functions of the Bank of England. Lord Phillips discusses the position regarding archived material. We were not given any clear picture when or on what basis archiving might occur. I assume that the reference is to material not envisaged as having any current purpose, but stored for historical purposes or against the possibility of some unforeseen need to revisit, or produce evidence of, past events. A library maintained for current reference would in contrast contain material held for the purposes of journalism, art or literature. I agree with Lord Browns analysis of the current state of Strasbourg authority, and also with Lord Wilsons comment in para 59 on the decisions (or dicta) in Ullah and Al-Skeini. Nothing in the Strasbourg jurisprudence calls us to do anything but give effect in this case to what we consider to be the proper construction of the 2000 Act under ordinary domestic principles. It is unnecessary to say more, or to add to recent debate about the nature of the Convention rights in the United Kingdom or the domestic courts role in interpreting and applying them taking into account any relevant Strasbourg case-law. I agree with Lord Browns analysis of the current state of Strasbourg authority, and also with Lord Wilsons comment in para 59 on the decisions (or dicta) in Ullah and Al-Skeini. Nothing in the Strasbourg jurisprudence calls us to do anything but give effect in this case to what we consider to be the proper construction of the 2000 Act under ordinary domestic principles. It is unnecessary to say more, or to add to recent debate about the nature of the Convention rights in the United Kingdom or the domestic courts role in interpreting and applying them taking into account any relevant Strasbourg case-law. |
The issue in this appeal raises what the courts below have correctly described as a short point of construction. It relates to a contract which the appellants, Stewart Milne Group Limited, entered into with the respondents, Aberdeen City Council, for the purchase of land with a view to its development to form a business park or for industrial development. The subjects comprised an area of about 11 acres lying to the north of the B9119 public road at Westhill, Aberdeen. The purchase price was 365,000, but it was subject to a possible uplift in the events described in clause 9 of the missives. In general terms this was to be payable if the appellants issued a notice indicating their wish to buy out the respondents share of the open market value of the land with the benefit of all necessary consents and agreements for its development, or if the appellants wished to dispose of the whole or part of the subjects by sale or by a lease for a term of more than 25 years. The negotiations which were recorded in the missive letters between the parties were conducted over a period of several years. They began with a missive letter by the appellants solicitors dated 6 November 2001 in which all the terms relevant to the present dispute are set out. By missive letter dated 8 November 2001 the respondents accepted the appellants offer on the terms and conditions contained in the letter of 6 November 2001 and held the bargain as concluded. But further negotiations then followed, the missives were re opened and the bargain was not finally concluded until 26 August 2004. The appellants took title to the subjects as heritable proprietors. A development of the kind contemplated by the missives was then carried out. On 4 October 2006 the appellants transferred their title to the subjects to another company within the Stewart Milne Group called Stewart Milne (Westhill) Limited (Westhill). On 13 December 2006 their solicitors wrote to the respondents stating that they had disposed of the subjects to Westhill by way of sale. Their contention was that the effect of this transaction was to trigger the obligation to pay the uplift to the purchase price that the missives provided for. They contended also that the gross sale proceeds for the purposes of the calculation of the uplift that the missives provided for must be taken to be that part of the total consideration paid by Westhill for the whole of the development land that was attributable to the subjects, which was 483,020. As this was less than the allowable costs which were to be deducted from the sale price in terms of the missives, the result was that no uplift was payable to the respondents. The respondents refused to accept that the transaction had this effect, as they maintained that the open market value of the subjects was greatly in excess of the consideration paid by Westhill. The parties were unable to agree on this matter, so the respondents raised an action in the Court of Session in which they concluded for declarator that any further sum due to them in terms of the missives falls to be calculated by reference to the open market value of the subjects referred to in the contract as at the date of their sale by the appellants to Westhill, less the allowable costs as defined in the schedule to the missive letter of 6 November 2001. The appellants defence to this action was that the contract between the parties, on its true construction, did not provide that any additional payment under clause 9 of the missives should, in the case of a sale of the subjects, be calculated on the basis of their open market value. It was agreed that the matter was capable of being resolved by debate. The debate took place before the Lord Ordinary, Lord Glennie, in May 2009. On 3 June 2009 he found in favour of the respondents and granted decree of declarator in terms of the conclusion of the summons. The appellants reclaimed and the reclaiming motion was heard by an Extra Division (Lord Clarke, Lord Hardie and Lord Drummond Young) on 6 July 2010. On 14 October 2010 the Extra Division refused the reclaiming motion and adhered to the Lord Ordinarys interlocutor. The appellants have now appealed to this court. Their solicitor advocate, Mr Craig Connal QC, invited us to recall the Extra Divisions interlocutor and to dismiss the action. The contractual provisions The appellants were referred to in the missive letter of 6 November 2001 as the Purchasers. The respondents were referred to as the Sellers. In clause 2 it was stated that the purchase price of 365,000 payable for the subjects on the date of entry was subject to any uplift payable in terms of clause 9. Clause 4 contained a list of conditions which were described as conditions suspensive of the missives. They provided for a site and soil survey report and an environmental audit on the subjects, the obtaining of outline planning permission and sewage connection consent and water authority consent for the construction and subsequent operation of the development on the subjects. The opening paragraph of clause 9, which was headed Uplift, was in these terms: In addition to the purchase price detailed in Clause 2 hereof, the Purchasers and the Sellers have agreed that the Sellers shall be entitled to a further payment (the Profit Share) upon the Purchasers purifying the suspensive conditions contained in Clause 4 hereof and issuing a notice to the Sellers intimating to the Sellers that the Purchasers wish to purchase the relevant part of the profit share as defined in the Schedule to which the Sellers are entitled. The Sellers entitlement to the relevant part of the profit share will also be triggered by the Purchasers disposing either by selling or by granting a lease of the whole or part of the Subjects. Various expressions used in clause 9 were defined in a Schedule to the missives. They included a definition of the Allowable Costs. The definition, which does not need to be quoted in full, comprised various costs that were likely to be incurred by the appellants with a view to obtaining planning permission and all other necessary consents in connection with the development and servicing of the subjects. Among the other definitions were the following: Estimated Profit means the Open Market Valuation under deduction of the Allowable Costs. Gross Sale Proceeds means the aggregate of the sale proceeds of the Subjects received by the Purchasers for the Subjects. lease means a lease for a term of more than 25 years. Lease Value means the open market capital valuation of the Subjects or that part of the Subjects to be leased having regard to the terms of the lease but assuming that the lease is an open market transaction carried out at arms length with no consideration or other incentives being paid by either party other than the rent or, in the case of a lease granted in consideration of a grassum, the grassum Open Market Valuation means the open market value of the Subjects or relevant part thereof as specified in the notice at the date of the notice served in accordance with clause 9.5, with the benefit of and subject to the necessary consents and all agreements entered into with the local Planning Road [sic], Water or other Authority or service provider relative to the Subjects and making due and proper allowance for the costs of remedying any adverse ground conditions, any off site infrastructure or planning gain contributions to be made in terms of any of the necessary consents or the aftermentioned agreements and the costs of completing any access road within or serving the Subjects to adoptable standard. Profit means the Gross Sale Proceeds under deduction of the Development Costs. the Profit Share means 40% of 80% of the estimated profit or gross sale proceeds or lease value less the Allowable Costs as herein defined. By clause 9.1 the appellants were to be obliged to keep accounts in respect of the Allowable Costs, which the respondents were to be entitled to examine at any time. Clause 9.2 provided that the profit share was to be calculated in the first instance by the appellants, and that in the event of the respondents disputing their calculations the matter was to be referred to an independent chartered surveyor for his determination. Clause 9.3 provided for what was to happen if the appellants served notice in respect of a part only of the subjects or if they sold or leased part only of them after servicing. Clause 9.4 was in these terms: The relevant part of the profit share due to the Sellers shall be paid by the Purchasers to the Sellers within 14 days of it being calculated in accordance with clause 9.2 hereof or in the event of a sale 14 days after receipt of the gross sale proceeds by the Purchasers. Clause 9.5 provided that the appellants were to be entitled to serve a notice to the respondents intimating that they wished to purchase the profit share at any time after purification of the suspensive conditions in clause 4. Clause 9.6 provided that in the event of the respondents disputing the appellants Estimated Profit or the Lease Value the matter was to be referred, failing agreement between the parties, to an independent chartered surveyor for his determination. Clause 9.7 was in these terms: For the avoidance of doubt in the event of all or part of the Profit Share being paid following upon the grant of a lease of all or part of the Subjects no further Profit Share shall be payable upon the sale of that part of the Subjects in respect of which the Profit Share has already been paid. It should be noted that, quite apart from the problem that has given rise to the present dispute, the drafting of these provisions is not without its defects. The definitions of the expressions Estimated Profit and the Profit Share in the Schedule, if they were to be taken literally, would require the Allowable Costs to be deducted twice in arriving at the Profit Share in the event of the amount that it refers to having to be calculated by means of an open market valuation. That plainly cannot be right. So one of those two directions must be disregarded to make sense of the agreement. The definitions of Lease Value and Open Market Valuation both direct attention to the capital value of the subjects in the open market. But they differ in their description of the assumptions on which these valuations are to be arrived at. The date as at which the valuation in the open market is to be arrived at is provided for in the definition of Open Market Valuation. But a direction on this point is absent in the case of the capital valuation that is to be undertaken in the case of the Lease Value. These infelicities appear to be due more to untidy drafting than to differences in matters of substance. I mention these drafting points because they may make it easier to attribute the problem that we have to deal with to oversight rather than to a deliberate choice when the agreement was being drafted. The issues The appellants primary case is that the effect of their sale of the subjects to Westfield is to trigger clause 9 of the missives, with the result that their obligation is to pay to the respondents 40% of 80% of the gross sale proceeds less the Allowable Costs. They submit that the language of the missives is clear. The definition of the Profit Share, read together with the opening paragraph of clause 9 (see para 6, above), contemplates three different situations in which an uplift may be payable: (1) a buy out of the respondents interest in the development value of the subjects, (2) a disposal by way of sale; and (3) a disposal by way of a lease for more than 25 years. Each of these alternatives provides its own base figure for the calculation of the Profit Share: (1) the estimated profit in the case of buy out; (2) the gross sale proceeds in the case of a sale; and (3) the lease value in the case of a lease. The respondents reply to this argument is that the agreement does not require the sale proceeds to be used as the basis of calculation in all circumstances where the subjects were disposed of by way of sale. The commercial purpose of the agreement was to enable the respondents to participate in a share of the development value of the subjects. This was to be arrived at by assuming an open market transaction carried out at arms length, whatever the event was that gave rise to the respondents right to a share of the uplift. Effect should be given to that purpose when construing the words of the agreement. Mr Connal sought leave to present an entirely different argument which he had attempted to raise in the Inner House at a late stage but had been prevented from doing so. This was because on 9 June 2010 he was refused permission to add this argument to his grounds of appeal, presumably because it was inconsistent with the case that was presented in his pleadings, and was then on 25 June 2010 refused leave to amend his pleadings in respect that, as the interlocutor of that date puts it, his motion to do this came too late. The point which he wished to argue was that any commercial absurdity could be addressed by holding that the transfer of the subjects to Westhill did not fall within the definition of a sale for the purposes of the obligation to make payment to the respondents of an uplift. In other words, the word disposal in the opening words of clause 9 should be read as referring to market value at arms length to a third party rather than to an associated company for a notional value as had happened in this case. For the respondents Mr Sandison QC submitted that the appellants should not be allowed to present this argument as it had not been heard by the Inner House and it did not form part of the appellants written case in this court. But, very properly, he conceded that he had received notice of it and that it did not raise any new matters of fact which would require to be investigated before he was in position to reply to it. An appeal under section 40 of the Court of Session Act 1988 has the effect of submitting all the prior interlocutors in the cause to the review of this court: section 40(4). But I do not think that it is either necessary or appropriate to become involved in the niceties of procedure. The overriding aim should be to do substantial justice as between the parties. This aim is best served by allowing the further argument about how the contract should be construed to be presented. It is, after all, just another way of trying to make sense of the words used in the missives in the light of admitted facts. Discussion It is helpful, at the outset, to take an overall view of what the agreement appears to have had in mind in the provisions that it sets out for the payment to the respondents of a share of the uplift. Three events are identified as triggers to bring the appellants obligation into effect. They are set out in the opening words of clause 9 and are picked up again in the Schedule where the expression the Profit Share is defined. The Schedule then sets out three ways in which the base figure for the profit share is to be arrived at. At first sight they appear to be mutually exclusive. In the case of a buy out, the base figure is the estimated profit. This is to be arrived at by means of an open market valuation of the subjects, or the relevant part of it as specified in the notice, as at the date when the notice is served in accordance with clause 9.5: see the definition of Open Market Valuation. In the case of a sale it is the gross sale proceeds. In the case of a lease it is to be arrived at by means of a capital valuation of the subjects in the open market. These three approaches appear, as I have said, to be mutually exclusive. But the context tends to indicate that they have one thing in common. This is that the base figure is to be taken to be the amount which the subjects would fetch in a transaction that was conducted at arms length in the open market. This is expressly provided for in the case of a buy out, in which event a valuation of the subjects must be undertaken. This is also provided for expressly in the case of a lease. No mention is made of a valuation exercise in the case of a sale. But a sale at arms length is usually taken to be the best evidence of the value of the subjects in the open market. On this view there was nothing more to be said about the base figure in the event of a sale, other than that it was to be the gross sale proceeds. As the choice between these three methods lay entirely in the hands of the appellants and clause 9.7 precludes the respondents entitlement to any further Profit Share in the future, it is a reasonable assumption that these methods were expected to produce the same base figure, albeit by different routes or methods of calculation. Otherwise it would be open to the appellants to avoid the basis for the calculation in the case of a disposal by lease by disposing of the subjects to an associated company at an undervalue and arranging for the lease to be entered into by that company. Basing the calculation on the open market value was, on a fair reading of the agreement, the commercial purpose that these various methods were intended to serve. The problem that the facts of this case give rise to is that it was not expressly stated anywhere in clause 9 or the definitions set out in the schedule that the gross sale proceeds were only to be used in the event of a sale at arms length in the open market. Was this a deliberate choice, or was it simply an oversight? The answer to this question is to be found by examining how the agreement can be given effect on the assumption that this was an oversight. There are, of course, well understood limits to the extent to which a court can depart from the express terms of an agreement that has been reduced to writing in solving a problem of this kind. Would the court be transgressing these limits if it were to give effect to the case for the respondent in the face of the appellants submission that the contract should simply be given effect according to its terms? The problem can be addressed by taking the definitions in the Schedule in their logical order. First, there is the definition of the Profit Share. The three methods of arriving at the base figure are presented as alternatives. They are separated by the word or. It is plain that the method referred to as the lease value would be appropriate only in the case of a disposal by way of lease. But the wording of the definition does not, in terms, confine the method to be used in the case of a sale to the gross sale proceeds. In the case of a sale at arms length in the open market a separate valuation would be a needless formality, as it would almost certainly produce the same figure as was provided for in the contract. But it would serve a very real purpose if the sale was clearly not one undertaken at arms length in the open market, as happened in this case. The question then is whether there is anything in the definition of the expression Open Market Valuation which shows that this method cannot be used in the case of a sale. The definition directs attention to the open market value of the subjects or the relevant part thereof as specified in the notice at the date of the notice served in accordance with clause 9.5. There is no requirement for a notice in accordance with clause 9.5 in the case of a sale. But the absence of a notice does not make the valuation exercise directed by this definition unworkable. In the case of a sale the information that a notice would provide is to be found in the contract, just as in the case of lease it seems not to have been thought necessary to identify the date as at which the subjects were to be valued in order to arrive at the Lease Value. It seems to me therefore that there would be no difficulty in implying a term to the effect that, in the event of a sale which was not at arms length in the open market, an open market valuation should be used to arrive at the base figure for the calculation of the profit share. I see this as the product of the way I would interpret this contract. This was, in essence, the approach which the Extra Division took to the problem. In para 12 of his opinion Lord Drummond Young said that any other approach would defeat the parties clear objectives. Martin Hogg, a much respected senior lecturer in law at the University of Edinburgh, has criticised this decision: Fundamental issues for reform of the law of contractual interpretation (2011) 15 Edin LR 406, 420. Why, he asks, where a party has been feckless in allowing a clause susceptible of a commercially disadvantageous sense to form part of a contract, should it be protected by the court giving the contract a commercially sensible interpretation rather than allowing the party simply to suffer the results of its commercial fecklessness? Why should commercial good sense be attributed to a party which has not shown it in the drafting of the contract? At pp 421 422 he recommends a departure from what he refers to as a nave focus on subjective intention in favour of an objective approach to the interpretation of contracts. That would minimise the temptation which some courts have shown to improve upon the bargain reached by parties in the name of commercial good sense. I would not, for my part, view the present case in that way. It seems to me that the position here is quite straightforward. The context shows that the intention of the parties must be taken to have been that the base figure for the calculation of the uplift was to be the open market value of the subjects at the date of the event that triggered the obligation. In other words, it can be assumed that this is what the parties would have said if they had been asked about it at the time when the missives were entered into. The fact that this makes good commercial sense is simply a makeweight. The words of the contract itself tell us that this must be taken to have been what they had in mind when they entered into it. The only question is whether effect can be given to this unspoken intention without undue violence to the words they actually used in their agreement. For the reasons I have given, I would hold that the words which they used do not prevent its being given effect in the way I have indicated. Mr Connal said that the appellants would never have agreed to having to pay the uplift before the profit that was expected to result from the development had been realised. At any rate the likelihood of their agreeing to this was very slight. So it would be wrong to read the words of the contract in a way that produced that result in this case. But the answer to that submission is to be found in the fact that the sellers entitlement to the relevant part of the profit share is triggered by the grant of a lease of the whole or part of the subjects for more than 25 years, and in the definition of the Profit Share which requires that the capital sum produced by the calculation of the Lease Value be paid when the lease is entered. As Mr Sandison pointed out, the obligation to pay this sum could anticipate the date when the profit had been realised. So I do not accept that the contract must be approached on the basis that it was an essential element of the bargain that the profit had actually been realised before the obligation to pay the Profit Share was triggered by any of the transactions referred to. It should be noted too that the timing of the transactions that would give rise to that obligation was entirely in the hands of the appellants. I turn then to Mr Connals alternative argument. It seems to me that it creates more problems than it solves. It also tends to support the need to approach the agreement in the way the respondents contend for. There is obvious force in his starting point. This is the assumption that when clause 9 refers to a disposal by way of sale it contemplates a sale at arms length in the open market. But it is also clear that the sale, and the only sale, that it contemplates is a sale by the appellants. This is made clear by the definition of the expression Gross Sale Proceeds, which refers to the sale proceeds received by the Purchasers for the subjects. The opening paragraph of the missive letter of 6 November 2001 states that the appellants are referred to in it as the Purchasers. The appellants, it must be emphasised, are the only parties with whom this contract was being entered into. Mr Connal suggested that the sale to Westhill should be disregarded and the obligation to pay the uplift triggered instead by a sale of the subjects in the open market by Westhill. But that solution cannot fit with the words used in the contract, to which Westhill are not a party. It would not be enough merely to substitute for the word Purchasers in the definition words that would include an associate company. It would also be necessary to write in clauses to protect the respondents against the obvious risks that such an arrangement would give rise to. As the contract stands, there would be nothing to prevent the appellants from disposing of the subjects to a wholly owned subsidiary and then disposing of that company to a third party over which it had no control. It would require the insertion of a number of carefully worded provisions to restrict the appellants opportunity for avoiding the obligation to account to the respondents for the uplift when it was realised. This would involve re writing the bargain for the parties, which the court cannot do. Conclusion I am not persuaded that the Extra Division was wrong to uphold the decision of the Lord Ordinary. I would dismiss the appeal and affirm the Extra Divisions interlocutor. I gratefully adopt Lord Hopes account of the facts and the missives. I agree LORD CLARKE (WITH WHOM LORD HOPE, LADY HALE, LORD MANCE AND LORD KERR AGREE) that the appeal should be dismissed. In the course of argument some reference was made to the recent decision of the Supreme Court in Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900. That appeal was concerned with the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations. It was held that in such a case the court should adopt the more, rather than the less, commercial construction. The court applied the principle that the ultimate aim in construing a contract is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant; the relevant reasonable person being one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. This appeal is concerned with a somewhat different problem from that which arose in Rainy Sky. Under the missives the respondent sellers were entitled to the Profit Share arising out of the on sale of the subjects by the appellant buyers. The expression Profit Share was defined as the Gross Sale Proceeds, which were in turn defined as the aggregate of the sale proceeds of the Subjects received by the Purchasers for the Subjects. Lord Hope has drawn attention in para 9 to certain infelicities of drafting. However, the critical language in clause 9.4 is the promise on the part of the appellants to pay 40% of 80% of the gross sale proceeds within 14 days after receipt of the gross sale proceeds. On the face of it the reference to the gross sale proceeds is a reference to the actual sale proceeds received by the appellants. It is not easy to conclude, as a matter of language, that the parties meant, not the actual sale proceeds, but the amount the appellants would have received if the on sale had been an arms length sale at the market value of the property. Nor is it easy to conclude that the parties must have intended the language to have that meaning. As Baroness Hale observed in the course of the argument, unlike Rainy Sky, this is not a case in where there are two alternative available constructions of the language used. It is rather a case in which, notwithstanding the language used, the parties must have intended that, in the event of an on sale, the appellants would pay the respondents the appropriate share of the proceeds of sale on the assumption that the on sale was at a market price. In this regard I entirely agree with Lord Hopes conclusions at para 22 above. As he puts it, the context shows that the parties must be taken to have intended that the base figure for the calculation of the uplift was to be the open market value of the subjects at the date of the event that triggered the obligation. In other words, it can be assumed that this is what the parties would have said if they had been asked about it at the time when the missives were entered into. The parties expressly agreed that in the case of a buy out or lease the profit would be arrived at by reference to market value. Rather like counsel for the respondent bank in Rainy Sky, Mr Craig Connal QC was not able to advance any commercially sensible argument as to why the parties would have agreed a different approach in the event of an on sale. I have no doubt that he would have done so if he had been able to think of one. As Lord Hope says at para 17, on the appellants approach, it would be open to them to avoid the provisions relating to the open market value of a lease by selling the subjects to an associate company at an undervalue and arranging for the lease to be entered into by that company. The parties could not sensibly have intended such a result. Lord Hope says at para 20 that there would be no difficulty in implying a term to the effect that, in the event of a sale which was not at arms length in the open market, an open market valuation should be used to arrive at the base figure for the calculation of the profit share. I agree. If the officious bystander had been asked whether such a term should be implied, he or she would have said of course. Put another way, such a term is necessary to make the contract work or to give it business efficacy. I would prefer to resolve this appeal by holding that such a term should be implied rather than by a process of interpretation. The result is of course the same. |
Council Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security is concerned with state benefits, including old age and retirement pensions. It provides by article 4 that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status . The material provisions of the Directive have direct effect. Article 7.1(a) of the Directive provided that it was to be without prejudice to the right of member states to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The United Kingdom has exercised that right. The combined effect of (i) the Social Security Contributions and Benefits Act 1992, section 44, (ii) the definition of pensionable age in section 122 of the Act, and (iii) the Pensions Act 1995, Schedule 4, paragraph 1, is that a woman born before 6 April 1950 becomes eligible for the state retirement pension (referred to in the legislation as a Category A retirement pension) at the age of 60, and a man born before 6 December 1953 becomes eligible at the age of 65. The pensionable age of younger persons will converge over a period of time and will eventually be the same, but these changes do not affect the present appeal. At the time which is relevant to this appeal, the acquired gender of a transsexual person was not recognised for the purpose of determining the qualifying age for a state pension, if that person was and remained party to a subsisting marriage. The question at issue on this appeal is whether that state of affairs was compatible with the Directive. The United Kingdom statutory framework Until 2005, the law made no provision for gender reassignment in any of the three jurisdictions of the United Kingdom. A person was for all legal purposes treated as having the gender determined by the application of biological criteria at birth without regard to any psychological characteristics or later surgical intervention. In Goodwin v United Kingdom (2002) 35 EHRR 18, the European Court of Human Rights held that this was incompatible with article 8 of the European Convention on Human Rights and that, so far as it prevented a transsexual from contracting a valid marriage with a person of the same birth gender, it was also incompatible with article 12. In consequence, Parliament enacted the Gender Recognition Act 2004, which received royal assent on 1 July 2004 and came into force on 4 April 2005. Section 1 of the Act provided that a person could apply to a Gender Recognition Panel for a full gender recognition certificate recording a change of his or her birth gender on the basis of living in the other gender. The applicants new gender was referred to as the acquired gender. Sections 2 and 3 of the Gender Recognition Act deal with the criteria for determining whether a change of gender has occurred. Section 2 provides that the Gender Recognition Panel is required to grant the application if the applicant has or has had gender dysphoria, has lived in the acquired gender for at least two years up to the date of the application, intends to live in the acquired gender until death and satisfies the evidential requirements laid down by section 3. Section 3 requires the Panel to be furnished with a report from two medical practitioners or from a medical practitioner and a psychologist. If the Panel concludes having regard to the evidence required by section 3 that the criteria in section 2 are satisfied, it must grant the application. By section 9 of the Act, where a full certificate is issued, the acquired gender thereafter becomes the persons gender for all purposes. Schedule 5, paragraph 7 of the Gender Recognition Act deals specifically with the effect of a full gender recognition certificate on eligibility for a state pension. It provides that once the certificate has been issued, any question of entitlement to a state retirement pension is to be decided as if the persons gender has always been the acquired gender. Accordingly, where the person was a man immediately before the issue of the certificate but had attained the age at which a woman would have attained pensionable age, she is to be treated as having attained pensionable age upon the issue of the certificate. At the time that the Gender Recognition Act was passed a valid marriage could subsist in law only between a man and a woman. This had always been the law, but had been confirmed by the Matrimonial Causes Act 1973, section 11(c). For this reason, the 2004 Act made special provision for married applicants, whose change of legally recognised gender would otherwise have resulted in their being married to a person of the same gender as themselves. This will be referred to below as the marriage condition. By section 4(2) an unmarried applicant who satisfied the criteria for gender recognition in sections 2 and 3 was entitled to a full gender recognition certificate, whereas by section 4(3) a married applicant who satisfied the same criteria was entitled only to an interim gender recognition certificate. Unlike a final gender recognition certificate, an interim gender recognition certificate did not itself effect any change in the applicants legally recognised gender. It merely entitled a married applicant to apply to have the marriage annulled by a court. The Matrimonial Causes Act 1973 (as amended), section 12(g), provided that upon the issue of an interim gender recognition certificate the applicants marriage became voidable. By section 13(2A) of the same Act, the court was then bound to grant a decree of nullity, provided that proceedings to that end were instituted within six months from the date of issue of the interim gender recognition certificate, and subject to certain other conditions which are irrelevant for present purposes. Only when this had been done did the applicant become entitled to a full gender recognition certificate. The court granting the decree of nullity was required by section 5(1) of the Gender Recognition Act to issue the full certificate. Shortly after the Gender Recognition Act was passed, Parliament passed the Civil Partnership Act 2004, which received royal assent on 18 November 2004 and came into force on 5 December 2005. The Act provided for the legal recognition of same sex partnerships upon registration. A civil partnership was not a marriage but had substantially the same legal consequences as a marriage. Once the Civil Partnership Act had come into force, a married person to whom an interim gender recognition certificate had been issued could, after obtaining the annulment of the marriage, enter into a civil partnership with his or her former spouse. These statutory arrangements were changed by the Marriage (Same Sex Couples) Act 2013, which came into full force on 10 December 2014. The Act of 2013 provided for same sex couples to enter into a marriage. Schedule 5 amended section 4 of the Gender Recognition Act 2004 so as to provide that a Gender Recognition Panel must issue a full gender recognition certificate to a married applicant if the applicants spouse consents. The Act of 2013 does not apply retrospectively and does not affect the present appeal. The relevant statutory provisions are attached. The situation of MB MB (the initials have been used in these proceedings to protect her anonymity) was born on 31 May 1948 and was registered at birth as a man. MB was married on 21 September 1974. In 1991 she began to live as a woman and in 1995 underwent sex reassignment surgery. MB has not applied for a gender recognition certificate since the coming into force of the Gender Recognition Act. This is because she and her wife continued and still continue to live together and wish to remain married. For religious reasons, they are unwilling to see their marriage annulled, even if it can be replaced by a civil partnership. On 31 May 2008 MB attained the age of 60. On 28 July 2008, she applied for a state retirement pension, backdated to 31 May 2008, on the footing that she was a woman. The application was rejected on 2 September 2008 on the ground that in the absence of a full gender recognition certificate, she could not be treated as a woman for the purpose of determining her pensionable age. That decision was subsequently upheld by the First tier Tribunal (18 November 2009), the Upper Tribunal (13 September 2013) and the Court of Appeal (31 July 2014). Permission to appeal was granted by the Supreme Court of the United Kingdom on 11 March 2015. The arguments The principal arguments for MB may be summarised as follows: (1) The Court of Justice has already recognised that the prohibition in article 4(1) of the Directive of discrimination on grounds of sex extends to discrimination between persons of a given birth gender and persons who have acquired the same gender by later reassignment: P v S and Cornwall County Council (Case C 13/94) [1996] ECR I 2143, para 20; Richards v Secretary of State for Work and Pensions (Case C 423/04) [2006] ECR I 3585, paras 24, 29 30. (2) MB accepts that in principle it is for member states to determine by their domestic law the conditions on which a persons change of gender may be legally recognised: KB v National Health Service Pensions Agency and Secretary of State for Health (Case C 117/01) [2004] ECR I 541, para 35; Richards v Secretary of State for Work and Pensions (Case C 423/04) [2006] ECR I 3585, para 21. But she submits that the power to impose conditions is confined to conditions relating to the objective physical or psychological characteristics which determine whether an applicant is a man or a woman: see Richards, at para 38 (and cf the opinion of Advocate General Jacobs at para 57). It may not be used to impose conditions relating to such matters as marital status which have nothing to do with the determination of an applicants gender. (3) Since the holder of an interim gender recognition certificate must have satisfied the physical and psychological criteria for gender recognition, the imposition of a further condition for obtaining a full certificate which applies to married applicants only constitutes unlawful discrimination. (4) Even if it were legitimate to impose the marriage condition for the purpose of protecting the status of marriage as a relationship between a man and a woman, that could not justify imposing the same condition on eligibility for a state retirement pension, to which marital status is likewise irrelevant. (5) Although MBs primary case is that the Gender Recognition Act directly discriminates against her on grounds of sex, she also contends that it discriminates indirectly, because the evidence is that the great majority of persons who have undergone gender reassignment have been reassigned from male to female. For the above reasons, it cannot be justified. The principal arguments for the Secretary of State may be summarised as follows: (1) The decision of the Court of Justice in Richards was concerned with discrimination arising from the absence at the relevant time of any provision in English law for recognising gender reassignment. That lacuna has been filled in the United Kingdom since 2005. The decision is of limited relevance to the conditions on which gender reassignment may lawfully be recognised under a comprehensive legislative scheme for recognition. (2) At the time when Richards was decided, the Court of Justice had already recognised in KB that it was for member states to determine those conditions, and it reaffirmed that principle in Richards itself: see para 15(2) above. A corresponding principle is applied under the European Convention on Human Rights: Goodwin v United Kingdom, para 103. (3) The United Kingdom may properly make the recognition of gender change dependent on a process of registration or certification, as the Gender Reassignment Act does. Under the Act, a person born a man is not a woman merely by virtue of establishing that she has the qualifying social, physical and psychological characteristics. A full certificate must have been issued. (4) There is no reason why the conditions for the issue of that certificate should be limited to satisfaction of the social, physical and psychological criteria of gender. Gender reassignment has significant social implications which the law may also regulate. The conditions may therefore properly reflect criteria such as the status of marriage, which are legitimate social considerations not regulated by EU law. In acknowledging, as para 103 of Goodwin does, that it was for national law to determine the conditions for recognising gender reassignment, the European Court of Human Rights acknowledged that they may include conditions under which past marriages cease to be valid. This was implicitly accepted by the Court of Justice in Richards, when it adopted the principle thus stated at para 21. (5) Since the decision in Goodwin, the European Court of Human Rights has upheld the marriage condition as being in itself compatible with the Human Rights Convention (Parry v United Kingdom (Application No 42971/05)) as well as a similar condition in corresponding legislation in Finland (Hamalainen v Finland (2014) 37 BHRC 55). The reason was that, although the Convention requires states to recognise the acquired gender of transsexual persons, it does not require them to allow marriages between same sex couples. In the absence of such a requirement, a state which does not recognise same sex marriages has a legitimate interest in maintaining the traditional concept of marriage between a man and a woman. That interest justified the imposition of the marriage condition in the Finnish legislation. The proviso could not be regarded as disproportionate given that a civil partnership was available to same sex couples as an alternative to marriage. (6) No question of indirect discrimination arises. Even on the footing that most gender reassignments are male to female, there is no reason to regard it as any more difficult for a male to female transsexual to qualify for a full gender recognition certificate than it is for a female to male transsexual. The Supreme Courts conclusion The Supreme Court is divided on the question, and in the absence of Court of Justice authority directly in point considers that it cannot finally resolve the appeal without a reference to the Court of Justice. The question The question referred is whether Council Directive 79/7 EEC precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension. |
The question in this appeal is whether sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the 2010 Act) are outside the legislative competence of the Scottish Parliament. Section 28(1) of the Scotland Act 1998 (the 1998 Act) provides that, subject to section 29, the Scottish Parliament may make laws, to be known as Acts of the Scottish Parliament. Section 29(1) provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Five of the various rules that affect the legislative competence of the Parliament are in point in this case. Section 29(2)(b) provides that a provision is outside that competence so far as it relates to reserved matters, details of which are set out in Schedule 5. Section 29(2)(c) provides that a provision is outside competence if it is in breach of the restrictions in Schedule 4. Paragraph 1 of Schedule 4 to the 1998 Act provides that an Act of the Scottish Parliament cannot modify Article 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as it relates to freedom of trade. Paragraph 2 of Schedule 4 provides that an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. And section 29(4) provides that a provision which would otherwise not relate to reserved matters but makes modifications of Scots private law or Scots criminal law as it applies to reserved matters is to be treated as relating to reserved matters, unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise. According to its long title the 2010 Act makes provision, among other things, about the retailing of tobacco products. Chapter 1 of Part 1 of the Act is headed Display, sale and purchase of tobacco products. Sections 1 and 9 are included within that Chapter. Section 1 prohibits the display of tobacco products in a place where tobacco products are offered for sale. Section 9 prohibits vending machines for the sale of tobacco products. The appellants, Imperial Tobacco Ltd, maintain that those sections are outside legislative competence because they relate to matters which are listed in Part II of Schedule 5 to the 1998 Act as reserved matters for the purposes of that Act, and that they should in any event be treated as relating to reserved matters as they make modifications to Scots criminal law as it applies to reserved matters. They further maintain that the sections modify the law on reserved matters, contrary to the prohibition in paragraph 2 of Schedule 4. They also maintained in the Court of Session that the sections are outside competence because they modify article 6 of the Acts of Union so far as they relate to freedom of trade. The bringing into force of the 2010 Act has been deferred until these challenges to the competence of these sections have been finally determined. On 30 September 2010 the Lord Ordinary, Lord Bracadale, held that none of the appellants challenges to the legislative competence of the Scottish Parliament to pass sections 1 and 9 of the 2010 Act were well founded, and he dismissed their petition for judicial review: [2010] CSOH 134, 2010 SLT 1203. On 2 February 2012 the First Division (Lord President Hamilton and Lords Reed and Brodie) dismissed the appellants reclaiming motion against the Lord Ordinarys interlocutor: [2012] CSIH 9, 2012 SC 297. The appellants have now appealed to this court, but they departed from their challenge to the legislative competence of sections 1 and 9 under section 29(2)(c) of the 1998 Act read together with paragraph 1 of Schedule 4. Shortly before the hearing of the appeal they also departed from their challenge under section 29(4). The Advocate General did not appear in the Inner House, but he sought and was given permission to intervene in this appeal. Background Thirteen years have elapsed since the Parliament met to conduct business for the first time on 2 July 1999. There have been a number of challenges to the legislative competence of Acts of the Scottish Parliament during this period. For example, section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which was the first Act of the Parliament, was challenged unsuccessfully on the ground that its provisions were incompatible with article 5(1)(e) of the European Convention on Human Rights and thus outside competence under section 29(2)(d) of the 1998 Act: A v Scottish Ministers 2002 SC (PC) 63. Legislation prohibiting mounted foxhunting was challenged unsuccessfully on the ground that it was contrary to the petitioners Convention rights in Adams v Scottish Ministers 2004 SC 665 and Whaley v Lord Advocate [2007] UKHL 53, 2008 SC (HL) 107. An amendment to the Criminal Procedure (Scotland) Act 1995, which placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences, was challenged unsuccessfully on the ground that the restrictions were incompatible with the right to a fair trial under article 6 of the Convention in DS v HM Advocate [2007] UKPC 36, 2007 SC (PC) 1. Since then there have been two cases where challenges have been made on the ground that provisions fell to be treated as relating to reserved matters as they made modifications to Scots criminal law as it applied to reserved matters: Logan v Spiers [2008] HCJAC 61, 2010 JC 1; Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40. In those cases too the challenges were rejected. In AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 one of the grounds of the unsuccessful challenge to the Damages (Asbestos related Conditions) (Scotland) Act 2009 was that its provisions were incompatible with the insurers Convention rights under article 1 of the First Protocol. In Sinclair Collis Ltd v Lord Advocate [2012] CSIH 80 a challenge by a cigarette vending machine operator to section 9 of the 2010 Act on the ground that it was incompatible with its rights under that article and with article 34 of the Treaty on the Functioning of the European Union did not succeed either. But, remarkably, this is the first case in which provisions of an Act of the Scottish Parliament have been challenged on the ground that they relate to specific reservations listed in Part II of Schedule 5 as reserved matters for the purposes of the 1998 Act. The scheme that Schedule 5 sets out lies at the heart of the devolution settlement. It contains a long and complicated list of reserved matters which, at first sight, might have been expected to give rise to frequent disputes which would require to be resolved by the courts. That this has not happened until now is due partly to the use of legislative consent motions passed by the Scottish Parliament to enable the UK Parliament to pass legislation on devolved issues relating to Scotland: see Martin v Most, para 4. But it is also due in no small measure to the care that is taken by officials within the Parliament to ensure that the provisions that the Scottish Parliament does enact are within competence. The Bill in which sections 1 and 9 appear was accompanied on its introduction by a statement by the Presiding Officer under section 31 of the 1998 Act that in his view its provisions would be within the legislative competence of the Parliament, and it was submitted for Royal Assent under section 32 of the Scotland Act 1998 as no question had been raised about its legislative competence under section 33 of the Act by any of the Law Officers. But there is no presumption of legislative competence from the fact that an objection to the competence of these sections has not been raised by the Presiding Officer or any of the Law Officers: A v Scottish Ministers [2001] UKPC D5, 2002 SC (PC) 63, para 7. If an issue as to legislative competence is raised, it will be entirely a matter for the courts to determine. The subject matter of the provisions that are under scrutiny in this case is the control of smoking in the interests of public health. The appellants have made it clear throughout that, while they do not accept the validity or correctness of the evidence relating to smoking and health that was before the Scottish Parliament, they do not seek to challenge that evidence in these proceedings. Nor is their challenge brought, as was done in AXA General Insurance Ltd v Lord Advocate, on the ground that the provisions in question are open to review on common law grounds as an unreasonable, irrational and arbitrary exercise of the Parliaments legislative authority. The only question is whether any of the particular rules that were laid down in the 1998 Act by which it is to be determined whether or not a provision is outside legislative competence have been breached. That is not to say that the question is easy to answer or unimportant. But the exercise that has to be carried out is essentially one of statutory construction. The answer to the question is to be found by construing the words used by the 1998 Act and examining the provisions that are under challenge in the light of the meaning that is to be given to those words. The interpretation issue Much of the discussion in the Court of Session was devoted to the question whether a different approach should be taken to the interpretation of the 1998 Act from that applicable to other statutes because it was said to be a constitutional instrument. I do not think that it is necessary to dwell on that issue at length at this stage. The Dean of Faculty accepted that the object was to arrive at the true meaning of the statute. Its content might influence the approach to be taken, but assertions about its constitutional nature were not in point. He acknowledged that the exercise to be undertaken was in essence no different from that which was applicable in the case of any other United Kingdom statute. Mr Mure QC for the Lord Advocate and the Advocate General were, however, not entirely at one as to the approach that should be adopted. For the Lord Advocate it was stressed that a construction should be avoided which would render the endowment of plenary law making powers on the Scottish Parliament futile. The Advocate General, for his part, said that it would be wrong to favour an expansive approach to the meaning and application of the provisions about legislative competence. Asserting that the purpose of the 1998 Act was to devolve plenary legislative power on the Parliament did not assist in determining the actual scope of what it was designed to achieve. The Dean of Faculty said that the appellants were content to align themselves with the views of the Advocate General. It is unsatisfactory that there should continue to be room for doubt on this matter. So it may be helpful to summarise, quite briefly, three principles that should be followed when undertaking the exercise of determining whether, according to the rules that the 1998 Act lays down, a provision of an Act of the Scottish Parliament is outside competence. First, the question of competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act. It is not for the courts to say whether legislation on any particular issue is better made by the Scottish Parliament or by the Parliament of the United Kingdom at Westminster: Martin v Most 2010 SC (UKSC) 40, para 5. How that issue is to be dealt with has been addressed and determined by the United Kingdom Parliament. As Lord Walker observed in Martin, para 44, its task was to define the legislative competence of the Scottish Parliament, while itself continuing as the sovereign legislature of the United Kingdom. The statutory language was informed by principles that were applied to resolve questions that had arisen in federal systems, where the powers of various legislatures tend to overlap: see Martin, paras 11 15. But the intention was that it was to the 1998 Act itself, not to decisions as to how the problem was handled in other jurisdictions, that one should look for guidance. So it is to the rules that the 1998 Act lays down that the court must address its attention, bearing in mind that a provision may have a devolved purpose and yet be outside competence because it contravenes one of the rules. As Lord Atkin said in Gallagher v Lynn [1937] AC 863, 870, an Act may have a perfectly lawful object but may seek to achieve that object by invalid methods. Second, those rules must be interpreted in the same way as any other rules that are found in a UK statute. The system that those rules laid down must, of course, be taken to have been intended to create a system for the exercise of legislative power by the Scottish Parliament that was coherent, stable and workable. This is a factor that it is proper to have in mind. But it is not a principle of construction that is peculiar to the 1998 Act. It is a factor that is common to any other statute that has been enacted by the legislature, whether at Westminster or at Holyrood. The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used. Third, the description of the Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted like any other statute. But the purpose of the Act has informed the statutory language. Its concern must be taken to have been that the Scottish Parliament should be able to legislate effectively about matters that were intended to be devolved to it, while ensuring that there were adequate safeguards for those matters that were intended to be reserved. That purpose provides the context for any discussion about legislative competence. So it is proper to have regard to the purpose if help is needed as to what the words actually mean. The fact that section 29 provides a mechanism for determining whether a provision of an Act of the Scottish Parliament is outside, rather than inside, competence does not create a presumption in favour of competence. But it helps to show that one of the purposes of the 1998 Act was to enable the Parliament to make such laws within the powers given to it by section 28 as it thought fit. It was intended, within carefully defined limits, to be a generous settlement of legislative authority. It will, of course, be necessary to identify the purpose of the provision if the challenge is brought under section 29(2)(b) on the ground that it relates to a reserved matter, bearing in mind that the phrase relates to indicates something more than a loose or consequential connection: see Lord Walker in Martin v Most, para 49. As Lord Rodger said in that case at para 75, the clearest indication of its purpose may be found in a report that gave rise to the legislation or in a report from one of the committees of the Parliament. But it may also be clear from its context. As is the case when any other statute is being construed, the context will be relevant to understanding the meaning of the words used by the 1998 Act. This is a point of some importance in this case, as the appellants have raised the issue as to what account, if any, could be taken of the headings and sidenotes in Part II of Schedule 5. It is proper to have regard to them if help is needed as to the meaning of any of the words in the list that it sets out. The headings and sidenotes were included in the Bill for guidance and ease of reference as its provisions were being debated. So they are part of the contextual scene of the statute: see R v Montila [2004] UKHL 50, [2004] 1 WLR 3141, paras 34 36. The first step in the analysis that must now be carried out is to examine the provisions whose legislative competence has been brought into question and to identify the purpose of the provisions according to the test that section 29(3) lays down. Then the rules that the 1998 Act sets out, so far as relevant, must be examined in more detail in order to identify the tests that have to be applied in order to determine whether the provisions are outside competence. This, the second stage, is of critical importance and it requires to be handled with great care. The final stage will be to draw these two exercises together to reach a conclusion as to whether or not the grounds of challenge are well founded. Sections 1 and 9 of the 2010 Act Section 1 of the 2010 Act is headed Prohibition of tobacco displays, etc. Subsections (1), (2) and (3) are in these terms: (1) A person who in the course of business displays or causes to be displayed tobacco products or smoking related products in a place where tobacco products are offered for sale commits an offence. (2) A person does not commit an offence under subsection (1) if the display (a) is in a specialist tobacconist, (b) does not include cigarettes or hand rolled tobacco, and (c) complies with any prescribed requirements. (3) A person does not commit an offence under subsection (1) if (a) the tobacco products or smoking related products are displayed in the course of a business involving the sale of tobacco products only to persons who carry on a tobacco business (or their employees), and (b) the display complies with any prescribed requirements. Subsection (4) enables the Scottish Ministers to provide in regulations that no offence is committed under subsection (1) in relation to a display of tobacco products or smoking related products which complies with specified requirements. Subsection (5) provides that a person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale. Subsection (6) provides that a website is not a place for the purposes of subsection (1). Subsection (7) provides that specialist tobacconist has the meaning given by section 6(2) of the Tobacco Advertising and Promotion Act 2002. Section 9 is headed Prohibition of vending machines for the sale of tobacco products. It is in these terms: (1) A person who has the management or control of premises on which a vending machine is available for use commits an offence. (2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale. (3) In this section vending machine means an automatic machine for the sale of tobacco products (regardless of whether the machine also sells other products). The Scottish Ministers have prepared draft regulations in relation to the display of tobacco or smoking related products in specialist tobacconists and other retail premises, and also in relation to the display or prices of tobacco products and smoking related products under powers given to them by section 3 of the 2010 Act. They are set out in the Sale of Tobacco (Display of Tobacco Products and Prices) (Scotland) Regulations 2012. These regulations have not yet been made or laid before the Scottish Parliament. The appellants accept that sections 1 and 9 stand or fall together on the issue of legislative competence. They also accept that the reason why they were enacted by the Scottish Parliament could be described in the broadest terms as being to promote public health. Lord Reed said in the Inner House that the extrinsic material indicated that the purpose of section 1 was to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers, and thereby achieve a reduction in sales and thus in smoking: 2012 SC 297, para 133. In the following paragraph he said that the extrinsic material indicated that the purpose of section 9 was to make cigarettes less readily available, particularly (but not only) to children and young people, with a view to reducing smoking. He also said that the legal effect and short term consequences were consistent with those purposes. The Dean of Faculty said that he concurred with these observations. It is common ground too that the protection of health is not a reserved matter. Head J in Part II of Schedule 5 deals with health and medicines. But the five sections which it contains deal with particular matters (abortion; xenotransplantation; embryology, surrogacy and genetics; the subject matters of various statutes; and regulations relating to medicines, medical supplies and poisons and welfare foods), not with the promotion of public health generally. The fact that the sections of the 2010 Act that are under challenge do not relate to any of the matters that are reserved by Head J does not, of course, mean that they are immune from challenge on other grounds. The rules of the 1998 Act The rules which provide the appellants with their remaining grounds of challenge, in order of appearance in the 1998 Act, are as follows: (a) Section 29(2)(b), which provides that a provision is outside competence if it relates to reserved matters. That provision must be read together with section 29(3) which provides that, for the purposes of that section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. (b) Paragraph 2(1) of Schedule 4, which provides that an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. That rule must be read together with paragraph 2(3), which states that sub paragraph (1) applies to a rule of Scots private law or Scots criminal law only to the extent that the rule in question is special to a reserved matter. (c) Section C7 in Head C Trade and Industry in Part II of Schedule 5, which is headed Consumer protection and includes Regulation of (a) the sale and supply of goods and services to consumers. (d) Section C8 in Head C, which is headed Product standards, safety and liability and includes Product safety and liability. The appellants have three grounds of challenge: (1) that, on a proper construction of section 29(2)(b) and 29(3) read together with section C7(a) of Head C in Schedule 5, sections 1 and 9 of the 2010 Act relate to the sale and supply of goods to consumers, which is a reserved matter; (2) that, on a proper construction of those subsections read together with section C8 of Head C, sections 1 and 9 relate to product safety, which is a reserved matter; and (3) that, on a proper construction of paragraph 2 of Schedule 4, sections 1 and 9 modify rules of Scots criminal law because they create new offences which can only be committed in the course of the sale and supply of goods to consumers. The first two grounds of challenge require one to understand the scope of the matters that are reserved by sections C7 and C8. Once one has an understanding of their subject matter, the question will be whether sections 1 and 9, by reference to their purpose (having regard among other things to their effect in all the circumstances), relate[s] to it. The third ground of challenge raises a different point. It depends on an understanding of the word modify in paragraph 2 of Part I of Schedule 4. It is not in doubt that sections 1 and 9 create new offences. The question is whether they modify offences which are already part of Scots criminal law and, as their subject matter is a reserved matter, form part of the law on reserved matters for the purposes of that paragraph. Section C7(a) The appellants argument is that, as the long title of the 2010 Act states in terms that one of its purposes is to make provision about the retailing of tobacco products and as the headnote to Chapter 1 states that it is concerned with the display, sale and purchase of tobacco products, sections 1 and 9 must be taken to relate to the matters reserved by the words the sale and supply of goods to consumers in section C7(a). They say that these words must simply be given their ordinary and natural meaning. Where the words have a clear meaning, as they have here, it would be wrong to allow that meaning to be overridden by other aids to interpretation such as the heading to section C7. The words used do not give rise to any ambiguity. The reserved matter is the regulation, in any way and for any purpose, of the sale and supply of goods to consumers. It would be surprising if the words used in section C7(a) had such a wide reach. Responsibility for Scots private law, including the law of obligations arising from contract, belongs to the Scottish Parliament. This is made clear by section 29(4) which deals with modifications to Scots private law as it applies to reserved matters but leaves Scots private law otherwise untouched, and by the definition of what references to Scots private law are to be taken to mean in section 126(4). The sale and supply of goods is part of the law of obligations and, as such, is the responsibility of the Scottish Parliament. The appellants argument as to the reach of section C7(a) does not sit easily with this conclusion or with the way Scots private law is dealt with elsewhere in the 1998 Act. This makes it necessary to look more closely at the context in which the words of that section appear. As a starting point, there is the underlying purpose of Part II of Schedule 5 itself. It will be recalled that paragraph 1 of Part I of Schedule 4 to the 1998 Act provides that an Act of the Scottish Parliament cannot modify Article 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as it relates to freedom of trade: see para 2, above. Part II of Schedule 5 contains eleven Heads and a total of 67 sections, within which there are numerous subsections and paragraphs. Their content ranges from fiscal, economic and monetary policy in Head A to outer space in Head J. Sometimes the subject matter is described in broad terms; sometimes it is identified simply by the name and date of a statute. There is no common characteristic, but there is a common theme. It is that matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the United Kingdom Parliament at Westminster. They include matters which are affected by its treaty obligations and matters that are designed to ensure that there is a single market within the United Kingdom for the free movement of goods and services. As the purpose of Part II of Schedule 5 is to define the limits of the legislative competence of the Scottish Parliament, anything that does not fall within the matters listed there must be taken to be within competence. These considerations cannot be used to override the clear meaning of the words used in the Schedule. But they are part of the overall context. They set the scene for a closer look at the provisions within section C of Head C itself. Section C7 is headed Consumer protection. It falls into three parts. First, there is a list of nine areas of consumer protection which are the subject of regulation. Two of them, mentioned in paragraphs (d) and (e), are the subject of exceptions. The exception to paragraph (e), which deals with misleading and comparative advertising, refers to regulation specifically in relation to food, tobacco and tobacco products. But this is because, at the time when the Bill was being debated, an agreement on a European basis was in prospect and it was intended that implementation of that type of agreement would be a devolved matter: HL Debates, 23 July 1998, col 1124. It offers no assistance on the point at issue in this case. Secondly, there follows as a separate item the safety of, and liability for, services supplied to consumers. Thirdly, there is the subject matter of eight areas of consumer protection which are defined by reference to the statutes or regulations by which they are regulated. There is one exception to the entire section. It is the subject matter of section 16 of the Food Safety Act 1990. As the Lord President explained in para 9 of his opinion, this is to be understood as having been inserted simply to make it clear that the power to make regulations under that section was to remain, as it had been before devolution, with the Scottish authorities. It does not cast any significant light on the meaning that is to be given to section C7(a). The relevant section of the Notes on Clauses that accompanied the Scotland Bill states that the titles of heads, sections, etc are merely signposts and that they do not form part of the definitions of the reserved matters. But, taken overall, the context of section C7 is as its heading indicates. It is concerned with consumer protection in all its various aspects, and the part of it within which paragraph (a) appears is headed by the words regulation of. The words regulation, protection and consumer are important pointers to the sections subject matter. Cowan Ervine and D S J Templeton observe in their title on Consumer Protection in the Stair Memorial Encyclopaedia Reissue, para 1, that as a topic consumer protection is ill defined. But the key concepts which serve as a guide to the meaning to be given to the words used in section C7(a) are those of regulation and protection. This is an area where the law intervenes on behalf of the consumer in the sale and supply of goods and services to address a significant inequality of bargaining power: Butterworths Trading and Consumer Law, para 2. It aims to address the imbalance that occurs where the seller or supplier overreaches himself to the disadvantage of the consumer. As Lord Brodie said in the Inner House, para 196, its purpose is to facilitate and encourage participation by the consumer by making the market operate more fairly and therefore more effectively: see also the Final Report of the Committee on Consumer Protection (1962, Cmnd 1781), para 1, in which the Committee rejected the notion that it should scrutinise the whole range of commercial life wherever it touched the consuming public. The Lord President set out in para 12 passages from Explanatory Notes dealing with section C7 that were prepared and published by the Scotland Office in 2004, some time after the 1998 Act was enacted. Among the points made by them, drawing on points made in the Notes on Clauses, is that the reservation in section C7(a) as to the sale and supply of goods and services to consumers covers the terms on which such goods and services are sold. The Lord President recognised that they did not have the interpretative value which they would have had if they had accompanied the Bill in its passage through Parliament. But in para 13 he said that the commentary did go some way, quantum valeat, to suggesting that section C7(a) is concerned essentially with the contractual aspects of the sale and supply of goods and services to consumers which was the interpretation which he would otherwise favour. It seems to me however, with respect, that it would be wrong to pay any regard to Explanatory Notes, as they do not form any part of the contextual scene of the statute. They are no doubt useful as they provide guidance, but unlike the Notes on Clauses they have no more weight than any other post enactment commentary as to the meaning of the statute. I also think that the Lord Presidents description of the scope of section C7(a), which was based on his reading of them, was too narrow. The better view is that given by Lord Reed in para 96, with which Lord Brodie agreed. It encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection with which section C7 as a whole is concerned. The key words in this formulation are the words regulation, protection and consumer: see para 31, above. The word protection points away from the appellants argument that the reserved matter is the regulation, in any way and for any purpose, of the sale and supply of goods to consumers. Section C8 The appellants argument under this head of challenge is that sections 1 and 9 of the 2010 Act fell within the scope of section 11 of the Consumer Protection Act 1987 and that accordingly they relate to the matter reserved by that part of section C8 which refers to product safety. The Secretary of State is given power by section 11 to make such provision as he considers appropriate for the purpose of ensuring that goods to which it applies are safe; that goods which are unsafe, or would be unsafe in the hands of persons of a particular description, are not made available to persons generally or to persons of that description; and that appropriate information is, and inappropriate information is not, provided in relation to goods to which the section applies. In R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353 it was held that regulations banning oral snuff were within the powers of the Act, as its provisions applied both to defective goods and to goods which were intrinsically dangerous. Taylor LJ said at p 365 that there was no basis for confining the objects of the Act to safety risks or defects other than the inherent nature of tobacco and that, in the context of oral snuff, the Act was on any view apt to protect the consumer whether one called its purpose consumer protection or public health. Lord Reed noted in para 98 that section 11 of the Consumer Protection Act 1987 is not restricted to consumer goods or to the sale or supply of goods to consumers. This may explain why this matter does not appear in section C7 but in a separate section dealing with product standards, safety and liability. In para 100 he said that, having regard to the significance of product safety to the operation of a single market, and bearing in mind also that the Scottish Office was not responsible for the protection of Scottish consumers in relation to product safety prior to devolution, it was unlikely that Parliament intended to devolve a general legislative competence in relation to matters falling within the scope of section 11. He held that the matters with which that section deals fell within the scope of the expression product safety, giving those words their ordinary meaning, and that they are accordingly reserved by section C8. The appellants accept his conclusions as to the meaning of these words. Paragraph 2 of Schedule 4 The appellants challenge under this heading is presented under reference to two sets of regulations made in the exercise of the powers conferred by section 11 of the Consumer Protection Act 1987. They are the Tobacco for Oral Use (Safety) Regulations 1992 (SI 1992/3134) and the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002 (SI 2002/3041). It is not necessary to set out the detailed content of these regulations, except to note that they each contain prohibitions in the field of product safety which is a reserved matter under section C8 of Head C of Schedule 5, and that a contravention of their provisions constitutes an offence. The argument proceeds in these stages: first, that these regulations are to be treated as part of the law on reserved matters within the meaning of paragraph 2(1) of Schedule 4 to the 1998 Act as their subject matter is a reserved matter; second, that they both contain rules of Scots criminal law which are special to a reserved matter, so the prohibition in that paragraph applies to them; third, that sections 1 and 9 of the 2010 Act modify the rules that each set of regulations contains which is contrary to that prohibition; and fourth, that they are outside competence under section 29(2)(c) because they are in breach of the restrictions in Schedule 4. There is no dispute as to the first and second stages of this argument. The question is whether the third and fourth stages are well founded, having regard to the purpose and effect of those sections. Drawing these points together The question whether sections 1 and 9 of the 2010 Act relate to the matters reserved by section C7(a) and section C8 in Head C of Schedule 5 is to be determined by reference to the purpose of those provisions, having regard among other things to their effect in all the circumstances: section 29(3). The purpose of section 1 is to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers, and thereby achieve a reduction in sales. The purpose of section 9 is to make cigarettes less readily available, particularly to children and young people, with a view to reducing smoking: see para 22, above. Their legal effect and their short term consequences can be taken to be consistent with those purposes. As tobacco products will be less visible and less readily available, the result is likely to be a reduction in sales and a consequent reduction in smoking. The extent to which those aims will be realised in practice does not matter, as it is to the purpose of the provisions that section 29(3) directs attention in order to determine whether they are within competence. Can it be said that these provisions relate to the matters reserved by sections C7(a) and C8 or either of them? I take first section C7(a). I approach it on the assumption most favourable to the appellants that it encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection: see para 34, above. But I do not see how, even on that assumption, it can be said that the purpose of sections 1 and 9 of the 2010 Act has anything to do with consumer protection in that sense. Their aim is to discourage or eliminate sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices. There will be nothing of that kind to regulate as far as the vending machines are concerned. The use of such machines will be prohibited, and there will be no sales from any of them. As for any sales that may be entered into in a place where tobacco products are offered for sale, the purpose of section 1 is to discourage transactions in such products by preventing them from being displayed and, by this means, their availability for sale from being advertised. The terms and conditions of any sale that may take place are unaffected, as are any other aspects of the transaction that may need to be regulated to ensure that the consumer is not exposed to a method of trading that is unfair. The area of activity with which the section deals is outside the scope of consumer protection, because it does not seek to regulate in any way any sales that may actually take place. For these reasons I would hold that this ground of challenge is misconceived and that it must be rejected. As for section C8, the scope of the expression product safety extends to matters falling within the scope of section 11 of the Consumer Protection Act 1987: see para 36, above. Here too there is a mismatch between what falls within the scope of that expression and the purpose of sections 1 and 9 of the 2010 Act. Their purposes have nothing to do with the standards of safety to be observed in the production and sale of tobacco products or smoking related products that are available for purchase in places where they are offered for sale or are sold by means of vending machines. The Secretary of State is empowered by section 11 of the Consumer Protection Act 1987 to make such provision as he considers appropriate to prohibit the supply of specific tobacco products either generally or to a particular class of persons: R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353, per Taylor LJ at p 365. But sections 1 and 9 do not prohibit the supply of these products either generally or to any particular class. Nor is it their purpose to do so. They are designed to promote public health by reducing their attractiveness and availability, not to prohibit in any way the sale of these products to those who wish and are old enough to purchase them. Promotion of public health in Scotland is a responsibility of the Scottish Parliament under the devolution settlement. Taylor LJs observation in United States Tobacco at p 365 that the 1987 Act is apt to protect the consumer for reasons of public health must not be taken out of context. The words product safety in C8 direct attention to matters that are of concern to the single market in the general area of trade and industry. It is not the purpose of sections 1 and 9 to disrupt or unbalance trading in tobacco products in that way at all. I would reject this ground of challenge also. I do not see this as a case which gives rise to the problem which may need to be dealt with if the provision in question has two or more purposes, one of which relates to a reserved matter. In such a situation the fact that one of its purposes relates to a reserved matter will mean that the provision is outside competence, unless the purpose can be regarded as consequential and thus of no real significance when regard is had to what the provision overall seeks to achieve: see para 16, above. In this case the purposes of sections 1 and 9 can be identified without difficulty. There is no question of those purposes relating in any way to a reserved matter. But if, contrary to the conclusion I have reached, it could be said that one of the purposes of sections 1 and 9 was to inhibit trading in tobacco products and smoking related products in Scotland in a way that was of concern to the single market, I would hold that that purpose is simply a consequence of the purpose to promote public health which is what these provisions are really about. It is a means to an end. It is not, as Lord Dunedin put it in Kaye v Burrows [1931] AC 454, 485, a purpose and end in itself. The question whether sections 1 and 9 of the 2010 Act are in breach of the restrictions in Schedule 4 because they modify the law on reserved matters must be dealt with in a different way. This is because section 29(3) applies only to questions of the kind that section 29(2)(b) gives rise to. Here the issue arises under section 29(2)(c), the question being simply whether any of the restrictions in Schedule 4 have been breached. It must be approached in this case on the basis that the 1992 and 2002 Regulations, which were made under the powers conferred by section 11 of the Consumer Protection Act 1987, are part of the law on reserved matters for the purposes of paragraph 2(1) of Schedule 4. Sections 1 and 9 do not seek to amend or otherwise affect anything that is set out in those regulations. In that sense they cannot be said to modify them at all. As Lord Reed said in para 152, the regulations continue in force as before. But the appellants say that they modify the law on reserved matters because they create new offences, in addition to those already provided for, which can only be committed in the course of the sale and supply of goods to consumers. I would reject that argument. The purpose of the offences that these sections create, as I have said, is to discourage or eliminate the sale or supply of tobacco products or smoking materials. If this purpose is realised, that will be their effect. This is plain in the case of the vending machines, because the effect of section 9 is that cigarettes will no longer be available to be sold by this means. The criminal law relating to any sales that may be made in a place where these products are available for sale will not be affected by section 1. It does not create any new offence in regard to any such sales, and the existing offences are not modified. It is not a provision of the kind referred to in section 11 of the Consumer Protection Act 1987, as it is not its purpose to secure that the products sold are safe, that products that are unsafe are not made available for sale or that appropriate information is provided and inappropriate information is not. I can see no connection between its purpose and effect and the law on reserved matters. There is no basis for holding that sections 1 and 9 are outside competence on this ground. Conclusion For these reasons I would hold that none of the challenges are well founded and that sections 1 and 9 of the 2010 Act are not outside the legislative competence of the Scottish Parliament. I would dismiss the appeal and affirm the First Divisions interlocutor. |
The appellant (Ms McBride) was unfairly dismissed. The Employment Tribunal ordered her reinstatement. The issue in this appeal is whether the tribunal erred in so doing. The appeal stems from the controversy created by the disputed identification by four fingerprint officers in the Scottish Criminal Records Office (the SCRO) of a fingerprint in a murder inquiry in 1997. They identified the print which was found at the locus of the murder as being that of Detective Constable Shirley McKie. David Asbury was tried and convicted of the murder, but his conviction was later quashed. As a result of the disputed identification, DC McKie was charged with perjury for giving evidence, in the trial, that she had had never been to the place where the fingerprint was found. During DC McKies trial, differences of opinion were expressed about the identification, and she was acquitted of perjury. A number of investigations followed which generated intense media interest and criticism of the fingerprint service in Scotland. Factual background Ms McBride was employed as a fingerprint officer in the SCRO from 1984. She was originally employed by the Strathclyde Joint Police Board but her employment was transferred to the Scottish Police Services Authority (the SPSA) with effect from 1 April 2007. Her dismissal from employment occurred on 1 May 2007 in the context of that transfer. Ms McBride and three other officers were suspended from duties from 3 August 2000 until 20 May 2002, while investigations were undertaken. One investigation concluded that the four experts had not been guilty of any malicious wrongdoing. The Black report of February 2002 concluded that no matters of misconduct or lack of capability have taken place in the work surrounding [the fingerprint which was the subject of the disputed identification] and recommended that the four experts be returned to their normal positions without any disciplinary action being taken. On 20 May 2002 Ms McBride and the other three experts returned to work on restricted duties. It should be explained that the SCRO fingerprint bureau provided services for the police and the Crown Office. The duties of fingerprint experts included signing reports on fingerprint identification for use in criminal trials and giving evidence at such trials. Because Scots criminal law requires corroboration, it was and is the practice for fingerprint experts to produce joint reports and for both experts to be available, if required, to give oral evidence in support of their findings, although frequently their report is accepted by the defence or, if it is not, only one of the two signatories gives oral evidence at trial. On return to work Ms McBride and the other three experts resumed work on restricted duties but also undertook an extensive retraining programme over 12 to 18 months with a view to their return to full duties, including the signing of joint reports and giving evidence in court. The four experts sought to return to full duties but were not allowed to do so. The problem was that there remained disagreement between fingerprint experts, within the SCRO, nationally and internationally, over the disputed identification. It was and is the task of prosecuting counsel in the Crown Office, under the direction of the Lord Advocate, to select witnesses to give evidence in trials. There were concerns in the Crown Office that the use of any of the four experts in a criminal trial would encourage defence counsel to cross examine on matters relating to the DC McKie controversy in order to weaken the significance of the fingerprint evidence in the eyes of the jury. In September 2006, Lord Boyd of Duncansby, who was then Lord Advocate, gave evidence to the Scottish Parliaments Justice 1 Committee, which was inquiring into the SCRO and the Scottish Fingerprint Service. He was asked whether the Crown Office intended to call the fingerprint officers involved in the DC McKie case as expert witnesses in the future. In response he expressed the view that a trial in which any of those officers gave evidence might become a trial of the fingerprint officer rather than the accused and that this was a situation that he wished to avoid. Ms McBride and her colleagues remained on restricted duties. In their evidence to the Employment Tribunal some of her colleagues stated that she fulfilled a worthwhile role and had made a valuable contribution to her department. Two managers who had direct experience of her work gave evidence that she was seen as trustworthy and conscientious. See para 43 below. After the Scottish Government had announced its intention to establish the SPSA, the Justice Minister instructed Assistant Chief Constable David Mulhern to review the Scottish fingerprint service and produce an action plan to develop it as an integrated part of the new Scottish Forensic Science Service. Mr Mulhern was appointed the interim chief executive of the SPSA, which was intended to bring together the work of five separate bodies. Because of the continued disagreements over the disputed identification, Mr Mulhern saw the creation of a new fingerprint service within the Scottish Forensic Science Service as of the utmost importance. In the lead in to the creation of the SPSA, Mr Mulhern made it clear that he did not want Ms McBride and the other three experts involved in the disputed identification to transfer to the SPSA. At a meeting on 12 September 2006 between representatives of the employer and trade union representatives he stated that there would be an opportunity to take redeployment within Strathclyde Police and that he had not considered the possibility that the fingerprint officers might return to full duties. Ms McBride wanted to return to full duties and expected that the question of her return to full duties would be discussed after her transfer to the SPSA. Ms McBrides employment transferred to the SPSA on 1 April 2007. She was invited to a meeting on the next day to discuss redeployment. She asked her employers representatives to disclose who had made the decision to consider only redeployment, and when and why that decision had been made. Her questions were not answered correctly until 27 April 2007. On 1 May 2007 at a meeting chaired by Mr Tom Nelson, the SPSAs director of forensic services, Ms McBride said that she was willing to discuss redeployment but wished an opportunity to discuss reinstatement to unrestricted duties before she considered redeployment. There was no discussion at the meeting of her returning to unrestricted duties or of the status quo of restricted duties continuing. On the same day, Mr Nelson gave Ms McBride a letter in which he informed her that her employment would terminate forthwith because of her inability to carry out the full range of [her] duties and the failure to identify any suitable redeployment options for [her]. Ms McBrides internal appeal against her dismissal was unsuccessful. She presented a complaint of unfair dismissal to an Employment Tribunal. Before discussing the legal proceedings, I mention, first, the terms of her contract of employment and, secondly, later events. The contract of employment Ms McBrides job description stated her job title as fingerprint officer and described her main functions as a fingerprint expert as being to provide an efficient and effective identification support to operational police personnel. Of the 12 listed job activities, one and part of another had become excluded duties as a result of the SPSAs decision that she was not to give evidence in court. They were: 2. To prepare court cases and give evidence as required. 3. To check and sign identifications prepared by other Fingerprint Officers and trainee Fingerprint Officers. Ms McBride could not give evidence in court and so could not perform task 2. She was able to check identifications under task 3 above. But she could not sign the identifications because she was not allowed to give evidence in court. Other activities, such as examining the fingerprints lifted by scene of crime officers, assessing and verifying identifications, validating fingerprint classifications, preparing and collating statistical information, liaising with investigating officers, assimilating new technology and assisting in the training of fingerprint trainees, remained open to her. Later events A public judicial inquiry, the Fingerprint Enquiry, chaired by Sir Anthony Campbell, reported in December 2011 (after the decision of the Employment Appeal Tribunal discussed below). It concluded among other things that Ms McBride and her colleagues had not acted improperly in identifying the fingerprint, although it was not DC McKies fingerprint. David Mulhern ceased to be the chief executive officer and left the employment of the SPSA in April 2009. The SPSA ceased to exist on 1 April 2013 and its rights and obligations were transferred to the respondent (the SPA). The legal proceedings (i) The Employment Tribunal The Employment Tribunal (the ET) in a judgment dated 26 January 2009 found that Ms McBride had been unfairly dismissed. Because the arguments which this court has heard in this appeal have included opposing interpretations of the ETs judgment and reasons and the appeal turns on whether the ET erred in law, it is necessary to set out the relevant part of the judgment and to refer to parts of the supporting reasoning. The ET in its judgment ordered Ms McBrides reinstatement in these terms: The claimant shall be reinstated by the respondent to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed. The judgment also awarded Ms McBride a sum as arrears of pay from the date of her dismissal and ordered the SPSA to restore to her all rights and privileges, including pension rights, to which [she] was entitled at the time of her dismissal. In its reasons, the ET set out the reasons for its judgment in detail and with thoroughness. After finding that the dismissal of Ms McBride had been unfair, the ET turned to the question of remedy. In para 356 the ET commenced its discussion by stating: We must now consider the issue of remedy. The claimant seeks reinstatement if successful, and we firstly considered this matter (it being understood that reinstatement would be to a non court going fingerprint officer role). (emphasis added as counsel for the SPA submitted that this demonstrated an error of law) The ET then referred to sections 114 and 116 of the Employment Rights Act 1996 (the 1996 Act) and addressed the question whether it was practicable for the SPSA to comply with an order for reinstatement. The ET referred to press articles about Mr Mulherns alleged wish to force the resignation of staff involved in the disputed identification. It rejected the idea that the articles demonstrated a breakdown in the trust and confidence between Ms McBride and Mr Mulhern. It acknowledged that Ms McBride had had legitimate concerns when she had raised a grievance when Mr Mulhern was appointed. The ET also held (para 370) that Ms McBride was right in her belief that Mr Mulhern had deliberately not provided her with full and accurate details in response to the questions which she posed on 2 April 2007 (para 11 above). As against its finding that Ms McBride held Mr Mulhern responsible for the decisions made and to a certain degree distrusted him, the ET weighed in the balance the fact that the SPSA was a large employer with over 1,800 employees and that Mr Mulhern as chief executive, would not have day to day contact with her (paras 371 372). In response to the employers submission that Ms McBride, on returning to work, would seek to vindicate her disputed identification of the fingerprint, the ET acknowledged both that she continued to believe that her identification had been correct and that the thrust of her evidence had been about returning to court going duties. But it stated (para 373): We considered our conclusion that the decision of the respondent that the claimant could not return to court going duties, was a reasonable decision, will move this matter forward for both the claimant and the respondent. In so saying the ET appears to have thought that its support for the SPSAs decision to restrict Ms McBrides duties would make it easier for both employee and employer to work together because it might persuade Ms McBride that she would not succeed in her quest to return to the excluded duties. The ET (para 374) concluded on balance that it would be practicable for the SPSA to reinstate the claimant to the role of (non court going) fingerprint expert (again emphasis added). It rejected the submission that this was creating a job for Ms McBride, because she would be reinstated to the job that she had carried out for several years and because there were other examples of fingerprint officers who did not carry out court going duties but who continued to fulfil a role. The ET also held that it was just and equitable that a reinstatement order be made because Ms McBrides conduct had not contributed to her dismissal: (a) her inability to return to court going duties was not the result of any misconduct and (b) her unwillingness to discuss redeployment in late April 2007 had been justified by her employers prevarication. The ET summarised its decision in the closing paragraphs. It stated (para 379): We decided, having taken all of the above points into account, to order the respondent to reinstate the claimant to the position of fingerprint officer: the respondent shall treat the claimant in all respects as if she had not been dismissed. (ii) The Employment Appeal Tribunal The SPSA appealed to the Employment Appeal Tribunal (EAT) which revoked the ETs judgment on remedy and remitted the case to a freshly constituted tribunal to determine compensation. The EAT decided that the ETs decision that it was practicable for the SPSA to comply with an order for reinstatement was perverse because of Ms McBrides continued demands to be allowed to resume the excluded duties. The EAT stated (para 35): The clear picture is that returning the claimant to work for the respondents in the limited non court role provided for by the Tribunal would not work. Far from being practicable, the impression presented was one of the reinstatement envisaged by the Tribunal being liable to have disastrous consequences. The EAT expressed sympathy with the argument advanced on behalf of the SPSA that Ms McBride had contributed to her dismissal, because she had been given the answers to her questions by 27 April 2007 and yet had persisted in her refusal to engage in discussions about redeployment. But it decided that it was appropriate that a freshly constituted tribunal should consider whether monetary compensation should be reduced as a result of her conduct. It justified the requirement of a differently constituted tribunal because [t]he nature and extent of [the ETs] criticism of Mr Mulhern and of the respondents is such as to be indicative of a significant measure of sympathy towards the claimant (para 37). (iii) The Inner House Ms McBride appealed to the Inner House of the Court of Session. An Extra Division of the Inner House (Lady Paton, Lady Dorrian and Lord McGhie) heard the appeal. In its opinion the Inner House rejected the EATs conclusion that the ET had been perverse. It criticised the EAT for substituting its own perception of the facts for the interpretation of the ET and stated that the reasons which the EAT gave for implying that the ET might be partial did not withstand scrutiny. But the Extra Division held that the ET had erred in law; it interpreted the ETs judgment as an order to employ Ms McBride on altered contractual terms. As reinstatement had to be unconditional, the ET had misapplied the law. The Extra Division therefore refused the appeal so far as it sought to restore the ETs order of reinstatement, but allowed the appeal to the extent of remitting the case to the original ET. Ms McBride appeals to this Court. The issues in this appeal The central issue in this appeal is the correct interpretation of the ETs judgment. It is whether the ET had erred in law by purporting to reinstate Ms McBride to employment which was different from the employment from which she had been dismissed. Mr Calum MacNeill QC for Ms McBride submitted that the ET had not fallen into error because it had sought to place her in the same contractual relationship as she was in before her dismissal. Mr Brian Napier QC, for the SPA, argued the contrary. He accepted the Inner Houses criticisms of the EATs finding of perversity and did not seek to defend that finding or the EATs suggestion of bias. Mr Napier however sought to advance a new argument, which had not been pursued before the ET, the EAT or the Inner House, as a fall back if this Court took the view that the ET had not sought to alter the terms of Ms McBrides employment contract. He submitted that the ET had erred in its judgment of practicability and had reached a perverse decision for a different reason from that which the EAT had found. The decision, he submitted, was perverse because it had not considered that its order, if made, would return the parties to a position of contractual conflict in which Ms McBride could assert (a) a contractual right to carry out the excluded duties and therefore (b) that her employer was in material breach of contract when it refused to allow her to perform those duties. In my view, this additional argument comes too late. It was not developed in the tribunals below and is not supported by findings of fact which were made in the context of such a submission. In any event, on the facts found by the ET, I am not persuaded that the argument, if properly developed at the time, would have succeeded. I therefore comment on this argument only briefly after I have examined the statutory provisions and addressed the central issue in this appeal. The statutory provisions The remedies for unfair dismissal are set out in sections 112 to 117 of the 1996 Act. If the complainant wishes such an order, the tribunal is required first to consider whether to make an order for reinstatement, and if it decides not to make such an order, then, secondly, to consider whether to make an order for re engagement (sections 112(2), (3) and 116(1), (3)). If neither order is made, the tribunal may make an award of compensation for unfair dismissal (section 112(4)). An order for reinstatement is defined as an order that the employer shall treat the complainant in all respects as if he had not been dismissed (section 114(1)). An order for re engagement on the other hand is an order that the complainant be engaged in employment comparable to that from which he was dismissed or other suitable employment (section 115(1)). The EAT (Simler J) in British Airways plc v Valencia [2014] IRLR 683, (paras 25 and 26) contrasted an order for reinstatement which places the complainant into the same job on the same terms, and an order for re engagement, which may involve a change in the identity of the employer, the nature of the employment or the terms as to remuneration. I would not go so far as Simler J where she said (para 25) that a reinstatement order involved the employee having the same manager. The employer, while treating the employee in all respects as if he had not been dismissed, could give the employee a new line manager to avoid further conflict. It is the contractual rights, the terms and conditions of the employment, which must be reinstated and the rights and privileges (such as seniority and pension rights) which must be restored to the employee under a reinstatement order. In my view Mr Napier was right to challenge the view that a reinstatement order required the recreation of the precise factual conditions at the point of dismissal. But the basic dichotomy between the two types of order of which Simler J spoke is in my view correct. Thus, the ET has no power to order reinstatement in terms which alter the contractual terms of the complainants employment. When considering whether to make an order for reinstatement the tribunal must take into account: (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with the order and (c) where the complainant has caused or contributed to the dismissal, whether it would be just to order his reinstatement (section 116(1)). The tribunal, when considering whether to make an order for re engagement, must take into account similar considerations the complainants wishes, the practicability of the employers compliance with the order, and the justice of making the order if the complainant caused or contributed to the dismissal (section 116(3)). At the stage when it is considering whether to make a reinstatement order, the tribunals judgment on the practicability of the employers compliance with the order is only a provisional determination. It is a prospective assessment of the practicability of compliance, and not a conclusive determination of practicability. This follows from the structure of the statutory scheme, which recognises that the employer may not comply with the order. In that event, section 117 provides for an award of compensation, and also the making of an additional award of compensation, unless the employer satisfies the tribunal that it was not practicable to comply with the order. Practicability of compliance is thus assessed at two separate stages a provisional determination at the first stage and a conclusive determination, with the burden on the employer, at the second: Timex Corpn v Thomson [1981] IRLR 522, 523 524 per Browne Wilkinson J and Port of London Authority v Payne [1994] ICR 555, 569 per Neill LJ. Thus in Ms McBrides case, the ET, when considering whether to make the order for reinstatement, did not need to reach a concluded view on whether Ms McBride would accept her continued exclusion from the excluded duties and avoid confrontation with her employer on that issue. It was sufficient if the ET reasonably thought that it was likely to be practicable for the employer to comply with the reinstatement. Discussion The principal question, as I have said, is a question of the interpretation of the ETs judgment. In my view, the order, which I have set out in para 18 above, if viewed by itself is not open to criticism, reflecting as it does the words of section 114(1) of the 1996 Act. The question is whether the context, in particular the ETs reasoning, gives rise to a different interpretation of the order. I am satisfied that the answer to that question is no. In reading the ETs reasons, I ask myself whether the ET was seeking to impose a contractual limitation on Ms McBride in the reinstatement order, which removed the excluded duties from her job description, or was simply recognising a practical limitation on the scope of her work caused by circumstances beyond her control and that of her employer. I am satisfied that it was the latter for the following four reasons. First, the ET was aware both of the terms of Ms McBrides contract of employment and that for several years previously she had been actively employed as a fingerprint officer but had not been asked or allowed to sign reports or give evidence in court (paras 16 and 298 of its reasons). That was the status quo to which Ms McBride would have returned pursuant to a reinstatement order as the employer had to treat her as if she had not been dismissed (section 114(1) of the 1996 Act). Secondly, the ET was aware that she wanted to perform the excluded duties but held that the SPSAs decision that she could not return to those duties was reasonable (para 297 of its reasons). As the decision whether to call a particular expert as a witness in a criminal trial rested with the Crown Office and not the SPSA and as the Lord Advocate had made his views clear (para 7 above), the conclusion that the SPSA had acted reasonably is unsurprising. Thirdly, the ET rejected the idea that continuing in a non court going role amounted to alternative employment. The ET criticised Mr Mulherns evidence which had been calculated to give the impression that Ms McBride had done little of value in the previous years. He had failed to investigate that and had decided from an early date that the four fingerprint officers would not work for the SPSA. The ET accepted the evidence of Ms McBrides managers, Mr McKenzie and Mr Innes, about the amount of work carried out by a fingerprint expert which does not involve signing reports or giving evidence in court and their assessment that Ms McBride had made a valuable contribution in the years in which her duties had been restricted (paras 144 to 146 and 298 to 309 of the reasons). The ETs reasoning in para 374 of its reasons, which I have summarised in para 22 above, also supports this view. Fourthly, the words in para 356 of the reasons, on which counsel for the SPA relied and which I have set out and emphasised in para 19 above, were in parenthesis and spoke of an understanding, which may suggest that the ET was considering the practical context of the reinstatement rather than an alteration of the terms of employment. The words in parenthesis confirmed that the order for reinstatement did not amount to an order that the employer must alter the status quo by allowing Ms McBride to resume the excluded duties. This interpretation is in my view supported by the ETs statement in para 373 of the reasons, which I have quoted in para 21 above, that its conclusion that the employers decision about the excluded duties was reasonable would move [the] matter forward for both the claimant and the respondent. Such a statement would make no sense if the ET thought that its order was altering the terms of the contract of employment. For completeness, I refer to the suggestion that the ET in para 298 of its reasons had held that Ms McBride was unable to continue in her role and that the employer had to consider alternative employment. In my view, on a proper reading of that paragraph, in which the ET examined the actions of the SPSA, it referred back to the finding that Mr Mulhern had decided by May 2006 or in any event before September 2006 that the four fingerprint experts could not continue in their current restricted roles and that their employment had to be terminated (paras 27, 49 and 142 of the reasons). That explains why the ET spoke in that paragraph of the claimant being placed in a position which was akin to redundancy. The reference to alternative employment therefore did not relate to the continuation of their restricted roles and thus does not militate against the decision on the interpretation of the ETs decision to which I have come. That is sufficient to determine this appeal in Ms McBrides favour. But I comment briefly on Mr Napiers late arriving submission that the ETs view on the practicability of compliance with the reinstatement order was perverse because it had the potential to expose the SPSA to a claim by Ms McBride that it was in fundamental breach of contract. The ET addressed the arguments which the SPSA advanced on the practicability of compliance between paras 357 and 371 of its reasons. Those arguments did not include the submission which the SPA now seeks to advance. There are cases in which it has been held that an employer, who by unilateral action has fundamentally altered the nature of an employees job, has repudiated the contract of employment. See, for example, Coleman v S and W Baldwin [1977] IRLR 342, Pedersen v Camden London Borough Council (Note) [1981] ICR 674. But the problem for the SPA is that such decisions depend on the particular facts of the case. Whether an employee had a reasonable expectation of being allowed to do certain work which he or she enjoyed or which maintained or developed work related skills are questions to which the answers are fact sensitive. These questions were not raised before the ET. If they had been, the ET could have applied its mind to them and made findings of fact which were relevant to their answer. It did not do so because it was not asked to do so. In any event, it is not clear from the findings which the ET made that the SPSAs decision to bar Ms McBride from the excluded duties would amount to a fundamental alteration of the nature of Ms McBrides job. I have no doubt that giving expert evidence in a criminal court and being cross examined by counsel would be a stimulating experience and repeated exposure to the courts would develop or preserve skills. Ms McBrides wish to return to the excluded duties is therefore understandable. But that does not mean that her exclusion from them is a fundamental alteration of her job. The ET recorded evidence that much of the work of the fingerprint office did not involve the excluded duties. At para 147 of its reasons, the ET recorded that only 3.6% of cases referred to the fingerprint service required a joint report to be signed and in only 0.8% of cases did an expert have to attend court to give evidence. The ET also recorded its findings (para 149 of its reasons) that several fingerprint officers had been excused from attending, or had never been required to attend, court, including an officer who suffered from ill health, a trainer and the Head of Bureau. There were the findings, which I have mentioned (para 43 above), of the valuable role which Ms McBride performed although barred from the excluded duties. There is also the finding (paras 297 and 373 of the reasons) that the SPSA acted reasonably in deciding that Ms McBride should not return to the excluded duties. Further, there was no finding in the ETs reasons that Ms McBride had ever asserted that her exclusion from the excluded duties amounted to a breach of contract by her employer. Mr MacNeill in his submissions accepted that Ms McBride did not have a contractual right to sign reports or give evidence, as the provision of work in the criminal courts was not in the SPAs gift. As I have said (para 37 above), the ETs determination on practicability was only a provisional determination. It was aware of friction between Ms McBride and Mr Mulhern and had formed the view that its finding that it was reasonable for the SPSA to maintain the bar on the excluded duties would assist both parties to move forward. On the findings of fact which the ET has made, and in particular its finding on the reasonableness of the bar, a breach of contract seems a remote possibility. I therefore reject the SPAs fall back argument. Remedy There is now no challenge to the further involvement in this case of the ET which heard Ms McBrides claim in 2008 and issued its judgment in 2009. The Court was informed that Employment Judge Lucy Crone remains in office but it was not known if the lay members of the original ET are still in service. I therefore propose that the Court should remit the case to the original tribunal, or to a tribunal which includes the member or members of the original tribunal who are still in office, to consider variation of its order relating to the matters specified under section 114(2) of the Employment Rights Act 1996 in view of the time that has passed since its order was made. I also propose that counsel be invited to make submissions within 21 days about the order for expenses which this Court should make. Conclusion I would therefore allow the appeal. |
In the language of the criminal law a person who assists or encourages another to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal. The reason is not difficult to see. He shares the physical act because even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he has encouraged or assisted those physical acts. Similarly he shares the culpability precisely because he encouraged or assisted the offence. No one doubts that if the principal and the accessory are together engaged on, for example, an armed robbery of a bank, the accessory who keeps guard outside is as guilty of the robbery as the principal who enters with a shotgun and extracts the money from the staff by threat of violence. Nor does anyone doubt that the same principle can apply where, as sometimes happens, the accessory is nowhere near the scene of the crime. The accessory who funded the bank robbery or provided the gun for the purpose is as guilty as those who are at the scene. Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that he participated in the crime either as one or as the other. These basic principles are long established and uncontroversial. In the last 20 years a new term has entered the lexicon of criminal lawyers: parasitic accessory liability. The expression was coined by Professor Sir John Smith in a lecture later published in the Law Quarterly Review (Criminal liability of accessories: law and law reform [1997] 113 LQR 453). He used the expression to describe a doctrine which had been laid down by the Privy Council in Chan Wing Siu v The Queen [1985] AC 168 and developed in later cases, including most importantly the decision of the House of Lords in R v Powell and R v English [1999] 1 AC 1. In Chan Wing Siu it was held that if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it. The appellants Jogee and Ruddock were each convicted of murder after directions to the jury in which the trial judges sought to apply the principle deriving from Chan Wing Siu. In these appeals the court has been asked to review the doctrine of parasitic accessory liability and to hold that the court took a wrong turn in Chan Wing Siu and the cases which have followed it. It is argued by the appellants that the doctrine is based on a flawed reading of earlier authorities and questionable policy arguments. The respondents dispute those propositions and argue that even if the court were now persuaded that the courts took a wrong turn, it should be a matter for legislatures to decide whether to make any change, since the law as laid down in Chan Wing Siu has been in place in England and Wales and in other common law jurisdictions including Jamaica for 30 years. The two appeals, Jogee in the Supreme Court and Ruddock in the Judicial Committee of the Privy Council, were heard together. History The Accessories and Abettors Act 1861, section 8 (as amended), provides that: Whosoever shall aid, abet, counsel or procure the commission of any indictable offence shall be liable to be tried, indicted and punished as a principal offender. For summary offences the corresponding provision is in section 44 of the Magistrates Courts Act 1980. In its original form section 8 of the 1861 Act referred to any misdemeanour rather than any indictable offence. It was amended by the Criminal Law Act 1977 on the abolition of the previous distinction between felonies and misdemeanours. Prior to the abolition of that distinction, the substantive law about who could be convicted of an offence as a secondary party was the same for felonies and misdemeanours, but for historical reasons the terminology was different. The purpose of section 8 was to simplify the procedure for the prosecution of secondary parties. It did not alter the substance of the law governing secondary liability. Its language was consistent with a line of earlier statutes. Foster commented in his Crown Law, re published 3rd ed (1809), pp 130 131, that the precise language used in those statutes was not always identical but was to the same effect. The effect of the language of section 8 was accurately summarised by the Law Commission in its report on Participating in Crime (2007) (Law Com 305), paragraph 2.21: Disregarding procuring, it is generally accepted that these specified modes of involvement cover two types of conduct on the part of D, namely the provision of assistance and the provision of encouragement. Although the distinction is not always made in the authorities, accessory liability requires proof of a conduct element accompanied by the necessary mental element. Each element can be stated in terms which sound beguilingly simple, but may not always be easy to apply. The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1. Subject to the question whether a different rule applies to cases of parasitic accessory liability, the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal: National Coal Board v Gamble [1959] 1 QB 11, applied for example in Attorney General v Able [1984] QB 795, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 1 WLR 1350 per Lord Lowry at 1374G 1375E, approved in the House of Lords at 1356A; 1358F; 1359E; 1362H and echoed also at 1361D. If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent. D2s intention to assist D1 to commit the offence, and to act with whatever mental element is required of D1, will often be co extensive on the facts with an intention by D2 that that offence be committed. Where that is so, it will be seen that many of the cases discuss D2s mental element simply in terms of intention to commit the offence. But there can be cases where D2 gives intentional assistance or encouragement to D1 to commit an offence and to act with the mental element required of him, but without D2 having a positive intent that the particular offence will be committed. That may be so, for example, where at the time that encouragement is given it remains uncertain what D1 might do; an arms supplier might be such a case. With regard to the conduct element, the act of assistance or encouragement may be infinitely varied. Two recurrent situations need mention. Firstly, association between D2 and D1 may or may not involve assistance or encouragement. Secondly, the same is true of the presence of D2 at the scene when D1 perpetrates the crime. Both association and presence are likely to be very relevant evidence on the question whether assistance or encouragement was provided. Numbers often matter. Most people are bolder when supported or fortified by others than they are when alone. And something done by a group is often a good deal more effective than the same thing done by an individual alone. A great many crimes, especially of actual or threatened violence, are, whether planned or spontaneous, in fact encouraged or assisted by supporters present with the principal lending force to what he does. Nevertheless, neither association nor presence is necessarily proof of assistance or encouragement; it depends on the facts: see R v Coney (1882) 8 QBD 534, 540, 558. Once encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove that it had a positive effect on D1s conduct or on the outcome: R v Calhaem [1985] QB 808. In many cases that would be impossible to prove. There might, for example, have been many supporters encouraging D1 so that the encouragement of a single one of them could not be shown to have made a difference. The encouragement might have been given but ignored, yet the counselled offence committed. Conversely, there may be cases where anything said or done by D2 has faded to the point of mere background, or has been spent of all possible force by some overwhelming intervening occurrence by the time the offence was committed. Ultimately it is a question of fact and degree whether D2s conduct was so distanced in time, place or circumstances from the conduct of D1 that it would not be realistic to regard D1s offence as encouraged or assisted by it. An early example is the case of Hyde (1672), described in Hales Pleas of the Crown (1682), vol 1, p 537, and in Fosters Crown Law, p 354. This was Fosters description and explanation: A, B and C ride out together with intention to rob on the highway. C taketh an opportunity to quit the company, turneth into another road, and never joineth A and B afterwards. They upon the same day commit a robbery. C will not be considered an accomplice in this fact. Possibly he repented of the engagement, at least he did not pursue it; nor was there at the time the fact was committed any engagement or reasonable expectation of mutual defence and support so far as to affect him. In other words, on the particular facts A and B were not regarded as having committed the robbery with Cs encouragement or assistance. Any original encouragement was regarded as having been spent and there was no other assistance. (It appears from Hales account that C parted from A and B at Hounslow and that the later robbery took place three miles away.) With regard to the mental element, the intention to assist or encourage will often be specific to a particular offence. But in other cases it may not be. D2 may intentionally assist or encourage D1 to commit one of a range of offences, such as an act of terrorism which might take various forms. If so, D2 does not have to know (or intend) in advance the specific form which the crime will take. It is enough that the offence committed by D1 is within the range of possible offences which D2 intentionally assisted or encouraged him to commit (Maxwell). In Maxwell the defendant was a member of a terrorist organisation, the Ulster Volunteer Force (UVF). Under UVF instructions he took part in what he knew was a planned military mission, by guiding a car containing three or four other men on a cross country journey to a country inn on a winter evening. He knew that they were intending to carry out some form of violent attack on the inn, whether by shooting, bombing or some incendiary device, and he intentionally acted in order to help them to carry out the mission. He did not know the precise form of attack that they were intending to carry out (which was in fact an explosion), but it was held to be enough that he knew that they were intending to carry out a violent attack on the inn and that he intended to assist them to do so. The decision in Maxwell did not derogate from the principle identified in para 9 that an intention to assist or encourage the commission of an offence requires knowledge by D2 of any facts necessary to give the principals conduct or intended conduct its criminal character. In Johnson v Youden [1950] 1 KB 544 a builder committed an offence by selling a house for 250 more than the maximum permitted under a statutory regulation. The 250 was paid to him in advance by the purchaser. The builder then instructed a firm of solicitors to act for him in the sale. Two of the partners in the firm had no knowledge of the earlier payment, but they were convicted by the magistrates of aiding and abetting the builders offence. Their convictions were quashed by the Divisional Court because they had no knowledge of the facts which gave the transaction its criminal character. They therefore lacked the mens rea to be guilty as accessories. Secondary liability does not require the existence of an agreement between the principal and the secondary party to commit the offence. If a person sees an offence being committed, or is aware that it is going to be committed, and deliberately assists its commission, he will be guilty as an accessory. But where two or more parties agree on an illegal course of conduct (or where one party encourages another to do something illegal), the question has often arisen as to the secondary partys liability where the principal has allegedly gone beyond the scope of what was agreed or encouraged. For Foster it was an objective question, firstly, what in substance was agreed or encouraged, and secondly, what was likely to happen in the ordinary course of events. As to first question, Foster wrote at p 369 (in a passage much cited in later authorities): Much hath been said by writers who have gone before me, upon cases where a person supposed to commit a felony at the instigation of another hath gone beyond the terms of such instigation, or hath, in the execution, varied from them. If the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly committeth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. For on his part it was no more than a fruitless ineffectual temptation. The fact cannot with any propriety be said to have been committed under the influence of that temptation. But if the principal in substance complieth with the temptation, varying only in circumstance of time and place, or in the manner of execution, in these cases the person soliciting to the offence will, if absent, be an accessary before the fact, if present a principal. (Emphasis added. At the time when Foster wrote, the word fact was used when we would use the word act.) So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessary to that felony [Foster proceeded to give three examples. One is enough for present purposes.] A adviseth B to rob C, he doth rob him, and in so doing, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery, killeth him. A is accessary to this murder. As to the second question, Foster continued at p 370: These cases are all governed by one and the same principle. The advice, solicitation, or orders in substance were pursued, and were extremely flagitious on the part of A. The events, although possibly falling out beyond his original intention, were in the ordinary course of things the probable consequences of what B did under the influence, and at the instigation of A. And therefore, in the justice of the law, he is answerable for them. (Fosters emphasis) Fosters original edition was published in 1762, the year before his death, and so he was writing about the law in the mid 18th century. (The edition quoted was a re publication.) Cases in the 19th century show that there was a significant change of approach. It was no longer sufficient for the prosecution to prove that the principals conduct was a probable consequence, in the ordinary course of things, of the criminal enterprise instigated or agreed to by the secondary party. The prosecution had to prove that it was part of their common purpose, should the occasion arise. In R v Collison (1831) 4 Car & P 565 two men went out by night with carts to steal apples. They were detected by the landowners watchman. One of the thieves attacked him with a bludgeon which he was carrying and caused the man severe injury. On the trial of the second thief for assault and wounding with intent to murder, Garrow B ruled at p 566: To make the prisoner a principal, the Jury must be satisfied that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavour to apprehend them; but if they had only the common purpose of stealing apples, and the violence of the prisoners companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal. This ruling highlighted the importance of identifying the common purpose. If it was only to steal apples, the defendant was not guilty of the greater offence with which he was charged. He was guilty of that offence only if the common purpose included using severe violence to resist arrest, should the occasion arise. Other authorities were consistent with the direction in Collison: see R v Macklin (1838) 2 Lewin 225, R v Luck (1862) 3 F & F 483, and R v Turner (1864) 4 F & F 339, 341 (on a charge of murder there must be evidence not only of a common design to commit a felony, but a common design quoad the homicidal act itself, per Channell B). The position in England and Wales was at one time complicated by the doctrine of constructive murder known as felony murder. Under this doctrine a person was guilty of murder if he used violence in furtherance of a felony which resulted in death, whether or not he intended to cause death or serious harm. The doctrine did not apply to misdemeanours, which included poaching. Pollock CB explained the law as it affected accessories in R v Skeet (1866) 4 F & F 931, 936 937 (a case in which poachers were stopped by a gamekeeper, who was shot by one of them): the doctrine of constructive homicide does not apply where the only evidence is that the parties were engaged in an unlawful purpose: not being felonious. It only applies in cases where the common purpose is felonious, as in cases of burglary: where all the parties are aware that deadly weapons are taken with a view to inflict death or commit felonious violence, if resistance is offered. That doctrine arose from the desire on the part of old lawyers to render all parties who are jointly engaged in the commission of a felony responsible for deadly violence committed in the course of its execution. But that doctrine has been much limited in later times, and only applies in cases of felony, where there is no (sic) evidence of a felonious design to carry out the unlawful purpose at all hazards, and whatever may be the consequences. The possession of a gun would not be any evidence of this, for a gun is used in poaching. And poaching itself is only an unlawful act and a mere misdemeanour. The inclusion of the word no in this passage appears to be an error, because it is contrary to the general sense of the passage and to the case reporters commentary at p 934 on the judgment: It is the common design or intention to kill in the prosecution of the unlawful object, whether it be misdemeanour or felony, which involves the others in the guilt of homicide. For, even if the common purpose is felonious, if only the actual perpetrator of the act had the intention to kill in the prosecution of the purpose, the others, who did not concur in the act, are not guilty of the offence of homicide. It will be seen that the expression common design is here treated as synonymous with shared intention. (It would have been more strictly accurate to add or cause grievous bodily harm after the word kill.) R v Spraggett [1960] Crim LR 840 is a more modern example of the principle that where violence is used in furtherance of a criminal venture, a co adventurer will be liable only if he shared an intention to use violence to resist interference or arrest. Three men were involved in the burglary of a sub post office. Two of them went into the building while the third waited outside. During the burglary the owner of the shop came on the scene and was knocked down. The appellant was convicted of burglary and assault with intent to rob. The judge directed the jury that if the defendants jointly decided to break into premises, each was liable for any incidental violence. The appellants conviction was quashed. Lord Parker CJ said that the summing up treated it as a presumption of law that where a person was found to be acting in concert with others to commit a burglary, it should be presumed that he was also acting in concert with others to use violence in the course of the crime, whereas the jury had to be satisfied on the evidence that there was such a preconceived intention to use violence. (The commentary in the Criminal Law Review noted that under the trial judges direction, a burglar who had no intention to do anything to anyone might find himself guilty of murder.) The evidential relevance of the carrying of a weapon on a criminal venture has been a common theme in the case law. Its evidential strength depends on the circumstances. As Pollock CB observed in Skeet, a poachers possession of a gun did not of itself then point to more than an intent to use it to kill game. In other circumstances it might provide powerful evidence of an intent to use it to overcome resistance or avoid arrest. See Professor Glanville Williams Criminal Law, The General Part, 2nd ed (1961), p 397: The knowledge on the part of one criminal that his companion is carrying a weapon is strong evidence of a common intent to use violence, but is not conclusive. In a line of cases the courts recognised that even where there was a joint intent to use weapons to overcome resistance or avoid arrest, the participants might not share an intent to cause death or really serious harm. If the principal had that intent and caused the death of another he would be guilty of murder. Another party who lacked that intent, but who took part in an attack which resulted in an unlawful death, would be not guilty of murder but would be guilty of manslaughter, unless the act which caused the death was so removed from what they had agreed as not to be regarded as a consequence of it: R v Smith (Wesley) [1963] 1 WLR 1200, R v Betty (1964) 48 Cr App R 6, R v Anderson and R v Morris [1966] 2 QB 110 and R v Reid (1976) 62 Cr App R 109. In Wesley Smith (see pp 1205 1206) the trial judge directed the jury: Manslaughter is unlawful killing without an intent to kill or do grievous bodily harm. Anybody who is party to an attack which results in an unlawful killing which results in death is a party to the killing. a person who takes part in or intentionally encourages conduct which results in a criminal offence will not necessarily share the exact guilt of the one who actually strikes the blow. His foresight of the consequences will not necessarily be the same as that of the man who strikes the blow, the principal assailant, so that each may have a different form of guilty mind, and that may distinguish their respective criminal liability. Several persons, therefore, present at the death of a man may be guilty of different degrees of crime one of murder, others of unlawful killing, which is manslaughter. Only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results. (Emphasis added.) Smith was convicted of manslaughter. Because he appealed against that conviction, it fell to a Court of Criminal Appeal of five judges to consider the direction as a whole, including the passage relating to murder. They praised the judge for his clear summing up, which they described as legally unassailable. They added that it was possible to hypothesise a case where what was done was wholly beyond the defendants contemplation, but that could not be said in that case, where the death resulted from use of a knife which the appellant knew that the principal offender was carrying. (We will consider later in more detail the relevance of objective foreseeability in relation to manslaughter.) In Betty Lord Parker CJ quoted the passage from the summing up in Wesley Smith emphasised above and noted that the court of five judges had approved it. In Anderson and Morris, a fatal stabbing resulted in the conviction of Anderson for murder and Morris for manslaughter. The evidence of Morriss role, if any, in the attack was unclear. The judge directed the jury that if there was a common design to attack the victim, but without any intent by Morris to kill or cause grievous bodily harm, and if Anderson, acting outside the common design, produced a knife about which Morris had no knowledge and used it to kill the victim, Morris was liable to be convicted of manslaughter. The defendants appeal was heard by a Court of Criminal Appeal of five judges, presided over by Lord Parker CJ. Mr Geoffrey Lane, QC for Morris submitted that the authorities from about 1830 onwards established the principle that (see p 118): where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co adventurer is not liable for the consequences of that unauthorised act. (Emphasis added) It was submitted that the judge had therefore misdirected the jury in saying that Morris could be liable if Anderson had acted outside the common design. Accepting counsels proposition as set out above and allowing Morris appeal, Lord Parker said at p 120: It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked on as causative factors. The court in that case did not call into question what had been said in Wesley Smith, and Lord Parker noted that it had been approved by the court in Betty. The court was not therefore resiling from the general statement that where a person takes part in an unlawful attack which results in death, he will be guilty either of murder or of manslaughter according to whether he had the mens rea for murder. But the court recognised that there could be cases where the actual cause of death was not simply an escalation of a fight but an overwhelming supervening event. That there had been such an event in Anderson and Morris may have been a charitable view on the facts, but the principle was endorsed by the court in Reid (of which the former Mr Geoffrey Lane QC was a member). Reid and two others were tried for the murder of a colonel who was the commander of an army training camp. The three men were alleged to be supporters of the IRA. They went to the colonels house in the early hours of the morning and rang the doorbell. The door was opened by the colonel, and one of the other defendants immediately shot him dead. The other two men were convicted of murder and Reid was convicted of manslaughter. All three were also convicted of joint possession of a revolver, knife and imitation gun. Reids defence was that he was not an IRA supporter and that he went with the others as an interested but innocent spectator with no intention of causing any harm. The jury must have rejected that defence, but must also have accepted it as possible that he did not intend the victim to suffer death or serious harm. Reid appealed against his conviction for manslaughter on the ground that there was no evidence for finding that he intended to cause some harm but not serious harm, and reliance was placed on Anderson and Morris. The appeal was dismissed in a reserved judgment of a strong Court of Appeal (Lawton and Geoffrey Lane LJJ and Robert Goff J). Lawton LJ distinguished Anderson and Morris on the basis that the court in that case on its facts had regarded the act which caused death as an overwhelmingly supervening event. Dealing with Reid, he said at p 112: The intent with which the appellant was in joint possession of the weapons with the others has to be inferred from the circumstances. He did not share the murderous intent. The first problem for us is whether this court would be entitled to infer from the fact of joint possession an intent to do some harm to Colonel Stevenson If men carrying offensive indeed deadly weapons go to a mans house in the early hours of the morning for no discernible lawful purpose, they must, in our judgment, intend to do him harm of some kind, and the very least kind of harm is of causing fright by threats to use them. The second problem is whether, on the evidence in this case, Colonel Stevensons death resulted from the unlawful and dangerous act of being in joint possession of offensive weapons. The appellant did not intend either death or serious injury. On the jurys findings OConaill must have gone beyond anything he may have intended . When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter. (Emphasis added.) Chan Wing Siu [1985] AC 168 The three appellants went, each armed with a knife, to a flat used by a prostitute, where her husband was habitually present. The prosecutions case was that they planned to rob the husband. In written statements they admitted going to the flat to get money from him, which they said that he owed to one of them. The husband was stabbed to death and his wife was slashed across the head. The appellants were all convicted of murder and wounding with intent to cause grievous bodily harm. Complaint was made of the trial judges direction to the jury that an accused was guilty on each count if proved to have had in contemplation that a knife might be used by one of his co adventurers with intent to inflict serious bodily injury. It was conceded by the appellants that if the contingency in which knives were used (such as resistance to a robbery) was foreseen by an accused, it was not necessary that he should have regarded the occurrence of that contingency as more probable than not; but it was submitted that it was necessary to prove that he foresaw a more than 50% likelihood that one or other of his co accused would act with intent to cause death or really serious harm. This submission was unsurprisingly rejected. It is also unsurprising that the appeals were dismissed. There was an overwhelming case for inferring that the appellants foresaw the likelihood of resistance and that their plan included the possible use of knives to cause serious harm. However, the Privy Council upheld the convictions on a different basis. Sir Robin Cooke, delivering the judgment of the Board, said at p 175: In the typical case [of aiding and abetting] the same or the same type of offence is actually intended by all the parties acting in concert. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground. The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight. Sir Robin Cooke cited Anderson and Morris. He noted that the Court of Criminal Appeal had reviewed a line of relevant authorities from 1830, but no reference was made to any of them. He referred to Anderson and Morris only for the case of one adventurer going beyond what had been agreed. He said that in England it appeared not hitherto to have been found necessary to analyse the test which the jury had to apply more elaborately than in the formulation by Mr Geoffrey Lane QC which the Court of Criminal Appeal had accepted. He drew on the judgments of the High Court of Australia in Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 and Miller v The Queen (1980) 55 ALJR 23. The only other English case to which he referred was Davies v Director of Public Prosecutions [1954] AC 378. In Davies v Director of Public Prosecutions [1954] AC 378 a fight between two groups of youths resulted in a fatal stabbing. The appellant was convicted of murder. One of the prosecution witnesses was a youth named Lawson. He gave evidence of an oral admission by the appellant after the event. One of the grounds of appeal was that the judge ought to have given the jury a warning that Lawson could be regarded as an accomplice, and therefore was someone whose evidence required to be treated with special caution. Lawson admitted being involved in the fight at some stage, but he denied all knowledge of a knife and there was no evidence that he was present when it was produced. He was initially charged with murder, but no evidence was offered against him. The House of Lords rejected the argument that an accomplice warning was required. Lord Simonds LC said at p 401: I can see no reason why, if half a dozen boys fight another crowd, and one of them produces a knife and stabs one of the opponents to death, all the rest of his group should be treated as accomplices in the use of the knife and the infliction of mortal injury by that means, unless there is evidence that the rest intended or concerted or at least contemplated an attack with a knife by one of their number, as opposed to a common assault. If all that was designed or envisaged was in fact a common assault, and there was no evidence that Lawson, a party to that common assault, knew that any of his companions had a knife, then Lawson was not an accomplice in the crime consisting in its felonious use. This was not a ruling that, as a matter of law, knowledge by Lawson that one of his companions had a knife would make him an accessory to murder. Nor was Lord Simonds addressing the question of when contemplation of an attack with a knife would do so. He was speaking in the context of considering the need for an accomplice warning. The question was whether there was evidence on which the person concerned could be regarded as an accomplice. Evidence that he knew that one of his companions was armed with a knife would plainly have been evidence from which it would be open to a jury to infer a common intent to use it (see para 26 above). There is a major difference between saying that in the absence of evidence of knowledge of the knife there was no cause to give an accomplice warning, and saying that knowledge of the knife and the possibility of its use would of itself constitute the mens rea needed for guilt of murder as an accessory. In Johns v The Queen the appellant was convicted of murder and assault with intent to rob. His role was to drive the principal offender, W, to a rendezvous with a third man, D. The appellant was to wait at the rendezvous while the other two men robbed a known receiver of stolen jewellery. Afterwards the appellant was to take possession of the proceeds and hide them in return for a share. The appellant knew that W was carrying a pistol, and W told him that he would not stand for any nonsense if he met any obstacle during the robbery. In the event the victim resisted and W shot him dead. The judge directed the jury that the appellant and D would be guilty if the act constituting the offence committed was within the contemplation of the parties as an act done in the course of the venture on which they had embarked. It was argued on the appellants behalf that while this was an appropriate direction in the case of D, who was present and therefore a principal in the second degree, it was a misdirection in the case of the appellant, who was an accessory before the fact. It was submitted that in his case it was necessary for the jury to conclude that it was a likely or probable consequence of the way in which the crime was to be committed that the gun would be discharged so as to kill the deceased. The High Court unanimously rejected the argument that any distinction was to be drawn between the liability of a principal in the second degree and an accessory before the fact. The majority judgment was given by Mason, Murphy and Wilson JJ. They said (at p 125) that there was no reason as a matter of legal principle why such a distinction should be drawn. They also said (at p 131): 26. The narrow test of criminality proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of the act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A is to carry a revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred. 27. In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that [the victim] resisted or sought to summon assistance. We need not recapitulate the evidence to which we have already referred. The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide. This was an orthodox approach in line with the authorities going back to Collison (1831) 4 Car & P 565. In Miller v The Queen the defendant regularly drove the principal offender, W, on outings to pick up girls. He would drive to a deserted spot and walk away while W satisfied his sexual desires. Sometimes the sex was consensual and the girl would be returned unharmed, but on seven occasions W murdered the girl and the defendant helped him to dispose of her body. The defendant was convicted of murder on all but the first occasion. The judge directed the jury that the defendant would be guilty of murder if he and W acted in concert to pick up a girl and it was within his contemplation that the particular girl might be murdered. The defendant argued that this was a misdirection. The court held that the direction should reasonably have been understood as referring to a plan between the parties which included the possible murder of the girls, and as such the direction was unobjectionable. It is worth noting, as did the High Court, that this was not a case of a plan to carry out crime A, in which one party carried out crime B. There was nothing illegal about the venture of picking up girls for consensual sex. It became illegal if and when the common purpose came to include murder as an eventuality. (at p 177): In Chan Wing Siu Sir Robin Cooke touched briefly on public policy saying What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they in fact are used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance on a nuance of prior assessment, only too likely to have been optimistic. It is not necessary to refer to all the cases which have followed Chan Wing Siu but some call for mention. R v Slack [1989] QB 775, R v Wakely [1990] Crim LR 119 and R v Hyde [1991] 1 QB 134 Reserved judgments of the Court of Appeal, expressed to follow Chan Wing Siu, were given in these cases by Lord Lane CJ. In Slack he said, at p 781, that for a person to be guilty of murder as an accessory it had to be proved that he lent himself to a criminal enterprise involving the infliction of serious injury or death or that he had an express or tacit understanding with the principal that such harm or death should, if necessary, be inflicted. In Wakely he added that mere foresight of a real possibility of violence being used was not, academically speaking, sufficient to constitute the mental element of murder. Professor Smith in a commentary on Wakely in the Criminal Law Review at pp 120 121 suggested that the Court of Appeal had failed properly to follow Chan Wing Siu. He identified the question raised by Slack and Wakely as being whether it was sufficient to prove that a party to a joint enterprise knew that another party might use the violence that was used, or whether it was necessary to prove that it was understood between them expressly or tacitly that, if necessary, such violence would be used. The problem arose from the elision by Sir Robin Cooke in Chan Wing Siu at p 175, of contemplation and authorisation which may be express but is more usually implied. Professor Smith commented that contemplation is not the same thing as authorisation, because one may contemplate that something will be done by another without authorising him to do it, but that the general effect of Chan Wing Siu was that contemplation or foresight was enough. In Hyde Lord Lane said that in Slack and Wakely the court had been endeavouring to follow Chan Wing Siu, but on reconsideration he accepted Professor Smiths criticism. Contrary to Wakely, foresight of the possibility that B might kill or intentionally inflict serious injury would amount to a sufficient mental element for B to be guilty of murder. Hui Chi Ming v The Queen [1992] 1 AC 34 and expressly endorsed the following statement in the judgment in Hyde: If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. In Hui Chi Ming the Privy Council, at p 50, affirmed the correctness of Hyde R v Powell and R v English [1999] 1 AC 1 The House of Lords at p 27 held in answer to a question certified by the Court of Appeal that (subject to a qualification in the case of English) it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm. The leading judgment was given by Lord Hutton, with whom the other judges agreed. It was argued by the appellants that this was inconsistent with the mens rea requirement for murder laid down in R v Moloney [1985] AC 905 and R v Hancock [1986] AC 455, but those cases were distinguished on the basis that they applied only to the principal offender. Lord Hutton, at p 18, considered that there was a strong line of authority, beginning with Wesley Smith, that participation in a joint criminal enterprise, with foresight or contemplation of an act as a possible incident of that enterprise, is sufficient to impose criminal liability for that act carried out by another participant in the enterprise. He held, at p 19, that in that case the Court of Appeal had recognised that the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon. He added that the judgment in Anderson and Morris was not intended to depart from that principle. Lord Hutton recognised that as a matter of strict analysis there is a difference between a party to a common enterprise contemplating that in the course of it another party may use a gun or knife and a party tacitly agreeing to the use of such a weapon, but he said that it was clear from a number of decisions in addition to Wesley Smith that a party embarking on a joint criminal enterprise was liable for any act which he contemplated might be carried out by another party even if he had not tacitly agreed to that act. Lord Hutton recognised that as a matter of logic there was force in the argument that it was anomalous that foreseeability of death or really serious harm was not sufficient mens rea for the principal to be guilty of murder, but was sufficient in a secondary party. But he said that there were weighty and important practical considerations related to public policy which prevailed over considerations of strict logic. He saw considerable force in the argument that a party who takes part in a criminal enterprise (for example, a bank robbery), with foresight that a deadly weapon may be used, should not escape liability for murder because he, unlike the principal party, is not suddenly confronted by the security officer so that he has to decide whether to use the gun or knife or have the enterprise thwarted and face arrest. In a concurring judgment, Lord Steyn recognised at p 13, that foresight and intention are not synonymous, but he held that foresight is a necessary and sufficient ground of the liability of accessories. He too recognised that there was at first sight substance in the argument that it was anomalous that a lesser form of culpability was required in the case of a secondary party involved in a criminal enterprise, viz foresight of the possible commission of the greater offence, than in the case of the primary offender, who will be guilty of murder only if he intended to kill or cause really serious injury. But he held at p 14, that the answer to the supposed anomaly was to be found in practical and policy considerations: If the law required proof of the specific intention on the part of a secondary party, the utility of the accessory principle would be gravely undermined. It is just that a secondary party who foresees that the primary offender might kill with the intent sufficient for murder, and assists and encourages the primary offender in the criminal enterprise on this basis, should be guilty of murder. The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed. Lord Mustill agreed with the decision, but with evident unease. He said that throughout the modern history of the law on secondary liability, in the type of case under consideration, the responsibility of the secondary party, D2, had been founded on participation in a joint enterprise of which the commission of the crime by the principal offender, D1, formed a part. If D2 foresaw D1s act, this would always, as a matter of common sense, be relevant to the jurys decision on whether it formed part of a course of action to which D2 and D1 agreed, albeit often on the basis that the action would be taken if particular circumstances should arise. In cases where D2 could not rationally be treated as party to an express or tacit agreement to commit the greater offence, but continued to participate, he would have favoured some lesser form of culpability; but that could not be fitted in to the existing concept of a joint venture. For his part he would not have favoured the abandonment of a doctrine which had for years worked adequately in practice and its replacement by something which he conceived to be new. But since the other four members of the panel saw the matter differently, and for the sake of clarity in the law, he was willing to concur in their reasoning. English, who was aged 15, and another young man, W, took part in attacking a police sergeant with wooden posts. In the course of the attack W drew a knife and stabbed him to death. Both youths were convicted of murder. It was a reasonable possibility on the evidence that English did not know that W was carrying a knife. The judge directed the jury that English would nevertheless be guilty of murder if he foresaw a substantial risk that W might cause serious injury to the sergeant with a wooden post. It was submitted on behalf of English, and the House of Lords agreed, that the use of a knife was fundamentally different to the use of a wooden post. The summing up was therefore defective and his conviction was quashed. Lord Hutton added at p 30: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa. In later cases which proceeded on the assumption that the law was as stated in Chan Wing Siu, courts have endeavoured to clarify the test of what is to be regarded as fundamentally different for this purpose; such cases include R v Rahman [2008] UKHL 45; [2009] 1 AC 129 and R v Mendez [2011] QB 876. The need to address a concept of fundamental departure assumed great importance because guilt was based, under the Chan Wing Siu and Powell and English rule, on foresight of what D1 might do. Australia Chan Wing Siu was followed by the High Court of Australia in McAuliffe v The Queen (1995) 183 CLR 108, which was in turn followed by the High Court in Gillard v The Queen (2003) 219 CLR 1 and Clayton v The Queen (2006) 231 ALR 500. In Clayton the majority adopted the theory (at para 20) that what is there described as extended common purpose liability differs as a matter of jurisprudential foundation from secondary liability as aider or abettor, the first being grounded in common embarkation on crime A and the second in contribution to anothers crime. There was a dissenting judgment by Kirby J, who pointed, among other considerations, to the disparity between the mental element required of an aider or abettor and that required by the rule of extended common purpose (para 102). Analysis The court has had the benefit of a far deeper and more extensive review of the topic of so called joint enterprise liability than on past occasions. From our review of the authorities, there is no doubt that the Privy Council laid down a new principle in Chan Wing Siu when it held that if two people set out to commit an offence (crime A), and in the course of it one of them commits another offence (crime B), the second person is guilty as an accessory to crime B if he foresaw it as a possibility, but did not necessarily intend it. We have referred (at paras 31 33 and 39 45) to the authorities on which the Privy Council placed reliance in laying down that principle: Davies v Director of Public Prosecutions, R v Anderson and R v Morris, Johns v The Queen and Miller v The Queen. What Lord Simonds said in Davies was in a very different context and does not provide support for the Chan Wing Siu principle for the reasons which we have explained. In Anderson and Morris the Court of Appeal affirmed Wesley Smith including the rule that if an adventurer departed completely from what had been tacitly agreed as part of an agreed joint enterprise his co adventurer would not be liable for the consequences of that unauthorised act. In such a situation, the effect of the overwhelming supervening event is that any assistance is spent. The issue was whether that applied to Morris. The court did not otherwise address the question of what is necessary to establish joint responsibility, and specifically whether what is required is intention to assist or mere foresight of what D1 might do. Still less did it address the meaning of contemplation (foresight) and authorisation. It provided no foundation for the rule in Chan Wing Siu. The Privy Council judgment, moreover, elided foresight with authorisation, when it said that the principle turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. But as Professor Smith observed, contemplation and authorisation are not the same at all. Nor can authorisation of crime B automatically be inferred from continued participation in crime A with foresight of crime B. As Lord Brown accurately pointed out in R v Rahman at para 63, the rule in Chan Wing Siu makes guilty those who foresee crime B but never intended it or wanted it to happen. There can be no doubt that if D2 continues to participate in crime A with foresight that D1 may commit crime B, that is evidence, and sometimes powerful evidence, of an intent to assist D1 in crime B. But it is evidence of such intent (or, if one likes, of authorisation), not conclusive of it. In Johns v The Queen the ratio decidendi of the majority was that there was ample evidence from which the jury could infer that the defendant gave his assent to a criminal enterprise which involved the discharge of a firearm, should the occasion arise. This was an entirely orthodox approach. So too was the decision in Miller v The Queen, where the High Court held that the judges direction to the jury would reasonably have been understood as saying that the defendant would be guilty of murder if he acted in concert with the principal offender in a plan which included the possible murder of the victims. As already noted, that case did not involve a plan to carry out crime A, in the course of which crime B was committed. In Powell and English Lord Hutton placed considerable reliance on Wesley Smith, which had been cited in Chan Wing Siu but was not mentioned in the judgment. Lord Hutton said that he considered that in Wesley Smith the Court of Appeal recognised that the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon (p 19). But the unlawful killing to which the Court of Appeal was referring was manslaughter, not murder, and it is very important to understand its reasoning. The defendant in Wesley Smith was one of a group of four men who became involved in a row in a public house. He and one other went outside and threw bricks at the building. One of the two who remained inside stabbed the barman with a knife which Smith knew he carried. Smith was acquitted of murder but convicted of manslaughter. The question in Wesley Smith was whether his conviction for manslaughter was unsafe in the light of his acquittal of murder. The starting point was that anyone who takes part in an unlawful and violent attack on another person which results in death is guilty (at least) of manslaughter. There might conceivably have been an intervening act by another person of such a character as to break any connection between the defendants conduct and the victims death (as, for example, in Anderson and Morris); but the fact that it must have been within Smiths contemplation that the principal might act in the way that he did was fatal to the argument that he was not guilty even of manslaughter. (See para 96 below). Although Lord Hutton quoted part of the judges summing up in Wesley Smith he ended his quotation with the first part of the passage set out at para 28 above. (Anybody who is party to an attack which results in an unlawful killing is a party to the killing.) He did not go on to refer to the critical passage which followed, including the statement: Only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results. Moreover, as we have explained at para 29, the Court of Appeal had explicitly praised the summing up as a correct statement of the law. Far from supporting the Chan Wing Siu principle, Wesley Smith was an authority contrary to it. Wesley Smith was not the only authority inconsistent with the Chan Wing Siu principle. We have referred to other authorities from Collison to Reid, which were not cited in Chan Wing Siu. Reid was cited in Powell and English, but it was not mentioned in any of the judgments, although it was a reserved judgment of a strong Court of Appeal which reiterated that a secondary party could not be convicted of murder unless he had the mens rea for murder. In Chan Wing Siu Sir Robin Cooke referred, at p 176, to the modern emphasis on subjective tests of criminal guilt. There has indeed been a progressive move away from the historic tendency of the common law to presume as a matter of law that the natural and probable consequences of a mans act were intended, culminating in England and Wales in its statutory removal by section 8 of the Criminal Justice Act 1967. Since then in England and Wales the foreseeability of the consequences has been a matter of evidence from which intention may be, but need not necessarily be, inferred; whether the evidential approach differs in Jamaica is a topic not addressed in argument before us. But in any event the proper subjective counterpart to Fosters objective test (whether the events, although possibly falling out beyond his original intention, were in the ordinary course of things the probable consequence of what B did under the influence, and at the instigation of A) would have been intention, as was held to be necessary in Wesley Smith and Reid. Foresight may be good evidence of intention but it is not synonymous with it, as Lord Steyn acknowledged in Powell and English at p 13. It was, of course, within the jurisdiction of the courts in Chan Wing Siu and Powell and English to change the common law in a way which made it more severe, but to alter general principles which have stood for a long time, especially in a way which has particular impact on a subject as difficult and serious as homicide, requires caution; and all the more so when the change involved widening the scope of secondary liability by the introduction of new doctrine (since termed parasitic accessory liability). In Chan Wing Siu the Privy Council addressed the policy argument for the principle which it laid down in two sentences (see para 46 above). The statement at p 177 Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they in fact are used by his partner with an intent sufficient for murder, he should not escape the consequences may be thought to oversimplify the question of what is the enterprise to which he has intentionally lent himself, but it also implies that he would escape all criminal liability but for the Chan Wing Siu principle. On the facts postulated, if the law remained as set out in Wesley Smith and Reid he would be guilty of homicide in the form of manslaughter, which carries a potential sentence of life imprisonment. The dangers of escalation of violence where people go out in possession of weapons to commit crime are indisputable, but they were specifically referred to by the court in Reid, when explaining why it was right that such conduct should result in conviction for manslaughter if death resulted, albeit that the initial intention may have been nothing more than causing fright. There was no consideration in Chan Wing Siu, or in Powell and English, of the fundamental policy question whether and why it was necessary and appropriate to reclassify such conduct as murder rather than manslaughter. Such a discussion would have involved, among other things, questions about fair labelling and fair discrimination in sentencing. In Powell and English Lord Hutton referred to the need to give effective protection to the public against criminals operating in gangs (at p 25), but the same comments apply. There does not appear to have been any objective evidence that the law prior to Chan Wing Siu failed to provide the public with adequate protection. A further policy reason suggested by Lord Hutton for setting a lower mens rea requirement for the secondary party than for the principal was that the secondary party has time to think before taking part in a criminal enterprise like a bank robbery, whereas the principal may have to decide on the spur of the moment whether to use his weapon. But the principal has had an earlier choice whether to go armed or not. As for the secondary party, he may have leisure to think before going out to rob a bank, but the same is not true in many other cases (for example, of young people who become suddenly embroiled in a fight in a bar and may make a quick decision whether or not to help their friends). We respectfully differ from the view of the Australian High Court, supported though it is by some distinguished academic opinion, that there is any occasion for a separate form of secondary liability such as was formulated in Chan Wing Siu. As there formulated, and as argued by the Crown in these cases, the suggested foundation is the contribution made by D2 to crime B by continued participation in crime A with foresight of the possibility of crime B. We prefer the view expressed by the Court of Appeal in Mendez, at para 17, and by textbook writers including Smith and Hogans Criminal Law, 14th ed (2015), p 260 that there is no reason why ordinary principles of secondary liability should not be of general application. The rule in Chan Wing Siu is often described as joint enterprise liability. However, the expression joint enterprise is not a legal term of article As the Court of Appeal observed in R v A [2011] QB 841, para 9, it is used in practice in a variety of situations to include both principals and accessories. As applied to the rule in Chan Wing Siu, it unfortunately occasions some public misunderstanding. It is understood (erroneously) by some to be a form of guilt by association or of guilt by simple presence without more. It is important to emphasise that guilt of crime by mere association has no proper part in the common law. As we have explained, secondary liability does not require the existence of an agreement between D1 and D2. Where, however, it exists, such agreement is by its nature a form of encouragement and in most cases will also involve acts of assistance. The long established principle that where parties agree to carry out a criminal venture, each is liable for acts to which they have expressly or impliedly given their assent is an example of the intention to assist which is inherent in the making of the agreement. Similarly, where people come together without agreement, often spontaneously, to commit an offence together, the giving of intentional support by words or deeds, including by supportive presence, is sufficient to attract secondary liability on ordinary principles. We repeat that secondary liability includes cases of agreement between principal and secondary party, but it is not limited to them. It will be apparent from what we have said that we do not consider that the Chan Wing Siu principle can be supported, except on the basis that it has been decided and followed at the highest level. In plain terms, our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. We recognise the significance of reversing a statement of principle which has been made and followed by the Privy Council and the House of Lords on a number of occasions. We consider that it is right to do so for several reasons. Firstly, we have had the benefit of a much fuller analysis than on previous occasions when the topic has been considered. In Chan Wing Siu only two English cases were referred to in the judgment Anderson and Morris and Davies. More were referred to in the judgments in Powell and English, but they did not include (among others) Collison, Skeet, Spraggett or notably Reid. Secondly, it cannot be said that the law is now well established and working satisfactorily. It remains highly controversial and a continuing source of difficulty for trial judges. It has also led to large numbers of appeals. Thirdly, secondary liability is an important part of the common law, and if a wrong turn has been taken, it should be corrected. Fourthly, in the common law foresight of what might happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. It may be strong evidence, but its adoption as a test for the mental element for murder in the case of a secondary party is a serious and anomalous departure from the basic rule, which results in over extension of the law of murder and reduction of the law of manslaughter. Murder already has a relatively low mens rea threshold, because it includes an intention to cause serious injury, without intent to kill or to cause risk to life. The Chan Wing Siu principle extends liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility that the principal may commit murder but without there being any need for intention to assist him to do so. It savours, as Professor Smith suggested, of constructive crime. Fifthly, the rule brings the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal. As to the argument that even if the court is satisfied that the law took a wrong turn, any correction should now be left to Parliament, the doctrine of secondary liability is a common law doctrine (put into statutory form in section 8 of the 1861 Act) and, if it has been unduly widened by the courts, it is proper for the courts to correct the error. It is worth attention that the Westminster Parliament has legislated over inchoate criminal liability in the Serious Crime Act 2007. Section 44 provides: (1) A person commits an offence if (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or assist its commission. (2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act. Section 45 creates a parallel offence if a person does such an act believing that the offence will be committed and that his act will encourage or assist his commission, but both sections are subject to a statutory defence if the defendant acted reasonably in the circumstances as he believed them to be. It is a noteworthy feature of the present law in England and Wales that Parliament has provided that foresight is not sufficient mens rea for the offence of intentionally encouraging or assisting another to commit an offence; whilst at present under Chan Wing Siu if that other person goes on to commit the offence, such foresight is sufficient mens rea for the secondary party to be regarded as guilty of the full offence at common law. The correction of the error in Chan Wing Siu brings the common law back into recognition of the difference between foresight and intent, consistently with Parliaments approach in section 44(2) of the 2007 Act and more generally in section 8 of the Criminal Justice Act 1967 (referred to at para 73 above). It would not be satisfactory for this court simply to disapprove the Chan Wing Siu principle. Those who are concerned with criminal justice, including members of the public, are entitled to expect from this court a clear statement of the relevant principles. We consider that the proper course for this court is to re state, as nearly and clearly as we may, the principles which had been established over many years before the law took a wrong turn. The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent. The long standing pre Chan Wing Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose. We address below the potential impact on past convictions. Restatement of the principles We have summarised the essential principles applicable to all cases in paras 8 to 12 and 14 to 16. In some cases the prosecution may not be able to prove whether a defendant was principal or accessory, but it is sufficient to be able to prove that he participated in the crime in one way or another. In cases of alleged secondary participation there are likely to be two issues. The first is whether the defendant was in fact a participant, that is, whether he assisted or encouraged the commission of the crime. Such participation may take many forms. It may include providing support by contributing to the force of numbers in a hostile confrontation. The second issue is likely to be whether the accessory intended to encourage or assist D1 to commit the crime, acting with whatever mental element the offence requires of D1 (as stated in para 10 above). If the crime requires a particular intent, D2 must intend (it may be conditionally) to assist D1 to act with such intent. To take a homely example, if D2 encourages D1 to take anothers bicycle without permission of the owner and return it after use, but D1 takes it and keeps it, D1 will be guilty of theft but D2 of the lesser offence of unauthorised taking, since he will not have encouraged D1 to act with intent permanently to deprive. In cases of concerted physical attack there may often be no practical distinction to draw between an intention by D2 to assist D1 to act with the intention of causing grievous bodily harm at least and D2 having the intention himself that such harm be caused. In such cases it may be simpler, and will generally be perfectly safe, to direct the jury (as suggested in Wesley Smith and Reid) that the Crown must prove that D2 intended that the victim should suffer grievous bodily harm at least. However, as a matter of law, it is enough that D2 intended to assist D1 to act with the requisite intent. That may well be the situation if the assistance or encouragement is rendered some time before the crime is committed and at a time when it is not clear what D1 may or may not decide to do. Another example might be where D2 supplies a weapon to D1, who has no lawful purpose in having it, intending to help D1 by giving him the means to commit a crime (or one of a range of crimes), but having no further interest in what he does, or indeed whether he uses it at all. them of the difference between intention and desire. In cases of secondary liability arising out of a prior joint criminal venture, it will also often be necessary to draw the jurys attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional. The bank robbers who attack the bank when one or more of them is It will therefore in some cases be important when directing juries to remind armed no doubt hope that it will not be necessary to use the guns, but it may be a perfectly proper inference that all were intending that if they met resistance the weapons should be used with the intent to do grievous bodily harm at least. The group of young men which faces down a rival group may hope that the rivals will slink quietly away, but it may well be a perfectly proper inference that all were intending that if resistance were to be met, grievous bodily harm at least should be done. Juries frequently have to decide questions of intent (including conditional intent) by a process of inference from the facts and circumstances proved. The same applies when the question is whether D2, who joined with others in a venture to commit crime A, shared a common purpose or common intent (the two are the same) which included, if things came to it, the commission of crime B, the offence or type of offence with which he is charged, and which was physically committed by D1. A time honoured way of inviting a jury to consider such a question is to ask the jury whether they are sure that D1s act was within the scope of the joint venture, that is, whether D2 expressly or tacitly agreed to a plan which included D1 going as far as he did, and committing crime B, if the occasion arose. If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose; or in other words that it was within the scope of the plan to which D2 gave his assent and intentional support. But that will be a question of fact for the jury in all the circumstances. In cases where there is a more or less spontaneous outbreak of multi handed violence, the evidence may be too nebulous for the jury to find that there was some form of agreement, express or tacit. But, as we have said, liability as an aider or abettor does not necessarily depend on there being some form of agreement between the defendants; it depends on proof of intentional assistance or encouragement, conditional or otherwise. If D2 joins with a group which he realises is out to cause serious injury, the jury may well infer that he intended to encourage or assist the deliberate infliction of serious bodily injury and/or intended that that should happen if necessary. In that case, if D1 acts with intent to cause serious bodily injury and death results, D1 and D2 will each be guilty of murder. If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter. So also if he participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results: R v Church [1965] 1 QB 59, approved in Director of Public Prosecutions v Newbury [1977] AC 500 and very recently re affirmed in R v F (J) & E (N) [2015] EWCA Crim 351; [2015] 2 Cr App R 5. The test is objective. As the Court of Appeal held in Reid, if a person goes out with armed companions to cause harm to another, any reasonable person would recognise that there is not only a risk of harm, but a risk of the violence escalating to the point at which serious harm or death may result. Cases in which D2 intends some harm falling short of grievous bodily harm are a fortiori, but manslaughter is not limited to these. The qualification to this (recognised in Wesley Smith, Anderson and Morris and Reid) is that it is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendants shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death. This type of case apart, there will normally be no occasion to consider the concept of fundamental departure as derived from English. What matters is whether D2 encouraged or assisted the crime, whether it be murder or some other offence. He need not encourage or assist a particular way of committing it, although he may sometimes do so. In particular, his intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession. The tendency which has developed in the application of the rule in Chan Wing Siu to focus on what D2 knew of what weapon D1 was carrying can and should give way to an examination of whether D2 intended to assist in the crime charged. If that crime is murder, then the question is whether he intended to assist the intentional infliction of grievous bodily harm at least, which question will often, as set out above, be answered by asking simply whether he himself intended grievous bodily harm at least. Very often he may intend to assist in violence using whatever weapon may come to hand. In other cases he may think that D1 has an iron bar whereas he turns out to have a knife, but the difference may not at all affect his intention to assist, if necessary, in the causing of grievous bodily harm at least. Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, and may be irresistible evidence one way or the other, but it is evidence and no more. Where the offence charged does not require mens rea, the only mens rea required of the secondary party is that he intended to encourage or assist the perpetrator to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act: National Coal Board v Gamble. Past convictions The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing Siu and in Powell and English. The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years. Nor is refusal of leave limited to cases where the defendant could, if the true position in law had been appreciated, have been charged with a different offence. An example is Ramsden [1972] Crim LR 547, where a defendant who had been convicted of dangerous driving, before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence, was refused leave to appeal out of time after that latter decision had been published. The court observed that alarming consequences would flow from permitting the general re opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. Likewise in Mitchell (1977) 65 Cr App R 185, 189, Geoffrey Lane LJ re stated the principle thus: It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction. For more recent statements of the same rule see Hawkins [1997] 1 Cr App R 234 (Lord Bingham CJ) and Cottrell and Fletcher [2007] EWCA Crim 2016; [2007] 1 WLR 3262 (Sir Igor Judge P) together with the cases reviewed in R v R [2006] EWCA Crim 1974; [2007] 1 Cr App R 150. As Cottrell and Fletcher decides, the same principles must govern the decision of the Criminal Cases Review Commission if it is asked to consider referring a conviction to the Court of Appeal: see in particular para 58. On 28 March 2012 Jogee and a co defendant, Hirsi, were each convicted at Nottingham Crown Court of the murder of a man named Fyfe. His appeal to the Court of Appeal Criminal Division was dismissed. The cause of death was a stab wound inflicted by Hirsi. The stabbing took place shortly before 2.30 am on 10 June 2011 at the home of a woman called Naomi Reid in Leicester. Jogee and Hirsi spent the evening of 9 June 2011 together at various places, taking drink and drugs. They became increasingly intoxicated and their behaviour became increasingly aggressive. Shortly before midnight they arrived at Miss Reids house. The prosecutions case about what happened after that was based on her evidence. According to her account, Jogee was angry about a recent encounter with another man. He picked up a large knife from a kitchen block and waved it about, saying that they should go and shank him. Miss Reid wanted them to leave. She was in a relationship with the deceased and told them that she was expecting him home shortly. They replied that they were not scared of him and would sort him out. They left after Jogee received a call from someone wanting to buy cocaine, but said that they would be back. Hirsi later returned alone to Miss Reids house and was there when the deceased arrived. Miss Reid phoned Jogee and told him to take Hirsi away. Jogee arrived, and he and Hirsi left. After they had gone, Miss Reid sent Jogee a text telling him not to bring Hirsi to her house again. Within minutes the two men returned. Hirsi entered the house, shouting. The deceased came downstairs and there was an angry exchange. The deceased went upstairs to put on his jeans. While that was happening, Hirsi took the knife from the kitchen. According to Miss Reid, the deceased came down and tried to get Hirsi and Jogee to leave. The deceased was in the hallway. Hirsi was inside the front door, armed with the knife. Jogee was outside, striking a car with a bottle and shouting encouragement to Hirsi to do something to the deceased. At some stage Jogee came to the doorway, with the bottle raised, and leaned forward past Hirsi towards the deceased, saying that he wanted to smash it over the deceaseds head, but he was too far away. The deceased told them to go, but both men said that they were not going anywhere. Miss Reid threatened to call the police. Hirsi pointed the knife at her chest and grabbed her by the throat. Miss Reid backed away and went to the kitchen, but she saw Hirsi make a stabbing motion towards the deceaseds chest and both men ran off. The deceased had been stabbed by Hirsi and died of his wounds. At the close of the prosecutions case a submission was made that the appellant had no case to answer. The judge, Dobbs J, rejected the submission. She held that, set against the background of the behaviour of the defendants during the evening, it was open to jury to find that the appellant realised that Hirsi might use a knife, intending to cause at least serious bodily harm, and that by his conduct he encouraged Hirsi to act with the requisite intent. Neither defendant gave evidence. The judge directed the jury that the appellant was guilty of murder if he participated in the attack on the deceased, by encouraging Hirsi, and realised when doing so that Hirsi might use the kitchen knife to stab the deceased with intent to cause him really serious harm. This was an orthodox direction in accordance with the Chan Wing Siu principle. Mr John McGuinness QC on behalf of the prosecution properly accepted that the appellants conviction could not stand if we were to conclude, as we do, that the Chan Wing Siu principle was wrong. Ms Felicity Gerry QC submitted on behalf of the appellant that he could not properly have been convicted either of murder or of manslaughter. We regard that submission as hopeless. The jurys verdict means that it was sure, at the very least, that the appellant knew that Hirsi had the knife and appreciated that he might use it to cause really serious harm. In returning to the house, after 2.00 am, in the circumstances which we have summarised, the appellant and Hirsi were clearly intent on some form of violent confrontation. The appellant was brandishing a bottle, striking the car and shouting encouragement to his co defendant at the scene. There was a case fit to go to the jury that he had the mens rea for murder. At a minimum, he was party to a violent adventure carrying the plain objective risk of some harm to a person and which resulted in death; he was therefore guilty of manslaughter at least. The choice of disposal is whether to quash the appellants conviction for murder and order a re trial or whether to quash his conviction for murder and substitute a conviction for manslaughter. We invite the parties written submissions on that question. Ruddock On 26 January 2010 Ruddock was convicted at Montego Bay Circuit Court of the murder of Pete Robinson. A co defendant, Hudson, pleaded guilty to murder at the beginning of the trial. Ruddocks appeal to the Court of Appeal of Jamaica was dismissed. The prosecutions case was that the murder was committed in the course of robbing the deceased of his Toyota station wagon. The deceased was a taxi driver. His body was found on the morning of 1 July 2007 on a beach in the fishing village of White House. His hands and feet were tied with cloth and his throat had been cut. On 4 July 2007 the deceaseds son saw the Toyota being driven in the town of Maggotty. He immediately reported it to the police. Soon afterwards two police officers came across the vehicle parked in Maggotty. Hudson was in the drivers seat, a woman was in the front passenger seat and Ruddock was in the back seat. They were told that the police had information that the vehicle had been stolen and the owner murdered, and they were taken to Maggotty police station. The prosecutions case against Ruddock was based on what he was alleged to have told the police. The investigating officer, DC Spence, gave evidence that he interviewed Ruddock under caution on 5 July 2007. He said that Ruddock stated that he was not the one who cut the deceaseds throat, that this was done by Hudson with a ratchet knife, but that he had tied the deceaseds hands and feet. The officer then recorded a statement from him, which was not adduced in evidence. After taking Ruddocks statement, DC Spence interviewed a woman whose picture appeared on Hudsons mobile phone. He was asked by prosecuting counsel what the woman said, but at this point the judge rightly intervened to warn the prosecution against hearsay evidence. DC Spence told the jury that he then went back to see Ruddock and, despite the judges warning, he continued: I told him that the female had explain (sic) to me that, told me all what they have done to her and the deceased, Pete Robinson, while they were on the beach at White House in St James. DC Spence said that he subsequently arrested Ruddock, and that under caution he repeated that he had tied up the deceaseds hands and feet and that Hudson used a ratchet knife to cut his throat. Ruddock allegedly added that they then drove away in the car with the female, which the jury is likely to have understood to mean the female about whom DC Spence had been speaking. The female was not called as a witness. Ruddock did not give evidence, but he made an unsworn statement from the dock to the effect that he had not been present at the murder and had no knowledge of it. He gave an explanation for being in the car when he was picked up by the police. He said that he told the police that he knew nothing about the murder, but that they beat him and offered him a bribe to build a case against Hudson. The judge directed the jury that the prosecution had to prove that each defendant shared a common intention to commit the offence, and that common intention included a situation in which the defendant, whose case you are considering, knew that there was a real possibility that the other defendant might have a particular intention and with that knowledge, nevertheless, went on to take part in it. The judge reminded the jury that it was the prosecutions case that the two defendants intended to rob the deceased of his car, and that in so doing they tied him up and cut his throat. He invited the jury to consider the evidence of the state in which the deceaseds body was found (bound hands and feet and throat cut) and he posed the question for their consideration whether this was the work of one man or more than one. The judge also reminded the jury of DC Spences evidence of what he told Ruddock about what the female had said regarding what they did to her at White House on the beach and what they did to Mr Robinson. He commented that the jury would have to look at that, together with the fact that there seemed to have been no reply from Ruddock. There are three problems about the summing up. The first is the direction based on the Chan Wing Siu principle. Secondly, that the judge failed to tell the jury that if they were sure that Ruddock was a party to carrying out the robbery, it did not automatically follow that he was also party to the murder of the deceased. That question required separate and further consideration. Ruddocks alleged statements to the police were, or were at least capable of being understood as, a denial that he was responsible for the deceaseds murder. He admitted to tying up the deceased, but that was consistent with a simple intent to rob. The fact that the defence advanced by Ruddock at trial was a total denial of involvement in the incident did not remove the judges obligation to point out to the jury that there was evidence in Ruddocks words to the police which was intended to exculpate himself from the murder. Thirdly, and less significantly, the judges treatment in his summing up of what DC Spence said to Ruddock about the female in the photograph was unsatisfactory. It was potentially prejudicial. The judge should have told the jury that they had not heard from the woman, and that they should ignore altogether any reference to what she had said. Mr Howard Stevens QC properly accepted on behalf of the prosecution that if the Board concluded that the Chan Wing Siu principle is wrong, the appeal must be allowed on that ground. It is therefore unnecessary to consider further the consequences of the other defects on the safety of the conviction. The Board invites the parties written submissions as to the advice which it should humbly tender to Her Majesty regarding the disposal of the appeal. |
This is a more than usually anxious case. It concerns the death penalty. The United Kingdom is party to the Thirteenth Protocol to the European Convention on Human Rights (2004). In its preamble, the contracting states state that they are convinced that everyones right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings. The UK Parliament had already demonstrated this conviction by finally abolishing the death penalty for murder in 1969 and for the few remaining offences to which it applied in 1998. As Lord Dyson MR put it, in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581; [2013] 1 WLR 2938, the death penalty is (in my view) rightly regarded by the Government as immoral and unacceptable (para 61). But it is not enough to think the death penalty immoral and unacceptable. The issue in this case is the legality of the Governments decision to provide mutual legal assistance to the United States in the shape of the product of police enquiries to facilitate the prosecution of the claimants son in the United States for very serious offences, some carrying the death penalty, without seeking assurances that the death penalty would not be imposed or, if imposed, would not be carried out. What is immoral and unacceptable is not necessarily unlawful. As judges, our role is to uphold the law. It is understandable, therefore, that this judgment has taken a long time to emerge, as members of the court hold different views about the current state of the law. Because of that, I have prepared this short guide to the judgments which follow. The decision is attacked on two grounds (the questions certified by the Divisional Court are set out at para 19 of Lord Kerrs judgment): (i) it is unlawful at common law for the Government to facilitate the carrying out of the death penalty in a foreign state, not only by deporting or removing a person from the United Kingdom to be tried in that state, but also by providing information which may be used by that state in the trial of a person who is not currently in the United Kingdom; (ii) the decision to provide such information, insofar as it consists of personal data within the meaning of the Data Protection Act 2018 (the 2018 Act), was unlawful under Part 3 of that Act. The leading judgment in this case is given by Lord Kerr. It contains a comprehensive account of the facts, the issues, the competing arguments and the relevant national and international materials. It is essential reading. The crimes of which the claimants son is accused are the worst of the worst. Nevertheless, having surveyed the development of the law in great detail, Lord Kerr concludes that the decision was unlawful both at common law and under the 2018 Act. The majority of the Justices are unable to share his view of the common law. The reasons for considering that the common law has not (at least yet) developed so far are explained by Lord Reed and Lord Carnwath. Lord Reed also explains that the decision might be open to challenge on the more conventional ground that it lacked rationality. He refers to two aspects of the Secretary of States reasoning: first, that prosecution in a foreign state was necessary to ensure that justice is done, even though there is insufficient evidence to prosecute him in the UK for an offence under UK law and UK law might regard his prosecution as an abuse of process; and second that possible execution in the US was regarded as preferable to detention in Guantanamo Bay. Where the right to life is at stake, even decisions taken under prerogative powers may be subject to more anxious scrutiny than they otherwise would be, given the value which UK law attaches to the sanctity of all human life. Lord Reed does not express a view on either point. It is not open to the court to decide the case on this basis, as the claimant did not argue that the decision was irrational for these reasons and the Secretary of State has not had the opportunity of responding to it in this appeal. The issue of whether the allegations could be tried in the UK has been the subject of separate judicial review proceedings. The court is, however, unanimous in holding that the decision was unlawful under the 2018 Act. We have had the benefit, not only of very full argument on the matter from Richard Hermer QC on behalf of the claimant, but also of a very helpful intervention by Gerry Facenna QC on behalf of the Information Commissioner. The 2018 Act is discussed by Lord Kerr at paras 152 to 159 of his judgment and by Lord Carnwath at paras 207 to 228 of his judgment. The short point is that, insofar as the information provided, or to be provided, to the US authorities consisted of personal data (which much of it did) the processing of such data by the Secretary of State as data controller required a conscious, contemporaneous consideration of whether the criteria for such processing were met. Substantial compliance with those criteria, as found by the Divisional Court, is not enough. It is not in dispute that the Secretary of State, when making the decision in question, did not address his mind to the 2018 Act at all. There is, moreover, a further point under the 2018 Act (referred to by Lord Carnwath at para 220 of his judgment) which raises the question of whether such processing in these circumstances could ever be lawful. This question was explored in the argument before us but in the light of our decision on the main point it is unnecessary for us to express a concluded view. Nevertheless, it is worth some fuller explanation because it would undoubtedly merit further consideration if a similar issue were to arise in future. Part 3 of the 2018 Act makes provision about the processing of personal data by competent authorities for the law enforcement purposes and implements the European Unions Law Enforcement Directive (Directive (EU) 2016/680) (the LED) (section 1(4)). That Directive is therefore a legitimate aid to the interpretation of the 2018 Act. The law enforcement purposes listed in section 31 include the investigation, detection and prosecution of criminal offences. Chapter 5 of Part 3 deals with the transfer of personal data to third countries or international organisations. Sections 73 to 76 set out the general conditions which apply to such transfers (section 72(1)(a)). The data controller cannot transfer personal data unless three conditions are met (section 73(1)(a)). Condition 3 need not concern us, because Condition 1 was not met and it is arguable that Condition 2 could never be met. Condition 1 is that the transfer is necessary for any of the law enforcement purposes (section 73(2)). In Guriev v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB), Warby J held (in the context of restricting the subjects right of access to his personal data) that: The test of necessity is a strict one, requiring any interference with the subjects rights to be proportionate to the gravity of the threat to the public interest (para 45). The parties agree that the same test applies in this context. This obviously requires the data controller to address his mind to the proportionality of the transfer. Condition 2 is that the transfer (a) is based on an adequacy decision of (at that time) the European Commission (see section 74); (b) if not based on an adequacy decision, is based on there being appropriate safeguards; transfers must be documented (see section 75); or (c) if not based on an adequacy decision or appropriate safeguards, is based on special circumstances (see section 76) (section 73(3)). This transfer was not based on an adequacy decision or on there being appropriate safeguards, because there were none. In this connection, it is instructive that recital (71) to the LED contemplates among those safeguards that personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment. In the absence of an adequacy decision or appropriate safeguards, Condition 2 could only be met if there were special circumstances. Once again, it is instructive that recital (72) to the LED regards these as derogations from its requirements and as such they should be interpreted restrictively and limited to data which are strictly necessary. A transfer to a third country or international organisation is based on special circumstances if it is necessary for any of the five purposes listed in section 76(1). Only two could be relevant here: (d) in individual cases for any of the law enforcement purposes; or (e) in individual cases for a legal purpose. Once again, the test of necessity is a strict one, requiring the controller to address his mind to the proportionality of the transfer. Crucially, however, section 76(2) provides: But subsection (1)(d) and (e) do not apply if the controller determines that fundamental rights and freedoms of the data subject override the public interest in the transfer. Once again, this obviously requires the controller to address his mind to the fundamental rights and freedoms of the data subject and to whether they override the public interest in the transfer. Recital (1) to the LED states that the protection of natural persons in relation to the processing of their personal data is a fundamental right. Recital (17) makes it clear that the protection it affords should apply to natural persons whatever their nationality or place of residence. Crucially in this connection, recital (46) states that any restriction on the rights of data subjects must comply with the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights and in particular respect the essence of those rights. Clearly, therefore, the fundamental rights and freedoms of the data subject referred to in section 76(2) must include the rights protected by the European Convention. These are to apply even where the data are to be transferred to a third country outside the European Union and whatever the nationality or place of residence of the data subject. The most fundamental of the rights protected by the European Convention is the right to life. This is an absolute right, not qualified by the possibility of restrictions or interferences which are necessary in a democratic society. Article 2.1 prohibits the state from taking anyones life intentionally: the former exception for the death penalty when provided by law has gone following the Sixth and Thirteenth Protocols to the European Convention. There are three limited exceptions in article 2.2, none of which apply to the infliction of the death penalty as such. However, article 2.2(a) does allow for a death which results from the infliction of force which is no more than absolutely necessary in defence of any person from unlawful violence. And recital (73) to the LED acknowledges that there may be an urgent need to transfer personal data to save the life of a person who is in danger of becoming a victim of a criminal offence or in the interest of preventing an imminent perpetration of a crime, including terrorism. The Government did not engage directly with the argument. Collectively, these provisions point towards an interpretation of section 76(2) which would not allow the transfer of personal data to facilitate a prosecution which could result in the death penalty; but which would allow such a transfer if it was urgently necessary to save life or prevent an imminent crime. Had it been necessary, I would have been prepared so to hold. LORD KERR: Introduction Shafee El Sheikh is the son of the appellant, Maha Elgizouli. Mr El Sheikh and another, Alexanda Kotey, are suspected of involvement in heinous offences committed in Syria. The enormity of those offences was rightly accepted by Mr Edward Fitzgerald QC who appeared on behalf of Mrs Elgizouli on this appeal. Indeed, Mrs Elgizouli also admits that these crimes are of the most awful nature. She accepts without question that her son should face trial for his alleged involvement in those dreadful offences. But she considers that that trial should take place in this country rather than in the United States of America, where, at the time of the hearing of this appeal, it was contemplated that Mr El Sheikh and Mr Kotey would be tried. So that there be no doubt as to the monstrous nature of the crimes of which it is claimed Mr El Sheikh and Mr Kotey are guilty, one may refer to the summary of those offences in the witness statement of Mr Graeme Biggar, the Director of National Security in the Home Office. His account of those crimes has not been disputed by any of the parties to this appeal. Mr El Sheikh and Mr Kotey are believed to be part of a group which was responsible for extremely grave offences committed against several individuals. These include the beheadings of 27 men. The US citizens James Foley, Steven Sotloff and Peter Kassig and the British citizens David Haines and Alan Henning are believed to be amongst those killed. These killings came to global attention by all, except one, being filmed and posted on the internet. It is difficult to imagine more horrific murders than those which Mr El Sheikh and Mr Kotey are alleged to have carried out. It is entirely understandable, therefore, that Mr Biggar should aver that the deaths suffered by those men who were brutally killed have brought untold anguish to their families. It is equally understandable that the families affected wish to see those responsible brought to justice. That aim, Mr Biggar says, is strongly supported by HM Government. It is an aim which must surely be shared by all right thinking members of our society. The proceedings so far This appeal raises the issue whether it was lawful for the Secretary of State for the Home Department to provide evidence to the United States that could facilitate the imposition of the death penalty. The appellant brought a judicial review of the provision of mutual legal assistance (MLA) relating to her son after the Daily Telegraph published a letter from the Secretary of State to the US Attorney General revealing that such assistance had been provided. The Divisional Court dismissed her claim on the merits, but certified two questions of law of public importance: (i) Whether it is unlawful for the Secretary of State to exercise his power to provide MLA so as to provide evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought; and (ii) Whether (and if so in what circumstances) it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in light of relevant provisions of European Union data protection law, for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings. Jihad in Syria and Mr El Sheikhs suspected involvement Thousands of extremists wishing to engage in violent jihad have travelled to Syria from around the world. A significant number of these have joined the Islamic State of Iraq and the Levant (Daesh). The nature of the conflict in Syria and the presence of these terrorists have made that country a significant source of threat to United Kingdom and United States interests. The activities of Daesh in Syria have put civilian life there at considerable risk. They also constitute a wider risk to the stability of the region. Adherents to the terrorist cause of Daesh have been involved in the most abhorrent of crimes, including murder, rape, kidnap and the enslavement of people. A number of persons from the United Kingdom have joined Daesh and other terrorist organisations in Syria. They present particular challenges for this country. They pose risk to life by (among other things) radicalising, inspiring, enabling or directing potential terrorists in the UK. The government has responded to this phenomenon in three ways. In the first place, attempts are made to prevent UK citizens from leaving this country to fight abroad. Where those attempts are not successful, the government seeks to stop those who have engaged in fighting abroad from returning to the UK, where it is appropriate and lawful to do so per Mr Biggars witness statement. Where, despite those efforts, terrorists manage to return, a range of measures is deployed designed to minimise the risk that they might present to the public. The effort to defeat Daesh has resulted in many foreigners who are suspected of having been terrorist fighters being detained by, among others, the Syrian Democratic Forces. Mr El Sheikh and Mr Kotey were captured by these forces in northern Syria in January 2018. It is believed that both were members of a notorious group nicknamed the Beatles on account of their British accents. It is also suspected that this group was responsible for many unspeakable crimes against UK and US citizens. Since this appeal was heard, the court has been informed that Mr El Sheikh and Mr Kotey have been taken into US custody. No information has been given as to their current whereabouts. Although he had been a British citizen, on 22 December 2014 Mr El Sheikh was deprived of his citizenship under section 40(2) of the British Nationality Act 1981. This provides that the Secretary of State may deprive a person of a citizenship status if satisfied that the deprivation is conducive to the public good. It may not be ordered, however, if the subject is rendered stateless. It was determined that Mr El Sheikh was entitled to Sudanese citizenship. The decision to deprive him of his British citizenship is not under challenge in these proceedings. The request for mutual legal assistance A treaty between the governments of the United Kingdom and the United States on mutual legal assistance in criminal matters was made in 1994. It came into force in 1996. Under its terms, the governments agreed to provide mutual assistance in the form, inter alios, of documents, records and evidence (article 1(2)(b)) for the purposes of criminal and other proceedings. Proceedings are defined in article 19 of the treaty as including proceedings related to criminal matters and any measure or step taken in connection with the investigation or prosecution of criminal offences . In June 2015 the United States made a request to the United Kingdom under the treaty for MLA in respect of a criminal investigation that it was conducting into the activities of terrorists who had a connection with the UK, who were operating in Syria, and who were suspected of involvement in the murders of United States citizens there. The US request was for materials which had been gathered by UK police as part of a UK investigation into this group. Two of the offences which the US was investigating (homicide and hostage taking resulting in death) carried the death penalty. The Rt Hon Theresa May MP, who was then the Home Secretary, was prepared to accede to the mutual legal assistance request. But, as was customary, she sought a number of assurances from the US. These were outlined in a letter sent on her behalf to the US Department of Justice on 29 October 2015. It stated: As you will be aware, the UK will not provide formal mutual legal assistance in cases where the death penalty is a likely or possible punishment without a written assurance from the Requesting State that they would not seek to impose or, if imposed, carry out such penalty. As two of the offences for which the suspects are sought (homicide and hostage taking) carry the death penalty, we require, as a pre condition to the provision of the assistance requested by you, that you provide a written undertaking that the death penalty will not be sought or imposed or, if imposed, will not be carried out against anyone found guilty of any criminal offence arising from this investigation and/or UK assistance provided. This request was precisely in line with the long standing policy of steadfast opposition by successive UK governments to the imposition of the death penalty in any circumstances whatever. The unequivocal terms of the letter are significant. It is firmly stated that the UK will not provide MLA where the death penalty is a possible punishment without the normal death penalty assurances. The letter makes it plain that a written undertaking to that effect is required as a pre condition to the supply of the information. The imperative tone of the letter reflects the circumstance that not only has the death penalty been abolished in this country (capital punishment was suspended for murder in 1965 and finally abolished in 1969 (1973 in Northern Ireland)), governments since then have refused to countenance its imposition on UK citizens. Moreover, in 2004 the Thirteenth Protocol to the European Convention on Human Rights (ECHR) became binding on the United Kingdom, prohibiting the restoration of the death penalty for as long as the UK is a party to the Convention. The abhorrence with which our law regards the imposition of this most dire penalty is also reflected in the jurisprudence of the Judicial Committee of the Privy Council which shall be referred to below. The US response to the Home Secretarys letter was given in a letter from the Department of Justice of 21 March 2016 which said: With regard to potential application of the death penalty to any person found guilty of an offense arising from this investigation, we can respond as follows: While no persons have yet been charged in connection with this conduct, persons charged with offenses arising from such conduct could be subject to the federal death penalty. The United States provides the assurance that it will introduce no evidence obtained in response to this request in a proceeding against any person for an offense that is subject to the death penalty. In the event the evidence were to be so introduced, the United States would take a decision not to seek the death penalty, a decision which in the federal system absolutely precludes the death penalty from being imposed. While, therefore, the evidence actually supplied by the UK would not be directly used in order to seek the death penalty, on the basis of this letter, that penalty could have been sought by recourse to other material which might have been generated as a result of the information which the authorities in this country had provided. This point was made in a letter from the Home Office dated 10 August 2017: The contents of your letter of 21 March 2016 have been carefully considered. However, it is our view that the assurance provided in respect of the death penalty falls short of that which was requested In light of this [we invite] you to reconsider your response to our request for assurances as provided by article 3(2) and article 7(3)(a) of the UK US Mutual Legal Assistance Treaty. As stated in our earlier letter, the UK will not provide mutual legal assistance in cases where the death penalty is a likely or possible punishment without a written assurance that the Requesting State would not seek to impose or, if imposed, would not carry out such a penalty. As offences for which the suspects are sought carry the death penalty, we require, as a pre condition to the provision of the requested assistance, that you provide a written undertaking that the death penalty will not be sought or imposed or, if imposed will not be carried out against anyone found guilty of any criminal offence arising from this investigation and/or UK assistance provided. In any event, the assurance proposed by you in March 2016 would, in our view, allow UK assistance to be used for the purposes of another investigation to obtain other evidence which would not be caught by the assurance and which could lead to the death penalty being imposed and carried out. The UK wishes to provide the widest measure of assistance in this case but regrets that we will only be in a position to accede to your request if you are able to give the undertakings as requested above. No official response to this letter was received. It was informally indicated that the assurances sought would not be given. The terms of the correspondence from the British government are important and significant. They reflect the deep seated nature of this countrys opposition to the death penalty. Indeed, it is noteworthy that some of the families of the victims of the alleged depredations of Mr El Sheikh and Mr Kotey have publicly stated that they do not wish to have that penalty imposed upon them. These considerations, while in no way determinative, are indications as to whether our common law should now be recognised as having developed to the point where there is a right enshrined in the law of this country that our government will not act to facilitate in any way the possibility of the imposition of that most extreme punishment. Mr El Sheikhs detention in January 2018 marked what Mr Biggar described as a profound shift in the importance of the request for assistance. As he explained, it brought immediate political reality and urgency to the question of where he could and should be brought to justice. This prompted greater focus on the request which the British authorities had made for assurances and the reaction of the US Department of Justice to that request. Importantly also, there had been a change in the administration in America since the original request for assurances had been made. Mr Biggar explained the significance of this in his witness statement: It was the strong (and publicly stated) view of senior members of the new US administration that those states from which [foreign terrorist fighters] had originally come ought to try those individuals. The US position was that other states should not assume that it would take up responsibility for non US terrorists apprehended in Syria or Iraq. In the aftermath of the capture of El Sheikh in January 2018, set against the wider issues of responsibility for [foreign terrorist fighters] in detention in Syria, US representatives strongly reiterated this message to the UK. The new US administration also had different views on the US military detention facility at Guantanamo Bay. President Trump had been elected on, among other things, a commitment to reverse his predecessors decision to close Guantanamo It was made clear that the strong preference of the US government was that the UK should assume responsibility for Mr El Sheikh and that he should be prosecuted in this country. The Crown Prosecution Service had determined, however, in January 2016 that the evidence available was not sufficient to warrant charging Mr El Sheikh. That position was reviewed in February 2018 and it was again concluded that there was insufficient evidence to charge him. The authorities in the US and the UK decided, however, that there should be a joint review of the prospects of a successful prosecution in either jurisdiction. This took place in March 2018. Police officers from the Counter Terrorism Command and specialist prosecutors from the CPS visited the US at the end of March 2018 and were given access to the evidence which the US investigators had gathered. FBI agents had already visited the UK and had seen and considered the evidence gathered by UK investigators. At the time of the hearing of the appeal it was not considered feasible to prosecute Mr El Sheikh in this jurisdiction. That decision by the CPS was the subject of a separate challenge which need not be referred to further here. The court has learned, however, that, in light of Mr El Sheikhs being in the custody of US authorities, the feasibility of his being tried in this country may be revisited. Any prosecution of Mr El Sheikh in the US depends critically on the evidence which has been obtained by the British authorities. According to Mr Biggar, following the meeting between US and UK officials in March 2018, the clear view of the UK officials was that a prosecution of Mr El Sheikh in the US federal court system, which included the UK evidence, represented the only realistic prospect of securing justice for the victims and their relatives. Despite this, again according to Mr Biggar, senior members of the US administration continued to state their opposition to foreign terrorist fighters, including Mr El Sheikh, being tried in the US. This reflected the ongoing concern of the US that it should not fall to that country to bring within its criminal justice system those such as Mr El Sheikh for whom it felt other states bore responsibility. In particular, the US considered that the UK ought to set an example to the wider international community by accepting responsibility for bringing foreign terrorist fighters such as Mr El Sheikh and Mr Kotey to trial. Another factor that was present to the mind of the British authorities was the prospect that the US might transfer Mr El Sheikh to Guantanamo Bay. The assessment made in this country was that the US was more likely to do that than to try him in the federal criminal system. In March 2018, the then Home Secretary visited Washington and spoke to US Attorney General Sessions. As well as expressing his clear view that all foreign terrorist fighters should be prosecuted in their home countries, the Attorney General referred to them as prisoners of war and suggested that transfer to Guantanamo Bay was therefore appropriate (its purpose, in the Attorney Generals view, being the detention of prisoners of war). The UK has consistently opposed the regime in Guantanamo Bay. In this case, an additional consideration, according to Mr Biggar, was that the families of those kidnapped and killed have a strong desire to ensure that those suspected of involvement should be tried before a civilian court. The UK, he has said, was conscious that a number of families of those killed by terrorist acts in Syria opposed the transfer of those suspected of involvement in those killings to Guantanamo Bay, because they felt that this would end any prospect of securing justice for the murder of their loved ones. A third consideration was the apprehension that Mr El Sheikh might be released from custody in Syria. This was not believed to be likely, but it nevertheless played some part in the governments deliberations. It seems clear, however, that the factor of overwhelming importance was what Mr Biggar described in his witness statement as the strong message from the US administration, relayed directly by US officials as well as through the UK Embassy, that it was strongly opposed to the UK seeking death penalty assurances, in the event that the UK, itself, decided that it could or would not prosecute; and that, if the UK was pressing the US to prosecute because a UK prosecution was not viable. Mr Biggar has averred that in early March 2018 the UKs lobbying on the death penalty had been described as an irritant by a very senior US official. This statement is both enlightening and concerning. It indicates how the UK authorities were coming under (and might become susceptible to) political pressure from the US. For reasons discussed below that pressure does not appear to have taken into account, much less reflected, either the UKs longstanding policy in this area nor the joint experience of the UK and the US in the request for and the furnishing of such assurances. The statement also raises questions as to whether pragmatic considerations, at the expense of a principled approach, might begin to influence the UKs reaction to the demand that it should cease its lobbying in relation to the death penalty assurances. On 16 April 2018, the Office for Security and Counter Terrorism in the Home Office and the UK Central Authority (UKCA) each provided submissions to the then Home Secretary, the Rt Hon Amber Rudd MP, and the Security Minister, the Rt Hon Ben Wallace MP. UKCA recommended that the Home Secretary should maintain her predecessors decision to accede to the request dated 19 June 2015, but only on the basis that a full death penalty assurance would be provided. It also suggested that she should endorse the UKCA decision to reject the current direct use death penalty assurance offered by the US. (It should be noted that this submission was made on the premise that the earlier direct use assurance was still available, although UK officials understanding was that later contact with the Department of Justice had cast some doubt on the continued availability of this assurance.) The Security Minister responded to this advice on 17 April 2018 saying that he agreed with the first recommendation but disagreed with the second. He indicated that the views of the Foreign Secretary should be sought on whether the assurance, then believed still to be on offer, should be accepted. The Home Secretary did not consider this submission before she resigned on 29 April. Mr Wallace had talks with Department of Justice officials on 20 April 2018. A theme of those exchanges was that senior officials in the US administration did not consider that Mr El Sheikh and Mr Kotey should be tried in the US federal courts. Mr Wallace was also told that if the US was required to deal with them, their transfer to Guantanamo Bay was more likely if the UK imposed restrictions on the release of information to the US authorities. The picture which emerges from these exchanges is one of increasing and applied pressure by the US on the UK to minimise any restrictions on the use of the released evidence. That pressure was two pronged. First that a trial in the federal courts of America might be refused on the basis that the UK should undertake their trial. Secondly, that if Mr El Sheikh and Mr Kotey were transferred to the US, the chances of their being incarcerated in Guantanamo Bay increased, if assurances from the US authorities about the use of the evidence were sought. The US authorities must have known that these indications would put pressure on the UK to dilute or eliminate the request for assurances. Indeed, it seems highly likely that this was their purpose. And, as it proved, before long the pressures began to have effect. Mr Biggars assessment of the exchanges between the Americans and the British was that if the UK wanted to obtain support for a US prosecution, it would be critical that evidence provided by the UK came with the [fewest number] of restrictions possible. The US authorities position was put bluntly by Attorney General Sessions when he gave evidence at a Senate panel hearing on 25 April 2018. He expressed disappointment that the British are not willing to try the cases but tend to tell us how to try them and they have certain evidence that we need . He also indicated that he was supportive of sending Mr El Sheikh and Mr Kotey to Guantanamo Bay. Inasmuch as this statement might be taken to indicate that the British authorities considered that Mr El Sheikh could have been tried in the UK but preferred to transfer that responsibility to the US, it is plainly wrong. As pointed out in para 32 above, the CPS had decided that it was not feasible to prosecute Mr El Sheikh in this country and that decision had been confirmed after a review in February 2018. The Rt Hon Sajid Javid MP became Home Secretary on 30 April 2018. He spoke to Attorney General Sessions on 4 May 2018. Mr Biggar gives the following account of the conversation in para 39 of his statement: This was their first conversation and it was regarded as significant that this case was one of the first topics that the US Attorney General raised with the Home Secretary. The US Attorney General indicated that he was concerned that the UK had said that it was not interested in prosecuting El Sheikh; that the death penalty should not be an issue for the UK and that he did not want the UK to tie his hands in relation to the use of the material. The US Attorney General also referred favourably to Guantanamo Bay. The Home Secretary indicated that a formal decision would be taken shortly. There is no reference in Mr Biggars account of that conversation to the Attorney General having been told of the longstanding practice of the British authorities to seek assurances in relation to the death penalty. It does not appear that Mr Sessions was told that a decision not to follow that practice would represent a very significant departure from the UKs policy over very many years. Nor was he told of the Death Penalty Assistance Policy which provides that, in general, where there is a significant risk of the death penalty being imposed, before it is agreed that assistance be provided, assurances should be sought that that penalty will not be imposed. (It is, of course true that the policy does contemplate that in certain exceptional circumstances, the request for assurances may be foregone but the pre eminence of the general rule it appears at para 1 of the policy is testament to how deeply embedded is the practice of seeking assurances.) In May 2018 the UK ambassador in Washington was asked for his opinion as to the likely reaction of the US authorities if the request for assurances was persisted in. He replied that Department of Justice career officials would not be surprised; indeed, it is what they would expect. But he advised that this did not apply to senior political figures in the administration. His advice continued: Their reaction is likely to be something close to outrage. They already feel that we are dumping on them a problem for which we should take responsibility. They have been signalling to us for weeks now that we are in no position to attach any conditions to this. At best they will think we have tin ears. At worst, they will wind the President up to complain to the PM and, potentially, to hold a grudge. We might argue that the UK position on this is well known and that we were simply behaving in a way consistent with our long term policy. There might be some understanding of this. But I have to warn that there might also be some damage to the bilateral relationship. (Emphasis added) In the italicised sentences above, it had been suggested that it could be pointed out that the UK position was not only familiar but that it reflected this countrys longstanding policy. There is nothing in Mr Biggars statement or in the evidence presented to the Divisional Court to indicate that this suggestion was taken up. The ambassador considered that seeking death penalty assurances might prompt the US not to pursue a prosecution. Some officials had suggested as much. And it would point the way towards transfer to Guantanamo. If the well established practice of requiring death penalty assurances in all but exceptional cases was not drawn to the attention of the senior political figures in the administration, this is surely surprising. If their anticipated reaction was one of outrage, is it not to be expected that information about this practice would or, at least, should have been mitigated by a patient and well marshalled account of how this practice had operated in the past? Attorney General Sessions, in his presentation to the Senate panel hearing in April 2018, had portrayed the UK stance as one of unwillingness to try Mr El Sheikh, while seeking to dictate how he should be tried in the US. That is a portrayal which it should have been easy to correct. This was not a case of the UK being unwilling to have Mr El Sheikh tried in this jurisdiction. Rather, it was considered by the CPS, an institution entirely independent of government, that such a trial was not feasible. Equally, the UK did not seek to dictate how Mr El Sheikh should be tried in the US. The assurances sought were directed solely to the question of penalty, not the mode of trial. Indeed, the assurances sought did not even preclude the possibility that the death penalty might be imposed (although that was the preliminary request). Ultimately, the request was for an undertaking that, if imposed, the death penalty would not be carried out. The absence of direct evidence as to what passed between senior political figures in the US administration and the UK authorities cannot be deemed to establish that there was a failure on the part of the latter adequately to make the case for acceptance of or the need for compliance with the assurances, however. There may well have been exchanges which are not referred to in the evidence which was presented to the Divisional Court and relied on before this court. In any event, it would have been a matter for political judgment as to whether representations along those lines would have been availing. Absent a glaring and obviously irrational failure on the part of the UK government to make pertinent representations to the US administration, the courts are powerless to intervene. On 18 May 2018 UKCA made a further submission to ministers. They maintained their advice that the Home Secretary should continue to require a full death penalty assurance. In a telling passage in the submission, the following appears: [The need for a comprehensive assurance that the suspects will not be subject to the death penalty] is critical to the consistency with which we apply HMGs policy on Overseas Security and Justice Assistance Were we not to apply this practice to this case, it could undermine all future efforts to secure effective written death penalty assurances from the US authorities for future UK security and justice assistance. The exception made for the US in this case could also undermine future efforts to secure similar assurances from other countries with which we have a security relationship particularly if as seems likely there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western hypocrisy and double standards which would undermine HMGs Death Penalty Policy globally, including in the US. These were formidable arguments in favour of maintaining the long standing policy of the UK and of resisting the pressure from the US authorities. But, in a note of 24 May 2018, the director of Home Office International declined to accept them: Although it clearly runs the risk of creating a precedent for the future and with other countries, taken in the round I am comfortable that proceeding with no assurances is appropriate in securing justice for the families; notwithstanding the fact [that] we understand the families wish to avoid application of the death penalty. There appears to me to be an inherent illogicality in this statement. As the director had observed, the families wished to avoid the application of the death penalty. Yet, the mooted justification for the decision not to seek assurances concerning the death penalty was the securing [of] justice for the families. The species of justice that the families wished to have was one where there was not the possibility of the imposition of the death penalty. The decision not to seek assurances opened up that very possibility. To fulfil their wishes, it was surely required that the hallowed practice of seeking death penalty assurances be observed. On 24 May 2018, the Security Minister notified Home Office officials that his final position was to make a strong recommendation, in this exceptional case, that HMG does NOT seek assurances (either full or direct use) around the death penalty, when sharing evidence for a Federal Prosecution only. The Home Secretarys private secretary confirmed on 29 May that both ministers had concluded that no assurances should be sought from the US. A meeting took place between the Home Secretary and Attorney General Sessions on 30 May 2018. Mr Sessions repeated his view that the US should not be left to assume responsibility for other nations terrorist fighters. He said that if the US were to [be] willing to try Mr El Sheikh in a civilian court as opposed to a military one, he could not see how the US could do that without the UK evidence or without recourse to the death penalty. Mr Biggar described Mr Javids reaction to this approach in the following passage of his witness statement: It became clear to the Home Secretary during the course of [that] meeting that the position of the US remained unchanged and that there was no prospect of the Attorney General offering any form of undertaking whatsoever. He assessed that, if he asked for assurances (whether full or partial), it was likely to prompt the sort of outrage he had been advised of, and would damage the prospects of a US criminal prosecution. He judged that the question of assurances was critical to whether Attorney General Sessions consented in due course to such a prosecution. Into his calculation about pressing the assurances point during the meeting, he also considered the wider UK government interests at stake, including co operation on security issues and potential damage to the bilateral relationship. Again, it is not suggested that the Home Secretary raised the point that the seeking of assurances about the death penalty was a traditional feature of this type of exchange. Nor does it appear to have been suggested that the UK was opposed, as a matter of entrenched principle, to the taking of any step that would facilitate the imposition and carrying out of the death penalty. One may not assume, however, (largely for the reasons given at para 51 above) that these matters were not drawn to the attention of the Attorney General. Still less may one assume that it was not decided that it was either pointless or impolitic to do so. On either basis, the omission to raise these matters, however cursorily surprising, does not warrant judicial interference. The Home Secretary made it clear, however, that the UK could not provide material to be used in a military court or any process at Guantanamo Bay. This is somewhat perplexing. Why was the prospect of detention so much less favourable than the possibility of Mr El Sheikh being executed? This has not been explained. The day after the Home Secretarys meeting with the American Attorney General, a submission was made by civil servants to the Secretary of State for Foreign and Commonwealth Affairs. Three options were identified: first, to seek a full death penalty assurance; secondly, to seek a partial death penalty assurance; and thirdly to seek no assurance. The advice to the Foreign Secretary was to urge the Home Secretary to seek a full assurance. Seeking comprehensive assurances was consistent, the submission stated, with the general expectations set out in UK policy on overseas security and justice assistance and with all past practice when dealing with US mutual legal assistance requests. The submission accepted that sharing information without assurances provided the greatest chance that the US would pursue a federal prosecution. It then continued: A successful prosecution will serve as a deterrent to others and give the public confidence in our ability to see justice served. However, there are wider national security risks if the prosecution results in execution as this could be used by radicalisers in the UK. The Home Secretary wrote to the Foreign Secretary on 11 June 2018, indicating that significant attempts had been made to obtain full assurances but that the time had arrived to accede to the request for information without seeking any assurance. He acknowledged that there was a serious risk that Mr El Sheikh and Mr Kotey would, if prosecuted and convicted, face execution as a direct result of UK assistance. The Foreign Secretary replied on 20 June 2018. His letter concluded, On a balanced assessment of the key risks , I agree that as this is a unique and unprecedented case, it is in the UKs national security interests to accede to an MLA request for a criminal prosecution without death penalty assurances for Mr Kotey and Mr El Sheikh. The Home Secretary duly informed Attorney General Sessions on 22 June 2018 that the UK would not seek death penalty assurances. Many witness statements were then supplied to the US authorities. As the Divisional Court has pointed out, however, this does not render the present challenge academic. Further material may be sought and it is, in any event, entirely possible that the UK would refuse to permit witnesses employed by the state, such as police officers, to travel to the US to give evidence without adequate assurances. The appellants arguments (i) There is a common law principle that the UK will not give mutual legal assistance where there is a risk that this would lead to the imposition of the death penalty. The appellant submits that the UK, by signing two death penalty protocols to the ECHR, in 1999 and 2004, is committed to the abolition of the death penalty in all circumstances. In particular, since the signing of the Sixth Protocol to the European Convention in 1999, the UK has maintained a firm policy of refusing extradition or deportation to countries that impose the death penalty, no matter how serious the offence, and no matter how repellent the offender. The appellant argues that this is not just some alien obligation imposed on us by the European Court. To the contrary, the UK has taken that stance as a legal principle and it now forms part of the common law of this country. That claim is fortified, the appellant claims, by the circumstance that the UK has signed the Second Optional Protocol to the United Nations International Covenant on Civil and Political Rights (ICCPR) on the abolition of the death penalty in December 1989. It is further suggested that the UK has adopted a policy of not providing evidence that might give rise to the risk of the imposition of the death penalty unless assurances are given by the requesting state that that penalty will not be carried out. At the Thirteenth Special Session of the UN General Assembly on 19 April 2016, the UK declared: The United Kingdom has a proud history of championing human rights, and we oppose the use of the death penalty in all circumstances as a matter of principle. The United Kingdom does not provide criminal justice or other assistance that may result in a death sentence being applied. We will hold international agencies funded by the United Kingdom to account for compliance with that principle and all other human rights obligations. The appellant points out that the policy of seeking assurances has been repeatedly referred to by UK authorities as the logical consequence of this countrys position of rejecting the death penalty as wrong in all circumstances everywhere. It was reflected in the statement to the UN in April 2016, and in the Foreign Office recommendation recorded in the UKCA briefing of 18 May 2018 (para 52 above). The policy accords, the appellant claims, with the obligation imposed on abolitionist states by the ICCPR, as authoritatively interpreted by the Human Rights Committee in its General Comment No 36, para 63, which says, inter alia, that states who are parties to the covenant have an obligation to respect and to ensure the rights of all persons who are subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. The appellant argues that the frequently declared policy of the UK government, reflecting as it does the obligation in the ICCPR, to which it has subscribed, gives effect to a principle of law. That principle is that, in the exercise of its formal powers in the criminal justice field, the government of this country should not act in any way that is directly instrumental in the imposition of the death penalty. The appellant accepts that, in providing evidence to the United States, the Home Secretary was exercising a prerogative power. But she argues that that power must be exercised in accordance with the fundamental principles of the common law, the dictates of humanity, and the requirements of international human rights law. It is argued that the death penalty offends against the evolving requirements of humanity enshrined in the common law. It is also argued that the death penalty (and any facilitation of it) is contrary to article 10 of the Bill of Rights 1688 which prohibits the infliction of cruel and unusual punishments. The Bill of Rights is, the appellant says, an always speaking statute and its prohibition of cruel and unusual punishments must be interpreted dynamically in accordance with evolving standards of decency. For these reasons, the appellant contends that it is an unlawful exercise of public power to impose the death penalty, or knowingly and directly to facilitate its imposition. (ii) The non facilitation argument The appellant submits that it cannot be lawful or rational to facilitate a penalty that the UK regards as inhuman. At para 34 of the Human Rights Committees General Comment No 36 (see para 65 above) it is stated: States parties that abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained. The facilitation of inhuman treatment, it is suggested, is contrary to the fundamental principles of the common law and the European Convention. The appellant accepts that Strasbourg case law on the non facilitation principle has not yet been expressly extended beyond cases involving extradition or expulsion. It has not yet been applied to cases where the facilitation takes the form of the provision of mutual legal assistance which is likely to contribute causally to the imposition of the death penalty in a foreign state. But, as a matter of logic, it should be, the appellant says. If it is wrong to extradite or deport persons who would face execution in the countries to which they are extradited or deported, it is equally wrong to supply information or evidence which would lead to their execution in the country to which the evidence has been provided. The practical reason for the fact that Strasbourg jurisprudence and the case law of this country founded on the Human Rights Act 1998 (HRA) have not addressed this question is, the appellant says, that the person who invokes Convention protections must be within the jurisdiction of a Convention state at the time of the injustice he complains of. But this, it is claimed, should not inhibit the development of the common law. The appellant is herself in this jurisdiction and therefore within the jurisdiction of the Convention. It might have been argued that, as the close relative of Mr El Sheikh, she could claim to be a victim of a potential breach of her sons right to life (see Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] UKSC 2; [2012] 2 AC 72). This is not the basis of the appellants case, however, which is that the common law prohibition on facilitation applies regardless of the location of any individual. It is therefore not necessary for this court to consider any alternative route under the Convention. The domestic law principle on which the appellant relies is said to be founded on the duty of the state not knowingly to contribute to the imposition of an inhuman punishment through the exercise of its formal powers. That duty, it is claimed, cannot rationally or justly be limited to cases where the individual in question is in the UK. The person who is extradited to face the death penalty is in precisely the same position as he whose execution has been facilitated by the provision of mutual legal assistance. In both instances there is in play an underlying principle that it is inconsistent with a fundamental common law principle of justice for the government to facilitate the imposition of a cruel and inhuman punishment in a foreign state. (iii) Should the common laws development outstrip the limits of Strasbourg case law? The Divisional Court held that the HRA set the limits of any development in this area when it gave effect to the European Convention, with the accompanying territorial limits to the application of the Convention. It then held that it was wrong to develop the common law in a manner not sanctioned by the relevant statutory provisions. In challenging these conclusions, the appellant argues that the HRA contains no express or considered limitation to the developments of common law principles in respect of the non facilitation of the death penalty. It is too general a statute to serve such a function. It is pointed out that in such cases as R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] UKSC 20; [2015] AC 455 and A v British Broadcasting Corpn (Secretary of State for the Home Department intervening) [2014] UKSC 25; [2015] AC 588 this court has asserted that the HRA does not remove or limit the power of the common law to develop so as to protect fundamental rights. It was further submitted that the HRA should not be regarded as providing the sum of common law wisdom on the death penalty. The jurisdictional limits of that Act and the Convention were the product of the way in which the Convention was drafted nearly 70 years ago. There was no reason, the appellant argued, that domestic principles of public law should not go further, particularly when they give effect to the underlying rationale of the extradition cases, namely that the UK should not make itself complicit in the imposition of the death penalty by positively facilitating it. The Divisional Court held that the decisions in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697 and R (Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC 3110 (Admin); [2011] HRLR 6 presented obstacles to the recognition of the common law right claimed by the appellant. It was submitted that these decisions were readily distinguishable. That submission will be considered in the discussion section of this judgment. (iv) Does the US death penalty regime give rise to cruel and inhuman punishment? Relying on, among other cases, the decision of Pratt v Attorney General of Jamaica [1994] 2 AC 1, the appellant argued that the death penalty regime in the US gave rise to a specific risk of inhuman and cruel punishment. This was because inevitably execution was delayed many years after the death penalty had been imposed. Prolonged delay by itself violates the protection against cruel, inhuman or degrading treatment, the appellant argued. The Divisional Court rejected this argument, observing that the decision in Pratt turned on the interpretation of the Jamaican Constitution and that it did not establish a rule of the common law, either in Jamaica or generally, that particular periods of delay made the enforcement of the death penalty unlawful. The appellant contended that this constituted a misunderstanding of the Pratt decision. It was also argued that what was described as the death row phenomenon was contrary to customary international law. In this context, the appellant relied on article 5 of the Universal Declaration of Human Rights 1948, which provides: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and article 7 of the UN International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Again, these arguments will be considered in the discussion section of this judgment. (v) Does the provision of mutual legal assistance breach the Data Protection Act 2018 (DPA)? Finally, the appellant argued that the provision of mutual legal assistance in the form of various statements from witnesses etc was in breach of the 2018 Act as interpreted in light of relevant provisions of European Union data protection law. The DPA was intended to give effect to the UKs obligations under the EU Law Enforcement Directive 2016/680 (the LED). It was argued that the DPA should be interpreted by reference to the EU Charter of Fundamental Rights (the Charter). On that basis, the appellant claimed that it was unlawful for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings. It was common ground between the appellant and the respondent that the transfer of material by the Home Secretary to the US in July 2018 pursuant to the mutual legal assistance request involved processing of personal data for a law enforcement purpose by a controller which is a competent authority for the purposes of Part 3 of the Act. On this account, the appellant claimed, the Home Secretarys decision to transfer personal data to authorities in the US without seeking and obtaining a death penalty assurance was an unlawful breach of (1) the first data protection principle in section 35 of the Act; (2) the second data protection principle in section 36; (3) the provisions governing international transfers of personal data for law enforcement purposes in sections 73 to 76; and (4) the special processing restrictions in section 80. It is claimed, moreover, that the Home Secretary paid no regard to the duties imposed on him by the 2018 Act. These arguments will also be considered below. The respondents case The respondent submits that there is no support as a matter of ECHR law or international law for the existence of an obligation not to provide legal assistance to another state on the basis that it may be used to charge an individual and then, if convicted and so sentenced, lead to the imposition of the death penalty. The essence of the appellants case is, the respondent says, that, despite her sons being excluded from the protection of the ECHR/HRA and, having elected to go abroad to engage in terrorist activities, he is nonetheless entitled to rights which extend well beyond any ECHR rights recognised to date. The second principal submission of the respondent was that there is no recognised common law prohibition on the provision of legal assistance to a foreign state, where such assistance might be used in proceedings leading to the death penalty in that state. Indeed, the respondent claims, the case law indicates that, aside from those established categories of case in which a duty of care is imposed, there is no general common law duty on the Secretary of State to take positive steps to protect an individuals life from the actions of a third party. Nor should, the respondent says, the common law be developed to recognise such a contemporaneous principle. The common law develops incrementally. The recognition of a right prohibiting the provision of mutual legal assistance to a country whose legal system permits (in appropriate cases) the imposition of the death penalty would not be an incremental change. Such a development would be a considerable and controversial step. There were, the respondent claimed, specific reasons for particular caution here: the creation of the prohibition would take effect in the context of a treaty with a state with whom the UK co operates closely and which adheres to the rule of law; the UK is equally a beneficiary of that co operation; the provision of mutual legal assistance relates to extremely serious crimes (with international ramifications); it risked having a significant, adverse impact upon UK relations with a most important international partner, the US (and indeed on relations with any other state which continues to impose the death penalty). The respondent submitted that the recognition of a common law principle forbidding mutual legal assistance in all circumstances where that might lead to the imposition of the death penalty would carry the prospect of it being applied in a myriad of circumstances with consequences which could not be foretold. The principle has the potential to be expanded into spheres where it would risk creating real damage, for example, to public protection and national security, as Hughes LJ acknowledged in R v Ahmed (Rangzieb) [2011] EWCA Crim 184; [2011] Crim LR 734. The respondent poses the questions, what degree of causal connection to the death penalty would suffice? To what forms of cruel, degrading or inhuman treatment would the principle extend would it extend to the provision of assistance in a case in which there were serious concerns about the state of prisons in the foreign jurisdiction?. These issues, the respondent claims, illustrate that the extension of the common law in the way contended for by the appellant would be no small step and are powerful factors in favour of not extending the common law. On the question of facilitation, the respondents overarching submission was that there is nothing in the jurisprudence of the ECHR, international law or the common law which supported the notion of an obligation going beyond not removing an individual from within the jurisdiction to another state where there exist substantial grounds for believing the individual will be subject to the death penalty. The concept of facilitation has not been extended beyond this. In particular, the respondent relied on the circumstance that the contracting states had ceded to the European Court of Human Rights (ECtHR) a jurisdiction with well defined territorial limits. Unless an individual was within the jurisdiction of one of the member states of the Council of Europe, he or she was not entitled to have recourse to rights arising under the ECHR. The domestic transposition of the ECHR into the HRA gave rise to a similar restriction. In any event, the respondent says, relying on the decision of the Strasbourg court in Khan v United Kingdom (2014) 58 EHRR SE15, the ECtHR does not consider that the substantive protections of the ECHR apply to prevent or control decisions or steps taken by the state (within its jurisdiction) which may expose persons to ill treatment at the hands of a foreign state. In this connection, the respondent also relied on the decision of this court in Sandiford. It had been held in that case that there was no general Convention principle that the United Kingdom should take steps within the jurisdiction to avoid exposing persons, even United Kingdom citizens, to injury to rights which they would have if the Convention applied abroad para 23. On the question of customary international law, the respondent submitted that, while some multilateral international conventions oblige state signatories not to impose the death penalty within their own jurisdictions, this was by no means a universal prescription. The example of the ICCPR was cited. Subject to the conditions enshrined in article 6 of that Convention (which provides, inter alia, that no one is to be arbitrarily deprived of life and that the sentence of death may only be imposed in those countries where that penalty has been retained for the most serious crimes) the death penalty continues to be permitted. The respondent points out that the UN Human Rights Committees (UNHRC) General Comment No 36 (2018) on article 6 ICCPR at para 34 does not stipulate that mutual legal assistance cannot be provided by states where the death penalty has been abolished to states where it remains a possible penalty. The material part of the relevant paragraph reads, States parties that abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained. It is therefore plain, the respondent says, that UNHRC regards the obligations which apply to state parties to the ICCPR that have abolished the death penalty as limited to deportation, extradition or transfer to a state which carries the death penalty. The omission of mutual legal assistance in this General Comment is reflective, it is claimed, of there being no authority or state practice supporting the extension of the concept of facilitation to the provision of mutual legal assistance in the international law sphere. The case for the existence of a right under customary international law forbidding the provision of mutual legal assistance without death penalty assurances is, the respondent claims, further undermined by the absence of specific reference to the death penalty in important mutual legal assistance treaties and the absence of any state practice preventing this type of assistance. In particular, the respondent has referred to the 1994 Treaty on Mutual Legal Assistance in Criminal Matters between the UK and the US (as amended); the Agreement between the US and the European Union (both of which are silent on the question of obtaining death penalty assurances where mutual legal assistance is sought and provided); and the Agreement between the EU and Japan on mutual legal assistance in criminal matters (article 11 of which expressly recognises that the death penalty should be a discretionary rather than a mandatory ground for the refusal of assistance). Australia has made express reference (in the Mutual Assistance in Criminal Matters Act 1987, as amended, section 8(1A) and (1B)) to the question whether mutual legal assistance should be provided in death penalty cases. The relevant provisions require that a request by a foreign country for assistance must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney General is of the opinion, having regard to the special circumstances of the case, that the assistance should be granted. In relation to the argument that the inevitable delay in carrying out a sentence of death gave rise to a distinct basis for concluding that the regime in the US constituted cruel and inhuman punishment, the respondent contended that there was no consensus in international law to support that claim. Moreover, it was expressly disavowed by the jurisprudence of UNHRC see LaVende v Trinidad and Tobago, (Communication No 554/1993) (unreported) 14 January 1998. Indeed, said the respondent, the UNHRC had consistently rejected the contention that delay in applying the death penalty amounts to a breach of either article 7 or article 10 of the ICCPR. Finally on the question of international law, the respondent submitted that, even if any support could be discerned from that source for a prohibition on the provision of mutual legal assistance in circumstances such as arise in the present case, the question of transposition or incorporation into domestic law as a controlling principle of public law provides an insuperable barrier. Any state obligation under customary international law does not automatically become a domestically enforceable public law obligation. The constraints on transposition are constitutional. The translation of a particular international obligation into domestic law was something for Parliament to consider. It was not one for the courts to impose. The respondent presented several arguments in reaction to the case made by the appellant on data protection. It is unnecessary to rehearse all of them here. In broad summary, the respondent submitted firstly that neither the Charter nor EU law in fact contains the prohibition the appellant claimed arose from the DPA. Secondly, the respondent says that, whether or not the Home Secretary gave separate consideration to the DPA, there was substantive compliance with its provisions, and it was the substantive lawfulness of the transfer of the information which was critical. Thirdly, it was common ground between the parties that the transfer of evidence in the present case was outside the scope of EU law. In particular, on 1 December 2014, the UK exercised its right under article 10(4) of Protocol 36 to the EU Treaties to opt out of acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon. The opt out included the EU US MLA agreement. Since the opt out, mutual legal assistance between the UK and the US has been governed exclusively by the 1994 Treaty on Mutual Legal Assistance in Criminal Matters between the UK and the US (as amended), the respondent argues. Different interpretational approaches apply to Part 3 of the DPA depending on whether the LED applies to the processing in question. Where the LED does apply, the full purposive approach of EU law (including the Charter) will apply to the implementing measures. Where it does not apply, the LED is of more attenuated relevance, although the respondent accepts that it may still be a legitimate aid to construction as a matter of domestic law. But this is no warrant for introducing the Charter through the back door. In any event, the respondent says, the Charter has never been interpreted to preclude transfer of evidence in a case such as the present. Article 19(2) provides: No one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. That formulation simply reflects the jurisprudence of the ECtHR. It is dealing with a situation in which the individual concerned is within the jurisdiction of the member state and is removed, expelled or extradited. It does not deal with a situation in which information or evidence is transferred. As to the appellants claim that the transfer of information offended the first data protection principle in section 35 of the DPA, the respondent argued that the transfer was both lawful and fair as the section required. It was also necessary in the sense of being necessary for the performance of a task carried for [the law enforcement purpose] by a competent authority section 35(2)(b). On the appellants argument relating to the various conditions which must be met for the transfer of personal data for law enforcement purposes, the respondent challenged the appellants claim that section 73 established a hierarchy of steps to be taken sequentially by the data controller at least to the extent that it is argued that the final step, namely, where there are special circumstances which justify the transfer, may only be invoked as a last resort. It is common case that the decision was not based on a European Commission adequacy decision, the first condition under section 73(3). The second step is to consider whether there were adequate safeguards in place. The respondent disputes the suggestion that this gave rise to an obligation on the part of the controller to investigate whether adequate safeguards existed, and in all cases refrain from transferring unless it was deemed that the safeguards were inappropriate. In any event, the respondent says that section 35 of the Act (which deals with sensitive processing) did not apply in the case of Mr El Sheikh. The respondent disputed that there had been a breach of the second data principle. (It arises where personal data collected for a law enforcement purpose may be processed for any other law enforcement purpose section 36(3)). Even if the decision to transfer the evidence to the US constituted a different law enforcement purpose, such that the second data protection principle applied, it was patently authorised by law, necessary and proportionate to that other purpose, the respondent argued. As to the appellants argument based on section 80 of the Act, the respondent submitted that this provision simply did not apply to Mr El Sheikhs case. Discussion (i) How the common law develops Article 10 of the Bill of Rights 1688 prohibits the infliction of cruel and unusual punishments. Of course, at that time, and for almost three centuries afterwards, the carrying out of the death penalty continued without its being thought to offend article 10. But, for the reasons set out below, the death penalty is now recognised by the common law as constituting such punishment. The Bill of Rights may be considered to provide the backdrop to contemporary consideration of whether the facilitation of the imposition of the death penalty is contrary to what should now be recognised as the common law of the United Kingdom. What is conceived to be cruel and unusual punishment adjusts, like so many other societal perceptions, to changes in the standards and values of society which develop over time with the growth of knowledge and the evolution of attitudinal changes. The common law of the UK rises to the challenge of those changes. As long ago as 1800, Lord Kenyon uttered these celebrated words in R v Rusby (1800) 2 Pea 189, 192: The common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilised society itself, and was formed from time to time by the wisdom of man. Good sense did not come with the Conquest, or at any other one time, but grew and increased from time to time with the wisdom of mankind. In A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221, para 152, Lord Carswell picked up that theme when he said: We have long ceased to give credence to the fiction that the common law consists of a number of preordained rules which merely require discovery and judicial enunciation. Two centuries ago Lord Kenyon recognised that in being formed from time to time by the wisdom of man it grew and increased from time to time with the wisdom of mankind: R v Rusby Sir Frederick Pollock referred in 1890 in his Oxford Lectures, p 111 to the freshly growing fabric of the common law and McCardie J spoke in Prager v Blatspiel, Stamp and Heacock Ltd [1924] 1 KB 566, 570 of the demand of an expanding society for an expanding common law. Similarly, in the US Supreme Court 121 years ago Matthews J said in Hurtado v California (1884) 110 US 516, 531 that: as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms. As Peter du Ponceau said of the common law (A Dissertation on the Nature and Extent of the Jurisdiction of the Courts (1824), Preface): Its bounds are unknown; it varies with the successions of ages, and takes its colour from the spirit of the times, the learning of the age, and the temper and disposition of the judges. It has experienced great changes at different periods, and is destined to experience more. It is by its very nature uncertain and fluctuating; while to vulgar eyes it appears fixed and stationary. The common law will not develop in an area where Parliament has legislated definitively. But that is not the case here. The HRA does not prevent the common law from upholding rights or obligations that are outside the scope or jurisdiction of the ECHR. Moreover, nothing can be inferred from the fact that Parliament has not legislated to prohibit the provision of assistance without death penalty assurances. The respondent makes the point that section 16 of the Crime (Overseas Production Orders) Act 2019 (the 2019 Act) does not require the obtaining of an assurance, only the seeking of one, before designating an agreement under section 52 of the Investigatory Powers Act 2016 (IPA). But section 52 of the IPA does not concern the transfer of information to another country. It deals only with the obtaining of information by interception of communications. It may be considered appropriate for the Secretary of State to designate an agreement without a general assurance, as later a specific assurance can be requested before transferring specific information collected. This is emphatically not a case of Parliament stepping into the arena. It has said nothing about the legality of transferring information without a death penalty assurance. The only relevance of the 2019 Act is, as the appellant has contended, that it shows Parliaments general support for seeking death penalty assurances in the context of MLA. (ii) ECHR jurisprudence Development of the common law is not immune from nor does it disavow external influence. In R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, this court endorsed the view that the courts of the United Kingdom are able to (and should where appropriate) take account of obligations arising under the ECHR in the development of the common law see per Lord Reed at para 57. To like effect, the remarks of Lord Mance in Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] UKSC 20; [2015] AC 455, para 46 where he said, Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Conventions inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. And in Lin v Comr of Police of the Metropolis [2015] EWHC 2484 (QB), applying Kennedy and relying also on Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591, Green J at para 51 stated that it was perfectly plain . that the common law, EU law and the Convention can walk side by side when protecting rights. What then are the external influences which ought to bear on the question whether there should now be recognised a common law principle that the UK government will not facilitate the imposition of the death penalty? First, the jurisprudence of the Strasbourg court. The case law relating to Protocol 13 does not exactly constitute an external influence, since the UK has ratified this in October 2003, with it coming into force on 1 February 2004. (Ratification of Protocol 6, which expressed a general tendency in favour of abolition of the death penalty, had taken place in 1999. But Protocol 13 is of greater contemporary relevance.) Protocol 13 in article 1 abolished the death penalty. Article 2 forbade any derogation from the provisions of the Protocol under article 15 of the Convention and article 3 stipulated that no reservation may be made under article 57 of the Convention in respect of the provisions of the Protocol. It is therefore a comprehensive charter forbidding the death penalty in all circumstances. The Protocol was considered by the ECtHR in Al Saadoon v United Kingdom (2010) 51 EHRR 9. Its nature and extent and the background to its introduction are described in paras 115 118 of the judgment. These are of significance when considered in the context of the claim that it is now a principle of the common law that there should not be any facilitation of the imposition of the death penalty either by the extradition or deportation of an individual to a foreign country where such a sentence might be carried out or by the provision of legal assistance to such a country where the individual is already located. The paragraphs therefore merit quotation in full: 115. The court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the state authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the state must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member states of the Council of Europe. In the preamble to Protocol No 13 the Contracting States describe themselves as convinced that everyones right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings. 116. Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that article 2(1) provides that No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. However, as recorded in the explanatory report to Protocol No 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member states of the Council of Europe. Protocol No 6 to the Convention, which abolishes the death penalty except in respect of acts committed in time of war or of imminent threat of war, was opened for signature on April 28, 1983 and came into force on March 1, 1985. Following the opening for signature of Protocol No 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required states wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No 6. All the member states of the Council of Europe have now signed Protocol No 6 and all save Russia have ratified it. 117. In October 1997 the Council of Europe Heads of State and Government called for the universal abolition of the death penalty. Resolution II adopted at the European Ministerial Conference on Human Rights on 3 November 2000 invited the Committee of Ministers to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war. Protocol No 13, which abolishes the death penalty in all circumstances, was opened for signature on May 3, 2002 and entered into force on July 1, 2003. At the date of adoption of the present judgment, Protocol No 13 has been ratified by 42 member states and signed but not ratified by a further three. Azerbaijan and Russia are alone in not having signed the Protocol. It was signed by the United Kingdom on May 3, 2002, ratified on October 10, 2003 and entered into force in respect of that State on February 1, 2004. 118. The court considers that, in respect of those states which are bound by it, the right under article 1 of Protocol No 13 not to be subjected to the death penalty, which admits of no derogation and applies in all circumstances, ranks along with the rights in articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed. A number of features should be noted from this passage. First, how attitudes to the death penalty have evolved over the period since the drafting of the Convention, and, indeed since the ratification of Protocol 6. Secondly, the all embracing reach of Protocol 13. No derogation from it is permitted. The right not to be subjected to the death penalty applies in all circumstances. Thirdly, it is to be regarded as a fundamental right, ranking alongside article 2 (the right to life) and article 3 (the right not to be subject to torture or inhuman or degrading treatment). Fourthly, the near universal subscription to this charter by the countries which comprise the Council of Europe is testament to the widespread abhorrence to the imposition of the death penalty, whatever the prevailing circumstances or conditions. The respondent dismissed the relevance of the ECtHR jurisprudence, relying on Khan v United Kingdom (see para 88 above) and Sandiford and Zagorski (para 74 above). It was submitted that the ECHR/HRA jurisprudence is positively against the concept of the state being responsible for any broader concept of facilitation extending beyond the physical removal of the individual. Specifically, the case law was said to be against the state being under an obligation not to take steps within its jurisdiction which might expose an individual who is not within the jurisdiction to the risk of treatment that would or might otherwise be contrary to the ECHR. I will examine those decisions presently but, by way of preliminary comment, one may observe that the purpose of referring to ECtHR jurisprudence is not to suggest that the Strasbourg court has endorsed the notion that there is an extra territorial dimension to the obligation not to facilitate the death penalty. To the contrary, the significance of the Strasbourg case law and Protocol 13 lies in its illustration of the practically unanimous opposition to the death penalty in any circumstances whatever. The jurisprudence is thus important and noteworthy as an influencer to the conclusion that the contended for common law right should be recognised, rather than as providing any directly binding decision to that effect. In Khan at paras 25 and 26, the court said: 25. A states jurisdictional competence under article 1 is primarily territorial. However, the court has recognised two principal exceptions to this principle, namely circumstances of state agent authority and control and effective control over an area (see Al Skeini v United Kingdom (2011) 53 EHRR 18, paras 130 141). In the present case, where the applicant has returned voluntarily to Pakistan, neither of the two principal exceptions to territorial jurisdiction apply. This is particularly so when he does not complain about the acts of British diplomatic and consular agents in Pakistan and when he remains free to go about his life in the country without any control by agents of the United Kingdom. He is in a different position, both to the applicants in Al Saadoon (who were in British detention in Iraq and thus, until their handover to the Iraqi authorities, were under British authority and control) and to the individuals in Al Skeini (who had been killed in the course of security operations conduct by British soldiers in South East Iraq). 26. Moreover, and contrary to the applicants submission, there is no principled reason to distinguish between, on the one hand, someone who was in the jurisdiction of a Contracting State but voluntarily left that jurisdiction and, on the other, someone who was never in the jurisdiction of that state. Nor is there any support in the courts case law for the applicants argument that the states obligations under article 3 require it to take this article into account when making adverse decisions against individuals, even when those individuals are not within its jurisdiction. From these passages it is clear that the courts principal preoccupation was with the territorial reach of the Convention, not with opposition to the death penalty. Likewise, in Sandiford and Zagorski, although in the latter case observations were made concerning the nature of a common law obligation to take positive steps to protect an individuals life from the actions of a third party. These observations will require close consideration. In Sandiford, as the respondent in the present case submitted, the appellant had argued unsuccessfully that the UK was obliged to fund legal representation for a person facing a capital charge in Indonesia; or had applied too rigid a policy against doing so. The Supreme Court concluded that the claimant was not within the jurisdiction of the UK so as to engage any ECHR/HRA rights. But that is nothing to the present point. The appellant does not argue that she or her son are entitled to rely directly on a Convention right. Mr El Sheikh is not within the territorial jurisdiction of the ECHR. The purpose of referring to ECtHR jurisprudence and Protocol 13 is to demonstrate the almost complete ubiquity of opposition in the countries which comprise the Council of Europe to the imposition of the death penalty in any circumstances whatever. Observations by Lord Dyson MR in Sandiford when it was before the Court of Appeal ([2013] EWCA Civ 581; [2013] 1 WLR 2938) are, however, worthy of note. At para 7 of his judgment he said: It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle. Its strategy and policy in relation to the death penalty is set out in the HMG Strategy on Global Abolition of the Death Penalty: 11 October 2010. The strategy confirms that the goals of the UK government are to increase the number of abolitionist countries or countries where a moratorium exists on the use of the death penalty; to seek further restrictions on the use of the death penalty in countries where it is used and a reduction in the number of executions; and to ensure that EU minimum standards are met in countries which retain the death penalty. (Emphasis added) and at para 61: The death penalty is (in my view) rightly regarded by the government as immoral and unacceptable. No challenge was made by the respondent to the correctness of these statements. The appellant therefore submits that they provide powerful support for the recognition of a common law principle that the death penalty should not be facilitated by the government of this country. I shall examine EU law on this issue later. But in the meantime, Lord Dyson MRs statement, that one goal of the governments strategy was to ensure that EU minimum standards [were] met in countries which retain the death penalty must be viewed against the background that both EU and ECHR law have a consistent theme, viz that the death penalty is to be condemned and opposed in every circumstance. How could compliance with that position be reconciled with a decision to provide material to a country which retains the death penalty when the very provision of that material could lead to the imposition of that penalty? In Zagorski the claimants were citizens of the US who had been sentenced to death in that jurisdiction. They were due to be executed by lethal injection consisting of an anaesthetic, sodium thiopental, followed by other injections. They applied for judicial review to challenge the decisions of the Secretary of State for Business, Innovation and Skills refusing to impose a control pursuant to the Export Control Act 2002 on the export of sodium thiopental from the United Kingdom to the United States. It was held that the claimants were not entitled to the protection of ECHR. The obligation of the United Kingdom under the Convention did not extend to securing Convention rights to these claimants as they had never been, at any material time, within the territorial jurisdiction of the United Kingdom. The Divisional Court acknowledged that the common law can act to protect human rights independently of the HRA but there was no general common law duty on the government to take positive steps to protect an individuals life from the actions of a third party. At para 80 Lloyd Jones J said: I require no persuading that the common law can act to protect human rights quite independently of the Human Rights Act 1998. However, the extent of such protection and the relationship of the common law to the statutory rights conferred by the Human Rights Act require careful consideration. For example, beyond the established categories of case where a duty of care is imposed, there is no general, common law duty on Her Majestys Government to take positive steps to protect an individuals life from the actions of a third party. Moreover, the common law has shown a reluctance to remedy apparent lacunae in the ECHR regime. The appellant in the present case argues that the ratio in Zagorski was that there was no general common law duty on the Secretary of State to take positive steps to protect an individuals life from the actions of a third party. Here, by contrast, the position is not one of abstaining from taking an action that could prevent the US from carrying out the death penalty. In this case the respondent has authorised the provision of assistance which, on his own admission, has created a serious risk that the individuals concerned will, if prosecuted and convicted, face execution as a direct result of UK assistance in this matter. If there is a common law principle that the UK should not facilitate the carrying out of the death penalty in any circumstances whatever, there should not be a valid distinction between taking positive steps to prevent an execution and taking an action that facilitates the execution. But it ought to be noted that, although originally the claimants in Zagorski had argued that the common law must step in to impose the fundamental principle of the right to life, where for purely jurisdictional reasons the Human Rights Act does not protect that fundamental right, that argument was substantially modified in the course of the hearing see paras 78 and 79 of the judgment. At para 83, Lloyd Jones J outlined the change of position of the claimants: Miss Lieven came to accept in her oral submissions that the essence of her case on the common law in this context was that the importance the common law attaches to fundamental rights means that they have to be given very considerable weight in any decision making process where they are in play. She accepted that that would not mean that a decision refusing to impose a ban on the export of the drug to the United States would necessarily be unlawful. However, the standards which the court would apply to such a decision would be intensified and an increased level of justification would be required. It was therefore unnecessary for the court in Zagorski to address the question whether there existed a common law principle that the government should not facilitate the imposition or the execution of the death penalty in a foreign state. True it is that Lloyd Jones J said (at para 84) that there was no free standing, common law ground for challenging the decisions in issue but that observation must be seen against the modification which the claimants had made to their original case. I do not consider that Zagorski can be regarded as authority for the proposition that the common law should not now be regarded as having evolved to the point where there should be no facilitation of the death penalty. Moreover, the case in Zagorski had been framed as one where the court should act to fill what was regarded as a lacuna in ECHR law. For the reasons given earlier, I consider that the principal significance of Convention jurisprudence is as an indicator of the prevalence throughout the countries of the Council of Europe of settled opposition to the death penalty. I do not accept that it is an appropriate exercise to seek to identify gaps in ECHR law and then consider whether those should be filled by the development of the common law. Rather, I believe that the common law should be seen as an autonomous organism, open to external influence but developing on its own initiative rather than in response to perceived deficiencies in other systems of law. (iii) European Union law Article 2 of the European Charter provides in para 1 that everyone has the right to life and in para 2 that no one shall be condemned to the death penalty or executed. The Divisional Court (at para 181 of its judgment) rejected a submission made on behalf of the appellant that the absolute objection to the death penalty contained in the Charter permeates all aspects of EU decision making at both the political and legislative level. Before this court, the appellant submits that the Divisional Court was wrong to reject her argument as to the effect of EU law. In addition to the absolute prohibition on the death penalty reflected in various articles in the Charter, the EUs absolute opposition to the death penalty is, the appellant says, reflected in an array of other instruments including: (1) the EU Guidelines on Death Penalty (2013), which set out the EUs strong and unequivocal opposition to the death penalty in all times and in all circumstances; (2) Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment; (3) Parliament and Council Regulation (EU) 2016/2134 of 23 November 2016 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (which specifically focuses on the death sentence rather than the generalised prohibition on torture and inhumane treatment); (4) numerous Resolutions of the European Parliament; and (5) recital (71) to the LED, which requires a data controller to take into account that the personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment before transferring data to a foreign law enforcement authority. On 10 October 2018 the EU and the Council of Europe issued a Joint Declaration marking the European and World Day against the Death Penalty. The Joint Declaration stated: On the European and World Day against the Death Penalty, the Council of Europe and the European Union (EU) reiterate their strong opposition to capital punishment in all circumstances and for all cases. The death penalty is an affront to human dignity. It constitutes cruel, inhuman and degrading treatment and is contrary to the right to life. The death penalty has no established deterrent effect and it makes judicial errors irreversible Member states should continue taking effective measures to prevent their involvement, however indirect, in the use of the death penalty by third countries, such as by adopting measures that prevent the trade in goods that could subsequently be used to carry out executions The reason that the Divisional Court concluded that there was no absolute EU law prohibition against the death penalty was the provision in article 11(1)(b) of the EU Japan MLA agreement. The Divisional Court considered that this indicated that the existence of the death penalty in Japan is treated as a discretionary, rather than a mandatory, ground for the refusal of assistance para 89. The appellant submitted that these conclusions were erroneous for the following reasons: (1) Article 11(1)(b) of the EU Japan MLA agreement makes it clear that member states may provide mutual legal assistance in connection with an offence punishable by death under the laws of the requesting state if the requested state and the requesting state agree on the conditions under which the request can be executed. In other words, it permits member states to make the provision of MLA conditional upon exactly the sort of death penalty assurance which the appellant submits the Home Secretary was required to obtain in this case. Nothing in the EU Japan MLA agreement qualifies or detracts from the EUs longstanding and consistent stance of absolute opposition to the death penalty in all circumstances. the EU Japan agreement (2) The suggestion that demonstrates that EU law is not absolutely opposed to the death penalty is also inconsistent with: (a) The travaux preparatoires of the agreement, which record that the EUs specific objective in negotiating the agreement was to allow for effective mutual legal assistance but at the same time ensure that evidence transmitted by a member state, could in no circumstances be used to impose a death sentence (b) the European Parliaments resolution of 16 February 2012 on the death penalty in Japan; and (c) the statement of the European Union Delegation to Japan and the Heads of Mission of EU member states dated 6 July 2018, which stated that the European Union is strongly and unequivocally opposed to the use of capital punishment under all circumstances and we aim at its universal abolition and which called on the Japanese Government to abolish capital punishment. The respondent disputes all of this. It is submitted that article 11 of the EU Japan MLA agreement leaves it to the discretion of the member state to decide whether to refuse to provide data on the basis that it relates to a capital offence. Reliance on the travaux preparatoires of the agreement was misguided the respondent says. The document demonstrates that the EUs line to take in respect of the provision of MLA in a death penalty case was open to negotiation: The aim of a possible agreement between the European Union and Japan on mutual legal assistance would be to enhance and facilitate mutual legal assistance between Japan on the one hand and the 27 member states of the EU on the other hand based, while safeguarding fundamental rights and guaranteeing that the death penalty could not be imposed on the basis of evidence submitted by the EU member states. it has been made clear to Japan that the issue of death penalty/life imprisonment is of crucial importance to the EU. It appears that a satisfactory solution to this issue could be found in the negotiations. This, the respondent says, clearly indicates that the arrangement was one that was open to negotiation as regards its implementation. The respondent also claims that the appellants reliance on the European Parliaments resolution of 16 February 2012 on the death penalty in Japan [AB/99] (para 12.4(2)(b)) and the statement on executions in Japan of the EU Delegation to Japan and the Heads of Mission of EU member states dated 6 July 2018 was misconceived. These do not constitute a legally binding prohibition on the provision of MLA to Japan in the context of an offence punishable by death. Reliance on various non binding statements of policy opposition to the death penalty is likewise misconceived, the respondent says. These do not amount to a legal prohibition on the provision of MLA in a case such as the present. I find it unnecessary for present purposes to resolve the dispute as to whether the EU Japan agreement precluded completely the provision of MLA. It is relevant to the data protection issue which I shall turn to later in this judgment. The context for the present examination of EU law is to assess its influence on the possible development of the common law. Whether it is technically possible under the EU Japan agreement for mutual legal assistance to be provided without death penalty assurances is not directly germane in this context. I find it impossible to resist the conclusion that the overwhelming character of EU law is one of settled, unmistakable opposition to the death penalty in every circumstance. It cannot be irrelevant to the development of our common law that the UK was a member of the EU for more than 40 years. The influence that EU law in general and its hostility to the death penalty in particular has on a decision as to the current state of the common law is undeniable. (iv) Delay in carrying out the death penalty In Pratt v Attorney General for Jamaica [1994] 2 AC 1 the Judicial Committee of the Privy Council held that a state which wished to retain capital punishment must ensure that execution followed as swiftly as practicable after sentence, allowing a reasonable time for appeals. To execute a prisoner years later, after long delays caused by his legitimate use of all the appellate procedures available, was to subject him to an inhuman or degrading punishment. The appellant in the present case, drawing on the reasoning in Pratt and observing that the inevitable delay in carrying out any execution of her son after the imposition of the death penalty by a US court was unchallenged, submitted that to facilitate such a process would involve complicity in the infliction of punishment which was cruel and inhuman. The Divisional Court dealt with the Pratt case at para 86 of its judgment: There is undoubtedly support in international jurisprudence for the contention that prolonged delay in carrying out a sentence of death may be unlawful. For example, in Pratt v Attorney General of Jamaica [1994] 2 AC 1, the Privy Council held that section 17(2) of the Jamaican Constitution authorised the death penalty but that did not prevent the court investigating the circumstances in which the executive intended to carry out the sentence. It held that execution should take place as soon as reasonably practicable after sentence; to carry out executions after a delay of 14 years would constitute inhuman punishment contrary to section 17(1) of the Constitution. But that case turned on the construction of the Jamaican Constitution. It did not establish a rule of the common law, either in Jamaica or generally, that particular periods of delay made the enforcement of the death penalty unlawful. The appellant criticised this passage, submitting that in reaching its decision, the Privy Council had to address the question of whether delayed execution was contrary to the common law. That was necessary in order to establish that the practice of execution after long delay was already unlawful pre independence. That practice was therefore not rescued by the savings clause in section 17(2) of the Constitution, which only protected from constitutional challenge treatment and punishment that had been lawful prior to independence. I consider that the appellants submissions on this point must be accepted. At p 19C D, Lord Griffiths, who delivered the judgment of the Board, said, Prior to independence, applying the English common law, judges in Jamaica would have had the power to stay a long delayed execution (emphasis added). Lord Griffiths relied on statements to like effect by Lord Diplock in Abbott v Attorney General of Trinidad and Tobago [1979] 1 WLR 1342, 1348 and Lord Templeman in Bell v Director of Public Prosecutions [1985] AC 937, 950. Moreover, at p 20G H and p 28F G of the judgment, the Board expressly stated that execution after long delay could have been stayed as an abuse of process before independence by the application of common law principles. Finally, in a telling passage at p 29G H, Lord Griffiths said: There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. The case therefore did not turn on the construction of the Jamaican Constitution, as the Divisional Court held. On the contrary, it was because the common law before the enactment of the Constitution condemned a long extended period between the passing of a sentence of death and execution that the Jamaican Constitution could not save the situation. That this was the product of the common law was confirmed in the later case of Guerra v Baptiste [1996] AC 397, 409G H, where the Privy Council again held that the prohibition on execution after long delay was consonant with the tradition of the common law. And in Henfield v Attorney General of the Commonwealth of the Bahamas [1997] AC 413, 425B C, where a lesser period of three and a half years was deemed inhuman. That prolonged delay by itself violates the protection against cruel, inhuman or degrading treatment was confirmed by the decision of the Caribbean Court of Justice in the case of Attorney General for Barbados v Boyce [2006] CCJ 1 (AJ), which pronounced that Pratt was rightly decided and that: the practice of keeping persons on death row for inordinate period of time is unacceptable, and infringes constitutional provisions that guarantee humane treatment at para 47. The same approach has been taken by a number of the highest courts in the Commonwealth India (Singh v State of Punjab (1983) 2 SCR 583, 593); Zimbabwe (Catholic Commission for Justice and Peace in Zimbabwe v Attorney General (2001) AHRLR 248 (ZwSC 1993), paras 119 120) and Uganda (Attorney General v Kigula [2009] UGSC 6, pp 47 48), where three years from confirmation of sentence was regarded to be the maximum period. (v) Factors favouring recognition of the common law principle The factors and strands of influence which tell in favour of a common law right not to have ones trial in a foreign state facilitated where there is a prospect that such a trial would lead to the death penalty being carried out may now be assembled and enumerated. 1. The Bill of Rights, an always speaking statute, forbade cruel and unusual punishment. It is surely now beyond controversy that the death penalty is regarded by the common law to constitute such punishment. 2. British contemporary values are reflected in the abolition of the death penalty for murder in 1965 and the resolute refusal of government and Parliament to countenance any change to that position. The Death Penalty Project (DPP), an intervener in this appeal, has submitted that the UKs consistent and long standing approach to the death penalty is clear and supports the assertion that the death penalty is now regarded by this country as a cruel and unusual punishment. To that end the DPP points out that for more than 15 years, it has been funded by the Foreign and Commonwealth Offices Human Rights and Democracy Department in its work to promote restriction of the use of the death penalty worldwide. DPPs work furthers the FCOs Human Rights and Democracy Programme, which lists one of its priority targets to be the abolition of the death penalty abroad. The FCO recognises that the death penalty is an inhuman punishment and has stated that: Our ambition remains a world free of capital punishment and torture and that: [we] oppose the death penalty in all circumstances as a matter of principle, because we consider that its use undermines human dignity, that there is no conclusive evidence of its deterrent value, and that any miscarriage of justice leading to its imposition is irreversible and irreparable. (Human Rights and Democracy: The 2014 Foreign & Commonwealth Office Report, dated 12 March 2015, Executive Summary, and Human Rights and Democracy: The 2017 Foreign and Commonwealth Report, updated 5 October 2018, chapter 1.) 3. ECHR jurisprudence. Although it does not arise directly in this case because of jurisdictional restrictions, it can and should inform the development of the common law see paras 107 124 above. Moreover, the UKs ratification of the Thirteenth Protocol is an unequivocal statement of this countrys stance on the death penalty. Developments in international human rights law are significant pointers to the interpretation of the common law. As Lord Hoffmann said in R v Lyons [2002] UKHL 44; [2003] 1 AC 976, para 27, there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. And in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221, para 27 Lord Bingham of Cornhill said that where development of the common law is called for, such development should ordinarily be in harmony with the United Kingdoms international obligations and not antithetical to them. 4. EU jurisprudence. The European Union has categorically condemned the death penalty as absolutely wrong in all circumstances. This declamation chimes exactly with UK standards and values as described in the DPPs intervention. 5. The fundamental illogicality of, on the one hand, refusing to extradite or deport individuals for trial in a foreign state where there was a risk of the imposition of the death penalty, without requisite assurances, and, on the other hand, facilitating such a trial when precisely the same outcome is in prospect without demanding assurances. The irrationality of this approach can be illustrated by a decision of the Constitutional Court of South Africa Mohamed v President of the Republic of South Africa [2001] ZACC 18. The court identified a principle of non complicity as a justification for the refusal to extradite without a death penalty assurance. The court referred to the commitment implicit in the Constitution that South Africa will not be party to the imposition of cruel, inhuman or degrading punishment (para 59). The rationale was not confined to the fact that the person to be extradited was within the jurisdiction of the courts of South Africa. It extended to any complicity in the imposition of cruel, inhuman or degrading punishment. If it is objectionable to be complicit in exposing an individual to the risk of execution by extraditing him, it is surely equally objectionable to be complicit in facilitating that result by providing material which has the same result. As the appellant submitted, what matters is whether the state whose actions are impugned has, by its actions, established the crucial link in the causal chain that would make possible the execution of the author: per the decision of the UNHRC in Judge v Canada (2005) 40 EHRR SE4, para 10.6. The anomaly created by the difference in approach was well captured by Professor Christof Heyns, a former UN Special Rapporteur and currently a member of the UNHRC, in Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/70/304, 7 August 2015, para 102: A dilemma emerges when abolitionist states provide assistance to retentionist states in criminal matters and that assistance leads to the use of the death penalty. Even though the individual facing the death penalty in such cases may never have been in the jurisdiction of the abolitionist state, such assistance could amount to complicity in the death penalty. The same legal principles apply here as in the case of transfer of persons: states that have abolished capital punishment may not assist in bringing about the death penalty in other countries. JCPC jurisprudence and case law from Commonwealth countries 6. paras 135 140 above. Although the cases discussed in this section relate to delays in carrying out execution, rather than objection to the death penalty itself, they carry unmistakable evidence of the growing revulsion for that punishment felt by many throughout the world. Drawing all these factors together, I believe that the time has arrived where a common law principle should be recognised whereby it is deemed unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that person in peril of being executed. This is not a conclusion of the considerable and controversial variety suggested by the respondent. It is a natural and inevitable extension of the prohibition (in the common law as well as under the HRA) of extradition or deportation without death penalty assurances. If it appears to be an incremental step, that is only because this is the first time the matter has come before the courts for consideration, largely because the two previous occasions since 2001 on which according to the respondent MLA was provided without a death penalty assurance, that was done without public knowledge and so without the possibility of judicial scrutiny. I have therefore decided that the combination of the above factors (beginning with the recognition in Pratt that delayed execution was contrary to common law) leads inexorably to the conclusion that it is unlawful at common law for the state to facilitate the execution of the death penalty against its citizens or others within its jurisdiction anywhere in the world. Law, whether enacted or developed through the common law, if it is operating as it should, must be responsive to societys contemporary needs, standards and values. It is a commonplace that these are in a state of constant change. That is an essential part of the human condition and experience. As a deeper understanding of the human psyche and the enlightenment of society increase with the onward march of education, tolerance and forbearance in relation to our fellow citizens, the law must march step by step with that progress. I am convinced that the adjustment to the common law which I propose reflects the contemporary standards and values of our society. There is no evidence that the insistence on assurances in the case of extradition or deportation has led to any rupture in the relations between the two countries. Moreover, several other countries have required assurances without any evidence of negative consequences (for example, Germanys requiring an assurance before providing MLA for the federal prosecution of Zacarias Moussaoui, one of the 9/11 conspirators). In any event, the reaction of the US has no bearing on the existence of the common law principle. Nor is there any warrant for suggesting that the recognition of the proposed common law principle would forbid mutual legal assistance in all circumstances. It would be applied precisely as is the rule relating to deportation and extradition. Mutual legal assistance can continue when the appropriate assurances are given. I likewise do not accept that the principle has the potential to be expanded into spheres where it would risk creating real damage, for example, to public protection and national security. The principle will only apply in cases where proceedings are either in train or contemplated and where a possible outcome is the infliction of the death penalty. The free flow of information on matters of public protection and national security between this country and its allies will continue unimpeded. It is suggested by Lord Carnwath in para 191 of his judgment that there is as yet no established principle (under the common law, the Convention or any other recognised system of law), which prohibits the sharing of information relevant to a criminal prosecution in a non abolitionist country. Since the passing of the Human Rights Act 1998, there may have been a tendency to see the law in areas touched on by the Convention solely in terms of Convention rights. But ECHR rights represent a threshold protection; and, although they may be expected to reflect and to find their homologue in the common or domestic statute law, they should not be regarded as an inhibitor to the development of the common law. Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282 284 expressed the view that in the field of freedom of speech there was no difference in principle between English law and article 10 of ECHR. But, in some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the ECHR rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to begin with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ said in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2012] EWCA Civ 420; [2013] QB 618, para 88: The development of the common law did not come to an end on the passing of the Human Rights Act 1998. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. (vi) Customary international law In his intervention in this case Professor Heyns suggested that there is an emerging norm of customary international law that the death penalty as such is a violation of the absolute right against torture and cruel, inhuman and degrading treatment of punishment, and that a norm against the facilitation of the death penalty follows from that. Professor Heyns accepts that in order to determine the existence and content of a rule of particular customary international law, it is necessary to ascertain whether there is a general practice among the states concerned that is accepted by them as law among themselves Celiberti de Casariego v Uruguay: (1981) 68 IRL 41, paras 10.1 10.3. In my opinion, the material on which one could reasonably conclude that there is such a general practice has not been produced. The arguments advanced by the respondent (and set out between paras 88 and 92 above) do not establish that customary international law is not in the process of evolving to the point where the death penalty as such is a violation of the absolute right against cruel and inhuman punishment. But those arguments and the material on which they were based are sufficient to cast sufficient doubt on that proposition. As Professor Heyns has pointed out, the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, concluded in 2012: there is an evolving standard whereby states and judiciaries consider the death penalty to be a violation per se of the prohibition of torture or cruel, inhuman or degrading treatment The Special Rapporteur is convinced that a customary norm prohibiting the death penalty under all circumstances, if it has not already emerged, is at least in the process of formation. Interim Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 9 August 2012, (A/67/279), para 72. In the absence of firm, tangible evidence that the process of evolution has been completed or that there is a general practice such as is referred to in para 144 above, it is impossible to accept the appellants argument based on customary international law. (vii) Data protection The starting point on this subject is the agreement between the parties that the provision of material by the Home Secretary to the United States in July 2018 involved processing of personal data for a law enforcement purpose by a controller which is a competent authority for the purposes of Part 3 of the Act. It is also agreed that the Home Secretary did not expressly consider his duties under the Act. The respondent argues, however, that there was substantial compliance with the Act. Section 34 of the DPA provides an overview and general duty of the data controller. It summarises six data protection principles. The appellant complains that the first two of these were breached. So far as relevant to this case they are (i) that the processing of personal data for any law enforcement purposes must be lawful and fair section 35(1) and (ii) that the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate section 36(1)(a). Since I have concluded that the transfer of material to the US authorities without obtaining death penalty assurances was contrary to law, it follows that neither condition can be said to have been met. The processing of the material was not lawful. Nor was the law enforcement purpose for which it was collected legitimate, since it was to be used in the prosecution of Mr El Sheikh in a trial where he was at risk of being sentenced to death and executed in consequence. That purpose cannot be legitimate in light of my view as to the current state of the law of this country. On that account, it is unnecessary for me to consider the elaborate arguments deployed by the parties on the proper approach to the interpretation of the DPA, beyond paying tribute to the ingenuity of those arguments and the skill with which they were presented. Sections 73 to 76 set out the general conditions that apply to the transfer of personal data to third countries or international organisations. A controller may not transfer personal data to a third country or to an international organisation unless the three conditions set out in subsections (2) to (4) of section 73 are met. The second condition is the relevant one for the purposes of this case. It is contained in section 73(3) and is in these terms: (3) Condition 2 is that the transfer is based on an adequacy decision (see section (a) 74), (b) if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or (c) if not based on an adequacy decision or on there being appropriate safeguards, is based on special circumstances (see section 76). It is not in dispute that the transfer was not based on an adequacy decision. In view of my finding in relation to the need to obtain proper death penalty assurances, I am bound to find that the decision to transfer the material to US authorities was not based on there being appropriate safeguards. Section 76 deals with transfers on the basis of special circumstances. In material part it provides: (1) A transfer of personal data to a third country or international organisation is based on special circumstances where the transfer is necessary to safeguard the legitimate interests of the data to protect the vital interests of the data subject or (a) another person, (b) subject, (c) for the prevention of an immediate and serious threat to the public security of a member state or a third country, (d) enforcement purposes, or (e) in individual cases for any of the law in individual cases for a legal purpose. The Divisional Court held that the transfer could be justified on the basis of special circumstances. The appellant submits that the court was wrong to characterise the transfer as being necessary for any purpose. Accordingly, the condition in section 76(1) was not met. Secondly, the appellant submits that, since section 76 refers to a transfer which is based on or takes place in reliance on the existence of special circumstances, conscious and contemporaneous reliance on the gateway by the transferor at the time of the transfer is required and there was no such reliance in this case. Thirdly, the narrowness of this residual gateway is reinforced by recital (72) to the LED which states that the gateway should be interpreted restrictively and should be limited to data strictly necessary. I consider that the requirement that the data be limited to that which is strictly necessary behoves the data controller to make an assessment of what, in the context of the DPA, is strictly necessary and, since it is accepted that the Home Secretary did not have regard to his duties as data controller, the special circumstances gateway was not available. Moreover, it is not enough to say that the data protection provisions were substantially met, where direct, personal evaluation was required. The appellants final argument in relation to the DPA was based on section 80 (regarding special processing restrictions where, for a law enforcement purpose, a controller transmits or otherwise makes available personal data to an EU recipient or a non EU recipient). I am inclined to accept the respondents argument that this provision does not apply to Mr El Sheikh but, in light of my other conclusions, it is unnecessary for me to reach a final conclusion on it. I refrain from making a finding on that argument, therefore. Conclusions I have concluded that a common law principle should now be recognised to the effect that it is unlawful to facilitate by the provision of material to be used in the trial of a person in a foreign country where there is a risk that, as a result of those proceedings, that person would be at risk of execution. On that account the Home Secretary should not have supplied the material to the US authorities in July 2018 without having obtained the customary death penalty assurances. It matters not that the Home Secretary was exercising a prerogative power. This court is required by long established law to examine the nature and extent of the prerogative power and to determine whether the respondent has transgressed its limits particularly where the prerogative power may be being used to infringe upon an individuals rights. The courts have carried out a similar examination in several earlier cases, including Sandiford (considered above) see also the recent decision of this court in the associated cases of R (Miller) v Prime Minister (Lord Advocate intervening) [2019] UKSC 41; [2019] 3 WLR 589, paras 30 32 and, in particular, para 35. It might be said that the limit on the prerogative is grounded in the private law right to life and freedom from cruel and unusual treatment but this does not mean that a private law claim could be brought against a private individual choosing to give evidence in a death penalty trial, as the focus here is on the public law principle regarding the use of executive powers. The challenge here may be said to stem from the asserted right that Mr El Sheikh should not be exposed to the risk of having the death penalty imposed on him. And it is possible to characterise that as a private law right. But the decision to release papers and other material without obtaining death penalty assurances involves the exercise of the prerogative which is rooted firmly in the public law domain. If there is recognised a common law principle that the death penalty should not be facilitated (save in wholly exceptional circumstances which I shall discuss in the next paragraph and which do not obtain in this instance), then the exercise of the prerogative must yield to that principle and be exercised in accordance with it. The restraint on the power to exercise the prerogative in the way that the authorities have done and wish to do in this case derives from such a common law principle, not from the assertion of a private law right. It lies emphatically therefore in the sphere of public law. The only circumstances in which I conceive that the common law principle should not apply are these: if the relay of information or intelligence was absolutely necessary as a matter of urgency in order to save lives or to protect the security of the nation, the possibility of facilitating the imposition of the death penalty on someone whose identity or activities would thereby be revealed would be outweighed by those momentous considerations. There is nothing of the kind here. No one has suggested that the information was required because of any imminent threat. Had I not held that it was unlawful to facilitate the trial of a person in a foreign country where there was a risk of his being executed, I would nevertheless have held that facilitating his trial in the US with the attendant and inevitable considerable delay between the passing of the sentence of death and its being carried out would be unlawful. For the reasons earlier given, the respondent failed to comply with the requirements of a number of the provisions in the DPA. On that account also his decision to supply the material was unlawful. It follows that no further assistance should be given for the purpose of any proceedings against Mr El Sheikh in the United States of America without the appropriate death penalty assurances. LORD REED: (with whom Lady Black and Lord Lloyd Jones agree) I agree with Lord Carnwath, for the reasons which he gives, and with the other members of the court, that the Secretary of States decision is vitiated by his failure to comply with the requirements of the Data Protection Act 2018. The second ground of appeal should therefore be upheld, and the appeal must be allowed. I also agree with Lord Carnwath that the first ground of appeal should be dismissed, for the reasons which he gives, and for also the additional reasons given below. I regret that I am unable to agree with Lord Kerrs conclusion that individuals (including citizens of foreign states) possess a common law right under English law not to have their trial in a foreign jurisdiction facilitated where there is a prospect that such a trial would lead to the death penalty being carried out. Out of respect for Lord Kerrs careful judgment, I should briefly explain the additional reasons, besides those given by Lord Carnwath, for my taking a different view. I fully accept that the common law is subject to judicial development, but such development builds incrementally on existing principles. That follows from two considerations. The first is that judicial decisions are normally backward looking in the sense that they decide what the law was at the time which is relevant to the dispute between the parties. In order to preserve legal certainty, judicial development of the common law must therefore be based on established principles, building on them incrementally rather than making the more dramatic changes which are the prerogative of the legislature. Following that approach, new rules may be introduced, or existing rules may be reformulated or departed from, but the courts continue to apply principles which formed an established part of the law at the time of the events in question. The judges are then faithful to their oath to do right to all manner of people after the laws and usages of this Realm. Secondly, that constraint on judicial law making is also compatible with the pre eminent constitutional role of Parliament in making new law, and with the procedural and institutional limitations which restrict the ability of litigation before the courts to act as an engine of law reform. The development of the law proposed by Lord Kerr does not appear to me to be an incremental step. I do not find in the sources cited by Lord Kerr an established principle, of which a right having the characteristics he describes can be regarded as an incremental development, largely for the reasons given by Lord Carnwath. For example, the principal domestic source on which Lord Kerr relies is article 10 of the Bill of Rights 1688. That article appears under the heading The Subjects Rights, and states that excessive Baile ought not to be required nor excessive Fines imposed nor cruel and unusual Punishments inflicted. Its prohibition of cruel and unusual punishments concerns the infliction of punishment by the Crown. That is not the subject matter of the present case. Nevertheless, there is no doubt that, as Lord Bingham of Cornhill observed in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653, para 30, [a] profound respect for the sanctity of human life underpins the common law. There are many areas of the law which reflect that respect, including the criminal law relating to homicide, the law of tort and the law relating to coroners. The present case is not, however, concerned with a deprivation of life which would constitute a crime or a tort under English law, or would call for a coroners inquest. It is concerned with a decision by the Secretary of State, taken (it is accepted) in the exercise of prerogative powers, to provide mutual legal assistance to a foreign government, in the form of information concerning a foreign citizen for use in a criminal investigation, and possibly at a trial, in that jurisdiction. The special feature of the case is that it is possible that the person under investigation may be tried on charges for which the death penalty is an available punishment. If he were to be convicted of such charges, a trial could result in his judicial execution. It also appears from the evidence before this court that a prosecution overseas would be reliant on the material provided by the Secretary of State. The consequence of the Secretary of States decision is therefore to place a person at risk of execution. In my opinion, Sir James Eadie was correct in submitting on behalf of the Secretary of State that the common law rights and obligations which are relevant to that situation are to be found in public law. There is however a risk of over simplification if one says, as Sir James put it, that public law goes no further than to recognise that rational and proper judgments have to be made. It is necessary to bear in mind that the context of a decision, and in particular, its potential implications for the life of the person concerned, may affect the application of the familiar grounds of judicial review of administrative action to which Sir James was referring. In that regard, it is relevant to consider the idea of a right to life, which is included among the common law constitutional rights listed in De Smiths Judicial Review, 8th ed (2018), eds Woolf et al, para 11 054, and has been discussed in a number of authorities. Those authorities do not vouch the existence of a right in the sense in which that term is used in the law of obligations, and the idea that there might be a right of that character is absent from leading cases concerned with questions of life and death, such as Airedale NHS Trust v Bland [1993] AC 789, R v Cambridge Health Authority, Ex p B [1995] 1 WLR 898, In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 and R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38; [2015] AC 657. Nevertheless, the authorities support the recognition of what might more aptly be described as a value to which the courts attach great significance when exercising their supervisory jurisdiction. Judicial recognition of the right to life, understood in that sense, can have an important influence on adjudication. A well known example is the case of R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, which concerned the approach which should be adopted to the consideration of applications for asylum, where it was claimed that the asylum seekers life would be at risk if his application were refused. Lord Bridge of Harwich, in a speech with which the other members of the Appellate Committee expressed agreement, referred to the limitations on judicial review of the exercise of discretion, and continued at p 531: Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individuals right to life and when an administrative decision under challenge is said to be one which may put the applicants life at risk, the basis of the decision must surely call for the most anxious scrutiny. To similar effect, Lord Templeman stated at p 537: In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision making process. On that basis, the House of Lords carried out a more searching review of the Secretary of States consideration of the facts of the case than would be usual on an application for judicial review. Another example is the case of R v Cambridge Health Authority, Ex p B [1995] 1 WLR 898, concerned with a challenge to a health authoritys refusal to provide what was argued to be potentially life saving medical treatment. Sir Thomas Bingham MR, with whom Sir Stephen Brown P and Simon Brown LJ agreed, stated at pp 904 905: [I]t is important that I should state very clearly, as the judge did, that this is a case involving the life of a young patient and that that is a fact which must dominate all considerations of all aspects of the case. Our society is one in which a very high value is put on human life. No decision affecting human life is one that can be regarded with other than the greatest seriousness. This approach is now firmly established. For example, in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697, para 66, Lord Carnwath and Lord Mance stated: Irrationality is a high threshold, but it may be easier than otherwise to surmount in a case involving an imminent risk of death by execution of a British citizen deprived of financial support abroad. The courts role is given added weight in a context where the right to life is at stake (see R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514). A keen scrutiny of the policy and its application must on any view be required in such circumstances. In the more recent case of Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591, Bugdaycay was cited as one of a number of authorities demonstrating that the intensity of rationality review depends on the context, and that a more rigorous approach is required when the courts are reviewing the exercise of discretion in contexts where fundamental rights are at stake: see paras 105 106 and 114. Sir James Eadie submitted that the Secretary of States decision in the present case complied with that standard. There was, he said, no irrational change of position by the Secretary of State. The decision was subjected to the most anxious scrutiny. Sir James also emphasised that the decision was taken in the conduct of foreign affairs, in an area shot through with diplomatic judgement. This was an area where the courts recognised the institutional competence and democratic legitimacy of the executive. I fully accept that in reviewing a decision such as that in issue, the court has to take full account of the considerations to which Sir James referred. I also accept that, contrary to the submission made on behalf of the appellant, the fact that the Secretary of States decision represented a departure from the Governments usual approach in death penalty cases did not in itself render it irrational: the Governments policy in this area was more nuanced than was acknowledged in those submissions. Postscript However, I should not leave this matter without observing that, examining the decision with the intense care which its potential consequences require, there are some other aspects which might have given rise to a question as to whether it complied with the common law requirement of rationality, if they had been raised. I should make it clear that, as these matters were not raised on behalf of the appellant, I do not express any view on them, and they have played no part in my decision as to the outcome of the appeal. I mention them only because they might be relevant if a similar issue were to come before the Secretary of State on some future occasion. One such aspect is the Secretary of States conclusion that the provision of the information in question was justified because it was in the interests of justice that Mr El Sheikh should be tried in the United States. According to a witness statement of Mr Graeme Biggar, a senior official in the Home Office whose statement was said by Sir James to set out the Secretary of States reasoning, the Crown Prosecution Service (the CPS) considered that there was insufficient evidence for a prosecution to take place in the UK, even taking into account the cumulative effect of the evidence available in both the UK and the US. Against that background, Mr Biggar stated, [t]he Home Secretarys priority was to ensure insofar as possible that Mr El Sheikh faced justice before a criminal court. The Secretary of State himself wrote, in the relevant letter dated 22 June 2018: The UKs aim is for these individuals to face justice in the most appropriate jurisdiction which maximises our collective chances of a successful prosecution. To this end the (operationally independent) Counter Terrorism Command of the Metropolitan Police (S015) and Crown Prosecution Service (CPS), have been engaged in a dispassionate assessment of the evidence available and likelihood of prosecution in the UK. In parallel our investigators have also been working with the FBI to explore the likelihood of prosecution in the US or other jurisdictions Regretfully, as a result of this process, the CPS have determined there is insufficient evidence to prosecute Shafee El Sheikh in the UK Ensuring foreign fighters face justice raises a real challenge for all our jurisdictions, however in this instance we believe a successful federal prosecution in US is more likely to be possible because of differences in your statute book and the restrictions on challenges to the route by which defendants appear in US courts. The US currently has additional charges for terrorism offences which are not available under UK criminal law, and those offences carry long sentences. We are therefore committed to assisting the US with a federal prosecution of Alexanda Kotey and Shafee El Sheikh, and after careful consideration I have decided to accede to your current request for mutual legal assistance which is with the UK Central Authority. This letter implies that the problem faced by the CPS was not merely that there was insufficient evidence to convict Mr El Sheikh of any offence under UK law. Two other matters were mentioned: the need to create new offences, and possible challenges to the route by which defendants appear in court. In relation to the second point, Sir James Eadie explained that there was a concern that Mr El Sheikh could challenge the procedure by which he might be brought before a UK court as an abuse of process, on the basis of R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42. The Secretary of States reasoning appears therefore to be based on the view that the prosecution of a person in a foreign jurisdiction is necessary to ensure that justice is done, notwithstanding that (a) the conduct for which he might be prosecuted does not constitute an offence under the law in force in the UK, (b) there is insufficient evidence to establish that he has committed any offence under UK law, and (c) the law in force in the UK might treat his prosecution as an abuse of process. A second aspect of the reasoning is that the Secretary of State seemingly regarded the prospect of Mr El Sheikhs possible execution as preferable to the prospect of his detention at Guantanamo Bay. In relation to that matter, Mr Biggar states: The second issue was the prospect that the US might transfer El Sheikh to Guantanamo Bay The UK has consistently and publicly opposed Guantanamo Bay; and considers that it is a radicalising factor in the UK It was the Home Secretarys assessment in his meeting with the US Attorney General that to press for an assurance would be to imperil the prospect of prosecution (and instead pave the way for a transfer to Guantanamo). To view the risk of Mr El Sheikhs execution as preferable to the risk of his detention at Guantanamo Bay is understandably described by Lord Kerr as perplexing. LORD CARNWATH: I am grateful for Lord Kerrs comprehensive account of the legal and factual background to this troubling case. Taken with the similarly complete judgment of the Divisional Court, it enables me to express my own views relatively briefly. The appellants submissions fall under two main headings: (i) Unlawfulness of facilitating the death penalty; (ii) Violations of the Data Protection Act 2018. In short, I would dismiss the appeal under the first heading, substantially for the reasons given by the Divisional Court; but in agreement with Lord Kerr I would allow the appeal under the second heading. On the latter issue we have had helpful submissions, not available to the Divisional Court, from Mr Facenna QC on behalf of the Information Commissioner. Facilitating the death penalty The citations given by Lord Kerr leave no doubt as to the strength of the opposition to the death penalty in this and many other countries. The issue is how far that is reflected in a rule of law applicable to the present facts. Certain principles of law or policy are not in doubt: (i) It is the clear policy of the UK to oppose the death penalty in all circumstances as a matter of principle, to seek to increase the number of abolitionist countries and to seek further restrictions on the use of the death penalty in countries where it is used (see the citations in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581; [2013] 1 WLR 2938 CA, para 7). (ii) Within countries subject to the European Convention on Human Rights the right not to be subjected to the death penalty (article 2 and the Thirteenth Protocol) is now recognised as a fundamental right and as one which admits of no derogation and applies in all circumstances (Al Saadoon v United Kingdom (2010) 51 EHRR 9, para 118). (iii) There is as yet no settled rule of customary international law to like effect (Lord Kerr para 149). (iv) It is an established principle both of the common law and other jurisprudence (including the European Convention) that prolonged delay in carrying out the death penalty (the death row phenomenon) may be unlawful as violating protections against cruel, inhuman or degrading treatment (Pratt v Attorney General of Jamaica [1994] 2 AC 1, Soering v United Kingdom (1989) 11 EHRR 439; and other cases cited by Lord Kerr at paras 138 140). I agree with Lord Kerr that the Divisional Court in this respect took too narrow a view of the principle. (v) Convention law (under article 2) also prohibits In addition to prohibiting the death penalty in member states, the extradition or deportation of an individual to another state where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there. (Al Saadoon at para 123) The same principle applies under article 3 where there is a real risk of prolonged exposure to the death row phenomenon (Soering at para 111). (vi) To similar effect UN Human Rights Committees (UNHRC) General Comment No 36 (2018) on article 6 of the International Covenant on Civil and Political Rights provides (para 34): States parties that abolished the death penalty cannot deport, extradite or otherwise transfer persons to a country in which they are facing criminal charges that carry the death penalty, unless credible and effective assurances against the imposition of the death penalty have been obtained. These points are not in dispute. However, so far as appears from the materials before the court, there is as yet no established principle (under the common law, the European Convention or any other recognised system of law), which prohibits the sharing of information relevant to a criminal prosecution in a non abolitionist country merely because it carries a risk of leading to the death penalty in that country. Against that background Mr Fitzgerald QC faced an uphill task in seeking to persuade the court that it should now fashion a common law rule to that effect. He sought to do so, first, by invoking Lord Carswells well known affirmation in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221, para 152, of the evolving character of the common law, citing for example Matthews J in Hurtado v California (1884) 110 US 516, 531: as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms. Secondly, he relied on recent statements in this court as to the ability of the common law to respond to developments in European Convention law: R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, para 57 per Lord Reed; Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] UKSC 20; [2015] AC 445, para 46 per Lord Mance. Neither reference seems to me to assist his case. As the Divisional Court said, the power of the courts to develop the common law is not in doubt, but it is a power to be exercised with caution. The recent statements in this court support the development of the common law in line with the European Convention, but not beyond as here proposed. So far as concerns Lord Carswells comments in the A case, he was speaking in the context of an issue as to the admissibility of evidence obtained by torture, against a background in which from its very earliest days the common law of England set its face firmly against the use of torture (per Lord Bingham of Cornhill at para 11, citing authorities dating from the 15th century). As Lord Carswell acknowledged, other members of the House had accepted the view that the common law as it stands would forbid the reception in evidence of any statement obtained by the use of torture. In that context his proposal represented at most a very limited development of the law. By contrast, as the Divisional Court pointed out (para 94), the death penalty as such has never attracted the attention of the common law. It is notable that the developments of the law have come relatively recently, from Parliament or the European Court of Human Rights, rather than the domestic courts. It was not until 1965 that the death penalty was abolished for murder (Murder (Abolition of Death Penalty) Act 1965); abolition of the penalty for the remaining offences had to wait until the Crime and Disorder Act 1998. Much more recently Parliament has made express provision in respect of death penalty assurances in one context. Section 16 of the Crime (Overseas Production Orders) Act 2019, which amends section 52 of the Investigatory Powers Act 2016 (interception of communications in accordance with overseas requests) to provide, in the case of agreements with non abolitionist countries, a prohibition on designation unless the Secretary of State: has sought a written assurance, or written assurances, relating to the non use of information obtained by virtue of the agreement in connection with proceedings for a death penalty offence in the country or territory. The possible relevance is two fold. First it confirms that this is an area in which Parliament remains directly involved. Secondly, where the statute applies, the Secretary of State is required to seek assurances, but there is no specific prohibition on the exchange of material where no such assurance is ultimately obtained. As regards the European Convention, the right to life under article 2 of the Convention in its original form included an exception for the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. It was not until 2004 that the Thirteenth Protocol to the European Convention was adopted excluding the death penalty in all circumstances. Nor can it be assumed that the domestic courts unaided by Strasbourg would have developed a rule of law corresponding to the Soering principle. The principle itself was not uncontroversial. In the later Grand Chamber decision in Chahal v United Kingdom (1997) 23 EHRR 413 there was strong minority support for a more flexible approach when dealing with removal on security grounds. In a dissenting judgment, seven judges (including the British judge Sir John Freeland) said: We agree with the majority that national security considerations could not be invoked to justify ill treatment at the hands of a Contracting State within its own jurisdiction, and that in that sense the protection afforded by article 3 is absolute in character. But in our view the situation is different where, as in the present case, only the extra territorial (or indirect) application of the article 3 is at stake. There, a Contracting State which is contemplating the removal of someone from its jurisdiction to that of another state may legitimately strike a fair balance between, on the one hand, the nature of the threat to its national security interests if the person concerned were to remain and, on the other, the extent of the potential risk of ill treatment of that person in the state of destination Under domestic law, powers to deport or extradite are conferred by statute and as such subject to review on public law grounds, including, where the right to life is at stake the anxious scrutiny principle (R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514). However, it is difficult to see how, under established common law principles of statutory construction (apart from the European Convention), the discretion conferred on the Secretary of State by the relevant statutes could have been construed as subject to an absolute prohibition on removal by reference to the possible consequences in the receiving state, as opposed to a discretion along the lines of that proposed by the minority in Chahal. In any event, even if such a common law principle relating to physical removal could be made out, I am unpersuaded that the references given by Mr Fitzgerald could properly lead the court to recognise as part of the common law a broader non facilitation principle: that is a principle (in his words) that it cannot be lawful or rational to facilitate a penalty that we ourselves regard as inhuman. I take them in turn. He relies first on the words of Lord Kerr in R (Ismail) v Secretary of State for the Home Department [2016] UKSC 37; [2016] 1 WLR 2814 to describe the basis of the Soering principle: It was because the actions of the UK authorities, in extraditing the applicant to a country where he faced the possibility of suffering the death penalty, facilitated that outcome that a violation of article 3 was held to be present. In effect, the UK would have been directly instrumental in exposing Soering to the risk of being executed (para 35 emphasis added) As I understand that passage in context, Lord Kerr was giving no more than shorthand description of the basis of the Soering principle, with a view not to extending it, but to distinguishing it as applied to the facts of the case before him. To similar effect is the reference by the Constitutional Court of South Africa in Mohamed v President of the Republic of South Africa [2001] ZACC 18 to the states commitment under its Constitution not to be party to the imposition of cruel, inhuman or degrading punishment (para 59). The full paragraph shows that again it was concerned with physical removal rather than other forms of assistance: For the South African government to cooperate with a foreign government to secure the removal of a fugitive from South Africa to a country of which the fugitive is not a national and with which he has no connection other than that he is to be put on trial for his life there, is contrary to the underlying values of our Constitution. It is inconsistent with the governments obligation to protect the right to life of everyone in South Africa, and it ignores the commitment implicit in the Constitution that South Africa will not be party to the imposition of cruel, inhuman or degrading punishment. (para 59 emphasis added) The same can be said of Mr Fitzgeralds reference to the UNHRC decision in Judge v Canada (2005) 40 EHRR SE4, para 10.6. The full paragraph reads: 10.6 For these reasons, the Committee considers that Canada, as a state party which has abolished the death penalty violated the authors right to life under article 6, para 1, by deporting him to the United States, where he is under sentence of death, without ensuring that the death penalty would not be carried out. The Committee recognizes that Canada did not itself impose the death penalty on the author. But by deporting him to a country where he was under sentence of death, Canada established the crucial link in the causal chain that would make possible the execution of the author. Mr Fitzgerald relies on the reference to a causal chain, but that again was in the narrow context of physical removal to a country where he was already under sentence of death. Finally Mr Fitzgerald relies on the report of the UN Special Rapporteur (Professor Christof Heyns) on extrajudicial, summary or arbitrary executions, A/70/304, 7 August 2015, which states: A dilemma emerges when abolitionist states provide assistance to retentionist states in criminal matters and that assistance leads to the use of the death penalty. Even though the individual facing the death penalty in such cases may never have been in the jurisdiction of the abolitionist state, such assistance could amount to complicity in the death penalty. The same legal principles apply here as in the case of transfer of persons: states that have abolished capital punishment may not assist in bringing about the death penalty in other countries. (para 102 emphasis added) The report goes on (para 106) to refer to the possible need for further guidance on what sort of assistance might constitute unlawful complicity in the death penalty, supported by a non exhaustive list drawn up by OHCHR detailing what assistance might be proximate enough to engage responsibility. While the earlier passage might be thought to imply a more general principle aimed at any form of assistance, the report does not suggest that it has achieved the status of a binding rule of law by virtue of any legal instrument or judicial pronouncement, national or international. It is also relevant that we are not here considering facilitation in general, but facilitation by the transfer of information. The development of a common law rule would have to take account of the fact that, at least as respects the transfer of personal data, Parliament has recently legislated in this field, in the 2018 Act. That provides a detailed and carefully calibrated regime for the transfer of such information to third countries. It is difficult to reconcile that scheme with the development of an absolute common law prohibition of transfer of information in defined circumstances. Notably, even where transfer would otherwise be prohibited, for example because of the lack of appropriate safeguards, transfer may be allowed in special circumstances, including in section 76(1)(c) for the prevention of an immediate and serious threat to the public security of a member state or a third country. It is not difficult to envisage circumstances where urgent exchange of information with the US security forces might be required relating to an immediate threat to public security, which should not be inhibited by concerns that it might ultimately lead to a risk of the death penalty. For these reasons I would dismiss the appeal under the first heading. Data Protection Act 2018 The provisions of the Data Protection Act 2018, which regulates the processing of personal data, are set out and discussed in detail in the Divisional Courts judgment (paras 141ff). It is not in dispute that the data transmitted to the US authorities include personal data relating to Mr El Sheikh together with personal data relating to any other suspect, to witnesses and possibly others, along with other material not falling within the definition of personal data. It is also not in dispute that in the course of their consideration of the question whether to provide the US authorities with the material, the UK authorities gave no separate consideration to the requirements of the 2018 Act (Divisional Court paras 141 142). It is Part 3 of the Act that is of particular relevance in the present case. As the Divisional Court explains (paras 143, 175), Part 3 is designed to implement the EUs Law Enforcement Directive (Directive (EU) 2016/680) or LED, which accordingly is a legitimate aid to construction. The appellant argues that the authorities breached the provisions of the 2018 Act in a number of respects. I propose to turn straight to the arguments that she advances in relation to the provisions governing transfers of personal data to a third country (sections 72 to 78 of Part 3), because it is these provisions which, to my mind, provide the answer to the data protection issues in this case. Section 73 sets out general principles for such transfers. It prohibits transfer of personal data unless the three conditions set out in subsections (2) to (4) are met. Condition 1 is that the transfer is necessary for any of the law enforcement purposes. It is common ground that the test of necessity is a strict one (Guriev v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB), para 45). The law enforcement purposes are: the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. (section 31) is based on an adequacy decision (see section Condition 2 is that: the transfer (a) 74), (b) if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or if not based on an adequacy decision or on there (c) being appropriate safeguards, is based on special circumstances (see section 76). Condition 3 concerns the status of the intended recipient of the data. There is no dispute that it is satisfied, and it need not concern us further. It is upon Condition 2 that the argument in the instant case has centred. Each of the three limbs of this condition directs the reader on to a further section of Part 3. There was no adequacy decision in this case (Condition 2(a)), so section 74 need not be considered. However, there is debate as to the applicability of both Condition 2(b) and Condition 2(c), and it is therefore necessary to turn to sections 75 and 76. Section 75 defines the circumstances in which a transfer is based on there being appropriate safeguards, and sets out procedural requirements which must be complied with, including as to documentation and as to providing information to the Information Commissioner. Relevant also to appropriate safeguards is recital (71) of the LED: Transfers not based on such an adequacy decision should be allowed only where appropriate safeguards have been provided in a legally binding instrument which ensures the protection of personal data or where the controller has assessed all the circumstances surrounding the data transfer and, on the basis of that assessment, considers that appropriate safeguards with regard to the protection of personal data exist In addition, the controller should take into account that the personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment (Emphasis added) The Divisional Court rejected the appellants submission based on recital (71) that in the absence of an assurance as to use, the safeguards would necessarily be inadequate. They said: if this recital were intended to be a red line prohibition it (a) would be expressed clearly as such, (b) would be expressed in imperative terms (must rather than should and not merely take into account), and (c) would be in an article rather than a recital. (para 182) The court (paras 202ff) also rejected the submission that the section required express consideration of the applicability of the requirements before transfer takes place: What matters is whether, in substance, appropriate safeguards for the protection of the data existed; whether, in other words, the decision proceeded in circumstances where there were appropriate safeguards in place. It was evident, in the Divisional Courts view, that ministers and officials took account of the potential use of the data in respect of the death penalty: in fact, that was central to the assessment. The terms on which the data were transferred to the US authorities were set out in the letter under challenge, and the careful consideration by ministers and officials of the question whether to make the transfer in the absence of death penalty assurance met the requirement that the data controller must assess all the circumstances surrounding transfer of that type of personal data to the US as required by section 75(1)(b). As to the lack of communication with the Information Commissioner as required by section 75(2) the court accepted the submission of counsel for the Secretary of State that a failure in that regard cannot operate to undermine a transfer which in substance is lawful. Mr Facenna for the Information Commissioner submits that the Divisional Court erred in its understanding of the applicable gateway under sections 73 to 76. Section 73 requires, as he puts it, conscious and contemporaneous consideration of the statutory tests prior to any transfer taking place. Further, the record keeping requirement, including the requirement to set out the justification for the transfer (which features in both section 75 and section 76) cannot sensibly be read as requiring no more than ex post facto consideration of whether a transfer was justified. He submits also that the court was wrong to focus on the extent to which ministers took account of the potential use of the data in respect of the death penalty, and he emphasises the particular reference in the LED to the consideration that the data will not be used to request, hand down or execute a death penalty. In my view, Mr Facenna is correct to submit that section 73 requires specific consideration by the relevant controller of the statutory tests, including the strict test of necessity. The clear purpose of the provisions is to set out a structured framework for decision making, with appropriate documentation. This did not happen in this case, and to that extent there was a clear breach of the Act. I also agree that the issue under Condition 2 is not what matters the controller took into account, but whether the decision was based on there being appropriate safeguards or (when we come to sections 73(3)(c) and 76) special circumstances. It is true that recital (71) is no more than an interpretative aid, and that its wording could be clearer. However, the words will not be used seem to leave little room for discretion. The expectation is that the appropriate safeguards will be designed to achieve that objective. That is also consistent with the governments long standing policy of seeking full death penalty assurances in all cases. Given that in this case the information was transferred without any safeguards at all, I am unable to see how (if the question had been considered) the Secretary of State could have regarded this condition as satisfied. The Divisional Court was wrong in my view to find otherwise. The lawfulness of the transfer therefore stands or falls on the special circumstances condition contained in section 73(3)(c). The circumstances in which a transfer is based on special circumstances are defined in section 76, which, like section 75, also includes procedural requirements. According to section 76(1), a transfer is based on special circumstances where it is: necessary (a) another person, to protect the vital interests of the data subject or to safeguard the legitimate interests of the data (b) subject, (c) for the prevention of an immediate and serious threat to the public security of a member state or a third country, (d) enforcement purposes, or (e) in individual cases for any of the law in individual cases for a legal purpose. It is upon paragraphs (d) and (e) that the Secretary of State relies. [L]aw enforcement purposes (paragraph (d)) are defined in section 31, see para 210 above. A legal purpose (paragraph (e)) includes the purpose of any legal proceedings (including prospective legal proceedings) (section 76(4)(a)). Paragraphs (d) and (e) do not apply if the controller determines that fundamental rights and freedoms of the data subject override the public interest in the transfer (section 76(2)). Also relevant to section 76 is recital (72) of the LED, which states: Where no adequacy decision or appropriate safeguards exist, a transfer or a category of transfers could take place only in specific situations, if necessary [inter alia] in an individual case for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security Those derogations should be interpreted restrictively and should be limited to data strictly necessary. Such transfers should be documented and should be made available to the supervisory authority on request in order to monitor the lawfulness of the transfer. (Emphasis added) The Divisional Court held that if necessary the Secretary of State was entitled to rely on the special circumstances condition: 207. The transfer here was necessary in an individual case for any of the law enforcement purposes (section 76(1)(d)) or, alternatively, in an individual case for a legal purpose: section 76(1)(e). Given the specific nature of the evidence transferred in the present case it cannot be said to fall within the categories of frequent, massive and structural transfers of person data, or large scale transfers of data (which recital (72) suggests would not be permitted under this head). 208. The controller had not determined that the fundamental rights and freedoms of the data subject overrode the public interest in the transfer: section 76(2). Although no specific document was created to meet the requirements of section 76(3) the details of the transfer were documented by UKCA and the justification for the transfer is reflected in various contemporaneous documents. I agree with Lord Kerr (para 158), in line with the submission of the Information Commissioner, that the Act requires a specific assessment under section 73, and that this did not take place. Insofar as reliance might be placed on the derogation for the prosecution of criminal offences (recital (72)), the Secretary of State would need to be satisfied that that the transfer of any personal data was strictly necessary for that purpose. A convenient summary of the thinking at the time is set out in the email of 6 June 2018 from the Home Secretarys private office (referred to by Mr Biggar, para 68): a. He was extremely mindful of the greater imperative of ensuring the prosecution of these individuals. That must be the highest priority in this instance given their shocking crimes. b. He weighed the decision of seeking assurances against the likelihood of being able to agree them with American counterparts. Again the priority must be to ensure prosecution in the US system, as there was insufficient evidence for prosecution in the UK. c. He also judged that by not assisting the US in bringing this to trial, it ran the risk of the two being moved to Guantanamo. He was aware of the victims families clear wish for a criminal prosecution to take place. It was his judgment that prosecution was most likely in a US court and therefore this was the best course of action to meet the families wishes. d. Lastly he was mindful of the UKs international obligation to tackle [foreign terrorist fighters]. This course of action was best judged to achieve that commitment. He felt we must send a clear message that people who commit these acts will be brought to justice, and they cannot be allowed back on the streets to radicalise others. It is apparent that the decision was based on political expediency, rather than strict necessity under the statutory criteria. There was no consideration as to whether transfer of personal data as such was required. There was also a notable lack of any assurance, if the information were made available, as to the prospects of a prosecution in fact taking place in the US. Given that there was insufficient evidence to prosecute in the UK, it is not clear why the legal position was thought to be any different in the US. So long as the prospects of any prosecution was uncertain, it would seem premature to say that any particular information was strictly necessary for that purpose. Of course, if there were no prosecution, concerns about the risk of the death penalty would fall away, but that in itself could not affect the need for the transfer to be justified under the statutory criteria. As Lady Hale explains, a further issue arises under section 76(2) relating to special circumstances. Although I would have welcomed fuller argument on the point, I see the force of her comments. At the least, failure to consider this point is a further reason for holding that the decision cannot stand. Conclusion For these reasons I would allow the appeal on the second issue only. It seems that circumstances may have changed since the hearing of the appeal, in that the Crown Prosecution Service is understood to be reconsidering the possibility of a prosecution in this country. That would clearly be relevant to any reconsideration of the issues by the Secretary of State, in particular the necessity of the transfer. I would seek further submissions on the appropriate form of order. LORD HODGE: I agree that the appeal must be allowed. The Secretary of States decision cannot stand because in reaching that decision he did not comply with the requirements of the Data Protection Act 2018 (the 2018 Act). In this regard I agree with Lady Hale, Lord Reed, Lord Kerr and Lord Carnwath, essentially for the reasons given by Lord Reed and Lord Carnwath. I see the force of Lady Hales point in relation to section 76(2) of the 2018 Act, but, as it was not fully argued, would reserve my position on it. But, for the reasons given by Lord Reed and Lord Carnwath, I agree that the first ground of appeal must be dismissed. I am satisfied that the common law does not recognise a right to life which can be used to bar the Secretary of State, in his exercise of prerogative powers in the conduct of foreign affairs, from providing information to a foreign country concerning a foreign citizen in the context either of mutual legal assistance or the sharing of intelligence. In the domestic laws of the United Kingdom it is Parliamentary legislation rather than the common law which has created and delimits the right to life by the abolition of the death penalty for all offences and the enactment of the Human Rights Act 1998 (the 1998 Act). It is in the 1998 Act that the right to life has become part of our domestic laws. Further protection has been provided, indirectly, by data protection legislation, now the 2018 Act, and, as far as it goes, by section 16 of the Crime (Overseas Production Orders) Act 2019 (the 2019 Act), which amends section 52 of the Investigatory Powers Act 2016. It is not difficult to envisage circumstances in which the Secretary of State might want to provide intelligence to the government of another country to avert serious loss of life in a planned terrorist attack and that intelligence might expose a person in the custody of the foreign state to criminal charges which may carry the death penalty. The United Kingdoms international obligation to protect the right to life under article 2 of the European Convention on Human Rights, which section 1 of the 1998 Act introduced into our domestic laws, would, it appears to me, require the Secretary of State to balance the necessity of providing information to save lives against the possibility of facilitating the imposition of the death penalty on that person. Were the courts to recognise a parallel common law right to life and similar qualifications to that right, that would not be the incremental development of the law building on established principles of the common law; it would amount to judicial legislation. It is for Parliament to decide whether it wishes to go beyond the amendment which it made in the 2019 Act. Our public law reflects the very high value which our society places on human life by requiring the courts to adopt an especially intense scrutiny when reviewing the legality of a decision which may imperil a persons life. Having regard to the arguments advanced in this appeal, that scrutiny involves the review of the exercise of prerogative powers against the common law criterion of reasonableness (in relation to the Secretary of States change of position) and against the requirements which Parliament has imposed in the 2018 Act. While the appeal fails on the former basis, it succeeds on the latter. |
Allegations that a bribe was paid to procure a contract are by no means unknown in international business disputes heard by the Commercial Court in London. Allegations that evidence was procured by torture are thankfully rare. In this case allegations of both bribery and torture were made. A claim under a guarantee of a contract to charter a vessel was met with a defence that the contract was procured by bribery, with the consequence that the guarantee was therefore unenforceable. The allegation of bribery was founded on evidence of confessions made by the individuals who had allegedly paid and received the bribe. The claimant in turn alleged that the confessions were obtained by torture and for that reason were inadmissible as evidence in legal proceedings. The relevant events all took place in the Peoples Republic of China (the PRC) and the judge was faced with a difficult task of having to assess the truth of the allegations on the basis of limited evidence. In particular, no one with first hand knowledge of the alleged bribery or torture gave evidence and the documentation available at the trial was substantially incomplete. The judge concluded that torture could not be ruled out as a reason for the confessions and that in any case the allegations of bribery had not been proved. He therefore found that the contract was enforceable and awarded damages to the claimant. The Court of Appeal allowed an appeal from that decision and remitted the case for redetermination. They did so on the grounds that the judge failed to ask and answer the correct legal question as to what weight should be accorded to the confession evidence and, in those circumstances, fell into legal error in failing to take all the appropriate matters into account and failing to exclude irrelevant matters in considering whether the alleged bribe was paid. Those irrelevant matters included, in the Court of Appeals view, the judges finding that torture could not be ruled out as a reason for the confessions. The Court of Appeal decided that, as a matter of law, if an allegation that a statement was made as a result of torture has not been proved on the balance of probabilities, a court when estimating the weight to be given to the statement as hearsay evidence in civil proceedings must entirely disregard the possibility that the statement was obtained by torture, even if on the evidence given at trial the court considers this to be a serious possibility which it cannot rule out. In this judgment we explain our reasons for concluding that the Court of Appeal was wrong to interfere with the factual findings made by the trial judge in this case and was also wrong in its approach to the question whether evidence had been obtained by torture. On the latter question we explain why, as matter of principle and authority, the judges finding that torture could not be ruled out as a reason for confessions of bribery was a factor that he was entitled to take into consideration in deciding whether the confessions were reliable evidence that bribery had in fact occurred. Factual background The contract in dispute is a charterparty concluded on 6 August 2008 between the appellant, Shagang Shipping Company Ltd (Shagang), as disponent owner and Grand China Shipping Company Ltd (Grand China) as charterer. Under the charterparty Grand China agreed to charter from Shagang a capesize bulk carrier, then under construction, for a period of 82 to 86 months to run from when the vessel was delivered in 2010. A few months earlier, Shagang had itself chartered the vessel from head owners, Dong A Tanker Corporation, on similar terms save for the rate of hire. Grand China was a new company. Its ultimate parent company was the respondent, HNA Group Company Ltd (HNA), which guaranteed the performance of Grand Chinas obligations under the charterparty. The guarantee, also dated 6 August 2008, is governed by English law and provides that any dispute arising from it is subject to the exclusive jurisdiction of the English courts. Shagang, Grand China and HNA are all companies based in the PRC. Shagang, which is now in liquidation, is based in Hong Kong, as is Grand China (also now in liquidation). HNA is based in Haikou, which is the capital of Hainan province. In August 2008 the relevant chartering market was at its height. It was an active market in which owners (including disponent owners like Shagang) held the dominant bargaining position. The rates of hire for the vessel agreed in the charterparty were in line with the market. The vessel, named Dong A Astrea, was delivered to Grand China in April 2010. By that time market rates were very considerably lower than in August 2008, the financial crisis in the autumn of 2008 having changed things dramatically. From September 2010 onwards, Grand China defaulted in making payments of hire under the charterparty. Shagang commenced arbitration proceedings against Grand China and obtained a series of interim final awards for unpaid hire. Some payments were made by Grand China but it remained in arrears, and on 17 January 2012 Shagang In the meantime, on 13 September 2012 Shagang commenced the present terminated the charterparty on the basis of Grand Chinas default in paying hire and consequent repudiatory breach of the charterparty. The claim for unpaid hire was settled in May 2012 but Shagang pursued its claim in arbitration for damages for the loss caused by Grand Chinas repudiatory breach of the charterparty. On 1 November 2012 the arbitral tribunal issued a partial final award for damages in a sum of US$58,375,709. On 8 April 2013 Grand China was wound up in Hong Kong. action in the Commercial Court against HNA under its guarantee. The PSB investigation and allegations of bribery HNA filed its defence to Shagangs claim on 4 November 2013, initially without making any allegation of bribery. On 23 June 2014, however, HNA amended its defence to allege that the charterparty had been procured by the payment of bribes by or on behalf of Shagang to senior employees of Grand China. In support of this allegation, HNA relied on confessions made during an investigation undertaken by the Chinese Public Security Bureau (the PSB). At the time when the charterparty was concluded in August 2008, Mr Jia Hongxiang (Mr Jia H) was a general manager within HNA and the chief executive officer of Grand China. On 11 November 2013, Mr Jia H was detained by the Haikou PSB on suspicion of embezzlement. On 29 November 2013, Mr Jia Hs son, Mr Jia Tingsheng (Mr Jia T), was detained on bribery charges. Mr Jia T was not employed directly by either Grand China or HNA but was employed by an associate company, GCS Development Company. Mr Jia T knew from college Mr Xu Wenzhong (Mr Xu) who in August 2008 had been employed by Shagang. Both men lived in Shanghai. On 22 January 2014, Mr Xu was detained by officers of the Haikou PSB on the charge of bribing a non public servant. He was flown to Haikou (over a thousand miles away), where he was questioned by PSB officers from the Meilan district branch overnight and during 23 January 2014. According to the PSBs interrogation record, Mr Xu gave an account of being asked by the general manager of Shagang, Mr Shen Wenfu (Mr Shen), to use his relationship with Mr Jia T to cause Mr Jia Ts father, Mr Jia H, to charter the vessel from Shagang as soon as possible. Mr Xu is recorded as saying that Mr Shen gave him RMB 100,000 (equivalent to around US$16,000 at that time) in cash, which Mr Xu delivered to Mr Jia T at Mr Jia Ts home in a single instalment. The interrogation record states that Mr Xu was willing to confess his crime for leniency. Also on 23 January 2014, Mr Jia T was questioned by the same PSB officers who had interrogated Mr Xu. The only interrogation record disclosed is described as the 4th. It records Mr Jia T as saying that Mr Xu gave him RMB 150,000 in the hope that Mr Jia Ts father would communicate with HNA to arrange the guarantee as quickly as possible. The money was said to have been handed over by Mr Xu in cash in the cafeteria of a hotel near Mr Jia Ts home. When Mr Jia T told his father about this payment, Mr Jia H said that he could only communicate with HNA according to the companys normal rules and told Mr Jia T to send the money back. Mr Jia T did not do so and, shortly after the charterparty was concluded, met Mr Xu again at a restaurant near Mr Xus house where he received another RMB 150,000. He did not tell his father about this payment. The interrogation record states that Mr Jia T was asked whether his confession had been extorted by torture or deceit, to which he replied no. A confession note dated 24 January 2014 in Mr Xus name gives a similar account to that given in Mr Jia Ts 4th interrogation record. It describes Mr Xu paying Mr Jia T a sum of RMB 300,000 in two instalments, one before and one after the signing of the charterparty. Another interrogation record dated 4 March 2014 refers to Mr Xu being asked why he had initially stated that he had bribed Mr Jia T with RMB 100,000, when he was now saying that the amount was RMB 300,000. He answered that in his initial confession he had lied and deliberately given a lower amount because he was trying to escape punishment. However: Being educated by the police officers, I realised the mistakes I made. Now, I am willing to truthfully confess, for leniency. Mr Xu was also asked why he and Mr Shen would want to bribe HNA if, as he had told the PSB, the pricing of the charterparty was reasonable in any event. Mr Xu is recorded as answering that it would otherwise have been difficult to charter the vessel quickly. Mr Shen was also detained on bribery charges and on 16 February 2014 was questioned by the PSB. According to the PSBs interrogation record, Mr Shen said that he had given Mr Xu RMB 300,000 in two instalments to pay Mr Jia T. The money was said to have been provided at Mr Xus request to make sure that HNA would provide a guarantee of Grand Chinas performance of the charterparty. The same account is contained in an undated confession note. On 17 February 2014, the PSB sent a letter to HNA summarising the confessions made by the individuals accused of bribery. This letter was sent in response to a request made by HNA on 10 February 2014 for information about the criminal investigation to enable HNA to explain and prove the facts in the English court proceedings. Allegations of torture and Mr Xus guilty plea On 1 May 2014 Mr Zhang Jie (Mr Zhang), who had by then replaced Mr Shen as the general manager of Shagang, made a formal complaint to the Peoples Procuratorate (the entity that has supervisory responsibility for the PSB) of Haikou. The complaint alleged that the confessions of Mr Xu and Mr Shen had been procured by torture and that HNA had wrongly used the PSB to manufacture false charges with a view to interfering in an economic dispute. Mr Zhang requested the Procuratorate urgently to investigate these allegations. On 23 June 2014, the Procuratorate made a report on the outcome of its investigation into this complaint. The report stated that the Procuratorate had visited the [PSB], interviewed the concerned suspects, [and] retrieved from the detention centre relevant materials. It concluded that the allegations made in the complaint were not supported by the facts. (Copies of the complaint and report were not available at the trial and were admitted as new evidence in the Court of Appeal.) On 23 July 2014 Mr Xu (who in the meantime had been under a form of house arrest at a hotel in Hainan province) was arrested for bribery of a non public servant and transferred to a detention centre in Haikou. On 21 August 2014 he was visited and interviewed at the detention centre by Mr Guo, a lawyer retained by his wife. Mr Guos interview notes record that Mr Xu maintained that he was innocent and gave the following account of his interrogations: I was brought to Hainan on 23 January this year [2014], Initially there werent any charges. I was taken to the basement of the [PSB]. It was around 11pm and I was definitely there for over 48 hours. I came out on the afternoon of the 26 [January]. The least serious methods used against me were fists and truncheons. I was stripped of my clothes and cold air was blown on me. They covered my mouth with their hands after water was poured into me. I was also burnt with a cigarette butt. At first I said that there had been no such thing [bribery], but then they tortured me and I couldnt take it any longer. On the morning of 24 [January], I said I had paid out 100,000 yuan. I made this up. On the afternoon of 24 [January] they tortured me again and poured water into me. I couldnt bear it any more. They told me it had been 300,000 and it had been paid in two batches 150,000 each time. In the end, I had no other way out but to say what I was told to say . I definitely never did it. At that time, the market was dominated by shipowners and we didnt have to ask any favours of [Grand China]. They had to ask help from us. Their company was a new company and we were an established company. Despite what Mr Xu had told Mr Guo in this interview, on 22 August 2014 Mr Guo made an application for bail on behalf of Mr Xu on the basis that Mr Xu had given a true account in his confessions and had repented. Bail was refused. On 15 September 2014, in a further interview, Mr Xu gave Mr Guo a detailed account of all his interrogations by the PSB and of the visit by the Procuratorate in June. As well as describing how he had allegedly been tortured by the PSB, Mr Xu said that, before he was interrogated again on 24 January 2014, he had heard Mr Jia T screaming from another room. He also said that he was later told that Mr Shen had confessed and was taken to see Mr Shen. He said that Mr Shens whole face was red and it was obvious that he had had water poured into him. On 14 November 2014 Shagang amended its reply in the Commercial Court proceedings to plead an allegation that the confessions of bribery relied upon by HNA in its defence had been obtained by torture, with the consequence that they were inadmissible as evidence in the proceedings. In response, on 3 December 2014, HNA wrote to the Haikou PSB accusing Mr Xu, his wife, Mr Zhang, Mr Guo and two solicitors acting for Shagang in the Commercial Court proceedings of crimes involving interference with the PSBs investigation and fabricating evidence. HNA asked the PSB to handle the case legally and punish the criminals severely so as to realise the fairness and justice of our society and maintain judicial authority. On 17 and 19 December 2014, Mr Xu was visited by two lawyers from Mr Guos firm. According to their notes of these meetings, Mr Xu said that he had been interrogated again on two consecutive days at the end of November. At first he had not admitted to bribery but he was told that, if he admitted the offence, the sentence would be two years at most; otherwise he would be imprisoned for much longer. Mr Xu was recorded as telling the lawyers that he had already been detained for almost a year and that, in order to get out as soon as possible, he had decided to repeat the fabricated account of events he had previously given to the PSB officers. He said that he had then given a video recorded interview in which he repeated that account. The case against Mr Xu came before the Meilan District Peoples Court of Haikou City in Hainan province on 22 September 2015. Before the hearing Mr Xu instructed Mr Guo that he wanted to admit the allegations against him in order to be released sooner. In his submissions Mr Guo relied on Mr Xu having made a voluntary confession in asking the court for leniency. Mr Xu was sentenced on 16 November 2015 to a term of imprisonment of one year and eight months. With credit given for the time he had already spent in detention, this led to his release the following month. No prosecution was brought against Mr Shen or Mr Jia H. In late 2015 Mr Guo met Mr Jia Hs lawyer, who gave him a copy of an unsigned document said to have come from Mr Jia Ts wife. The document is entitled Report on torture suffered by [Mr Jia T] during the period detained in Hainan. This report contains a detailed account written in the first person of three interrogations of Mr Jia T, in each of which torture was allegedly used: the first, lasting 46 hours, from 29 November to 1 December 2013; the second, lasting 24 hours, on 19 and 20 December 2013; and the third, lasting 42 hours, on 23 and 24 January 2014. The torture alleged to have occurred during the last of these interrogations, in which the confession recorded in the 4th interrogation record was made, included: sleep deprivation; putting a cover over Mr Jia Ts head so that it was difficult to breathe and then pouring wasabi oil on his head near his mouth and nose as he lay on his back so that he was forced to inhale it; and covering his face with a sweater soaked in iced water until he could hardly breathe, then loosening the sweater as water was poured into his nose (a procedure said to have been continued over a period of around four hours). The report also contains the following passage, which occurs at the point in the narrative in the early hours of 24 January 2014 after the alleged torture had ended and just before the confession that Mr Jia T had given was written down: [The PSB team leader] came in and said: Actually, you do not know to what stage this situation has developed. Shagang recently wound up Grand China, and took over USD20m, now they are preparing to wind up our HNA. We are undoubtedly not interested in you people as individuals, our HNA Group just wants to solve a problem. So really it is no big deal, you need not worry, just co operate and write down a confession, and strive to return home for Chinese New Year. After you go home do not ever recant your confession or you know what the consequence will be. The trial The trial of Shagangs claim against HNA in the Commercial Court took place over ten days between 26 January and 9 February 2016 before Robin Knowles J. By the time of the trial it was agreed that, unless HNA succeeded in its defence that the charterparty was procured by bribery, Shagang was entitled to judgment on its claim under the guarantee in a sum of US$68,641,712. Only three witnesses gave oral evidence at the trial. They were Mr Guo and Mr Zhang for Shagang and the general manager of HNAs audit and legal affairs department, Mr Wu. None of the witnesses had first hand knowledge of the alleged bribery or torture, although (as mentioned) Mr Guo had interviewed Mr Xu and represented him in the criminal proceedings against him. Each party also relied at the trial on expert evidence of Chinese criminal law and procedure and of experience of confession evidence in China. Neither party sought to cross examine the others experts but each party provided (at the judges request) a list of key propositions to be derived from this evidence. The expert evidence showed that, in a high proportion of criminal cases in the PRC (as many as 95% according to Shagangs expert), the suspect confesses, and also that it is the almost invariable practice of the PSB to interrogate suspects and obtain their confessions on multiple occasions. It is normal for suspects to plead guilty and innocent verdicts are very rare. Torture is illegal in the PRC and legislative reforms of criminal procedure were introduced in 2012 with the aim of giving greater protections to suspects and seeking to eradicate a perceived problem of the use of torture to coerce confessions. However, there have continued to be reported instances of torture being used. The experts were also agreed that it is by no means unknown for local PSBs to interfere in commercial disputes in favour of locally powerful economic interests, although over the years the Chinese authorities have issued various promulgations seeking to clamp down on this practice. The judgment of the trial judge In his judgment given on 16 May 2016, the judge noted that there was little first hand oral evidence available at the trial. None of Mr Xu, Mr Jia T, Mr Jia H or Mr Shen was available to give evidence. Nor was there any evidence from any officer of the PSB. The judge declined to draw any adverse inference against Shagang from the absence of Mr Xu, Mr Xus wife (who had made a witness statement) and Mr Shen. He noted that Shagang was now in liquidation and found that Shagang could not realistically be expected to procure their presence at trial. With regard to the witnesses who gave oral evidence, the judge commented unfavourably on the evidence of Mr Wu, finding that he chose to attempt to avoid giving straightforward answers. In relation to Mr Guo, the judge said that, whilst he was able to accept substantial parts of his evidence, there were other parts that he found unconvincing. He observed that it was to Mr Guos credit that he was prepared to attend the trial and said that there was nothing in the suggestion that he was looking to help Shagang. The judge also said that he did not doubt the essential accuracy of the notes made by Mr Guo of his interviews with Mr Xu. The judge found that the expert evidence relating to Chinese criminal law and procedure, and experience in China of confession evidence, was valuable context or background evidence. The documentation available was found by the judge to be substantially incomplete. He rejected the suggestion that Shagang had deliberately withheld or deleted documents. The judge said that the evidence available was limited in many respects when compared with the evidence that would be desirable for conclusions on the issues in this case, observing at para 85 that: many of the documents require caution before reliance can be put on what they appear to say. The evidence of those few factual witnesses the court has seen has its shortcomings. Accounts of the same key people (Mr Xu in particular) are used both to support and to deny the case of bribery, and both to support and to deny the case of torture. Accounts are altogether missing from other key people. The judge summarised the evidence under the following headings: Commercial Context (paras 18 22); Approval of the Charterparty within Grand China and HNA (paras 23 24); Confession by Mr Xu (paras 25 44); Confession by Mr Jia T (paras 45 50); Confession by Mr Shen (paras 51 55); Mr Jia H (paras 56 57); the Sun bribe (paras 58 62); and Confession evidence and torture (paras 63 82). (The Sun bribe was a separate allegation of bribery made by HNA against a broker, which HNA accepted did not give it a defence and which the judge found was not relevant to Shagangs claim.) The judge then proceeded straight to his conclusions. Under the heading Conclusions on bribery he found at para 87 that: On the limited evidence at this trial, and after careful consideration, on the balance of probabilities I find that there was no bribe by Mr Xu. At paras 88 93 he set out his principal reasons for reaching that conclusion. Because criticisms made of the judges reasoning are at the centre of this appeal, we quote these paragraphs in full: 88. I fully acknowledge that the Meilan District Peoples Court of Haikou City found Mr Xu guilty of bribery and sentenced him. On the material put before that Court I can entirely follow its finding. However, material has been put before this Court that was not put before the Meilan District Peoples Court. In particular, the Meilan District Peoples Court had evidence of Mr Xu (and others) admitting the alleged bribery, but did not have the evidence of his (and their) also denying the alleged bribery. 89. When Mr Xu, Mr Jia T and Mr Shen each first referred to a bribe they did so without a lawyer or representative present. Although it appears Mr Guo was not his first lawyer, when Mr Xu had access to Mr Guo as his lawyer Mr Xu denied that there was a bribe. 90. There is no evidence that any account of the officers of PSB who were present at any interrogation has been tested with them in China. I appreciate the practical difficulties, but there has been no opportunity to test an account from them at this trial. 91. The reason given for the alleged bribing concluding the charterparty quickly rather than the pricing of the charterparty is unconvincing, in my judgment. Even if there was a desire for a quick conclusion I am unpersuaded, on the evidence, that bribes were introduced to achieve that end. On the documents, Mr Xu at one point suggested it as a reason for bribing. The same appears to be the case for Mr Shen. But both have also denied any such bribe. Further, the state of the market was not such as to provide an objective reason for a quick conclusion being so important, or being other than achievable in ordinary course in any event. The relevant chartering market was active and an owners market. As for the facts that the charter period would commence in 2010 and be of some length, it is hard to accept these would have made a difference: Shagang itself had recently agreed a charterparty for the Vessel of identical commencement and duration to the Charterparty. 92. Even when Mr Jia T gave an account consistent with receiving a bribe, that account supported the fact that Mr Jia Hs response was to insist on normal procedures. I do not overlook HNAs point that a requirement for board approval was lifted and the charterparty was not submitted for a required legal and financial review, but in the result the charterparty was approved by, among others, a main board director of HNA, and by the Chairman of HNA. I do not overlook Mr Wus own evidence that he did not become aware of the charterparty until 2011, but in the next several years following the agreement of the charterparty in 2008 I do not see anyone at HNA bringing out the point that the charterparty was agreed too quickly so as to cause suspicion of bribery. 93. Further, I have seen no records to show withdrawal of funds used for the alleged bribe or expenditure of funds by Mr Jia T. At para 94 the judge observed that the reasons I have given would alone cause me to reach the conclusion that there was no bribe. He then addressed various contrary arguments advanced by HNA as follows: I am not led to a different conclusion by the fact that Mr Xu pleaded guilty at trial, when I consider that plea in context. Further my conclusion is not disturbed by Mr Xus admission of accepting a watch as a bribe in connection with an unrelated matter. 95. I have considered carefully a challenge by HNA to the reliability of Mr Xus apparent accounts by reference to the dates and times, and sequence of events, in January 2014, including by comparison with the Jia T report. I do not find these points affect the substance of the matter, and I would have been surprised not to find some possible discrepancies in the circumstances that obtained. 96. HNA argues that an unequivocal confession is sufficient to convict an accused even on the criminal standard of proof. But the question in the present case is not whether a confession by an accused may lead to a conviction of that accused. In these proceedings HNA relies on the alleged confessions against Shagang and not against the individuals said to have made them. [Counsel for HNA] refers to R v Tippet (1823) Russ & Ry 509 and R v Sykes (1913) 8 Cr App 233 at 236 but those were cases where confessions were relied upon against the individuals said to have made them. 97. HNA argues that, in the absence of torture, there is no credible reason why Mr Xu, Mr Jia T and Mr Shen should falsely confess to crimes which they did not commit. However, the possibility of a large difference between the sentence that might follow an admission and the sentence that might follow a conviction was referenced expressly by Mr Xu in his exchanges with Mr Guo, and on his account reflected what had been indicated to him by officers of the PSB. 98. HNA argues that the prospect of a lighter sentence cannot be a reason for a false confession. I do not accept that argument. In the following section the judge set out his conclusions on torture: 101. But what of the allegations of torture? I have considered the evidence available at this trial for and against the allegations of torture, and the limitations of that evidence, including the absence emphasised by HNA of medical evidence. Having done so, I find that torture cannot be ruled out as a reason for the confessions. 102. The fact that I cannot rule out torture further reduces the confidence that I can put in the confessions, although it will be apparent from my conclusions on bribery (above) that I already have insufficient confidence in the confessions to allow a finding of bribery. 103. HNA distinguishes the confessions from later admissions (including in bail applications) and pleas of guilty, at which later points torture is not alleged to have been practised. But in the present case the matters are interconnected. Once the confessions had been made, a departure from them, in the form of a denial or a not guilty plea, would likely require reference back to the torture allegations. 104. In the present case, in the circumstances of my conclusion that there was no bribe, it is not necessary to express a definitive conclusion on whether there was torture. I have said that I cannot rule it out; the evidence available does not equip me well to reach a firmer conclusion. 105. That I should so confine my view at this trial is also in the interests of leaving proper room for investigation in China by the appropriate authorities, to include questioning of the officers who were on duty. I have not set out in this judgment the full extent and nature of the torture alleged to have occurred, but if the allegations were all true it would be hard to imagine a more comprehensive breach of the duties and responsibilities of the officers. In the light of his conclusions, the judge found that HNA was liable to pay damages to Shagang and judgment was entered in the agreed principal sum of US$ 68,597,049.59. The judge refused permission to appeal to the Court of Appeal, as did Davis LJ when he considered HNAs application for permission on the papers. Permission to appeal was granted by Longmore LJ, however, following an oral hearing. On the appeal HNA contended that the judges conclusion on bribery was unsustainable and that, having accepted that the confession evidence was admissible, the judge should have held that the charterparty was procured by bribery. The Court of Appeals judgment For reasons given in a joint judgment dated 23 July 2018 [2018] EWCA Civ 1732, the Court of Appeal (Sir Geoffrey Vos, Chancellor of the High Court, Newey LJ and Dame Elizabeth Gloster DBE) allowed the appeal. The Court of Appeal recognised that it was concerned with an appeal on questions of fact but observed that there was no appeal against the findings of primary fact made by the judge. The challenge made was to the manner in which the judge reasoned and his conclusion, drawn from his unchallenged findings of primary fact, that there was no bribe (para 53). In these circumstances, it was common ground that the proper approach to the appeal was that set out in Clarke LJs judgment in Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, as approved by the House of Lords in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325, and that the relevant questions were whether the judge made an error of law in reaching his ultimate conclusion and/or whether it was a conclusion that no reasonable judge could have reached (para 53). The Court of Appeals answer to those questions was that the judges decision was unsustainable for reasons summarised in para 79 as follows: The judge did not follow the logical steps necessary to reach a proper evaluation of the admissible evidence. He failed to ask and answer the correct legal question as to what weight should be accorded to the admissions evidence. The judge ought to have said why he was unable to place any reliance on the admissions, if that was his view. The judge also fell into legal error in failing to take all the appropriate matters into account in deciding the crucial bribery issue. As we have also said, the judge failed to exclude irrelevant matters (including his lingering doubt as to whether the admissions were procured by torture) in considering whether the alleged bribe was paid. The Court of Appeal decided that the case should be sent back for reconsideration of the issue of the weight to be attached to the admissions and of the issue of bribery in the light of this judgment, and on the basis that the issue of torture has already been decided (para 88). It directed that these issues be determined by a different Commercial Court judge. This appeal As encapsulated in para 79 of its judgment (quoted above), the Court of Appeal made four main criticisms of the judges reasoning: The judge failed to follow the logical steps necessary to reach a proper i) evaluation of the admissible evidence. ii) The judge failed to ask and answer the correct legal question as to what weight should be accorded to the confession evidence. iii) The judge fell into legal error in failing to take all the appropriate matters into account in deciding the bribery issue. iv) The judge fell into legal error in failing to exclude irrelevant matters, including what the Court of Appeal described as his lingering doubt as to whether the confessions were procured by torture, in considering whether the alleged bribe was paid. The central issue on this further appeal is whether these criticisms were justified and, to the extent that they were, whether they warranted overturning the judges decision and remitting the case for a fresh determination. If the Court of Appeal was right to remit the case, a further question arises as to whether the basis on which it did so was appropriate. Although not all aspects of these issues were covered by Shagangs original grounds of appeal, they are fully covered by the statement of issues agreed between the parties and by the parties written cases. To answer an objection raised by HNA that some of the arguments advanced by Shagang fall outside the scope of the original grounds, Shagang has applied for permission to amend its grounds of appeal to add a ground, in similar terms to the first agreed issue, that there was no basis in law for the Court of Appeal to interfere with the judges conclusions in light of the facts found by the judge (which are not in themselves challenged by either party). We would grant this application, as the amendment ensures that all the important points in dispute are properly before the court and causes no prejudice to HNA. It is convenient to consider each of the four key criticisms of the judges reasoning made by the Court of Appeal in turn. (i) Alleged failure to address issues in the logical order The Court of Appeal considered that the judge approached the issues in the wrong order and that he ought to have decided the issue of torture first. As stated at para 63: In our view, the judge ought to have decided the issue of torture first. It was the sole basis on which the admissibility of the admissions was resisted. All the other arguments went only to the weight that should be accorded to them. Thus, the judges first task was to decide on the facts whether or not torture had taken place in order to extract each of the three main admissions (leaving aside Mr Jia H) relied upon by HNA. Once he had done that exercise, the judge should have stated his conclusion that, since torture had not been proved, the admissions were admissible as evidence of their contents. In the view of the Court of Appeal, having decided that the confession evidence was admissible, the judge should next have determined the weight to be given to that hearsay evidence, having regard in particular to the considerations set out in section 4(2) of the Civil Evidence Act 1995. Only then should the judge have moved on to decide whether there had been bribery. The Court of Appeal summarised at para 65 the approach which it said should have been taken: In our judgment, therefore, the proper approach in a case of this kind is to decide first whether torture is proved. If it is not proved, as in this case, the statements are admitted as hearsay evidence. The next step is to decide the weight that can be attached to that evidence in all the circumstances, including those in section 4 of the 1995 Act. Only then could the court properly move on to an evaluation of all the evidence, including the hearsay statements of admission, in order to decide the primary factual issue in the case, which was whether the alleged bribery occurred. We can quite see that the second and third stages of the process might be undertaken together, but it must be clear that both have actually been considered. We fully accept that, where there is an issue as to whether important hearsay evidence is admissible, it is a logical approach to decide that issue first before going on, if the evidence is held to be admissible, to consider its weight and its evidential impact on the substantive issues to be determined. We do not, however, accept that such an approach is mandatory, either generally or in this particular case. How and in what order questions concerning the admissibility and weight of evidence are dealt with is very much a matter for the trial judge. There is no one size fits all approach. The judge will consider how best to deal with such matters in the light of the issues, the evidence and the arguments in the case as a whole. There will usually, if not invariably, be more than one legitimate approach which can be taken. In many cases, for example, issues of admissibility can be dealt with efficiently by admitting the evidence de bene esse. This means taking the evidence into account on the assumption, without deciding, that the evidence is admissible. Unless the evidence turns out to be critical to the decision to be reached, the issue of admissibility may never need to be determined. This is often a convenient approach to adopt, as resolving issues of admissibility can be complex and time consuming. Mr Brown for HNA realistically accepts that it would have been a permissible approach in this case. To make his reasoning clear the judge ought to have stated at the start of his conclusions on bribery that this was what he was doing. Nevertheless, when his conclusions are read as a whole, it is apparent that this is in fact the approach which the judge took. The judge was clearly aware that the issue of torture was a sensitive one and that any findings that he made about whether torture had occurred might have ramifications beyond the confines of the case, as he indicated at para 105 of his judgment. In these circumstances, it is understandable that he should have preferred not to determine that issue unless it was necessary to do so. This explains why he proceeded, as he manifestly did, by treating the confession evidence as admissible before coming to the issue of torture. If, as was the case, he reached the conclusion that notwithstanding the confession evidence there was no bribery, then the question whether that evidence was inadmissible because obtained by torture did not have to be decided. This also explains why the judge did not find in terms whether there was or was not torture, but instead left the matter open. Thus, he stated in para 101 that: I find that torture cannot be ruled out as a reason for the confessions. Similarly, in para 104 he stated that: it is not necessary to express a definitive conclusion on whether there was torture. I have said that I cannot rule it out. At para 105 he gave reasons why he considered that he should so confine my view. The Court of Appeal considered that, since the judge treated the confessions as admissible, he must have held that torture had not been proved on the balance of probabilities. We disagree. In our judgment, it is clear that the judge deliberately refrained from deciding that question. He considered that he did not need to decide it because he was in any event satisfied that there was no bribery. It is common for judges not to make findings on particular issues where to do so is unnecessary for the disposal of the case. As Davis LJ stated in refusing permission to appeal on the papers, in circumstances where the judge had decided that there was no bribery notwithstanding the confession evidence: there was no further requirement for the judge to make an express finding of whether or not there was also torture. He clearly had doubts on the matter; but he in terms stated that it was not necessary to reach a conclusion. We also note that the judges approach was consistent with the way in which Shagang put its case at trial. Its primary case was that, even taking the confession evidence at face value, it did not support HNAs pleaded case since it did not demonstrate the requisite inducement. Its secondary case was that such evidence was internally inconsistent, made no sense in the commercial context, and provided no or no sufficient basis for a finding of bribery. Its tertiary case was that if, contrary to both these arguments, the evidence did support a prima facie case of bribery, then it should be ruled inadmissible as having been procured by torture. In all the circumstances we do not consider the Court of Appeals criticism that the judge made an error by not deciding the issue of torture first to be justified. The approach taken was both legitimate and consistent with the way the case was put before him. We deal under the next heading with the Court of Appeals further criticism that the judge ought to have decided the weight to be given to the confession evidence before moving on to decide the primary factual issue of whether the alleged bribery occurred. (ii) Alleged failure to assess the weight of the confession evidence The Court of Appeal considered that the judge did not adequately address the weight to be given to the confession evidence, stating at para 77 that: he did not really address the point at all. He seems to have omitted that step in the argument. Once he found that the admissions had not been obtained by torture, if he was going to reject them as unreliable, he needed in our judgment to say why he was doing so. The nine factors relied upon by the judge in his conclusions on bribery may be summarised as follows: the confessions had been made without a lawyer present (para 89); the PSB officers present at the interrogations had not given any the fact of the confessions and the guilty plea of Mr Xu (para 88); the fact that all three individuals accused of bribery had retracted their i) ii) admissions and asserted their innocence privately (para 88); iii) iv) account which could be tested (para 90); v) the reason for the bribe given in the confessions, namely the need to conclude the charterparty speedily, was unconvincing, and the bribe made no sense commercially (para 91); vi) there was no evidence that the alleged bribe was ever received by Mr Jia H and the account of Mr Jia T in his confession on which HNA relied was that Mr Jia H had told him to return the bribe and abide by normal procedures (para 92); vii) and the chairman of HNA (para 92); viii) there was no evidence of withdrawal of funds used to pay the bribe or expenditure of those funds by Mr Jia T (para 93); and ix) confessions (paras 97 98). It is correct that the judge did not address the question of what weight should be given to the confession evidence as a separate step in his reasoning before going on to decide whether the alleged bribery had occurred. He did not refer to section 4 of the 1995 Act or to any of the considerations there set out. It is also fair to say that the charterparty was approved by an unconnected HNA board director the prospect of leniency was a credible reason for making false the judge stated his conclusions in what may be described as thumbnail terms without any detailed discussion of the evidence underlying them. It would have been much more satisfactory if he had dealt in more detail with the content of the confessions, the circumstances in which the confessions were made and other factors bearing directly on their reliability, such as the evidence that each of the individuals had told others their confessions were false, before bringing into consideration other factors bearing on the likelihood or otherwise that the confessions were truthful, such as the lack of any plausible commercial reason for paying a bribe. We do not accept, however, that the judge failed to address the question of what weight should be given to the confession evidence or to say why he rejected it as unreliable. The confession evidence was the first matter to which he referred in the reasons given for his conclusion that no bribe was paid. Furthermore, the judges second, third and fourth factors listed above all directly relate to the reliability and weight of that evidence. The third factor is of obvious importance. The right in most circumstances to consult a lawyer before police questioning is well recognised in this jurisdiction and under the European Convention on Human Rights. It is an important safeguard and incriminating evidence obtained without affording that opportunity will generally be inadmissible see section 58 of the Police and Criminal Evidence Act 1984 (PACE); Cadder v HM Advocate (HM Advocate General for Scotland intervening) [2010] UKSC 43; [2010] 1 WLR 2601. The judge was also entitled to attach weight to the fact that none of the PSB officers present at the interrogations had given any account which could be tested (his fourth factor). The Court of Appeal considered that this factor could only have been relevant to the question of whether the confessions were obtained by torture, and not to the question whether the confessions were otherwise reliable evidence of bribery. We disagree. It seems to us that there were many questions that it would have been relevant to ask the PSB officers had there been an opportunity to do so and the fact that such questions were unanswered was relevant, not only to the allegation of torture, but more generally to the reliability of the confession evidence and the weight that should be accorded to it. One obvious area of enquiry is what caused officers of the Haikou PSB to detain Mr Jia T and Mr Xu on bribery charges in the first place and whether they had any information to suggest that a bribe had been paid before Mr Jia T and Mr Xu made their confessions. There was no evidence at the trial that they did. Mr Wu in his testimony accepted that HNA had no evidence that Shagang had bribed anyone in relation to the charterparty when the PSB began its investigation. Nor did HNA ever acquire any such evidence apart from the confessions. None of the interrogation records and other documents relating to the PSB investigation and to the subsequent criminal proceedings against Mr Xu refers to any reason for suspecting Mr Jia T, Mr Xu or Mr Shen of bribery apart from their confessions, or records any question confronting any of them with any reason for suspicion. According to the first interrogation record of Mr Xu, for example, his initial confession came about in the following way. Having been asked about his personal details and background and told that he was under suspicion of bribery, Mr Xu was asked: Question: Do you have any criminal action, please explain? Answer: Yes, I have criminal action of bribery. Question: Please describe in detail your behaviour of bribery. Answer: Sure. In June 2008 [The confession then follows] While there are no doubt cases where individuals confess to crimes including crimes of dishonesty entirely of their own initiative, when there is no evidence to implicate them, such an occurrence raises questions about how the individual had come to be suspected of a criminal action of bribery, whether the interrogation records are complete and whether the suspect was offered any inducement or given any motive to confess. Quite apart from its relevance to the allegation of torture, the judge was entitled to regard the inability to test any account from any officer of the PSB of how the confessions had come about as tending to reduce the reliance he could reasonably place on the confession evidence. It is also important to bear in mind that the question whether the confession evidence was reliable and the question whether bribery had taken place were not merely inter related but, in the circumstances of this case, were simply different ways of framing the same issue. It was not disputed that Mr Xu, Mr Jia T and Mr Shen had made the confessions attributed to them in the interrogation records and that Mr Xu had pleaded guilty to an offence of bribing a non public servant. The issue was whether or not, when they made the confessions, these individuals were telling the truth. Furthermore, the confessions were the only evidence to support the allegation of bribery made by HNA. There was no evidence apart from the confession evidence to suggest that a bribe had been paid. In addressing the issue of bribery, the judge was therefore necessarily engaged in estimating the weight to be given to the confession evidence. It was the only matter to be put into the evidential scale on behalf of HNA. As part of the exercise of evaluating the weight to be given to the confession evidence, it was appropriate for the judge to consider the plausibility of the alleged bribe. The more implausible it was that a bribe had been paid, the less likely the confessions were to be true and therefore the less weight he should give to that evidence. A number of the factors identified by the judge went to the implausibility of any bribe and/or the alleged bribe having been paid, in particular his fifth to eighth factors. In summary, the explanation given for the bribe was unconvincing; bribery made no sense in the commercial context; the charterparty went through normal approval procedures; no one complained about the fixture for a considerable period of time and there were no documents to support the allegation, despite the fact that there had been a criminal investigation. The fact that the confession evidence may have been induced by the prospect of a lenient sentence was also relevant to the weight which it was appropriate to give that evidence the judges ninth factor. As already noted, there was evidence that all three individuals had offers of leniency made to them and of both Mr Xu and Mr Jia T saying: I am willing to truthfully confess, for leniency. In the interrogation record dated 4 March 2014 Mr Xu was recorded as stating: Being educated by the police officers, I fully realised my crimes. I am willing to truthfully confess my problems, for leniency. And I would like to give my appreciation to the Public Security Bureau for its lawful acts and protection of my rights. There was also the striking evidence of Mr Xu deciding, for reasons of leniency, to adhere to his original confession even after he had told his lawyer that it was false. As the judge found at para 38: Mr Xu explained a decision to adhere to his earlier account accepting guilt because it would lead to a much reduced sentence than if he contested the allegations and was found guilty. This evidence fell to be considered against the background evidence that in the region of 95% of criminal cases in China involve a confession, that it is normal for suspects to plead guilty and that Chinese courts very rarely hand down innocent verdicts. The attractions of leniency are clear if allegations are believed to be highly likely to lead to conviction in any event and to much greater punishment if they are denied. Whilst the Court of Appeal recognised that leniency could certainly have been a relevant factor, it pointed out that the judge had not found that the prospect of leniency was in fact a reason for false confessions having been made. It was not, however, necessary for the judge so to find. That it may have been a reason is sufficient for it to be relevant to an assessment of weight. The Court of Appeal also found it difficult to see why someone might make up something which was untrue in order to obtain a more lenient sentence. False confessions are, however, a known problem for criminal justice systems, and are a reason why in this jurisdiction there are important safeguards governing the admission of confession evidence see section 76 of the Police and Criminal Evidence Act 1984 (PACE). Indeed, as Davis LJ observed when refusing permission to appeal, under English law an indication of leniency such as those given in the present case would render the alleged confessions vulnerable under section 76 of PACE 1984 even as against the accused. It is a fortiori with regard to a third party (Shagang). For all these reasons, it is in our judgment clear that the judge did address the question of the weight to be given to the confession evidence. He also answered that question. In circumstances where that evidence was the only evidence of bribery, in finding that there was no bribery the judge was necessarily finding that the confession evidence was of little or no weight, as confirmed by his statement in para 102 that it will be apparent from my conclusions on bribery (above) that I already have insufficient confidence in the confessions to allow a finding of bribery. Moreover, it cannot be said that such a conclusion was unreasonable or unsustainable. There were ample grounds to support it. (iii) Alleged failure to take all appropriate matters into account The principal matters which HNA contended, and the Court of Appeal appears to have considered, that the judge failed to take into account are the details of the confessions made, including such matters as the content of each confession made by each individual, their timing, surrounding circumstances and how they tallied with one another. It is said, in particular, that the judge should have addressed each confession made by each of the three individuals rather than simply dealing with the matter compendiously. We agree that it would have been much more satisfactory for the judge to have addressed the confession evidence in greater detail. It is, however, apparent that those of his factors which went to the circumstances of the confessions (retraction, no lawyer present, no PBS evidence and offers of leniency) applied to all three individuals. His conclusions also have to be read together with the earlier part of his judgment, at paras 25 55, where he dealt in some detail with the confessions made by each individual. In assessing the reliability of the confession evidence, the judge can fairly be taken to have had this detail well in mind. Further, he addressed some issues relating to how the confession evidence tallied together at para 95. He also referred to the importance of the initial confessions, and the difficulty of formally resiling from them once they had been made, at para 103. This is not therefore a case in which it can be said that the judge failed to have any regard to material evidence. He clearly did consider the confession evidence of all three individuals. The real complaint is as to the degree of depth in which he did so and that he did not do so in a sufficiently systematic way. Such a shortcoming, whilst regrettable, does not involve an error of law or otherwise justify intervention by an appellate court. (iv) Whether the possibility of torture was irrelevant As mentioned, when he came to consider the allegations of torture, the judge found that torture cannot be ruled out as a reason for the confessions. He said that this further reduces the confidence that I can put in the confessions (para 102). The possibility that the confessions may have been obtained by torture therefore provided an additional ground for his conclusion that the confession evidence could not be relied on. The most striking criticism of the judges reasoning made by the Court of Appeal is that, in considering whether the alleged bribe was paid, the judge failed to exclude his lingering doubt as to whether the confessions were procured by torture. The Court of Appeal described the possibility of torture as an irrelevant matter (para 79) and considered that the judge ought not to have allowed his doubts about whether torture had occurred to infect his findings on the central issue in the case (para 69). The judge was clearly very troubled by the evidence of torture and, although he did not find it necessary to express a definitive conclusion on the question, his emphasis on his finding that he could not rule out torture as a reason for the confessions made it clear that he considered there to be at least a serious possibility that torture had been used. It is a general principle of the law of evidence that, in assessing what weight (if any) to give to evidence, a court should have regard to any matters from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. In the case of hearsay evidence in civil proceedings this principle is embodied in section 4 of the Civil Evidence Act 1995. Circumstances specifically listed in section 4(2) to which regard may be had include whether any person involved had any motive to conceal or misrepresent matters. It is difficult to think of a motive which would more seriously undermine the reliability of a confession than a desire to escape intense physical pain and suffering caused by torture. The Court of Appeal nevertheless held that to take account of such a possible motive is an error of law and contrary to the established rules of evidence in civil proceedings. In re B The argument made by HNA which persuaded the Court of Appeal to reach this conclusion was founded on passages in the judgments in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35; [2009] AC 11, a decision of the House of Lords. Lord Hoffmann said (at para 2): If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened. To similar effect, Baroness Hale observed (at para 32): In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. HNA argued and the Court of Appeal accepted that, applying this binary principle, the fact that the judge in the present case did not find that on the balance of probabilities the confessions had been obtained by torture was, in law, a finding that there was no torture (para 60). Hence, in estimating the weight to be attached to the confession evidence, the judge was bound entirely to disregard the possibility that the admissions had been obtained by torture and, to the extent that he took this possibility into account, he made an error of law. As already discussed, the judge expressly said that he had not reached any definitive conclusion on whether there was torture. He did not have to find for one side or the other on that question because he had already concluded that, notwithstanding the confession evidence, no bribe was paid. It was therefore unnecessary for him to decide one way or the other whether torture had occurred and he did not do so. The absence of a finding on that question is not the same as a finding that torture had not been proved on the balance of probabilities. Even if the binary principle operated in this context, therefore, the judge could not be treated as having, in law, made a finding that there was no torture. Nor, as the transcript makes clear, was it common ground that he had done so, as the Court of Appeal appears to have erroneously assumed (see para 3 of its judgment). This is a short answer to HNAs argument. Even if, however, the judge had reached a definite conclusion that the use of torture had not been proved on the balance of probabilities, there would have been no inconsistency between that conclusion and the judges finding that torture was a real possibility which affected the reliance that should be placed on the confessions. It is of course true that, as Lord Hoffmann observed in In re B, if a legal rule requires a fact to be proved, the law operates a binary system. So where it is necessary to prove a fact for the purpose of a rule governing the admissibility of evidence, there are only two possibilities: either the evidence is admissible or it is not, which depends on whether the fact has been proved or not. There is no room for a finding that the fact might have happened. But not all legal rules do require relevant facts to be proved in this binary way. In particular, the rule governing the assessment of the weight to be given to hearsay evidence in civil proceedings does not. It requires the court to have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence: see section 4(1) of the Civil Evidence Act 1995. Such circumstances are not limited to facts which have been proved to the civil standard of proof. HNAs argument depends on an assertion that, if failure to prove a fact to the requisite standard of proof requires a value of zero to be returned for the purpose of a particular legal rule, then that fact must be treated as not having happened for the purpose of other legal rules as well. But there is no logical reason why that should be so. Nor is there anything in In re B (or any other authority cited in these proceedings) which lends that notion any support. What was decided in In re B was that section 31(2)(a) of the Children Act 1989 requires any facts used as the basis of a prediction that a child is likely to suffer significant harm to be proved on the balance of probabilities, and that the assessment of the childs welfare required in care proceedings once the threshold in section 31(2) has been crossed must be conducted on the same factual basis as the determination of whether that threshold has been crossed. Hence, if a particular fact (in that case an allegation of sexual abuse) has not been proved, it must be treated as not having happened for the purposes of both section 31(2) and the assessment of the childs welfare. That is a decision about the meaning and effect of particular provisions of the Children Act. It does not establish any general principle that failure to prove that a fact happened for the purpose of a particular legal rule has the legal consequence that the fact must be treated as not having happened for all other purposes in the litigation. In particular, it provides no support for the proposition that failure to prove that a fact happened for the purpose of determining whether evidence is admissible has the legal consequence that the fact must be treated as not having happened for the purpose of assessing the weight to be given to the evidence, if it is admissible. Facts in issue Some confusion seems to have arisen in the arguments in this case from the use by Lord Hoffmann in the passage quoted above of the expression fact[s] in issue. This phrase commonly and in our view most usefully refers to those facts which as a matter of law it is necessary to prove in order to establish a claim or a defence: see eg Phipson on Evidence, 19th ed (2018), para 7 02; Cross and Tapper on Evidence, 13th ed (2018), p 30. That is how we shall use the expression in this judgment. Thus, for example, in the present case the facts that the charterparty and the guarantee were entered into and that Grand China failed to pay hire in accordance with the terms of the charterparty were all facts in issue which Shagang had to prove in order to establish its claim (until those facts were formally admitted by HNA). The fact that a bribe was paid by an employee of Shagang to an individual connected with HNA was also, and remained throughout the trial, a fact in issue which it was necessary for HNA to prove in order to establish a defence that the charterparty (and therefore its guarantee) was unenforceable by reason of bribery. Indeed, this was the key fact in issue in the case. On the other hand, the fact that torture was used to procure the confessions of Mr Xu, Mr Jia T and Mr Shen was not a fact in issue as we are using the term. There was no claim for relief made by Shagang for which it was legally necessary, in order for the claim to succeed, to prove that torture had been used by the PSB. It was therefore unnecessary for the judge to make any finding as to whether on the balance of probabilities torture had taken place in order to decide the facts in issue in the case. The requirement to discharge the legal burden of proof, which operates in a binary way, applies to facts in issue at a trial, but it does not apply to facts which make a fact in issue more or less probable. Lord Hoffmann was alert to this point in In re B as, immediately after the passage quoted above, he contrasted facts in issue with facts which merely form part of the material from which a fact in issue may be inferred, which need not each be proved to have happened (para 3). So, for example, in the present case (as already discussed) it was not necessary to prove that the prospect of leniency in fact caused the confessions to be made. That it may have done is sufficient to make it relevant to take into account in deciding whether a bribe had been paid. Judges need to take account, as best they can, of uncertainties and degrees of probability and improbability in estimating what weight to give to evidence in reaching their conclusions on whether facts in issue have been proved. It would be a mistake to treat assessments of relevance and weight as operating in a binary, all or nothing way. Preliminary facts In the present case the allegations of torture were relevant in two different ways. One was in assessing the likelihood or otherwise that the confessions were reliable and hence whether it was proved as a fact that a bribe had been paid. The other was in order to determine whether the confession evidence was admissible. Whilst the core purpose for which evidence is admissible in legal proceedings is that of proving or disproving facts in issue at a trial, it is also often necessary for a court to decide factual questions for the purpose of applying procedural and evidential rules. Facts which must be proved for such purposes have been called preliminary facts: see R Pattenden, The proof rules of pre verdict judicial fact finding in criminal trials by jury (2009) 125 LQR 79. The distinction between finding preliminary facts and finding facts in issue is embodied in criminal proceedings by the division of responsibilities between judge and jury. Although in civil proceedings both functions may be performed by the same person, the distinction is conceptually no less important. Examples of preliminary facts which may need to be determined in civil proceedings are: the fact that a communication between a lawyer and client was made in confidence for the purpose of giving or receiving legal advice (in order to decide whether the communication is protected by legal professional privilege); the fact that a person is capable of understanding the nature of an oath and of giving rational testimony (in order to decide whether the person is competent to testify as a witness); and facts which it is necessary to determine for the purpose of deciding whether evidence is admissible. In criminal proceedings where there is a division of function between judge and jury a factual finding made by the judge for a preliminary purpose such as determining whether evidence is admissible is not binding on (nor even generally known to) the jury when it is performing its task of deciding facts in issue in proceedings. So if, for example, the defence alleges that a confession was obtained by an improper threat and the judge finds that the prosecution (on whom the burden of proof lies) has proved beyond reasonable doubt that the confession was not so obtained, evidence of the confession will be admissible; but the jury at the trial will be free to make its own assessment of the facts and to reach a different conclusion on whether the alleged threat was or might have been made. In civil proceedings, at least in cases where both functions are performed by the same decision maker in the course of a single hearing, it seems to us that unlike at a jury trial there is a requirement of consistency in performing these functions. A judge could not rationally reach one factual conclusion for the preliminary purpose of deciding whether evidence is admissible and then, on the same evidence, reach a different factual conclusion for the purpose of deciding a fact in issue in proceedings. That would be illogical. But there is no inconsistency in finding that a factual allegation may well be true but has not been established on the balance of probabilities. Nor is there any reason why the fact that such a finding results in the admission of evidence (by reason of the burden and standard of proof governing its admissibility) should require the finding to be ignored when assessing the weight to be given to the evidence in deciding a fact in issue in proceedings. That would also be illogical. Evidence obtained by torture In the modern law of evidence relevance is the paramount consideration. The general test of whether evidence is admissible is whether it is relevant (or of more than minimal relevance) to the determination of any fact in issue in the proceedings. In the days when facts in civil as well as criminal cases were found by juries and there was fear that more weight would be given to certain kinds of evidence than they deserved, rules were developed to exclude reliance on evidence notwithstanding its relevance. The rule against hearsay is a classic example. The tendency of the law has been and continues to be towards the abolition of such rules. Thus, the rule excluding hearsay evidence has been abolished in civil proceedings. The modern approach is that judges (and, increasingly, juries) can be trusted to evaluate evidence in a rational manner, and that the ability of tribunals to find the true facts will be hindered and not helped if they are prevented from taking relevant evidence into account by exclusionary rules. There are now very few categories of relevant evidence which are inadmissible in civil proceedings, but one such category is evidence obtained by torture. Article 15 of the United Nations Convention Against Torture 1984 imposes an international obligation on state parties to ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. In A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221 a seven member appellate committee of the House of Lords unanimously held that it is also a rule of the common law that evidence obtained by torture is inadmissible in judicial proceedings. A minority (of three members of the committee) would have held that it was sufficient to render evidence inadmissible that there was a real risk that it was obtained by torture. However, it was decided by the majority that the test for this purpose is proof on a balance of probabilities. It is accordingly settled law, and common ground in this case, that if it is proved on a balance of probabilities that a confession (or other statement) on which a party wishes to rely in legal proceedings was made as a result of torture, evidence of the statement is not admissible and must be excluded from consideration altogether when deciding the facts in issue. The total exclusion of evidence shown to have been obtained by torture is not justified on grounds of relevance alone. As the judgments in In re A (No 2) make clear, the exclusion is founded also on reasons of public policy and morality. In the words of Lord Hope at para 112: The use of such evidence is excluded not on grounds of its unreliability if that was the only objection to it, it would go to its weight, not to its admissibility but on grounds of its barbarism, its illegality and its inhumanity. The law will not lend its support to the use of torture for any purpose whatever. It does not follow, and there is no rule, that if it is not proved on a balance of probabilities that a statement was made as a result of torture, evidence that torture was used is not admissible and must be ignored when deciding the facts in issue. There is no legal or logical reason for treating such evidence as inadmissible and good reason to treat it as admissible given its obvious relevance. We go further. A rule that required a court, in assessing the reliability of a confession, to disregard entirely evidence which discloses a serious possibility that the confession was made as a result of torture would not only be irrational; it would also be inconsistent with the moral principles which underpin the exclusionary rule. As Mr Jaffey QC observed in his helpful submissions on behalf of Liberty as an intervenor on this appeal, even when there are reasonable grounds for suspecting that torture has been practised, its use is often inherently difficult to prove because it tends to happen in secret, where there are no safeguards such as the recording of interviews or the presence of a legal representative, and often involves techniques which leave no lasting marks. A rule which excluded evidence that a confession has been obtained by torture unless this has been proved on a balance of probabilities would be calculated positively to encourage the practice of torture to obtain evidence for use in legal proceedings, provided that it is done in a way which is deniable. It would also put evidence that may have been obtained by torture in a uniquely advantageous position, since as counsel for HNA rightly accepted no such rule applies to a possibility that a confession was obtained by ill treatment less severe than torture or by other forms of oppression or inducement. Granting a special dispensation for evidence that may have been obtained by torture would turn the law in this area upside down. In In re A (No 2) the majority of the House of Lords who did not accept that a real risk that evidence was obtained by torture was sufficient to justify its exclusion nevertheless made it clear that such a risk would need to be taken into account in evaluating the evidence. Thus, Lord Hope said (at para 118): So SIAC should not admit the evidence if it concludes on a balance of probabilities that it was obtained by torture. In other words, if SIAC is left in doubt as to whether the evidence was obtained in this way, it should admit it. But it must bear its doubt in mind when it is evaluating the evidence. (Emphasis added) The other judges in the majority agreed with this observation: see paras 141 142 and 145 (Lord Rodger), para 158 (Lord Carswell) and para 173 (Lord Brown). There has been much argument devoted in this case to whether, as HNA contended and the Court of Appeal thought, the relevant passages in the judgments in In re A (No 2) were confined to the context of proceedings in the Special Immigration Appeals Commission (SIAC). We accept that there were conclusions reached in In re A (No 2), including conclusions about the applicable burden and standard of proof, which were specific to that context. However, the observations that, when evaluating evidence which although admissible may have been obtained by torture, a tribunal should bear that possibility in mind are not related to any special feature of SIAC and are no more, in our view, than a reminder of the approach which should rationally be adopted in evaluating such evidence. Conclusion on evidence of torture We conclude that the Court of Appeal was wrong to hold that, if the use of torture has not been proved on the balance of probabilities, a serious possibility that a statement was obtained by torture must be ignored by a court in estimating the weight to be given to the statement. Such an approach is contrary to principle. The true position is that, where there are reasonable grounds for suspecting that a statement was obtained by torture, this is a matter which a judge can and should take into account, along with all other relevant circumstances, in assessing the reliability of the statement as evidence of the facts stated. It follows that in the present case the judge was entitled to rely, as he did, on his finding that torture could not be ruled out as providing further support for the conclusion he had already reached that there was no bribe paid by Mr Xu. Evidence admitted on appeal The Court of Appeal allowed an application by HNA to adduce new evidence in the form of a complaint made by Mr Zhang to the Peoples Procuratorate of Haikou City and the report of the Procuratorate in June 2014 into the outcome of its investigation into this complaint (referred to at paras 20 and 21 above), together with a report of a medical examination of Mr Xu on his arrival at a detention centre on 23 July 2014 (which did not record any injury). The Court of Appeal did not find that this new evidence was a reason to overturn the judges decision. Having reviewed this evidence ourselves, we can see that it would have been relevant to consider it in deciding whether torture had been proved on the balance of probabilities. However, as discussed, the judge did not decide that question. We think it inconceivable that, if this evidence had been available at the trial, it might have affected the judges conclusion that torture could not be ruled out. The most material new document was the investigation report. The report is, however, written in very general terms and adds little or nothing of substance to the record of the interrogation of Mr Xu on 6 June 2014 carried out for the purpose of that investigation and Mr Xus own account of the same occasion given to Mr Guo on 15 September 2014, both of which were in evidence at the trial. The fact that further evidence was admitted in the Court of Appeal therefore makes no difference to our conclusions. The causation issue In the Court of Appeal Shagang argued that, even if the judges finding that no bribe had been paid could not be sustained, his decision should be upheld on the ground that there was no sufficient causal connection between the alleged bribe and Grand Chinas entry into the charterparty. The Court of Appeal rejected that argument. On this appeal it was common ground that, if it became necessary to decide that issue, it would have to be determined at a further trial. As it is unnecessary to remit the case for any further hearing, the issue does not arise. Had it arisen, it was common ground that the observations at paras 84 85 of the judgment of the Court of Appeal had not decided the question. Overall conclusion The judgment which has given rise to an appeal and second appeal in this case is short, running to 16 pages. As Males LJ observed in Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413; [2019] 4 WLR 112 at para 46: succinctness is as desirable in a judgment as it is in counsels submissions, but short judgments must be careful judgments. In this case it is right to observe that the judges reasoning is not merely succinct but sparse. The judgment contains no sustained analysis of the main evidence and arguments. In particular, the judge did not spell out the fact that he was admitting the confession evidence de bene esse, did not in his essential reasoning discuss the confession evidence in any detail and did not directly address the reliance placed by HNA on the fact that three individuals had separately confessed. It is important to make it plain to the losing party that its case has been fully considered and to leave no doubt about the reasons which have led to its rejection. In this case the judge approached this task in too cursory a manner. This can only encourage appeals. The question on an appeal, however, is whether the decision was wrong. For the reasons we have given, none of the key criticisms which led the Court of Appeal to decide that the judges decision is unsustainable and ought to be set aside has been made out. In the final analysis the judge did identify reasons for reaching the conclusion that bribery had not been established and those reasons are sufficient to support that conclusion. It has not been shown that the judge made an error of law or that he reached a conclusion in his evaluation of the facts which no reasonable judge could have reached. Furthermore, the approach adopted by the Court of Appeal to reliance on evidence that statements were made as a result of torture was itself erroneous. The judge was entitled to rely on his finding that torture could not be ruled out as a reason for the confessions as providing additional support for his conclusion that no bribe had been paid. The appeal must therefore be allowed and the judgment in favour of Shagang restored. |
Subsets and Splits